Fair Voting BC: The Charter, Courts, and Election Law

This comment on the decision of the Court of Appeal for Ontario’s decision in Fair Voting BC praises the Court for declining the invitation to extend the meaning of the right to vote protected by the Canadian Charter of Rights and Freedoms. The Court correctly holds Constitution of Canada says what it says, and not what an activist for one cause or another might wish it to say. The guarantee of the right to vote cannot be transfigured into a promise of aggregating individual votes in a specific manner in the name of an extra-textual promise of “effective representation.” The comment then notes that this approach to the Constitution of Canada does not entail a deferential or narrow role for the courts. Although they are not at liberty to impose extra-constitutional constraints on legislation, courts must vigorously enforce those that already exist. This means they can and must play an important role in ensuring the constitutionality of electoral arrangements, whether in relation to apportionment, the voters' ability to cast a ballot, restrictions on political speech, etc.