B. Regulating the Electoral Process

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Cases such as Sauvé v Canada (Chief Electoral Officer), discussed in the previous section, involve direct restrictions on the right to vote. The infringement of section 3 in that case was obvious, and the debate between the majority and the minority of the Supreme Court focused on the justification of the infringement under section 1 of the Charter. In a democracy, however, the effectiveness of each vote cast depends in large measure on the electoral system created and regulated by the government. The drawing of electoral boundaries, limitations on third party advertising, and restrictions on the availability of funding and other privileges to political parties are all issues that have led to cases that have asked the courts to scrutinize the constitutionality of the electoral process. Because the effect of such regulation on the right to vote or to run for office is indirect, and therefore much harder to gauge than in voter qualification cases, the Supreme Court has been forced to flesh out in greater detail the content of the section 3 right. In three key cases in this area, the Court has defined the section 3 right broadly, finding violations when an individual’s right to "effective participation" or the right to play a "meaningful role" in the electoral process has been infringed. At the same time, however, it has endorsed the "egalitarian" model of elections that permits regulation aimed at ensuring that each

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individual has an equal opportunity to participate in the electoral process. Unlike the so-called "libertarian" model, the egalitarian model allows for measures such as spending limits to prevent the wealthy from monopolizing political debate.

1) Electoral Boundaries

The Canadian electoral system is based on territorial representation at both the federal and the provincial levels. Individuals vote for a member to represent their constituency in the provincial legislature or the House of Commons. The government is selected on the basis of having the support of a majority of elected members in the House. The Canadian system is also a first-past-the-post system, with the individual who receives the greatest number of votes winning the seat, even if he or she did not garner a majority of the votes.

Other countries have quite different electoral systems. Some use proportional representation of parties based on the percentage of votes received, with members of the legislature selected from party lists. Members are not necessarily attached to a particular constituency. Other systems also use proportional representation but still provide for the election of members in a particular constituency.

The rationale for proportional representation is to ensure, to the extent possible, that every vote is reflected by the members elected. On the other hand, the rationale for electing members from a geographic constituency is to facilitate legislative representation of interests of the particular geographic riding, while also ensuring that an elected member is available to play a problem-solving role for the citizens he or she represents.

In the Canadian system and others based on territorial representation, difficult issues arise when drawing electoral boundaries for constituencies. Should the goal be an equal number of voters in each constituency? Should there be departures from that goal in order to serve other interests - for example, to recognize the distinctive interests of communities, or to facilitate travel and contact between voters and their representative? Traditionally, rural voters were thought to have different concerns than urban voters, and electoral boundaries were drawn accordingly. With the increasing ethnic diversity in Canadian society, it might be argued that electoral lines should be drawn so as to maximize the opportunity for an ethnic or religious group to vote for a member of its community, rather than dispersing the votes among other ethnic and religious communities where they would have less voting power should the group choose to vote as a block. One might

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argue that it is justifiable that rural or northern constituencies have smaller numbers of voters than urban ones because of the difficulties of campaigning and maintaining contact in less-populated areas.

Inevitably, the drawing of electoral-boundary lines raises the spectre of "gerrymandering," a term that connotes the exercise of distasteful self-interest on the part of those in control of the process. Not surprisingly, political incumbents have an interest in drawing boundaries in ways that can help them and undermine support for their opponents. Where the process of constituency line drawing is left to politicians, rather than independent electoral-boundary commissions, there may be good reason for the courts to scrutinize the fairness of the outcome. But no matter the process, one cannot avoid difficult and debatable decisions about the size and design of constituencies. The courts have a delicate role in deciding when the electoral system improperly undermines the right to vote, guaranteed under section 3 of the Charter.

The most significant decision to date is that of the Supreme Court of Canada in the Reference Re Provincial Electoral Boundaries (Saskatchewan).16Saskatchewan had established an independent electoral-boundaries commission but had also set a strict quota of urban and rural seats and required that the boundaries of urban ridings coincide with the existing boundaries of municipalities. Aside from two sparsely populated northern ridings, the ridings under consideration were within plus or minus 25 percent of the "provincial quotient," the figure determined by dividing the provincial voting population by the number of ridings.

While the Supreme Court of Canada split 6:3 in upholding the boundaries, all the judges agreed on the general principles underlying the right to vote espoused by the majority judgment of MCLACHLIN J. In reasons supported by four others, she described the meaning of the right to vote as "not equality of voting power per se, but the right to ‘effective representation.’"17The conditions of "effective representation" included not only relative parity of voting power (so that the weight of an individual’s vote would not be unduly diluted) but also factors important to "fair" representation of Canada’s diversity. In her words,

Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic.18

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Justice MCLACHLIN expressly rejected the American model of "one person, one vote," arguing that it is neither consistent with Canadian history nor a practical alternative in the search for effective representation in a country like Canada:

Respect for individual dignity and social equality mandate that citizens’ votes not be unduly debased or diluted. But the need to recognize cultural and group identity and to enhance the participation of individuals...

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