Not surprisingly, the decision did not support our motion to have the electoral system declared unconstitutional.  However, In rendering his decision, Judge Dufresne did assert that the lower court judge had erred when saying our case wasn’t judicable.

In summary, the Appeal Court accepted what was obvious, the first-past-the-post voting system distorts the popular vote, but declared that this in itself wasn’t sufficient to grant our motion since all voting systems produce distortions.

Well then, what about the scale of the distortions and the manner in which they are produced?  We provided expert testimony that demonstrates that the level of distortion is beyond that of the distortions caused by other electoral practices and were subsequently declared unconstitutional and that the manner in which it is done is unclear violation of the equality guarantees of the Charter.

No matter, this evidence wasn’t given proper consideration.  In the lower court decision not a word was devoted to our most compelling evidence in the analysis and the Appeal Court Judges decided that this slight of hand did not constitute a judicial error.

Again, we would accept the decision if it had been demonstrated that we had erred in claiming that the fact that first-past-the-post denied effective representation to as many as a million voters that voted for the Greens in the 2008 federal election was an infringement of their democratic rights guaranteed by the Canadian Charter of Rights and Freedoms.

But this was not done.  They simply dodged this inconvenient fact with dismissive silence concerning how such an electoral anomaly could be countenanced.  To date, the contestable prejudice caused to those who have their votes discarded by an electoral system that is unique in that it doesn’t possess a mechanism to aggregate votes or voting preferences has not been addressed and thus gives us grounds for an appeal.

Moreover, Judge Dufresne went on to make two outlandish statements that suggests that he doesn’t believe that fundamental democratic principles apply to the Charter Right to effective representation.

The first was to suggest that the fact that the reversal of the democratic result of the Quebec 1966 and 1998 general elections (the party that won less votes than another went on to form a majority government) and the fact that almost a million voters who voted Green did not gain any representation in the 2008 federal election did not constitute an impairment of effective representation.  At the same time, Judge Dufresne uses a statistical outlier, a once-in-a-hundred year electoral result from the 2007 Quebec General Election (the three major parties gained more or less representation proportional to the popular vote) to demonstrate that the distortions inherent to first-past-the-post are not systemic, yet he ignored that two smaller parties that together garnered 7% of the vote in 2007 were denied any representation at all.

He then suggests that the most recent federal election in which the Conservatives form a majority government with only 39% of the popular vote and in Quebec the Bloc is reduced only 4 out of 75 seats despite amassing 25% of the popular vote while the the NDP gains 70% of the seats with only approximately 40% of the vote is evidence to the contrary.  In making such a claim, Judge Dufresne again asserts that effective representation does not require that each and every vote carries relative equal weight.

One has to wonder what is the frame of reference being used to apply the concept of effective representation for each and every citizen.  Do the egalitarian values inherent to democracy enter the equation?  Apparently not in Quebec at this time.

Consequently, we will be filing an appeal to have our case heard at the Supreme Court of Canada.

Respectfully,

Brian Gibb