Court of Appeal for Ontario

Date: 20240815 Docket: M55072, M55085, M55089, M55095, M55104, M55109, M55111, M55112, M55114, M55141, M55142, M55145 & M55146 (COA-24-CV-0058)

Before: Miller J.A. (Motions Judge)

Between: Fair Voting BC and Springtide Collective for Democracy Society Applicants (Appellants)

And: Attorney General of Canada Respondent (Respondent)

And: Electoral Reform Society (UK), The Apathy Is Boring Project, Fair Vote Canada, and Canadian Constitution Foundation Interveners

Counsel: Nicolas M. Rouleau, for the appellants/responding parties Emily Atkinson and Renuka Koilpillai, for the respondent/responding party W. David Rankin and Ankita Gupta, for the proposed intervener Canadian Lawyers for International Human Rights (M55072) Jeffrey J. Nieuwenburg, for the proposed intervener Fair Vote Canada (M55085) David Wright, Chris Bryden and Rebecca Jones, for the proposed intervener The Ontario Federation of Labour (M55089) Steve Tenai and Matthew Patterson, for the proposed intervener Animal Protection Party of Canada (M55095) Asher G. Honickman, for the proposed intervener Canadian Constitution Foundation (M55104) Sujit Choudhry and Michael Pal, for the proposed intervener South Asian Legal Clinic of Ontario (M55109) Vibhu Sharma, for the proposed intervener Samara Centre for Democracy (M55111) David Baker, for the proposed intervener Democracy Watch (M55112) Mae J. Nam, Laura R. Johnson and Anson Cai, for the proposed intervener Urban Alliance on Race Relations (M55114) Ted Brook and Sarah McCalla, for the proposed intervener The Apathy Is Boring Project (M55141) Tina Lie and Mariam Moktar, for the proposed intervener Women’s Legal Education and Action Fund Inc. (M55142) Ewa Krajewska and Brian M. Studniberg, for the proposed intervener British Columbia Civil Liberties Association (M55145) Meaghan Daniel, for the proposed intervener Aboriginal Council of Winnipeg (M55146)

Heard: in writing

Endorsement

[1] Thirteen groups have brought motions for leave to intervene in a proceeding that challenges the constitutionality of Canada’s single member plurality (“SMP”) electoral system.

[2] The appellants challenged various provisions of the Canada Elections Act, S.C. 2000, c.9 (“CEA”) as inconsistent with both ss. 3 and 15(1) of the Charter of Rights and Freedoms. The application was dismissed and the applicants have appealed to this court. The appeal has been listed for hearing on November 5, 2024.

[3] The argument advanced in the Superior Court was, in brief, that: (1) SMP infringes s. 3’s right to vote on the basis that it does not provide either the “effective representation” or “meaningful participation” that the Supreme Court has stated is entailed by s. 3: Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; and (2) SMP infringes s. 15(1)’s anti-discrimination provision in that it causes small political parties and their constituents to be underrepresented in Parliament, resulting in discrimination on the basis of the analogous ground of “political affiliation”, and that it results in the underrepresentation of women and racial minorities in Parliament.

A. The scope of the appeal

[4] With respect to s. 3 of the Charter, the appellants will argue on appeal that the application judge misapprehended the concepts of “effective representation” and “meaningful participation”; wrongly imported s. 1 considerations into the determination of whether s. 3 had been infringed; and misapprehended the applicants’ submission as seeking the imposition of a particular electoral system as a remedy.

[5] Additionally, the appellants will argue that the application judge erred in several respects in concluding that SMP does not infringe s. 15(1) rights. The proposed argument claims the application judge erred in failing to find a causal nexus between SMP and lower levels of representation of women and racial minorities in Parliament. The appellants will also argue in the alternative that political affiliation is analogous to the grounds of discrimination enumerated in s. 15(1), and that SMP wrongfully discriminates against persons who would vote for small parties.

[6] With respect to the Constitution Act, 1867, the appellants will argue that the application judge erred in finding that the Constitution Act, 1867 specifically calls for SMP.

[7] Given the application judge’s findings that the impugned sections of the CEA did not limit anyone’s Charter rights, he did not engage in a s. 1 analysis to determine whether the limits imposed were justified. The appellants will argue on appeal that the provisions fail the minimal impairment branch of the Oakes test because the record establishes that other electoral systems are available that do not unreasonably limit rights.

B. The test for leave to intervene

[8] Thirteen groups seek leave to intervene as a friend of the court. The appellant consents to all the proposed interventions. The respondent takes no position on the proposed interventions, provided that certain terms are imposed on their participation. The consent and lack of opposition communicates to the court that in the parties’ estimation, each group satisfies the test for leave to intervene. That said, the determination of that question must, of course, be made by the court.

[9] In determining motions for leave to intervene as a friend of the court, the court will generally consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (C.A.), at p. 167. The test for granting motions for leave in constitutional cases is more relaxed than in litigation between private parties: Peel, p. 167. The reason is that the object of constitutional litigation is not to ascertain whether one private party owes a legal duty to another, but to invalidate legislation that was presumably enacted for the common good. The prospective invalidation of that legislation will necessarily impact a broad class of persons who were intended to benefit from that legislation; perhaps, as in this case, every member of the political community. This wide impact on the rights of others – an impact ordinarily reserved to the legislative sphere – suggests that those others should have some opportunity to be heard. Although courts are not a representative institution and do not have the same institutional capacity as Parliament to hear competing voices, interventions are in part intended to ameliorate the problem of not having a say in litigation that will potentially alter one’s legal rights and obligations, and potentially alter it in a way that puts the question outside the reach of a future Parliament.

[10] That said, there are necessary limits to the scope of intervention, limits that are set by the nature of the issues before the court and the adjudicative context: “every concerned citizen willing to devote time and resources to a matter cannot be granted a participatory role without impairing the effectiveness of the judicial process. Therefore, some line-drawing is inevitable”: Ontario (Attorney General) v. Dieleman (1993), 16 O.R. (3d) 32 (Gen. Div.), p. 36. Most obviously, court time is limited and this warrants limiting interventions to those groups who are likely “to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada, (1990), 74 O.R. (2d) 164, at p. 167.

[11] Central to the test in Peel is whether the proposed intervener will likely make a useful contribution to the litigation. Although previous cases have identified three factors as helpful to determining whether an applicant will likely make a useful contribution, the presence or absence of any of them is not determinative: (1) the applicant has a real, substantial, and identifiable interest in the subject matter of the proceeding; (2) the applicant has an important perspective distinct from the immediate parties; or (3) the applicant has special expertise: Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, para. 2. These are non‑exclusive factors in the service of answering the ultimate question: will the applicant likely make a useful contribution.

[12] On the question of what constitutes a “useful contribution”, the Federal Court of Appeal in Ishaq v. Canada (Citizenship and Immigration), 2015 FCA 151, [2016] 1 F.C.R. 686, at paras. 9-10, has provided helpful guidance:

This factor really matters. Time and time again, applicants fail to address whether they will advance different and valuable insights and perspectives that will actually further the Court’s determination of the matter. Instead, often they stress their lofty aims, good policy work and previous valuable interventions. Others raise issues that they find interesting but have nothing at all to do with the case. Some promise in one paragraph that they will take the evidentiary record as they find it but then in the next paragraph offer arguments dependent on facts absent from the evidentiary record. Still others assure us that if admitted to the proceedings they will have something important to say, but they don’t tell us what they will say. Sometimes we get words that sound nice but don’t really mean much at all. And sometimes we are confused for legislators or constitutional framers who can enshrine grand policies into law.

Applicants that are successful investigate the evidentiary record and the specific issues in the case, enabling them to offer much detail and particularity on how they will assist the Court. They know that success depends upon the extent to which they can hone into the true nature of the case, locating the particular itch in the case that needs to be scratched, and telling us specifically how they will go about scratching it.

[13] Submissions that are duplicative of the submissions of others are not useful, and can in fact imperil the fairness of the hearing. The point, once again, has been well expressed by Stratas J.A. in Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67, at para. 15:

[F]airness and impartiality are damaged, sometimes severely, when the Court admits too many interveners on only one side of the debate, all pushing for the same outcome. If the Court ultimately adopts that outcome, fair-minded lay observers might well believe that the imbalance of voices on one side of the courtroom and their amplification through frequent repetition—all set up by the Court’s decisions on intervention—may have carried the day.

C. Application of these principles

[14] In this case, there are 13 proposed intervenors, 12 of whom are aligned with the appellants. A constitutional challenge to the electoral system necessarily has a wide impact, and it is to be expected that a great many organizations could plausibly claim a real and substantial interest in the subject matter. Some may also have a degree of expertise on the questions at issue. But even where these criteria are met, it is nevertheless necessary – particularly where there are so many proposed interveners, and so many aligned on one side – to deny intervenor status to those proposed intervenors which have not established that they have a distinct perspective and will not merely duplicate the submissions of others.

[15] The Aboriginal Council of Winnipeg proposes to make submissions both with respect to s. 3 and s. 15(1). Its submissions will focus on the negative effects of SMP on diluting the voice of geographically dispersed Indigenous peoples, and on the adverse impact of s. 15(1) on the underrepresentation of Indigenous peoples in political office. I am satisfied that the Aboriginal Council of Winnipeg has a substantial interest in the substance of the litigation, and can advance a unique perspective on the constitutional issues that is distinct from the appellant’s, without expanding the scope of the appeal. Its motion is allowed.

[16] Canadian Lawyers for International Human Rights intend to argue that instruments of international law can inform whether political affiliation or political beliefs can constitute analogous grounds of discrimination under s. 15(1), and the scope of the government obligation to ensure equal access to political participation by social groups that face particular obstacles. This appears to be a unique perspective on the issues framed by the appellant and the submissions can accordingly be useful to the court. Its motion is allowed.

[17] The Canadian Constitution Foundation is the only proposed intervener aligned with the respondent. It intends to argue that SMP has constitutional status and the challenged provisions of the CEA are immune from Charter scrutiny. This is not an argument advanced by others, and its contribution will provide some measure of balance among the interveners. Its motion is allowed.

[18] South Asian Legal Clinic of Ontario takes up the same issues as the Canadian Constitution Foundation, but proposes a narrowly tailored argument to the contrary. Its motion is allowed.

[19] Fair Vote Canada is a national campaign for the adoption of proportional representation. Its proposed submissions are in some respects indistinguishable from the appellants, but it promises to add a focus on the constitutional relevance of the historical context of the adoption of SMP. Unlike other proposed interveners, electoral reform is its entire reason for being and its interest in the issues is equal to that of the appellants. Its motion is allowed.

[20] The Women’s Legal Education and Action Fund has significant interest and experience in the interpretation of s. 15(1) of the Charter, and particularly in advocating for the adoption of “substantive equality” as a dominant concept in s. 15(1) doctrine, and explaining what that concept means. Its proposed application of that doctrine in the context of the appeal is appropriately a matter of refining and supplementing arguments raised by the parties, without merely repeating them. Its motion is allowed.

[21] The motions to intervene brought by the remaining groups - the Animal Protection Party of Canada, the British Columbia Civil Liberties Association, Democracy Watch, Ontario Federation of Labour, Samara Centre for Democracy, The Apathy is Boring Project, and Urban Alliance on Race Relations – are all dismissed. The proposed submissions of these groups all suffered from the same defect of essentially repeating the submissions of the appellants. Where there is a plethora of groups seeking leave to intervene, and where those groups all crowd into the same conceptual space to argue for the same end, it would be unhelpful and unfair to grant leave.

D. Disposition

[22] The groups that are granted leave to intervene are to intervene as friends of the court. They are not permitted to add to the appeal record.

[23] Each intervener may file with the court a factum not to exceed 10 pages by August 30, 2024.

[24] The appellants may file a factum responding to the interveners of no more than 5 pages by September 16, 2024.

[25] The respondents may file a factum responding to the interveners of no more than 25 pages by 30 September, 2024.

[26] Each intervener shall have 10 minutes to make oral submissions at the hearing of the appeal.

[27] The appellants are granted an additional 10 minutes for reply, if needed.

[28] The respondent is granted an additional 30 minutes for oral argument.

[29] There shall be no order as to costs in favour of or against the interveners.

“B.W. Miller J.A.”