Court File and Parties

COURT FILE NO.: CV-19-00628833-0000 DATE: 20230406 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Fair Voting BC and Springtide Collective For Democracy Society, Applicants -and- Attorney General of Canada, Respondent

BEFORE: Robert Centa J.

COUNSEL: Nicolas M. Rouleau, for the applicant Andrew Law, for the respondent Ted Brook and Sarah McCalla, for the proposed intervener Apathy is Boring Kristopher Kinsinger, for the proposed intervener Canadian Constitution Foundation Scott Fairley and Meryl Morant, for the proposed intervener Electoral Reform Society (UK) Jeffrey Niewenburg, for the proposed intervener Fair Vote Canada

HEARD: April 5, 2023

Endorsement

[1] Fair Voting BC and the Springtide Collective for Democracy Society have commenced an application to challenge the constitutionality of two provisions of the Canada Elections Act, S.C. 2000, c. 9. The applicants allege that these provisions, which establish the “first-past-the-post” electoral system, violate ss. 3 and 15(1) of the Canadian Charter of Rights and Freedoms.

[2] Four organizations have sought leave to intervene in this proceeding:

a. Apathy is Boring is a non-partisan registered charity that works to support and educate youth to become active and contributing citizens in Canada’s democracy (“AIB”);

b. The Canadian Constitution Foundation is a national and non-partisan registered charity that engages issues of constitutional law through public education, communication, and litigation (“CCF”);

c. Electoral Reform Society (UK) is a not-for profit incorporated in the 19th century under the laws of the United Kingdom. ERS UK has been engaged since that time in work around the electoral systems in the United Kingdom; and

d. Fair Vote Canada is a national non-profit organization based in British Columbia. FVC is a different entity than the applicant, Fair Vote BC. The two organizations do not have a direct relationship but have worked together from time-to-time on matters of shared interest.

[3] For the reasons that follow, I grant leave to each of the AIB, CCF, ERS UK, and FVC to intervene as a friend of the court, to file a factum, and to make time-limited oral submissions. I will not grant leave for any intervener to file additional evidence.

Background

[4] In 2019, the applicants commenced this application seeking a declaration that s. 2(1), which is the definitions section, and s. 313 of the Canada Elections Act, S.C. 2000, c. 9, violate the Charter. Section 313 provides as follows:

313(1) The returning officer, without delay after the sixth day that follows the completion of the validation of results or, if there is a recount, without delay after receiving the certificate referred to in section 308, shall declare elected the candidate who obtained the largest number of votes by completing the return of the writ in the prescribed form on the back of the writ.

(2) If there is an equality of votes between the candidates with the largest number of votes, the returning officer shall indicate that on the return of the writ.

[5] The applicants submit that these provisions violate the rights to meaningful participation, fair and legitimate elections, and effective representation contrary to s. 3 of the Charter. They also submit that the provisions violate s. 15(1) of the Charter on the basis of political affiliation or belief. They submit that neither violation is justified under s. 1 of the Charter.

[6] This matter came before me in Civil Practice Court on October 4, 2022. At that time, I set the application down to be heard for three days on September 25 to 27, 2023. I was advised that the applicant had already delivered its application record on May 10, 2021. The record included 12 affidavits, four of which were delivered by expert witnesses.

[7] The Attorney General delivered his responding record on October 7, 2022. The responding record included four expert affidavits.

[8] I set a timetable that would see the reply record delivered on or before December 31, 2022, cross-examinations to be completed by March 10, 2023, and see the applicants deliver their factum on June 16, 2023, and the Attorney General deliver the responding factum on August 15, 2023.

[9] At Civil Practice Court, the parties advised that they anticipated that there may be one or more applications for leave to intervene. I ordered that any person wishing to intervene must notify counsel for the parties of their intention to intervene and provide a summary of the intended submissions on or before January 31, 2023.

[10] The four proposed interveners provided notice of their intention to intervene to counsel for the parties. I convened a case conference on February 28, 2023, and set a timetable for the exchange of material on the motions for leave to intervene.

[11] I convened a case conference on April 5, 2023, to permit the parties and proposed interveners to augment their written submissions and to answer some of my questions.

Applicable rules

[12] Rule 13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 addresses interventions. Rule 13.01 outlines the circumstances in which non-parties may intervene as added parties, provided that they will not unduly delay or prejudice the determination of the rights of the original parties. Among the proposed interveners, only ERS UK seeks leave to intervene as an added party. Rule 13.01 provides:

13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

[13] Rule 13.02 provides that non-parties may be granted leave to intervene as a friend of the court for the purpose of rendering assistance to the court. In this case AIB, CCF, and FVC all seek leave to intervene as a friend of the court. In the alternative to its main submission, ERS UK also seeks leave to intervene as a friend of the court. Rule 13.02 provides:

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[14] The primary difference between being added as a party or as a friend of the court is that an intervening party has full rights to file material and cross-examine on affidavits, whereas a friend of the court typically takes the factual record that has been generated by the parties. [1]

[15] In determining these motions, I must consider the general nature of the case, the issues that arise in the case, and the contribution that the proposed intervener can make to resolving those issues without doing an injustice to the parties. [2]

Electoral Reform Society UK

[16] The ERS UK states that it is the longest-standing pro-democracy organization in the world and works alongside parties, politicians, academics, and other campaigners across the United Kingdom to secure change to its electoral system from a first-past-the-post system to a proportional representation system. ERS UK indicates that it “is interested in this application as the Canadian system represents perhaps the closest comparable political system with the first-past-the-post system of the Westminster Parliament in the UK” and that “the electoral system in Canada being challenged is inherited from and based on the system of Westminster which it is the ERS’ primary goal is to reform.” ERS UK describes itself as a “stakeholder in the results of this case as a positive precedent can and will aid the electoral reform effort of the ERS in the UK.”

Leave to intervene as a party

[17] ERS UK seeks leave to be added as a party so that the court has the benefit of:

a. a balanced and comprehensive factual record concerning the operation and effect of voting systems such as first-past-the-post as well as other electoral models that systems of PR can provide;

b. submissions on an international perspective on the representational distortions and oversights of the first-past-the-post system that undermine the effectiveness of the democratic right to vote. In addition, the ERS UK can offer an international perspective on the limitations of the first-past-the-post system with respect to taking account of minority rights representations.

[18] ERS UK proposes to file an affidavit from its CEO, Darren Hughes, a former member of the New Zealand Parliament. I understand that ERS UK seeks to provide affidavit evidence that addresses the following issues:

a. A comprehensive analysis of the impact of the first-past-the-post system and its implementation and comparisons of first-past-the-post and proportional representation systems;

b. Commentary on the transition from first-past-the-post to proportional representation systems as well as a unique comparison of how elections held under different systems result in profound differences in voter representation arising from the same electoral population;

c. Analysis of the consequences of a first-past-the-post system in the 2019 general election in the United Kingdom; and

d. The utility of deviation from proportionality methodologies, and the Loosemore-Hanby index in particular, as tools to measure the overall proportionality of an election result.

[19] The Attorney General opposes the ERS UK’s motion for leave to intervene as a party. The Attorney General submits that the ERS UK does not have a sufficient interest in this proceeding, it will not make a useful contribution to the proceeding, and the delivery of further evidence at this time will cause delays and do injustice to the parties.

[20] Fair Vote BC would consent to ERS UK intervening as a party, providing that it filed only a 10-page affidavit, that the parties could file responding affidavits, and that the hearing dates would not be moved.

[21] I will not exercise my discretion to add ERS UK as a party to the proceeding.

[22] I accept that the nature of this case, a constitutional challenge to the provisions of the Canada Elections Act, suggests that more latitude can be given to motions to intervene. This application involves a public interest that transcends the narrow dispute between the parties. [3]

[23] Where, as here, the proposed intervener seeks leave to intervene as a party, I must consider the factors set out in Halpern:

a. does the proposed intervener have sufficient, direct interest in the case?

b. what useful contribution could the proposed intervener make?

c. would the intervener’s involvement prejudice or delay the determination of the rights of the parties?

d. can such prejudice or delay be counter-balanced by the useful contribution of the proposed intervener? and

e. what terms or conditions might be imposed on the intervention to ensure that the goals are met without undue delay or prejudice?

[24] Considering all of these factors, I find that the prejudice to the parties of permitting the ERS UK to intervene as party outweighs the benefits of adding ERS UK as a party.

[25] I accept that the ERS UK has a demonstrated interest in voting systems, but it is an organization based in, and focussed on, the United Kingdom. I recognize that it has contributed to Canadian policy and legislative debates on this topic, but I do not think that gives it a sufficient, direct interest in the case to be granted leave to intervene as a party.

[26] The ERS UK will not be directly affected by the outcome of this decision. None of its legal rights are at issue. While I accept that its advocacy efforts might benefit from a finding in favour of the applicant in this case, I do not think that obtaining a legal precedent from a jurisdiction with a written constitution for use in a foreign jurisdiction without a written constitution is the type of interest that justifies party standing. [4]

[27] I am also extremely concerned that permitting ERS UK to intervene as a party, and, in particular, to file affidavit evidence, would prejudice or delay the determination of the rights of the parties. Counsel for ERS UK submitted that it was important for it to be permitted to fill gaps in the record. In my view, the difference between filling gaps and expanding the record established by the parties is one only of perspective.

[28] The parties have already assembled a formidable record that contains comparative analysis of various electoral systems around the world, including the UK. If the evidence from ERS UK would simply duplicate this evidence, it unnecessary. To the extent it provides new or different evidence, fairness would require permitting the parties to retain additional experts to respond. If that happens, the September hearing dates would almost certainly be lost.

[29] While I have no doubt that Mr. Hughes is an experienced politician, organizer, and advocate, it is not clear that he would be qualified as an expert capable of providing opinion evidence to the court.

[30] ERS UK states that it is not taking a position on the outcome of the proceeding. This is somewhat difficult to reconcile with its submission it is a “stakeholder” and that a “positive precedent can and will aid the electoral reform effort of the ERS in the UK.” It is important that interveners not take a position on the outcome of an appeal. [5]

[31] Ultimately, I do not think that the prejudice and delay would be counter-balanced by the usefulness of the evidence that ERS UK could offer at this late stage. I do not grant leave to ERS UK to be added as a party.

Friend of the court

[32] In the alternative, ERS UK seeks leave to intervene as a friend of the court and specifically requests the right to introduce a record of “secondary sources.”

[33] Counsel for ERS UK submitted that its record of secondary sources would contain “empirical evidence” and pointed to the reports titled “Here to Stay: Two Decades of Proportional Representation in Britain” as an example of the kind of secondary source that should be admitted.

[34] Having already denied ERS UK the right to file an affidavit, which would at least be tested through cross-examination, I am reluctant to allow it to place additional evidence before the court in a “record of secondary sources.” Justice Stratas offered a helpful reminder of the danger of uncritically allowing facts and social science evidence to seep into a case without being subject to cross-examination:

We deplore interveners who try to slip fresh evidence into the record through crafty, unprofessional means, such as smuggling into their books of authorities materials that contain facts and social science opinions not in evidence or sliding fresh evidence into their oral submissions: Public School Boards’ Association of Alberta v. Alberta (Attorney General), [1999] 3 S.C.R. 845, 180 D.L.R. (4th) 670; Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108, 174 C.P.R. (4th) 85; Zaric at para. 14; Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, 470 N.R. 167 at para. 19. Here, experience is our teacher. We have seen falsehoods advanced by interveners seep uncritically into reasons for judgment, with damaging, real-life consequences: see the examples provided in Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, [2021] 1 F.C.R. 53 at paras. 156-159, citing Teksavvy Solutions at para. 22, both referring to R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 and Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467. If at any time interveners or their lawyers have tried these sorts of things in this or in any other Court or if we sense from their submissions that they might, we will keep them out. [6]

[35] For these reasons, I am not prepared to allow ERS UK to file a record of secondary sources.

[36] The Attorney General conceded it did not have a strong objection to ERS UK intervening as a friend of a court if it did not file the record of secondary sources.

[37] I am satisfied that ERS UK has a genuine and demonstrated interest in the proceeding and that it will not seek to usurp the role of the parties, expand the issues before the court. I believe its submissions on the legal issues at play will not be duplicative and will provide a helpful international perspective on this application. In my view, it is appropriate to permit ERS UK to intervene as a friend of the court on the specific terms set out below.

Fair Vote Canada

[38] FVC is a national, non-profit citizens’ organization that advocates for the adoption of proportional representation at all levels of government. Over 20 years, it has conducted public education campaigns, lobbied governments, and campaigned for proportional representation in many referendum campaigns across the country. It has registered as a third-party advertiser with Elections Canada, testified before parliamentary committees, and intervened in other court cases.

[39] FVC seeks an order granting it leave to intervene as a friend of the court. If granted leave to intervene, FVC wishes to make three submissions:

a. The adoption of the Charter was a revolutionary step from an earlier time when voting systems and electoral systems originated from partisan, self-interested, and undemocratic roots;

b. That no deference is owed to voting systems rooted in a pre-democratic era; and

c. The demonstrated historical change in voting systems presumes that further change is permitted.

[40] FVC also seeks the right to file affidavit evidence on the main application. It seeks to tender the opinion of Dr. Dennis Pilon, a political scientist and professor at York University, on the following six questions:

a. What voting systems were used in the province of Canada to elect members to its pre confederation legislature?

b. Since confederation, has first-past-the-post been the only voting system used to elect members to the House of Commons?

c. Since confederation, has first-past-the-post been the only voting system used to elect members to provincial and territorial legislatures?

d. If other voting systems have been used since confederation, please explain when these systems were used and in what jurisdiction.

e. If other voting systems have been used since confederation, under what circumstances and for what reasons were these systems adopted?

f. If these systems are no longer in use, under what circumstances and for what reasons was their use discontinued?

[41] The Attorney General does not oppose FVC intervening as a friend of the court, but objects to the provision of the affidavit of Dr. Pilon.

[42] Fair Vote BC would consent to FVC intervening as a friend of the court, providing that it filed only a 10-page affidavit, that the parties could file responding affidavits, and that the hearing dates would not be moved.

[43] Normally, parties who intervene as friends of the court take the record as they find it.

[44] I agree with FVC that the Court of Appeal for Ontario permitted seven interveners to file a record in Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29. [7] I agree with the observation of MacPherson J.A. that constitutional challenges should be determined in a factual vacuum. However, that case involved a direct reference to the Court of Appeal. That is a very different context than in this case, where the parties have already generated a substantial evidentiary record that contains many expert opinions.

[45] The risk of injustice to the parties outweighs the benefits of receiving Dr. Pilon’s opinion evidence. First, it appears that the Attorney General does not object to the historical evidence that is appended to some of the applicant’s affidavits, so it appears that there will be evidence of historical election practices in Canada before the court. Second, it does not appear to me that Dr. Pilon’s evidence is necessary to permit FVC to make thorough legal submissions on the three issues it wishes to address. Third, there is a very real risk of delay and the loss of the hearing dates if either party wishes to retain and instruct a responding expert.

[46] For these reasons, it is appropriate to permit FVC to intervene as a friend of the court on the specific terms set out below.

Apathy is Boring

[47] Apathy is Boring is a non-partisan registered charity that works to support and educate youth to become active and contributing citizens in Canada’s democracy. Founded in 2004 as a campaign to mobilize youth to vote in Canada’s federal election, AIB has since grown to be one of the country’s largest, bilingual youth-serving and youth-led organizations focused on engaging young Canadians in the democratic process. Apathy is Boring’s core values include creating space for youth as decision makers, reaching unengaged youth and engaging them in the democratic process, and providing information in an accessible way to educate and inform young people.

[48] AIB seeks leave to intervene as a friend of the court and to make the following submissions:

a. The right to meaningful participation, and the right to vote, is about more than the bare right to place a ballot in a box. An electoral system that discourages young Canadians from voting creates unnecessary motivational barriers that impair the right to meaningful participation. The right to meaningful participation entitles young Canadians to an electoral process free of unnecessary barriers.

b. The current first-past-the-post electoral system creates unnecessary motivational barriers by discouraging young Canadians from engaging in the democratic process, thereby impairing the right to meaningful participation. These barriers can be mitigated by changing the electoral system or making the system more proportional.

c. While deference may be owed to Parliament in some circumstances regarding its choice of electoral system, no deference is owed where the electoral system of its choice creates participatory barriers, impairing the right to meaningful participation.

[49] AIB sought the right to file a 30-page factum and to make oral submissions.

[50] Neither the Attorney General nor FVC opposed an order granting leave to AIB to intervene as a friend of the court, but they submitted that a shorter factum would be more appropriate.

[51] I am satisfied that AIB has real and substantial interest in the subject matter of the application, that it has an important perspective that is distinct from that of the immediate parties, and that its participation poses no risk of injustice to the parties. In my view, AIB is likely to provide real and meaningful assistance to the court.

[52] For these reasons, it is appropriate to permit AIB to intervene as a friend of the court on the specific terms set out below.

Canadian Constitutional Foundation

[53] The CCF is a national and non-partisan registered charity that engages issues of constitutional law through public education, communication, and litigation. CCF seeks leave to intervene as a friend of the court and does not wish to file any additional evidence.

[54] CCF wishes to make two interrelated submissions on the proper method of constitutional interpretation:

a. Sections 3 and 15(1) of the Charter must be read harmoniously with the electoral system provisions contained in ss. 37, 38, 40, 41, 50, and 51 of the Constitution Act, 1867, and the amending formula set out in Part V of the Constitution Act, 1982. In the alternative, the electoral system provisions should be seen as exceptions to the rights set out in sections 3 and 15(1) of the Charter.

b. The presumption of continuity means that important facets of Canada’s legal order should continue except where change is expressly indicated in the text of the Charter.

[55] Neither the Attorney General nor FVC opposed an order granting leave to CCF to intervene as a friend of the court.

[56] I am satisfied that CCF has a real and substantial interest in the subject matter of the application, that it has an important perspective that is distinct from that of the immediate parties, and that its participation poses no risk of injustice to the parties.

[57] For these reasons, it is appropriate to permit CCF to intervene as a friend of the court on the specific terms set out below.

Conclusion and order

[58] In the result, I grant leave to all of the proposed interveners to intervene as friends of the court. I make the following order:

a. each of AIB, CCF, ERS UK, and FVC is granted leave to intervene as a friend of the court for the purposes of rendering assistance to the court by way of argument;

b. each intervener may file a factum of no more than 20 pages to be delivered on or before July 14, 2023;

c. each intervener may make oral submissions of up to 20 minutes at the application;

d. the interveners must accept the record as created by the parties and may not file additional affidavit evidence or evidence in the form of secondary sources;

e. the applicant may file a single factum of no more than 10 pages responding to the submissions of the interveners on or before July 28, 2023;

f. the respondent may file a single factum of no more than 20 pages responding to the factums of the interveners and the applicant’s response to the interveners’ factums on or before August 30, 2023;

g. no intervener shall be awarded costs in the application and no intervener shall have a costs order made against it; and

h. there shall be no costs of this motion.

[59] I thank counsel for their very helpful written and oral submissions and for their flexibility in scheduling the various attendances.

Robert Centa J.

Date: April 6, 2023

[1] Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174, 414 D.L.R. (4th) 373, at paras. 54 to 56. [2] Foxgate Developments Inc. v. Jane Doe, 2021 ONCA 745, 159 O.R. (3d) 274, at para. 6; Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), at para. 22; Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at para. 10. [3] Halpern v. Toronto (City) Clerk (2000), 51 O.R. (3d) 742 (Div. Ct.), at para. 16; Leroux v. Her Majesty The Queen in Right of the Province of Ontario, 2020 ONSC 730, at para. 26. [4] Right to Life Association of Toronto and Area et al. v. Canada (Minister of Employment, Workforce and Labour), 2022 FCA 67, at para. 24; Chief Building Official v. Haastown Holdings, 2022 ONSC 1963, at para. 21. [5] R. v. McGregor, 2023 SCC 4, at para. 105, per Rowe J. [6] Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67, at para. 13. [7] 2019 ONCA 29.