David Beatty is professor emeritus in the Faculty of Law at the University of Toronto.
Protecting the environment is the defining issue of our time. Climate change poses an existential threat to the planet. Extreme weather events, including wildfires, rising ocean levels and spreading deserts are making more and more of the planet uninhabitable. The lives of millions are under threat.
And it’s getting worse. Governments agree on international targets and then fail to meet them.
Canadians are among the worst offenders. Our per-capita greenhouse gas emissions are among the highest in the world.
To aggravate our predicament, we exclude the people who care and know the most about the environment from participating in government. In fact, our political system is rigged to keep them out.
The way we elect members to Parliament and provincial legislatures systematically dilutes the voting power of people who support the Green Party – voters who want to make climate change Canada’s top priority.
Under our election laws, every elected member represents a geographic constituency whose seat in Parliament is awarded to the candidate who secures the most votes.
Because environmentalists are spread out across the country, it is hardly ever the case that enough of them live in the same riding to elect one of their own. As a consequence, the votes of people who support the Green Party of Canada are practically worthless.
Hundreds of thousands of Green supporters have no member of Parliament to represent them. It’s as if a whole city the size of Halifax or Victoria was disenfranchised.
Even though the party has been around since 1983, and has consistently had the support of between 3 per cent and 7 per cent of Canadian voters, it didn’t elect an MP until 2011.
The most seats it has ever won in the House of Commons (in 2019) was three, even though the popular vote, of which the Greens commanded 6.5 per cent, demonstrated they should have been awarded at least 20 of Parliament’s 338 seats.
Not surprisingly, after such a long record of dismal results, many supporters have given up on the Greens. In the 2021 election, their support dropped to less than 3 per cent.
To compound the unfairness, in the same election, Justin Trudeau’s Liberals were awarded almost 50 per cent of the seats in the House of Commons, even though they received just over 30 per cent of the popular vote.
Everyone can see the injustice. Even Mr. Trudeau, before he became Prime Minister, promised to change the system. When he got the top job, however, he saw things differently. Now he seems to think that a law that has allowed him to stay in power, even though he got fewer votes than the Conservatives in the past two elections, works just fine.
His father would not be pleased.
Pierre Elliot Trudeau was a more principled politician than his son. A law professor before he got into politics, Mr. Trudeau Sr. was the person most responsible for adding a Charter of Rights and Freedoms to our Constitution.
The Charter gave legal expression to Pierre Trudeau’s belief that whenever governments enact laws and draft regulations, they have a legal obligation to ensure all Canadians are treated equally. If they don’t, the Charter provides anyone who feels aggrieved the opportunity to take their government to court.
Two groups of concerned citizens, the Springtide Collective for Democracy Society and Fair Voting BC, are now doing just that. They have gone to Ontario’s Superior Court and asked the judges to order Justin Trudeau to enact an election law that treats Canadian voters equally.
Their case is very strong. The Supreme Court of Canada has already signalled that large discrepancies in voting power are not compatible with the Charter. Election laws that prejudice minorities attract the strictest standard of review.
In a landmark 2003 decision, the Supreme Court ruled that Canada’s election laws must ensure every Canadian “equal and effective representation.” According to the court, voting systems that “dilute one citizen’s vote unduly as compared with another citizen’s vote run the risk of providing inadequate representation to the citizen whose vote is diluted.” Laws that discriminate against minority parties like the Greens don’t come close to meeting the test.
There are lots of other types of voting systems Canada could adopt that would treat voters more equally.
Most democracies use a system of proportional representation, in which each party receives the same percentage of seats in the legislature as they receive in the popular vote.
When election laws respect the proportionality principle, smaller parties like the Greens do much better.
Germany’s own Green Party elected their first members to the federal legislature, the Bundestag, in 1983 (the same year that environmentalists formed their Green Party in Canada) with 5 per cent of the vote. Today, Germany’s Greens attract the support of between 15 per cent and 20 per cent of the electorate and the party has joined coalition governments at both the state and federal levels.
The German system, a combination of first-past-the-post and proportional representation, has other features that should make it attractive to Canadians. It reserves half the seats in the Bundestag for candidates elected from geographic constituencies and has a long history of producing remarkably stable governments.
If Canada’s election laws had followed the German model, the Greens would have elected between 10 and 20 members in the four elections between 2008 and 2019, and in 2019 they would have had the option to join a coalition and hold the balance of power.
If our election laws treated all voters as equals, everyone would be better off.
If environmentalists were more actively participating in the formulation of government policy, Canadians could expect Canada’s levels of pollution to drop sharply. In Germany, per capita greenhouse gas emissions are half of what they are in Canada. Canada would be both a more democratic country and a more responsible steward of the part of the planet over which we claim sovereignty. And even Mr. Trudeau, if he listened to the Greens, could still be Prime Minister.