Monday, August 20, 2018

Is the Trudeau government unconstitutional?

Canada demanded that Saudi Arabia release persons jailed there and a storm erupted, with Saudia Arabia cutting off most interactions with Canada.

It would be very ironic if the current Trudeau government was determined by our Supreme Court to be unconstitutional, as I believe it is, would it not?

Justin Trudeau won a majority government with less than 50% of the vote, and  then promptly walked away from his solemn promise to make Canada’s elections democratic by ending the first past the post (FPTP) system of electing our MPs.

I believe that the FPTP system is contrary to the Canadian Charter of Rights and Freedoms, that it violates the rights of each Canadian to vote in elections, and to equal benefit of the law without discrimination, and that an appeal to the Supreme Court to set aside the FPTP method of electing our MPs would be successful.

Section 3 of the Charter states that “Every citizen of Canada has the right to vote in an election of members of the House of Commons.”
Section 15 deals with equality rights, and states that “every individual ... has the right to the ... equal benefit of the law without discrimination ...”

And Section 24 provides that anyone whose rights, as guaranteed by the Charter, have been infringed or denied may apply to a court “to obtain such remedy as the court considers appropriate and just in the circumstances.”

Finally, Section 1 states that the Charter guarantess the the rights set out in it “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

I believe that the Supreme Court of Canada would find that:

1.       the  right to vote of any Canadian citizen is a benefit that every Canadian is given by the Charter, 

2.       every Canadian is entitled to equal benefit of that law,

3.       the FPTP system of electing our MPs denies Canadians of such “equal” benefit, because it results in the unequal value of votes by Canadians (because although all votes are counted, not all votes are taken into considerating in determing how many MPs should be elected to Parliament to represent the voters),

4.       therefore a remedy will be decided upon by the Supreme Court to such unequal benefits that is appropriate and just in the circumstances.

I would expect the Supreme Court to refer the matter to the House to determine a method of voting that does give equal benefit to each vote cast, with a time limit for such changes, failing which the Supreme Court would determine a method that is appropriate and just.

I would also expect the Trudeau government to raise with the Supreme Court the argument that Section 1 gives the government the right to continue with the FPTP system as the limitation on the equal benefit of the right to vote of any Canadian is a reasonable limit, and is “demonstrably justified in a free and democratic society.”

But that argument will be rejected by the Supreme Court, as evidence provided to it will clearly show that the overwhelming majority of free and democratic societies have chosen methods that do give voters the equal benefit of the right to vote (such as proportional represenation etc.)

The government will then be obliged by the Supreme Court to establish a method of deciding on a democratic manner of electing MPs, and to implement that method.

And this will mean that Justin Trudeau will be obliged to carry out his electoral promise, even though he regards such a task as difficult.

Now all we need is for a Canadian to launch a lawsuit demanding that his or her right to the equal benefit of the right to vote is denied by the FPTP system.

And we will then, within two years, have a more democratic system of electing our MPs.

Any takers?

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