Title: Reimagining Democratic Rights

Date: Monday, March 2, 2026

Description: Democratic rights are the most important rights in the Charter because they are what restrains authoritarianism; they are exempted from the Notwithstanding Clause so that democracy cannot be legislated out of existence.  Justice Feasby will argue in this presentation that our democratic rights jurisprudence is based on historical fiction, lacks a coherent political theory, and uses a Charter interpretive methodology that is anomalous.  The Supreme Court of Canada’s substitution of fuzzy derivative rights like “effective representation” and “meaningful participation” for the actual rights provided for in Charter s 3 insulates limits on democratic rights from genuine scrutiny and leaves democracy vulnerable to abuse.  He will propose a new approach to the Charter s 3 rights to vote and to stand for election.  Justice Feasby contends that democracy would be better protected by a modest approach to Charter s 3 that hews closer to the constitutional text and recognizes the purpose of democratic rights as only to be protection for the minimal conditions of democracy.

Justice Colin C.J. Feasby graduated from the University of Alberta Faculty of Law in 1998.  He later attended Columbia University where he earned an LL.M and J.S.D.  He practiced at Osler for over 20 years,  serving the Managing Partner of the Calgary Office for four years.  As a lawyer, Justice Feasby had an active trial and appellate practice acting for corporate clients as well as a significant pro bono public interest practice.  He appeared before many courts across the country, including the Supreme Court of Canada several times.  He has written extensively on constitutional law subjects, particularly concerning democracy issues.  He was appointed Queen’s Counsel in 2020 and then to the Court of Queen’s Bench of Alberta in 2021.  In his time as a justice, he has written many significant decisions including concerning the rights of family members to intervene in patient decisions about Medical Assistance in Dying, the constitutionality of changes to Alberta regulations governing opioid prescription, the constitutionality of the Alberta Personal Information Protection Act, and whether a referendum on the independence of Alberta from Canada contravenes Charter and Treaty rights.

Speakers:

• Justice Colin C.J. Feasby

Podcast: 

Transcript:

00:00:01
Great to see all of you.
00:00:03
It's my pleasure today to welcome and introduce Justice Colin Feasby.
00:00:09
Justice Feasby got his law degree at the University of Alberta.
00:00:13
He then clerked at the Alberta Court of Queen's Bench and the Alberta Court of Appeal.
00:00:18
He then did an LLM and a JSD at Columbia University.
00:00:22
So he's a judge with a doctorate, which is actually a pretty rare thing.
00:00:27
Prior to his appointment, he was the managing partner of Osler in Calgary, where he did corporate and commercial litigation and pro bono public interest litigation, working on cases involving freedom of expression and religion, the rights of self-represented litigants, and the right to vote.
00:00:45
He is a leading expert on the subject of law and democracy.
00:00:49
That's going to be the focus of his paper today, which is part of a larger book project.
00:00:54
Now, I spent some time with this paper yesterday.
00:00:57
I found it really interesting.
00:00:58
Now, to be fair, I'm not a good judge, as the only Section 3 case I've properly read is Sauve.
00:01:05
But it's clear even to me that this is a really important paper.
00:01:08
It's A systematic treatment of the Section 3 Charter jurisprudence.
00:01:13
And it's not a critique of sort of one or two cases.
00:01:16
It's an ambitious attempt
00:01:18
to bring coherence to an entire field.
00:01:20
So we really look forward to hearing about that.
00:01:23
But I also just can't resist the opportunity to take a moment to encourage all of you, especially the students, to take a look at Justice Feasby's recent decision in a case called Chief Electoral Officer of Alberta and Sylvestre, 2025,
00:01:38
ABKB 712.
00:01:41
Now, this case had to do with the Citizen Initiative Act, which is uniquely Albertan legislation that allows citizens to take steps to compel a referendum on a particular topic.
00:01:52
So in this instance, the plan was for a referendum on separation, the idea that Alberta should cease to be a province of Canada.
00:02:02
The issue in the case was whether that kind of proposal, the subject of that proposal, was allowed.
00:02:07
Under this legislative scheme, there is a ton to learn in reading this decision, especially about the history and place of treaty rights in Canada.
00:02:17
So I really recommend that to you.
00:02:18
And when you do read it, read the epilogue and pay close attention to it.
00:02:23
I think the epilogue reveals quite a bit about the challenging political context of the case.
00:02:30
And I think it has what is a really significant discussion of pressing topics of the day, the importance of judicial independence, the role of courts in protecting access to justice, and how reason giving, which is of course the basic work of judges, how reason giving is democratic in nature.
00:02:50
So it's a tour de force, as they say, go read it, go write a paper about it.
00:02:55
Okay, so my hosting duties today are divided with Professor Weinreb.
00:03:00
He's going to handle the Q&A portion.
00:03:03
And with that, I will say thank you for coming and welcome Justice Seasey.
00:03:13
Okay, good afternoon, everyone.
00:03:16
Thank you for that very kind introduction, Professor Kerr, and thank you to you and to Professor Weinreb for making this visit to Queen's for me possible.
00:03:28
My subject today is democratic rights.
00:03:30
And when I say that, I mean mainly the right to vote and the right to be a candidate in elections.
00:03:38
Democratic rights are overlooked in most law school curricula.
00:03:43
And I think that's unfortunate because democratic rights might be the most important rights in the Constitution.
00:03:53
Legal philosopher Jeremy Waldron called the right to vote
00:03:58
the right of rights.
00:03:59
And the United States Supreme Court once upon a time called the right to vote preservative of all rights.
00:04:07
And the reason for this is because voting in elections is how the will of the people is expressed, and it is how our great lawmaking bodies, the House of Commons and the provincial legislatures, are formed.
00:04:23
And it is why they have legitimacy to govern.
00:04:27
So to put it differently, though democratic rights are sometimes taken for granted, they are foundational.
00:04:37
Today, I offer you a different vision of democratic rights than the Supreme Court.
00:04:45
But I emphasize that I do so respectfully.
00:04:49
The court's democracy jurisprudence was largely fashioned in a more stable and trusting era.
00:04:57
but now we live in a different world.
00:05:01
Looking back, the deferential jurisprudence of that time now seems complacent.
00:05:08
I believe that the divided reasons in the 2025 Working Families case are an indication that the current court is struggling with the body of law that it inherited from its predecessors.
00:05:25
I am going to make the case that the Supreme Court of Canada's democratic rights jurisprudence is anomalous in its form and flawed in its substance.
00:05:37
Now, the skeptics amongst you might ask, so what?
00:05:43
Canadian democracy seems healthy, right?
00:05:46
And the courts, for the most part, don't seem to play much of a role, at least as compared to the United States.
00:05:55
And there is some truth in that.
00:05:58
But courts are called upon to decide democracy cases in Canada more often than most people think.
00:06:07
And more importantly, we cannot assume that Canadian democracy will always be healthy.
00:06:16
There are thoughtful observers like Andrew Coyne of the Globe and Mail who question whether it is healthy now.
00:06:23
He just published a book called The Crisis of Canadian Democracy.
00:06:29
Though I would not go so far as to say Canadian democracy is in crisis, I do think that what we need is a new democracy jurisprudence that is suited not just to easy time, but also to difficult times.
00:06:47
The approach to charter democratic rights, the right to vote, and the right to be a candidate,
00:06:53
is based on what is sometimes called derivative rights.
00:06:58
The court's main derivative rights are effective representation and meaningful participation, and now there might even be a new derivative right to proportional electoral discourse.
00:07:12
My talk today offers a new way to interpret Section 3 of the Charter, and I'm going to make four basic claims.
00:07:21
First,
00:07:23
The derivative rights approach to Section 3 is inconsistent with the constitutional text and inconsistent with the court's conventional purpose of interpretive methodology.
00:07:38
Second, the derivative rights approach is overly deferential and ill-suited to checking democratic dysfunction.
00:07:49
Third,
00:07:50
The true purpose of Charter democratic rights is to ensure that Canada remains democratic.
00:07:58
Democratic rights are a backstop against authoritarianism, and as such, they should be understood to guarantee what political scientists call the minimum conditions for democracy.
00:08:12
And 4th, there is a different way to interpret democratic rights that both respects the text
00:08:20
and achieves the purpose that I've just identified.
00:08:24
So let's get to the heart of this argument.
00:08:26
I'm going to start with the drafting history of Charter Section 3, and then I'm going to talk about international law.
00:08:35
There are three democratic rights in the Charter, Sections 3, 4, and 5, but I'm going to spend my time mostly talking about Charter Section 3.
00:08:46
The drafting history of Charter Section 3 starts with the Victoria Charter in 1971, which was Pierre Trudeau's first attempt at a constitutional bill of rights.
00:08:58
The Victoria Charter did not include democratic rights.
00:09:03
What it had instead was a proclamation that the principles of universal suffrage and free and democratic elections were fundamental principles of the Constitution.
00:09:17
So let's turn to the various iterations of Charter Section 3 leading up to the adoption of the Charter in 1982.
00:09:29
So the first version started with a statement of principle, very much like the Victoria Charter.
00:09:36
It said, consistent with the principles of free and democratic elections to the House of Commons and to the Legislative Assemblies,
00:09:44
and of universal suffrage for that purpose, every citizen in Canada shall, without unreasonable distinction or limitation, have the right to vote in an election of members of the House of Commons or of a legislative assembly, and to be qualified for membership therein.
00:10:03
The preambular statement of principle disappeared in the next version of Charter Section 3, and there's no explanation found
00:10:12
in the committee debates.
00:10:16
But I would speculate that the thought was that references to free and democratic elections and universal suffrage seem redundant and unnecessary in a provision that actually provides for a right to vote and a right to be candidate.
00:10:35
And then the final version of Charter Section 3, we see the qualifying language without unreasonable distinction or limitation fall away.
00:10:46
And again, there's not much in the way of explanation for this change in the committee debates.
00:10:52
So then we have the final version, which is every citizen of Canada has the right to vote in an election of members of the House of Commons.
00:11:02
or of a legislative assembly, and to be qualified for membership therein.
00:11:07
So Section 3 is very basic.
00:11:10
It provides for a right to vote and a right to be a candidate, and only in provincial and federal elections.
00:11:18
That's it.
00:11:20
Justice Strayer of the federal court was involved in drafting much of the charter as a senior civil servant.
00:11:30
And later, he heard a case in 1991 about prisoner voting called Belzowski.
00:11:36
And he opined there that the absence of qualifying words in Section 3 means that it should be given its plain and obvious meaning.
00:11:47
Now, generally, I am wary of using international law in constitutional interpretation.
00:11:55
But just a couple of weeks ago, the Supreme Court of Canada in a case called Taylor and Newfoundland, which was about COVID travel restrictions, reaffirmed the relevance of international law in charter interpretation.
00:12:09
And we know from past Supreme Court cases that the relevance of international law that predates the charter is of particular relevance.
00:12:20
That is significant because Charter Section 3 in its final form is different than Canada's international commitments to democracy.
00:12:30
And here I'm thinking about the 1948 UN Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights, which was acceded to by Canada in 1976.
00:12:45
both of which provide for more expansive and detailed democratic rights and in fairly similar terms.
00:12:54
So ICCPR Article 25 provides that every citizen shall have the right and opportunity.
00:13:04
And I'm going to focus on Section B.
00:13:09
which says, to vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage, and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
00:13:25
There are three things about this I want to highlight.
00:13:28
First, there is the idea of genuine elections, which may be understood to mean elections where the voters have a real choice.
00:13:38
and where candidates and political parties participate in a real competition.
00:13:45
Second, there is equal suffrage, which is the idea that everybody's vote counts for the same.
00:13:52
And third, that voting will be by secret ballot.
00:13:56
None of these things are in the text of Charter Section 3, but I think, broadly speaking,
00:14:04
These ideas accord with most people's normative conception of democracy.
00:14:12
Now, we don't actually know why the Charter Democratic Rights are not more like what you see in ICCPR Article 25, because the committee debates did not address the question.
00:14:26
But what I think is really important
00:14:29
is that ICCPR Article 25 protects what political scientists consider to be the minimum conditions for democracy.
00:14:40
The idea of minimum conditions for democracy is very simple.
00:14:45
If a country does not meet the criteria, it is not a democracy.
00:14:51
And the thing to remember is just because a country has voting in elections,
00:14:56
also does not mean that it is democracy.
00:15:00
Different political scientists have different formulations of the minimum conditions for democracy.
00:15:06
The one I prefer is Stephen Levitsky's, which has five criteria.
00:15:14
First, free, fair, and competitive elections.
00:15:18
Second, full adult suffrage.
00:15:22
Third, broad protection of civil liberties, including freedom of speech, press, and association.
00:15:29
Fourth, the absence of non-elected tutelary authorities that limit elected officials' power to govern.
00:15:37
And here, think of a council of clerics or a committee of generals who can, you know, control or veto what elected representatives do.
00:15:49
And lastly, I think this is the most important for today's discussion, the existence of a relatively level playing field between incumbents and opposition.
00:16:02
This vision of democracy is centered on the ideas of participation and competition.
00:16:09
Put simply, the idea is that every citizen gets to participate, and there must be a fair competition.
00:16:17
Sometimes you will hear judges and political theorists talk about other conceptions of democracy, like what is sometimes called the egalitarian model of elections or deliberative democracy.
00:16:33
There are certainly examples of that in the Supreme Court of Canada's jurisprudence.
00:16:39
However, in my other work, I explain that parliament and legislatures
00:16:44
may pursue more robust or aspirational conceptions of democracy so long as the objectives and means survive Section 1 analysis.
00:16:56
But I do not think that these concepts of democracy should be understood to be part of what is guaranteed by Section 3.
00:17:04
So let's turn now to talk about the methodology of constitutional interpretation.
00:17:12
The normal methodology for interpreting the meaning of charter rights is what we call purposivism.
00:17:19
Just 2 weeks ago, the Supreme Court of Canada restated its approach to purposivism in Taylor and Newfoundland in the following terms.
00:17:30
The interpretation of a charter provision is first and foremost in exercise in ascertaining what interests that provision protects and why it does so.
00:17:42
The court must consider the character and larger objects of the charter, the text of the particular charter provision, including any headings, the history of the concept enshrined therein, analogous international and comparative law, the interpretation of related rights and freedoms in the charter, the drafting history of the provision, and any other relevant source.
00:18:07
Once the court has rigorously reviewed these sources,
00:18:10
It must then interpret the text of the provision to provide the most generous protection it can support to safeguard its interests.
00:18:21
The most serious criticism that has been levied against purposivism as practiced by Canadian courts is that it has been used to give expansive meanings to rights that are not supported by the text.
00:18:36
Professor Weinrib, in a recent article and book, explained that purpose is a way of settling on a meaning that is supported by the text.
00:18:45
He advocates a concept that he calls constitutional coherence, which involves ascertaining the larger purpose of the Constitution and then narrower purposes for each individual provision.
00:18:57
The meaning of each individual right must not render other rights meaningless,
00:19:03
and the individual rights must work together to support the larger purpose of the Constitution.
00:19:10
To my way of thinking, this is an important contribution to Canadian constitutional scholarship and a very useful clarification of the Supreme Court of Canada's approach.
00:19:21
But as we will see, the prudent and structured purposism described by Weinrib is not
00:19:29
what the Supreme Court of Canada has done in the context of democratic rights.
00:19:36
There are two lines of Charter Section 3 cases.
00:19:41
Each line of cases deploys a different logic and methodology.
00:19:46
And I came to this conclusion on my own quite some time ago, but I was comforted
00:19:53
late last year when the Ontario Court of Appeal in the fair voting case made a similar observation.
00:20:01
The first line of cases starts with the Saskatchewan electoral boundaries case in 1991, which as its name suggests, concerned the drawing of electoral boundaries.
00:20:13
and the question of equal voting power.
00:20:16
This is the case that gave birth to the concept of effective representation.
00:20:23
We then have the case of Figueroa in Canada in 2003, which concerned political finance rules that prejudice small parties and raised the question of equal treatment of electoral participants.
00:20:38
Justice Iacobucci found representation, sorry, he found effective representation, which had come from the Saskatchewan Electoral Boundaries case.
00:20:46
He found it to be only part of the purpose of Section 3, and then identified the broader concept of meaningful participation to be the actual purpose of Section 3.
00:21:00
And then last year, in a case called Ontario and Working Families,
00:21:07
The court considered third-party spending limits and their impact on voters' right to information.
00:21:13
And in that case, Justice Karriketsanis identified a right to proportionality in political discourse.
00:21:22
So this first line of cases rejects the text of Charter Section 3 and substitutes derivative rights in their place.
00:21:32
We have 3 derivative rights so far, effective representation,
00:21:37
meaningful participation, and a right to proportionality in political discourse.
00:21:43
These derivative rights bundle together conflicting democratic ideas.
00:21:49
Effective representation combines equal voting power, representation of community interests, and the functional question of how a representative serves constituents.
00:22:02
Meaningful participation likewise combines different and conflicting democratic ideas.
00:22:08
Fair and equal treatment of electoral participants, informational rights, and possibly limits on participation that enhance participation in other respects.
00:22:21
And proportional electoral discourse involves an evaluation of the relevant, sorry, the relative roles of different electoral participants
00:22:30
and their ability to communicate with the electorate.
00:22:34
The derivative rights approach requires internal balancing at the first stage of charter analysis.
00:22:42
To determine if the derivative rights of effective representation, meaningful participation, or proportional electoral discourse have been limited, a court must weigh the differing democratic values that go into those concepts.
00:22:58
So there's a second line of cases.
00:23:01
It starts with Harvey in New Brunswick in 1996, which concerned a prohibition on running as a candidate in a provincial election where the candidate had been convicted of election offenses.
00:23:16
Then we have 2002's Sovey in Canada case, which concerned the right of prisoners to vote.
00:23:24
And then in 2019, we have Frank in Canada, which was about the right of expatriate citizens to vote.
00:23:34
Just as in the first line of cases, in this second group of cases, arguments were made that there were internal limits on democratic rights that were consistent with historical understandings of the right to vote and to be a candidate.
00:23:49
The court, in every one of these second line of cases, emphatically rejected the idea that differing democratic ideas or countervailing concerns, as they're often called, should be considered in the definition of Charter Section 3 rights.
00:24:07
The Supreme Court of Canada has never acknowledged that there are two separate lines of cases, let alone
00:24:14
try to explain why the logic and rhetoric of the two lines of cases contradict one another.
00:24:21
So what is the problem with derivative rights?
00:24:26
Well, the first problem is that they're judicial fabrications.
00:24:31
Let me stop.
00:24:33
The whole common law is a judicial fabrication.
00:24:35
So that's not necessarily a bad thing, but
00:24:40
these are, these derivative rights are fabrications.
00:24:44
The problem with that is something that is a judicial fabrication can also be easily replaced by a different judicial fabrication.
00:24:54
And indeed, we see this as the court has moved from effective representation to meaningful representation, sorry, effective representation to meaningful participation and now beyond.
00:25:09
This is not a stable foundation on which to build a jurisprudence of democracy.
00:25:16
The second problem is that these derivative rights are stated in vague terms and embody conflicting ideas.
00:25:24
This provides little guidance for lower courts that are faced with democracy problems.
00:25:31
The main problem of engaging in balancing at the first stage of Charter analysis is that the burden of proof is on the rights claimant.
00:25:40
All a government must do to defeat a Charter Section 3 claim is assert that the law in question addresses competing democratic objectives that the rights claimant has no way of disproving.
00:25:54
Contrast that with the normal way that Charter rights without
00:25:59
express internal balancing language are litigated.
00:26:04
The government is required to establish with evidence that its countervailing objectives are pressing and substantial, and that the limits are proportional.
00:26:15
Internal balancing leaves nothing for Charter Section 1 to do.
00:26:20
The problem with this is that if you have a cynical government that wants to tilt
00:26:27
the democratic playing field in its own favor, it is just not very hard to come up with plausible democratic justifications for limiting democratic rights.
00:26:42
Not only does the internal balancing approach used by the court absolve governments of their evidentiary burden when purporting to limit democratic rights in the name of democracy, it allows the court to avoid
00:26:56
confronting self-serving political behavior.
00:27:01
Justice Morgan, in the first working families case in 2021, this is Ontario's Superior Court, observed that governments have what he called a structural conflict of interest when they are making laws that govern the electoral process.
00:27:18
This observation is consistent with legal and political theories
00:27:23
that hold that one of the greatest risks to democracy is elected governments making electoral laws that favor their own re-election.
00:27:34
But the Supreme Court of Canada has mostly ignored this reality.
00:27:39
For example, there was evidence in the Saskatchewan electoral boundaries case that the electoral map in question was drawn to help re-elect the incumbent Saskatchewan government.
00:27:52
but the court said nothing.
00:27:55
I suspect that as a matter of civility, the court has been unwilling to be critical of political motives in making the rules governing elections where it can decide the case on other grounds without confronting that uncomfortable reality of political behavior.
00:28:17
This might be a product of the trusting era in which many of these cases were decided.
00:28:25
Before I move on to discuss how I think democratic rights should be interpreted, I want to highlight another critique of the democratic, sorry, the derivative rights approach.
00:28:36
Justice Huscroft of the Ontario Court of Appeal in last year's Fair Voting BC case said that the problem with derivative rights is that
00:28:46
They, quote, merge distinct concepts, rights which are constitutionally protected, and the purpose of particular constitutionally protected rights which is not, end quote.
00:28:58
The Huscroft critique is essentially that rights are enforceable and purposes are not.
00:29:05
He would prefer, it seems, a narrow textual reading of Charter Section 3 that guarantees the bare right to vote and to be a candidate.
00:29:15
and little more.
00:29:17
I suspect that not even the approach that I will outline in a moment is close enough to the text for him.
00:29:27
So perhaps there is a better way to interpret democratic rights.
00:29:36
There are two elements to my reimagined approach to interpreting democratic rights.
00:29:41
First,
00:29:42
a proper understanding of the purpose of democratic rights, and second, the more disciplined methodology of necessary implication.
00:29:54
The purpose of democratic rights is not effective representation, and it is not meaningful participation.
00:30:04
The purpose of democratic rights is to guarantee that Canada is democratic.
00:30:12
That might seem simplistic, but that really is the reason why we have democratic rights.
00:30:19
And I think that it may also be said that democratic rights ensure that Canada remains democratic by guaranteeing the minimum conditions for democracy.
00:30:31
Before I go farther with this line of argument, I emphasize
00:30:36
that while the charter democratic rights are the most important rights for guaranteeing the minimum conditions for democracy, that responsibility is shared with other charter rights like freedom of expression and freedom of association.
00:30:53
But discussion of those rights is something that will have to wait for another day.
00:31:05
So democratic rights work like this.
00:31:09
Charter Section 5 provides that parliament and provincial legislatures must meet at least once a year.
00:31:16
That does two things.
00:31:19
One, it ensures that representatives can pass laws.
00:31:23
Two, it allows representatives to hold the executive accountable, at least in theory.
00:31:32
Charter Section 4 guarantees that there must be an election.
00:31:35
at least every five years.
00:31:37
This ensures that representatives are accountable to the electorate.
00:31:43
Charter Section 3 provides for the right to vote and the right to be a candidate.
00:31:48
The right to vote is how the sovereign will of the people is expressed, and it is how representatives are held accountable.
00:31:57
The best way to conceptualize
00:32:00
Charter sections 3 to 5 is as a cascade of democratic accountability.
00:32:07
Democratic rights work together to ensure that the governors are accountable to the governed through the mechanism of elections.
00:32:17
And the most important point of all is sections 3 to 5 are not subject to the notwithstanding clause, which means
00:32:26
that elected representatives cannot use their power to make laws to escape accountability to the electorate.
00:32:36
The Charter democratic rights not only guarantee accountability, they ensure that Canada remains democratic.
00:32:44
A weakness of democracy is that without effective guardrails, an elected government can legislate democracy out of existence.
00:32:53
And that's exactly what happened in Weimar, Germany, in the 1930s.
00:32:58
But because Charter Sections 3 to 5 are exempt from the notwithstanding clause, democracy cannot be legislated away.
00:33:07
Charter democratic rights are the backstop against dissent into authoritarianism, and courts are the institution responsible for upholding democratic rights.
00:33:20
So a purpose
00:33:22
of the Charter, and a purpose of democratic rights is to guarantee Canada's democratic form of government.
00:33:30
The purpose is not to guarantee something vague and subjective, like meaningful participation.
00:33:38
This different understanding of the purpose of democratic rights that I offer suggests that so far as the text can support it,
00:33:48
the charter, including democratic rights, should be interpreted as guaranteeing the minimum conditions for democracy.
00:34:00
Let me pause to emphasize that I do not share the view of those who say that democratic rights should be understood to be an open-ended right to democracy.
00:34:13
To my way of thinking, that replicates the same problems that afflict vague derivative rights.
00:34:21
And I think that this idea was effectively rejected in the 2021 City of Toronto case, where the court held that the unwritten principle of democracy coming out of the 1998 secession reference could not be used to invalidate legislation.
00:34:36
Instead, I favor a narrower approach that Hughes
00:34:40
closer to the constitutional text.
00:34:45
I think that democratic rights should be approached through the methodology of necessary implication.
00:34:54
What is necessary implication?
00:34:56
The classic example of necessary implication is that the provision for superior courts in Section 96 of the Constitution Act 1867 necessarily implies a right of access
00:35:10
to those courts.
00:35:12
And just a couple of weeks ago in Taylor, the majority of the Supreme Court found that the Charter Section 6-1 right to enter and leave Canada necessarily implied a right of mobility within Canada.
00:35:28
Necessary implication goes beyond the text, but it does so in a very narrow and disciplined way that is required to give effect to the text.
00:35:40
So what would a necessary implication approach look like in the context of Charter Section 3?
00:35:48
A constitutional right to vote, in my view, necessarily implies that each vote has essentially the same value or weight.
00:35:58
This is consistent with the underlying conception of the equal dignity and worth of human beings.
00:36:05
And I suggest that a constitutional right to be a candidate necessarily implies a level playing field, or to put it differently, that election laws apply equally to all candidates and political parties.
00:36:21
Equally valued votes and a rule of equal treatment for candidates are consistent with both Canada's international commitments and the minimum conditions for democracy.
00:36:34
From A pragmatic perspective, equally weighted votes make it harder to tilt the electoral playing field.
00:36:41
And I only say that it makes it harder, because all we have to do is look at the United States to see an example of how a system can still be manipulated, even where the regulatory regime requires equally weighted votes.
00:37:00
And
00:37:01
A rule that requires equal treatment of candidates and political parties similarly makes it more difficult for an incumbent government to game the system in its favor.
00:37:13
There are indications that the law could develop in this direction.
00:37:18
The City of Toronto case suggests that some members of the current court think quite differently about effective representation and equally weighted votes than the court did in the 1990s.
00:37:32
The majority, co-authored by Chief Justice Wagner, opined that effective representation is really about voter parity.
00:37:42
Likewise, Justice Iacobucci's reasons in Figueroa can be interpreted in such a way that courts could start from the presumption that meaningful participation should normally be understood to mean participation on a level playing field.
00:38:00
The benefit of approaching things by necessary implication, or even just by narrowing the scope of derivative rights, is that it leaves room for Section 1 of the Charter to do its work.
00:38:14
In this way, a narrower conception of democratic rights ironically provides more robust protection for democracy because it forces governments to justify regulation of the democratic process.
00:38:28
The discipline of justification is in itself democratic.
00:38:34
Rather than asserting that a law enhances democracy, a government must show that it enhances democracy.
00:38:44
Under Section 1, the government would have to persuade the court that there was a pressing and substantial democratic objective behind the law, with evidence or compelling normative argument,
00:38:57
or ideally both.
00:39:00
There's also room under the Section 1 rubric to ask if the government is acting as a defender of democracy or if its actions are self-serving and strategic.
00:39:12
These are important questions that should be, sorry, these are important questions that should not be asked at the rights definition stage.
00:39:23
So, to conclude,
00:39:26
The democratic rights jurisprudence that our current court has inherited is problematic, and I hope that the court has the courage to acknowledge that and to start over.
00:39:38
The approach that I have outlined starts with the text and a clear understanding of the purpose of democratic rights.
00:39:45
To the extent that democracy problems faced by the court are not addressed by the sparse text of Charter Section 3,
00:39:53
My approach uses the measured methodology of necessary implication rather than abstract derivative rights that have little connection to the constitutional text.
00:40:06
I believe that my approach is practical because it can solve democracy problems and it also limits the potential for judicial misadventure.
00:40:17
Thank you very much for listening to me.
00:40:20
I really look forward to your questions.