This week, the Federal Court ruled against University of Ottawa student David Rodriguez in his quest to force Elections Canada to put a "none of the above" option on the ballot.  Justice John Norris was unconvinced by the arguments put forward by Rodriguez, and has concluded that Rodriguez's freedom of expression is not in fact being violated by the lack of his desired option on the ballot, and the decision lays out some pretty convincing language as to why this is the case.

Part of the decision revolves around the legal test around what is known as a motion for summary judgment whether this is a matter that requires a full-blown trial or not, and because there was no evidence in dispute, this was a matter that the court was able to dispatch through such a motion.  The rest of the matter dealt with whether or not there was a positive obligation on the part of the government to provide Rodriguez with the option on the ballot in order to fulfil his Charter rights of freedom of expression.  Again, Justice Norris found that indeed, there is no such obligation on the part of the government, and that's why Rodriguez's case falls apart completely.

Justice Norris lays out the problems with Rodriguez's argument in paragraph 41 of the decision:

To the extent that Mr. Rodriguez is prevented from communicating the message he wishes on the platform established by the [Canada Elections Act], this is because the platform is intended to serve a completely different purpose than the one he seeks to use it for.  The CEA establishes a method for determining who will sit in the House of Commons by holding elections and determining who the victorious candidates are.  Not designing that platform so that it can also be used for an unrelated purpose i.e. to express "officially" one's rejection of all the available candidates is not a restriction on expression that can be challenged by a negative right claim.

Norris went on to say that the situation would be different if the Act required Rodriguez to fill out a ballot in a particular way that didn't allow him to reject all of the available candidates, or if it imposed some kind of penalty for those who didn't fill out their ballots according to the rules.  In the absence of such rules, there isn't a government action that would be the kind of "negative rights" that Rodriguez was trying to claim.

Norris added that Rodriguez' claim that the government's "failure" to provide him with the option of providing the particular means of expression to reject all of the candidates as part of the process could only be understood to be a positive rights claim.  As stated in paragraph 43:

His argument depends on the premise that the government is under a positive obligation to act in a certain way to facilitate the expressive activity in which he wishes to engage.  In other words, for his argument to succeed, the government must be obliged to permit a platform designed for one purpose to be used for a completely different purpose as well.

Norris added that Rodriguez's only complaint was that the government had not designed the voting process in a way that permits him to express a particular opinion by a particular means.

I have never been convinced by the notion of either a "none of the above" option or an option to officially decline one's ballot, as it allowed in Alberta, Ontario, and Manitoba, because it goes against the notion about what an election is all about.  There is a certain amount of childish entitlement that comes with the notion that all candidates must be good ones particularly if one has not participated in any of the political processes that leads to the nomination of those candidates on the ballot.  It's also unrealistic to assume that there can always be good choices in a contest like an election, because real life means that sometimes one needs to decide between two or more bad choices and we can certainly think of elections where that has been the case.

Rodriguez's other mistake in logic, of course, is that a large enough "none of the above" result in an election will cause some kind of crisis of conscience within the political parties and that they will see the light, and suddenly decide that they will present much better candidates for the public, or that their platforms will become all the more enlightened for people to choose from.  Real life doesn't work that way, and it's a jejune notion to think that parties could somehow be embarrassed into shaping up particularly given that they have been undermining their own best interests not to mention the way our system is supposed to operate in the ways in which they have centralized power in leaders' offices using the justification of the supposed "democratic mandate" of leadership elections.  They have created this crisis of faith because cynicism suits their agenda the fewer people involved at the grassroots level, the more they are able to run things from their leaders' offices.

This is why providing a "none of the above" option is ultimately self-defeating.  It gives people the smug satisfaction that they're sending a message, or sticking it to the system, when they're simply abdicating their responsibilities to engage with the system and the parties at the grassroots level.  The only way to combat this is to get involved.  That means that more people need to get involved at the riding level, getting involved with policy debates and nomination races, and agitating against the party leadership in order to take back control when the party leader's office extends too much control, and that won't be easy.  It will also mean doing what feels counterintuitive and relinquishing power over leadership contests so that caucus regains it, thus putting the leader's power back in check.  That is the only way we can hope to restore sanity to our democracy.  A "none of the above" option on the ballot won't.