Yes, They Can

Constitutional amendment with provincial consent is not required for electoral reform.

The federal government’s pursuit of electoral reform has raised a number of questions: is reform necessary or desirable at all? If so, what new electoral system to adopt? Should the people be consulted before reform is implemented? And now, thanks to op-eds published by Michael Pal in The Globe and Mail, and Yaakov and Jonathan Roth in The Toronto Star, we also have to ask ourselves whether it would be constitutional. In my view, however, the answer to the latter question is much clearer than to the others. The constitution is no obstacle to Parliament acting alone to implement (most forms of) electoral reform. (By the way, in case you think that my opinion on this is relevant to assessing the argument that follows: I think that electoral reform is a bad idea, and I think that if the government insists on endorsing it, there should be a referendum before reform is implemented.)

Section 44 of the Constitution Act, 1982 ― which prof. Pal describes as an “obscure provision,” and Messrs. Roth do not mention at all ― provides that “exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons, subject to sections 41 and 42. As a starting point, it would seem logical to consider electoral reform an amendment to “the Constitution of Canada in relation to … the House of Commons,” and thus within the purview of Parliament, except insofar as sections 41 and 42, to which I will return, provide otherwise.

Those who think unilateral electoral reform would be unconstitutional point to the Supreme Court’s opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, which introduced the notion of “constitutional architecture” that limits Parliament’s amending power under section 44. The “architecture,” which seems to consist of “assumptions that underlie the text [of the constitution] and the manner in which the constitutional provisions are intended to interact with one another,” is an entrenched part of the constitution, and cannot be amended by Parliament acting alone.

Prof. Pal suggests that the first-past-the-post electoral system is part of that architecture since, although it “is not mentioned directly in the Constitution, … [n]umerous parts of the Constitution presume that [it] is in place.” Moreover, in his view, electoral reform “would affect provincial interests,” although “[l]esser changes than a move to proportional representation could be interpreted as” doing so “only trivially … and not really changing the constitutional architecture.” For their part, Messrs. Roth insist that the Constitution Act, 1867 “expressly assigned to each province a fixed number of ‘electoral districts,’ each entitled to return ‘one member’ to the House. This ‘constitutional architecture’ plainly presupposes district-based elections.” They also point to the use of first-past-the-post in the United Kingdom, to whose constitution ours was intended, according to its preamble, to be “similar in principle.”

But it is not enough, it seems to me, to say that first-past-the-post is how we always elected representatives to show that it is a part of the “constitutional architecture” as the Supreme Court understood that notion in the Senate Reform Reference. In that opinion, the Court said that “the institutions provided for in the Constitution” ― such as the House of Commons ― “can be … changed to some extent under ss. 44 and 45, provided that their fundamental nature and role remain intact.” [48] That, in my view, is what electoral reform would do. It might change the House of Commons to some extent (though to what extent would depend on the shape the reform takes), but would not affect its “nature” as the representative part of our national legislature or its role of serving as the electoral college for the choice of a Prime Minister, making laws,  and pretending to hold government to account.

Prof. Pal never says, unfortunately, what parts of the constitution rely on first-past-the-post, and for my part, I am unable to figure out what they are. It is noteworthy, for instance, that section 3 of the Canadian Charter of Rights and Freedoms provides that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons” (emphasis mine), as opposed to, say, “the election of a member.” The latter formulation would presuppose election in single-member districts. The former does not, since an election under a system of proportional representation is still “an elections of members of the House of Commons.” As for the provisions assigning a specified number of districts to each province, which Messrs. Roth invoke, these were obviously intended to be, and have been, amended by Parliament acting alone since 1867, as the number of districts and members of Parliament was increased.

Note, by the way, that contrary to what Messrs. Roth say, one or two of the districts created by section 40 of the Constitution Act, 1867 were actually entitled to two representatives in the House of Commons. Indeed, multi-member districts were common in the United Kingdom in 1867 ― most English Members of Parliament represented counties or boroughs that returned two members each, and some counties had three representatives. There were even exceptions to the principle of geographical representation (as well as the one man, one vote principle), in the shape of university constituencies that allowed the holders of some degrees from some universities to elect additional representatives for their almae matres. Quite apart from the fact that the legal effect of the preamble to the Constitution Act, 1867 is matter of doubt on which the Supreme Court has wavered over the years, the claim that geographical constituencies electing single members of Parliament using a first-past-the-post system was a matter of long-standing fundamental constitutional principle in the United Kingdom in 1867 is historically inaccurate.

Thus I am not at all persuaded that the constitution’s entrenched text in any way depends on or implies the first-past-the-post voting system. If anything, I suspect ― though I have not done the historical research to prove it ― that section 3 of the Charter might have been written specifically to avoid entrenching this arrangement. Nor do I think that electoral reform would impermissibly affect the constitution’s architecture. While changes in the relationship between Parliament and the executive are conceivable in the wake of a move to some form of proportional representation, they are unlikely to be fundamental in nature. As for changes to the relationship between Parliament and the provinces, I do not understand how any could result ― except in the one case which is also ruled out by the constitutional text.

The exception to Parliament’s general ability to enact electoral reform under section 44 of the Constitution Act, 1982 concerns reform plans that would sever the relationship between members of Parliament and provinces from which they are elected ― in other words, those versions of proportional representation that would distribute seats on the basis of national, rather than provincial vote totals. The trouble for such systems lies in the entrenchment, in section 41(e) of the Constitution Act, 1982 of “the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province [was] entitled to be represented” in 1982, and in section 42(a), of “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada” (emphasis mine in both cases). It is thus the provinces ― though not any territorial subdivisions within the provinces ― that form the basis of representation in the House of Commons, and that principle is indeed part not only of the constitution’s architecture, but of its very text.

Provided that it respects this principle, however, Parliament is constitutionally free to change voting arrangements by ordinary law enacted under section 44. Such changes would, no doubt, be of great political significance. But while that may be (I think it is) an important argument in favour of giving the people a say over electoral reform, it is not, in itself, a reason to consider that constitutional amendment with provincial consent is necessary to effect such changes. The Senate Reform Reference does not hold the contrary. The question of electoral reform’s constitutionality is, I believe, a distraction from those about its desirability and the process by which its desirability ought to be determined.

16 thoughts on “Yes, They Can

  1. That is my opinion as well. Some electoral systems could alter the seat proportionality guaranteed to the Provinces, and that would certainly require amendment.

    I was part of a discussion a few months back where STV was mentioned. STV, in its most optimal form, requires multi-member ridings, and some felt that reducing the number of ridings could potentially conflict with Constitutional guarantees, but my view was that Parliament already has the right to alter electoral districts, providing it sticks to the required proportionality, and thus it could create larger multi-member ridings in much the way that it moves riding borders and creates new ones now.

    The Liberals’ favored system, ranked voting, would not, in fact, alter electoral boundaries at all. We would have the same number of ridings and the same number of MPs. The chief difference would be a multi-choice ballot and how the counting of the winner is done. So I cannot see how it would trigger any kind of constitutional question. That being said, ranked voting is not proportional, and in fact can lead to results nearly as sub-optimal as FPTP.

    But I will expect that if the current government sticks to its guns and passes electoral reform legislation, it could lead to at least an attempt to challenge the reform in the courts.

    • Agreed, except maybe the court challenge. Would the Tories do it? Or some save-FPTP group? Though I guess anything can be challenged by anyone these days.

      Oh, and just to be clear: I don’t mind an electoral system’s lack of proportionality. But that’s not relevant to the constitutional point.

  2. I don’t know if the Tories themselves would do it, but I have a feeling they would offer a considerable amount of moral support to some other group trying to challenge the constitutionality of the electoral changes.

    That being said, what has been hinted at is that the Conservative Senators might very well attempt to hold it up in the Red Chamber. Coupled with the fact that there is no longer a capital-L Liberal Senate caucus any more, and the Prime Minister’s stated intent to use a more open system of choosing Senators, one wonders if the Government might find itself in a bit of a bind in trying to get it through the Upper House.

    Which is an interesting link between electoral reform and Senate reform!

  3. Dear Mr. Sirota:

    Thank you for very much for your article.

    There are numerous calls for a referendum on electoral reform right now. In your estimation if there is a referendum what percentage of those who vote in it will have independently and thoroughly researched the issue enough to make a truly educated vote?

    Given that you feel a referendum is required I am just curious what your thoughts are on my question here.

    Thank you very much

    Russ Husum

  4. Mr. Husum,

    I am happy to bite that particular bullet. I believe that a referendum is required even though the percentage of those who will have “independently and thoroughly researched the issue” before voting in it will be abysmally low. That’s because I also happen to believe that elections are required every now and then, even though the percentage of those “independently and thoroughly research” the parties and their policies before voting in them is abysmally low as well. Indeed, I go so far as to believe that Parliament has the legitimacy to legislate on a great many issues placed within in its purview by the constitution despite the percentage of its members who have “independently and thoroughly researched the issue” before voting is oftentimes precisely 0 ― as it may well be if and when Parliament hoists electoral reform on us.

    Political ignorance is, you surmise, a pervasive and very serious problem. (If you are interested in the topic, may I recommend Ilya Somin’s talk here: http://www.youtube.com/watch?v=dalx5pHdaKs, and also this post of mine, which has some data (and links to more): https://doubleaspectblog.wordpress.com/2014/11/02/ignoramus-et-ignorabimus/.) However, if you invoke ignorance selectively, as an argument against one particular outcome, rather than as a general condition under which political decisions are made, I become suspicious of your motives, rather like Justin Ling is in this piece: http://www.vice.com/en_ca/read/some-crackpots-think-the-public-is-too-dumb-to-choose-a-new-voting-system.

    • Mr Sirota:
      Thank you for your response and the links. I did check them out.

      There is one big difference between elections and referendums. Regular elections are mandated by the Constitution regardless of voter knowledge. Referendums are not. I don’t think that we should have a mis- or uninformed public making decisions simply because a referendum makes it look democratic. What good does it do to have an “abysmally” informed public approve something? There is already lots of misinformation and outright lies flying around now about potential electoral reform?

      Should women (a huge reform compared to what they are considering now) or minorities getting the vote have been subjected to the will of a biased or ill informed public? Or the Constitution and Charter of Rights and Freedom? Look what happened to the Charlottetown Accord.

      I live in BC and studied long and hard before the 2005 STV referendum. The 58% “yes” vote surprised me so I talked to dozens of “yes” voters after 2005 and prior to the 2009 revote. Well almost to a person they had simply voted for “change”, yet had little knowledge of STV itself in spite of lots of information being available. They knew little of the STV system’s complexities and flaws as the Citizen’s Assembly had misleadingly presented STV as “Simple as 1,2,3” which it was not.
      What was clear from 2005 was that the majority of the 58% who voted “yes” were voting for “change” rather than for STV itself while the 42% who voted “no” were not necessarily approving FPTP. I was part of that 42% and was in no way endorsing FPTP. But I also didn’t want something as cumbersome and complicated as STV. To me the ranked ballot seemed the more logical option.

      That whole STV debacle convinced me of three things:
      1) don’t use a citizen’s committee (in BC they made a poor choice plus they were equally adept as politicians and writers at not representing the facts);
      2) don’t use referendums; and
      3) keep a new voting system SIMPLE!

      Proportional representation, depending on the type, might make some improvements but is a bigger change and more complicated. Personally, I am very leery of proportional systems and endless coalitions. The ranked ballot, which is Trudeau’s apparent preference, seems much simpler to implement, is easy to understand, and is not much more than a tweak to first past the post. Yet it would substantially improve our system.

      In my mind improving the system is what counts and what we need to focus on because that benefits Canadians as a whole. My personal opinion is that Trudeau, once his consultations are done, should just implement the change. Whatever is selected will improve our system. And improving the system would be the right thing to do just like giving women, Aboriginals etc. the vote.

      Below is an interesting interview by Keith Boag of CBC who spoke to Stephen Carter (a strategist for Mayor Nenshi of Calgary and also for Alison Redford for her election as premier in Alberta). It ties in somewhat with the Perils of Percpetion study that you directed me to.

      http://www.cbc.ca/news/politics/canada-election-keith-boag-is-politics-broken-1.3229630

      In any case it will be interesting to watch over the next few months.

      Thank you again for getting back. I do appreciate it.

  5. Mr. Sirota,

    Thanks for this article – informative and thought-provoking, as always.

    Stepping away from the legal issues for a moment, would you mind elaborating on your stance against electoral reform? I can infer some of it from your comment regarding proportionality, but I would be interested in hearing your thoughts further elaborated, especially considering most people have accepted it as a done deal at this point.

  6. The test I have for opinions such as this is how it would respond to a hypothetical proposal to replace our current system with one whereby each candidate must be vetted by the government of the day – i.e. no candidate may stand but with the approval of the Liberal Party of Canada.

    In text, this is a minor change to the Canada Elections Act. In practice, it is somewhat different.

    Yet I see nothing in your argument which would suggest the current government is in any way impeded from making just such a change. And thus I must wholeheartedly disagree with your assessment.

    • I’m afraid you are rather confused. An assessment of the constitutionality of possible changes to the electoral system is not supposed to answer any questions about the constitutionality of changes to eligibility requirements. The fact that mine does not says nothing at all about its validity.

      And, in case you are worried, section 3 of the Canadian Charter of Rights and Freeedoms protects ― in a part which I did not quote because it is not relevant to my post ― the “right” of “[e]very citizen of Canada” “to be qualified for membership [in the House of Commons].” Giving the government a power to vet candidates flatly contradicts this constitutional provision, and an amendment to the Charter could only be made pursuant to s. 38 of the Constitution Act, 1982. So, while this has, to repeat, nothing at all to do with the question I actually addressed in my post, you need not worry.

  7. Just to interject with an expansion of Leonid’s point about the use of multi (actually, never more than two) member ridings in federal elections. Only one of the ridings specifically mentioned in the BNA Act is a two member riding, and it was the only one for the 1867 election, but there were two or more two-member ridings in every federal election between 1872 and 1965 — 1968 was the first federal election fought on the basis of all single member ridings. Five different provinces have had two-member ridings — Nova Scotia, New Brunswick, Prince Edward Island, Ontario and British Columbia. The most long-standing example was Halifax, the only riding in Canada to be a two-member riding for ever single election between 1867 and 1965; the runner up was PEI/Queen’s County at 22 times (but not the other counties, which were two-member for only four elections), and Ottawa at 16 times. At the provincial level — PEI had all two member ridings until recently, and BC long had a strange mixture of one, two and three member ridings; and on the prairies the major cities were large multi-member ridings for a string of elections (different dates in different provinces). So “Canadians have always believed that elections involve FPTP in single-member ridings” — no historical basis for saying this. (Of course: the two member ridings were, in my opinion, an abomination — the only thing worse than a single member FPTP is a two-member FPTP where every voter gets two votes.)

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