Yes They Can II

Does existing legislation allow a referendum on electoral reform?

The former Chief Electoral Officer, Jean-Pierre Kingsley, has caused some ongoing confusion on Twitter about whether a referendum on electoral reform would be legal. The source of this confusion is section 3 of the federal Referendum Act, which provides that

Where the Governor in Council considers that it is in the public interest to obtain by means of a referendum the opinion of electors on any question relating to the Constitution of Canada, the Governor in Council may, by proclamation, direct that the opinion of electors be obtained by putting the question to the electors of Canada … at a referendum called for that purpose.

Mr. Kingsley appears to believe that that the desirability of electoral reform is not a “question relating to the Constitution of Canada.” As Emmett Macfarlane has pointed out, he is wrong.

The electoral system is a constitutional matter. Substantively, it is one of the fundamental issues relating to the organization of one of the branches of government (or, more precisely, of a component of the legislative branch). Formally, electoral arrangements were originally provided for in the Constitution Act, 1867 ― federal ones, in Part IV, “Legislative Power,” under the heading “The House of Commons,” (notably at sections 40 and 41) and those of Ontario and Québec in Part V, “Provincial Constitutions,” under the heading “Legislative Power” (notably at sections 70, 80, 83, and 84). To be sure, these provisions partly referred to existing electoral legislation, and enable Parliament and the provincial legislatures to enact such legislation in the future, but they show that the Fathers of Confederation understood that the electoral system is a constitutional issue.

Now, as I have argued here, electoral reform does not require a constitutional amendment enacted with provincial support. It can be implemented by Parliament legislating alone. But that’s because section 44 of the Constitution Act, 1982 provides that “[s]ubject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to … the … House of Commons.” Electoral reform is an amendment to the constitution “in relation to the House of Commons.” So long as it does affect “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]” or “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada” protected respectively by paragraphs 41(b) and 41(a) of the Constitution Act, 1982, such an amendment can and must be made by an Act of Parliament. Yet the fact that it does not require provincial consent or participation does not make it any less of a constitutional amendment, and its desirability any less of “an issue relating to the Constitution of Canada.”

The only way a referendum on electoral reform ― or any other constitutional issue ― might be illegal, and indeed unconstitutional, is if holding it is seen to be a modification to the amending formula set out in Part V of the Constitution Act, 1982 (which includes section 44). The Supreme Court’s rather vague opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, which held among other things that ostensibly consultative elections to the Senate would be unconstitutional modification of the constitution’s “architecture” leaves that possibility open ― depending on what “architecture” means. In the interests of time, I will assert ― and perhaps defend my assertion at some later date ― that the Senate Reform reference does not preclude a referendum of electoral reform, but I think that the matter is not free from doubt.

Be that as it may, it is quite clear that the Referendum Act itself is not an obstacle to such a referendum. Of course, as others have pointed out, Parliament could also legislate to permit such a referendum, whether enacting a statute for that specific purpose in derogation of the Referendum Act, or amending the Referendum Act itself. But such legislation is not necessary. Electoral reform is a constitutional issue and can be the subject of a referendum under existing legislation.

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