Why Canada’s top court must weigh in on electoral reform

theglobeandmail.com
Jan. 15, 2016
By Michael Pal

The Liberal government committed in its election platform that the vote in October would be the “last election” under the first-past-the-post system. This sparked a debate about whether a referendum is necessary to legitimize a new electoral system.

But there is an urgent constitutional question that needs to be answered before electoral reform can proceed. Does the Constitution permit Parliament to act alone to change the federal electoral system, or must it gain the consent of the provinces?

This question is relevant because of the 2014 Senate reference case. In the reference, the Supreme Court of Canada narrowly interpreted Section 44 of the Constitution Act, 1982. Section 44 is the obscure provision that allows Parliament to unilaterally make changes to the Constitution without provincial agreement. Parliament can act unilaterally only for matters relating to the “executive government of Canada or the Senate and House of Commons.” It is likely only through Section 44 that Parliament can amend the electoral system. By constraining Parliament’s power to use Section 44 in the reference, the court halted Senate reform and may have done the same for electoral reform.

The first-past-the-post (FPTP) system is not mentioned directly in the Constitution, but it is best understood as a constitutional matter and more than a mere convention. Numerous parts of the Constitution presume that FPTP is in place. Changing it therefore requires that the formal rules on constitutional amendment be followed.

The Constitution contemplates different amending formulas for different types of changes. Most require the consent of Parliament as well as at least seven provinces. Section 44 is an exception where Parliament acts without provincial support. It is normally invoked only when Parliament periodically alters the number of seats assigned to each province in the House, as it did most recently in 2011.

The Senate reference dramatically constrained Parliament’s authority to unilaterally amend the Constitution through Section 44. Amendments engaging provincial interests or fundamentally changing the “constitutional architecture” require provincial consent. The court reasoned that the provinces have a keen interest in provincial representation in the Senate; they must therefore have a say before elections to the Senate can be implemented, or for the Senate to be abolished. The court even imposed a requirement to obtain provincial consent on Senate term limits, which are not mentioned in the Constitution.

Given the reference’s restrictions on Parliament’s authority to unilaterally amend the Constitution for matters relating to the House and Senate, it is an open question whether electoral reform can proceed without provincial consent.

Moving away from FPTP would affect provincial interests. The federal government and the provinces have been fighting about provincial representation in the House since its creation. Introducing pure proportional representation, or a mixed-member system of the type used in Germany, would dramatically alter Canadian politics. Moving from the electoral system in place since 1867 would constitute a fundamental change to the House and to the Constitution. The implication is that Parliament likely can’t act alone.

Parliament faces a significant risk that it will be barred from introducing a form of proportional representation without provincial consent. As with the Senate, the obligation to obtain provincial consent is the death knell for reform. Even in today’s sunnier political climate, there is little evidence that Parliament and the provinces agree on whether the sky is blue, let alone on electoral reform.

In my opinion, the Senate reference was mistaken in reading Section 44 so narrowly, and did not anticipate the negative impact on electoral reform. Yet reformers have to confront the fact that the reference implies that provincial consent is required for most reforms.

There is one potential escape hatch, however. Lesser changes than a move to proportional representation could be interpreted as only trivially affecting provincial interests and not really changing the constitutional architecture. It might be possible for Parliament alone to implement an option such as the ranked-ballot system.

The Liberal government should learn from the experiences of its Conservative predecessor, which spent years on Senate reform before being told by the Supreme Court that provincial consent was required. The new government should quickly refer the constitutionality of federal electoral reform to the top court.