Electoral Reboot: The Constitutional Question
Should the Supreme Court of Canada provide a reference on electoral reform? Will Canada’s constitution be a factor?
Canada’s constitution defines the rules for setting electoral boundaries, the provincial proportionality of seats, and the equality of each vote. Along with the Charter’s Section 3 guarantee of the right to vote: “Every citizen of Canada has 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.”
But the Constitution doesn’t say how those votes should be counted and assigned. This has led many experts to conclude the federal government can unilaterally change the electoral system without a constitutional amendment or Supreme Court reference.
The court provided a similar reference on Senate reform in April 2014, suggesting major changes to the upper chamber require constitutional negotiation with the provinces — and their unanimous consent for abolition.
What did the Special Committee on Electoral Reform hear about constitutional issues? Watch:
Benoît Pelletier, a constitutional lawyer and Quebec’s former democratic reform minister, says the constitution is largely silent on our electoral system:
“From the perspective of the Supreme Court of Canada, the Constitution does not require any democratic electoral system in particular and does not view the system as immutable,” Pelletier told the Special Committee on Electoral Reform in August.
“So, the first past the post system conforms with the Constitution, but it’s not the only system that could conform with the Canadian Constitution and with Canadian values.”
Much depends on the nature and scope of any proposed reform.
Most experts believe Parliament can change the system if provincial seat allotments remain the same.
But Université de Montréal law professor Matthew Harrington believes recent court opinions on the appointment of senators and Supreme Court justices have raised doubt about Ottawa’a ability to act without two-thirds of the provinces.
“It seems difficult to predict whether the court might regard changes to the electoral system as merely housekeeping matters … or whether such changes would constitute an alteration to the fundamental nature or role of the House and thus require the 7/50 (amending) formula,” he told the committee in August.
VOTING SYSTEMS AND THE CONSTITUTION
The Alternative Vote option (also known as the ranked ballot) would not require a change to riding boundaries or the number of MPs.
A Mixed-Member Proportional (MMP) system could lead to extra seats for party-list MPs, or a reduction in the number of federal ridings to accommodate those new members.
And the Single Transferable Vote (STV), which elects several MPs in a single riding, could provoke a constitutional challenge over local and provincial representation.
Any reform could prompt a court challenge by at least one province, according to University of Calgary political scientist Barry Cooper.
“Changing the electoral system is a change in fundamentals,” Cooper told the reform committee in August.
“In legal language it amounts to changing a constitutional convention, or what we now call the constitutional architecture.”
-Compiled by Andrew Thomson and Tobias Fisher