The Committee’s
mandate directed it to “take into account the applicable constitutional, legal
and implementation parameters in the development of its recommendations.”[17] Indeed, some of the debate around
electoral system reform has centred on whether and to what extent such reform
could require constitutional amendment, particularly amendment that would
necessitate provincial support. While Canada’s constitution does not contain
any specific reference to what electoral system should be used to elect members
to the House of Commons, it does contain sections that have some application to
the operation of the electoral system, which are summarized below.
The Committee heard from a number of constitutional experts on the
subject of electoral system reform. Overall, most experts suggested that the
types of reforms contemplated by the Committee would not necessitate provincial
support, provided certain requirements are met. Still, a few experts expressed
concern as to whether the Supreme Court of Canada’s 2014 decision in the Reference
re Senate Reform[18] (“Senate Reference”), and in particular its
discussion of “constitutional architecture” in relation to the “structure of
government that the Constitution seeks to implement” would include electoral
reform. One expert suggested that it could be worthwhile for the Government, if
and when it proposes a particular model of electoral system reform at the
federal level, to seek a reference to the Supreme Court of Canada on this
issue.[19]
A number of provisions of the Constitution Act, 1867 and the Constitution Act, 1982 are relevant in determining, as noted by Benoît
Pelletier, “the extent to which Canada can move to reform a method of voting
without a constitutional amendment.”[20]
The constitutional authority setting out the manner in which
members are elected to the House of Commons are: sections 37, 40[21],
41, 51, 51A, and 52 of the Constitution Act, 1867. As well, section 3 of
the Canadian Charter of Rights and Freedoms (in the Constitution Act,
1982) provides for the right to vote and stand for election to the House of
Commons. Finally part V of the Constitution Act, 1982 outlines the rules
for amending
the Constitution of Canada.[22] Different amending formulas apply to the relevant sections of the Constitution
Act, 1867, thereby potentially limiting Parliament’s capacity to act on its
own initiative to adopt a new electoral system.
- Section 37 lists the
number of House of Commons seats allocated to each province and territory. At
confederation in 1867, this section listed the total number of seats for each
of the four provinces in accordance with section 40. Every time a
redistribution takes place under the aegis of section 51 of the Constitution
Act, 1867, the list of seats in section 37 is automatically updated.
- Section 40, which is
now spent (no longer in force), set out the number of seats per province for
the first Parliament of Canada in 1867, as well as
the initial rules for determining electoral district boundaries. The number
of seats in this first allocation conformed, insofar as possible, with the
requirement for each province to be represented proportionately, in accordance
with its population.
- Section 41 sets out
the continuance of existing election laws (at the time of Confederation) until
the Parliament of Canada provided otherwise. As other laws have been adopted,
this section is spent (no longer in force). Elections are now provided for by
the Canada Elections Act,[23] and
the qualifications
and disqualifications of members by the Parliament of Canada Act.[24]
Other parts of the electoral process are set out in other legislation,
primarily the Electoral Boundaries Readjustment Act.[25]
- Section 51 sets out
the basis for adjusting seats in the House of Commons. As currently enacted it
contains a list of six rules under which the number of members of the House of
Commons for each province is to be determined, following each decennial census.
Parliament has significantly rewritten the rules in section 51 on several
occasions. Section 51 may be amended unilaterally by Parliament only as long as
the changes to the rules do not violate the constraints imposed by sections 51A
and 52 (described below).
- Section 51A, also
known as the “senatorial clause,” specifies that a province can under no
circumstance have fewer seats in the House of Commons than it does in the
Senate.[26] Section 51a may only be amended through the “unanimity formula” set out in section
41 of the Constitution Act, 1982 (described below).
- Finally, section 52 lays
out two basic principles intended to guide and limit Parliament’s ability to
change the composition of the House of Commons. First, it requires that each
province be represented by a number of MPs that is proportionate to its
population. Second, it assumes that changes to the number of MPs will increase,
rather than decrease, the total membership of the House of Commons. It states
that: “The Number of Members of the House of Commons may be from Time to Time
increased by the Parliament of Canada, provided the proportionate
Representation of the Provinces prescribed by this Act is not thereby
disturbed.”
The term “proportionate representation” refers to the concept of
representation by population, and is intended to ensure that the number of
citizens represented by each Member of Parliament is roughly the same in each
province. This guarantee of “proportionate representation” may be amended only
through the general amending formula set out in section 38 of the Constitution
Act, 1982, described below. Several of the rules adopted by Parliament over
the course of the 20th century and incorporated into sections 51 and
51A have provided specific exceptions to the requirement of “proportionate
representation”, with the collective effect of preventing the number of
seats for several provinces from dropping between one redistribution and the
next.[27]
It is unclear whether it is within Parliament’s power to unilaterally add new
rules that
would further depart from the principle of proportionate representation in the
context of electoral system reform.
The Constitution Act, 1982, which contains the Canadian
Charter of Rights and Freedoms (the Charter) and the amending formula for
the Constitution (Part V), provides further details with respect to the
operation of Canada’s electoral system:
- Section 3 of the
Charter states that “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.”
- In terms of amending
the Constitution, section 44 of the Constitution Act, 1982 entitles
Parliament to amend “the Constitution of Canada in relation to the executive
government of Canada or the Senate and House of Commons.”
- However, Parliament’s
power to act unilaterally (for example to amend the seat allocation formula
under section 51 of the Constitution Act, 1867) is tempered by
sections 41(b) and 42(1)(a) of the Constitution Act,
1982:
- Section 41(b)
requires the approval of all provinces in addition to the consent of the
Senate and the House of Commons for amendments to the “senatorial clause” at section 51A of the Constitution Act, 1867.
- As well,
section 42(1)(a) prescribes that an amendment to the proportionate
representation of provinces in the House of Commons[28] must be made using the general amending formula set out in section 38, which
requires the support of at least seven provinces representing at least
50% of the population of all of the provinces, in addition to the consent
of the Senate and House of Commons.
While there is a growing body of jurisprudence analysing the right
to vote set out in section 3 of the Charter, the courts have very rarely
pronounced on the relationship between this right and the possibility of
reforming Canada’s first-past-the-post
electoral system. In two instances, the Supreme Court of Canada’s 2003 decision
in
Figueroa v. Canada (Attorney General)[29],
and the Quebec Court of Appeal’s 2011 decision in Daoust c. Québec (Directeur
général des élections)[30], the courts have held that section 3 of the Charter does not guarantee any
particular type of electoral system, including first-past-the-post, but rather
a right to play a meaningful role in the electoral process.
However, these cases did not contemplate how other constitutional
provisions, particularly around proportionate representation of the provinces,
could be triggered by electoral system reform. As well, the Supreme Court of
Canada’s 2014 decision in the Senate Reference[31] has raised questions for some about whether the method of selection, as well as
perceived role or nature of MPs, though not explicitly set out in the
Constitution, are nonetheless a part of its “architecture.” If so, experts have
questioned whether or not electoral system reform could trigger the need for
constitutional amendment, either the kind that can take place within the sole
purview of Parliament, or that would require provincial consent in accordance
with the general amending formula (the 7/50 rule) set out in section 38 of the Constitution
Act, 1982.
Most experts who testified before or submitted briefs to the
Committee suggested that the types of electoral system reforms contemplated by
the Committee would not amend the Constitution in such a way as to necessitate
provincial support, so long as the reforms respected certain constitutional
parameters, such as proportionate representation between the provinces. Still,
some experts questioned whether the notion of “constitutional architecture”
referred to in the Senate Reference could be interpreted to include some
elements of the current electoral system or role of MPs in the House of Commons
thereby requiring some level of provincial approval.
Constitutional expert and former Quebec cabinet minister Benoît
Pelletier observed that while the current electoral system is constitutional,
it is not the only system that could conform to the Constitution.[32] Indeed, he noted how the Supreme Court, in Figueroa, highlighted how the
choice of electoral system is essentially a political matter, up to Parliament
to decide (within certain parameters).[33] Should
the reforms of the electoral system be found to contravene those parameters,
constitutional amendment would be required. For example, as discussed above,
any change to the principle of proportionate representation between the
provinces would be:
… subject to the 7/50 procedure, meaning the
consent of the House of Commons and the Senate, subject to the Senate having
only one suspensive veto of 180 days, and at least seven provinces representing
at least 50% of the population of all the provinces.[34]
As well, Professor Pelletier identified the following elements as
being fundamental to the constitutionality of any electoral system in Canada:[35]
- Effective representation (relative equality between voters);
- The office of the Queen or the Governor General (which require
unanimous consent to be amended);
- The “Senate floor” provision, protecting the right of the
provinces to have a number of members of the House of Commons that is at least
equal to the number of senators;
- The principle of proportionate representation of the provinces in
the House of Commons; and
- The principle of responsible government.[36]
Professor Pelletier added that “Parliament cannot bring about
profound upheaval by introducing political institutions that are foreign to and
incompatible with the Canadian system,” meaning that, for example, “referenda
could not become the only way in which laws are passed.”[37] Finally, he said that Parliament could, should it wish, unilaterally abolish or
diminish the number of electoral districts in Canada.[38]
Emmett Macfarlane, whose research focuses on legislative
responses to court rulings on rights and their implications for public policy,
also took the position that, within certain limits, Parliament can undertake
electoral system reform without constitutional or legal constraints.[39] He suggested that even if the electoral system could be interpreted as being
constitutionally entrenched as part of the “constitutional architecture” (taken
to be a part of the Constitution and thus having to follow constitutional rules
on amendment), it
does not engage provincial interests and thus reform would not trigger the
general amending formula.[40]
Yasmin Dawood also suggested that “electoral reform can likely
proceed without a constitutional amendment involving provincial consent,
provided that the reform is consistent with certain constitutional limits.”[41] However, she noted that the Supreme Court of Canada’s 2014 Senate Reference has
raised the question as to whether provincial consent could be required.[42]
Matthew P. Harrington went further, suggesting that the use of
“constitutional architecture” has “created a great deal of ambiguity and
confusion, so much so that I think it's now nearly impossible to determine
whether a change in the method of electing members of either branch of
Parliament is significant enough to require provincial consent.”[43] He suggested that there are two ways that a proposal for electoral system
reform might impact the “nebulous” concept of “constitutional architecture” or
“significantly alter what it [the Supreme Court of Canada] calls the essential
features of the House [of Commons]”: altering the relationship or rights of the
provinces, or substantially affecting the relationship between the Prime
Minister and the House.[44] Thus,
Professor Harrington indicated that “eliminating the first-past-the-post
system” could “implicate section 42” of
the Constitution.[45]
Peter Russell remarked on the possible constitutional implications
of specific electoral system reform options, and posited that a mixed member proportional
representation (MMP) system could be more likely to risk challenging the
“constitutional architecture” than a single transferable vote (STV) system, as
MMP “produces two kinds
of members of Parliament,” and STV has already been used in Canada in the past.[46]
As discussed later in this report, however, others have testified before the
Committee that there would be no real difference between MPs elected in an MMP
system.
Finally, Patricia Paradis, Executive Director for the Centre for
Constitutional Studies at the University of Alberta, suggested that depending
on what type of electoral system reform is proposed, it might be worthwhile to
seek a Supreme Court reference to confirm the constitutionality of the
proposal, as a reference would be more definitive and less time consuming than
a court challenge.[47] She added that should electoral reform be found to be a constitutional matter
(implicating the Constitution), then the appropriate constitutional amending
process would need to be applied.