The electoral reform debate has driven itself into the realm of legal and constitutional minutia, resulting in little more than confusion

I want to clear some things up, for the sake of…well, clarity, I guess, but also for my sanity.

Former chief electoral officer Jean-Pierre Kingsley recently suggested in the media that the Referendum Act does not permit a referendum on electoral reform, because it only allows for referenda on constitutional matters.

In my view, this is both wrong and irrelevant.

It is wrong because electoral reform is properly understood as a constitutional issue, as Leonid Sirota noted yesterday. While the constitutional text itself does not directly mention the electoral system, various provisions relate to its key aspects, including the existence of geographic electoral distrincts, provincial-seat proportionality in the House of Commons, seat floors for provinces, and other election-related rules. Moreover, the Supreme Court’s recent opinion in the Senate reform reference articulated a very broad understanding of the concept of “constitutional architecture,” which recognized that the Constitution extends beyond the written text to include unwritten components as well as key features of its central institutions.

In short, parts of the Canada Elections Act might now effectively be regarded as constitutionally entrenched, just as the court determined parts of the Supreme Court Act have been. This would mean that at least certain forms of electoral reform would require a formal constitutional amendment.

Even if Kingsley’s very narrow interpretation of the Constitution as it relates to the Referendum Act is correct, however, I’m not sure why it’s relevant to the debate about a referendum: if Parliament wants to have a referendum on electoral reform, it is undoubtedly free to pass enabling legislation to hold one. Hopefully, it would do so with tight and fair rules — particularly to keep unions, corporations and other special interests from dominating the debate.

This is not to suggest Parliament isn’t free to enact electoral reform by itself. Even if major reform constitutes a formal amendment to the Constitution, Parliament is generally free to pursue it under section 44 of the amending formula.

Moreover, few experts would suggest a referendum is legally required. (A handful has suggested the Charlottetown Accord set a precedent and is now at least a convention; I don’t agree). But as I’ve written previously, the fact that a referendum isn’t required doesn’t make the arguments against having one particularly convincing.

Nor does a referendum foreclose the possibility of reform. New Zealand had a multi-stage referendum process that was stacked in favour of the status quo, and voters still came out in favour of a new system.

So, to sum up:

  1. There are no constitutional or even legal restrictions on having a referendum on electoral reform.
  2. Electoral reform is a constitutional issue, and a major change to a proportional or mixed system will likely require a constitutional amendment.
  3. Barring radical change that seriously alters seat proportionality or eliminates electoral districts, Parliament is free to enact electoral reform under section 44 of the amending formula.
  4. A referendum is not required — its just that there don’t seem to be very good arguments against one.

Photo: CP Images / Sean Kilpatrick

 


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