The Supreme Court could interpret its 2014 opinion on Senate reform to allow Parliament to change the electoral system without provincial consent.

Is a constitutional amendment required for electoral reform? The short answer is “yes.” But the real question is whether Parliament can unilaterally amend the Constitution to put a new electoral system in place, or whether it must follow the so-called 7/50 formula for constitutional amendment, which means the approval of Parliament and at least 7 provinces representing 50 percent of the population is required.

A lot rides on the answer — if provincial consent is required, it is highly unlikely that Canada will ever change its electoral system.

Until recently, there was every indication that Parliament could unilaterally change the electoral system under section 44 of the Constitution (which allows Parliament, subject to some limitations, to “exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.”) The Supreme Court has consistently recognized that the electoral model is “political” in nature, and that the choice of electoral model falls within the domain of Parliament. The Court has also stated that the Constitution does not require any particular electoral system. Although the electoral system is subject to certain constitutional limits — such as voter rights and the rules governing provincial representation — most electoral-reform proposals would not violate these limits.

What changed? The Supreme Court’s 2014 opinion in the Senate Reference changed the legal landscape when it comes to constitutional amendments.

In the Senate Reference, the Court held that Parliament could not unilaterally implement certain reforms, such as consultative elections, to the Senate. These reforms amounted to a constitutional amendment, because they altered the “constitutional architecture,” even though not one word of the Constitution would have to be changed to bring about these reforms. That is, the Constitution can be amended through changes to its architecture, even though the text of the Constitution is left untouched. Although the Court did not define “constitutional architecture,” it indicated that the Constitution has a basic structure that is comprised of a number of elements, including the institutions of government, the functioning of the system as a whole, and unstated values and principles.

In addition, the Court found that consultative elections changed the “fundamental nature and role” of the Senate from a complementary legislative body of sober second thought to a legislative rival of the House, complete with a democratic mandate. Changes to the fundamental nature and role of the Senate, stated the Court, could only be brought about with a constitutional amendment involving provincial consent under the 7/50 formula, as provided for in section 38 of the Constitution. Constitutional amendments that engage provincial interests cannot be implemented unilaterally by Parliament.

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What impact does the Senate Reference have on electoral reform? There is no question that the Court could interpret the Senate Reference to mean that a change in the electoral system requires a constitutional amendment that involves provincial consent. On this view, changing the electoral system from first past the post engages provincial interests, alters the constitutional text and architecture, and changes the fundamental nature and role of the House. The Court could conclude that a constitutional amendment involving provincial consent would therefore be required for electoral reform (see Michael Pal  and Yaakov Roth and Jonathan Roth for these arguments).

But it remains possible for the Supreme Court to interpret the Senate Reference in a way that would allow the Court to adhere to its prior determination that changes to the electoral system fall within the domain of Parliament.

How would such an approach work? The Court would have to focus on the salient differences between the Senate and the electoral system in order to distinguish the Senate Reference and find that its earlier precedents on the electoral system remain valid.

The first-past-the-post electoral system is not even mentioned in the constitutional text.

The first difference between the Senate and the electoral system can be found in the constitutional text. There are a number of provisions (22 in total) that pertain to the Senate or to senators. By contrast, the first-past-the-post electoral system is not even mentioned in the constitutional text. Although there is a reference to electoral districts in a section that is no longer operative, the provision starts with the words “[u]ntil the Parliament of Canada otherwise provides,” which suggests that Parliament has the power to make changes to the electoral system.

The second difference can be found in the constitutional-amendment provisions. The Constitution explicitly provides that any change to the “powers of the Senate and the method of selecting Senators” requires provincial consent under the 7/50 rule. By contrast, the amendment provisions do not refer directly to the electoral system. Although the 7/50 rule does apply to any change in “the principle of proportionate representation of the provinces in the House of Commons,” most reform options can meet these provincial representational requirements.

Finally, a change to the electoral system would not necessarily amount to a change in the fundamental nature and role of the House. The House would remain a representative body under the mainstream reform options that are usually considered. Although the systems differ in their details in terms of the kind of representation that is provided, the Court’s standard does not enquire at this level of granularity. It is concerned instead with the “fundamental” nature and role of an institution, and under most reform options, the House would continue to be a representational body that is designed to reflect the collective will.

A number of unintended consequences could arise if the Court requires provincial consent for electoral reform. The 7/50 rule might be required every time electoral boundaries are redrawn, or every time new seats are added to the House. Given how difficult it is to amend the Constitution under the 7/50 rule, such a course would freeze the democratic order in place. The Court’s approach in its prior cases is preferable: the electoral process is generally treated as political, but subject to certain constitutional limits. The Supreme Court not only can, but should, adopt a narrow reading of the Senate Reference that would allow Parliament to proceed unilaterally with the reform of the electoral system.

That being said, a change to the electoral system should not simply be pushed through by whichever political party happens to have a majority. The process of electoral reform must follow the norms of political neutrality (or nonpartisanship), consultation and deliberation, in order for the reform to be democratically legitimate. Electoral reform differs from the passage of ordinary legislation, because it changes the very ground rules by which political power is attained. The electoral reform process must therefore be held to a higher standard of democratic legitimacy.

Photo: Songquan Deng / Shutterstock.com

This article is part of the Electoral Reform special feature.

 


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