A minority government. A restive public. A prime minister who has said he will do better. Fertile ground for advancing democratic reform? Perhaps. Part of an agenda is already in place: the Democratic Reform Action Plan the Martin government released a few months before the June 28 election. The action plan flowed from a speech Paul Martin gave at York University in October 2002, in which he criticized the ”œdemocratic deficit” within federal political institu- tions. Claiming that the measures proposed would ”œreconnect parliamentarians with Canadians,” the focus of the action plan was on enhancing the role of mem- bers of Parliament and the issues of ethics, integrity and accountability.
With the exception of the Bloc Québécois, all the parties represented in Parliament addressed the reform of federal institutions in their election platforms. While there is not much common ground among them, these proposals and others suggest that many Canadians see democratic reform as a broader pursuit. This article dis- cusses three issues that merit being added to the short- and medium-term agenda: instituting fixed dates for fed- eral elections, electoral system reform and Senate reform.
The Democratic Reform Action Plan that Jacques Saada, then Government House leader, tabled in the House of Commons in February 2004 outlined several parliamentary reform measures.
Legislation to establish an independent ethics commissioner reporting to the House of Commons and an ethics officer reporting to the Senate; codes of conduct for each house to support the legislation.
A new system to classify votes: on one-line free votes all government MPs, including ministers, would be free to vote as they see fit; on two-line free votes ministers and parliamentary secretaries would be expected to support the govern- ment, with other members free to vote as they wish; three-line votes would be for votes of confidence and matters of ”œfundamental importance to the government,” and members of the gov- ernment caucus would be expected to support the government.
An enhanced role for com- mittees: bills subject to one- and two-line votes would routinely be referred to committee before sec- ond reading; more resources would be provid- ed to committees to con- duct ”œindependent studies in areas of concern” and to the Library of Parliament and parliamentarians for research and engaging Canadians; the Standing Committee on Procedure and House Affairs would be asked to develop an action plan on new mechanisms of e-consultation.
Review of appointments: appointments to key positions, including heads of Crown corporations and agencies, would be subject to prior parliamentary review; the government would consult with appropriate committees about instituting a parliamentary review process for nominees to the Supreme Court of Canada.
Some progress has been made on implementing the action plan. The ethics officers legislation was adopted, and Dr. Bernard Shapiro was appoint- ed as the House of Commons Ethics Commissioner. The three-line voting system was put in place; according to the Liberal Party’s election platform 72 percent of votes in the House of Commons since Paul Martin became prime minister were free votes for backbenchers (presumably, this includes both one- and two-line votes). However, most of the bills adopted during the months before the election were carried over from the previous session and were not con- tentious. The new Parliament will pro- vide a sharper test of the government’s commitment to lessen party discipline.
If this reform is to have real impact, a change of attitude must emerge " one that does not equate the defeat of a regular government bill with MPs’ ”œdisloyalty” or even loss of confidence in the government.
As for parliamentary review of appointments, progress has been slow. Peter Adams, chair of the Procedure and House Affairs committee, wrote to all MPs to request written proposals on how to implement this reform (the action plan did not mention the procedure for committee review of nominees for Order-in-Council appointments that has been in the House of Commons Standing Orders for several years). According to a report in the Ottawa Cit- izen, Adams received only one reply. Moreover, only about a dozen MPs attended a roundtable on the question. This element of the Democratic Reform Action Plan requires additional focus. One route would be for the government to develop a list of the key positions for which nominees would be sub- ject to parliamentary review, while leaving the door open for the vetting of other nominees in particular circumstances.
On the review of Supreme Court appointments, in late August 2004 the govern- ment created an ”œinterim ad hoc committee” to review its nominees (Justices Rosalie Abella and Louise Charron) for two vacancies on the court. The committee was composed of three Liberal MPs, two Conservative MPs, one MP from each of the Bloc Québécois and the New Democratic party, as well as a representative from the Canadian Judicial Council and the Law Society of Upper Canada. However, the nomi- nees did not appear before the committee. Instead, the Minister of Justice, Irwin Cotler, testified before a public session on August 25 during which he described the nominees’ professional capacity and the selection process. The committee reported that the nominees were ”œeminently qualified” for appoint- ment, while criticizing the limited time it was given (it received the nominees’ names the day before the session with Cotler).
The lack of opportunity to ques- tion the nominees drew criticism from various quarters, with good reason. In a dissenting opinion, the two Conservative MPs on the committee expressed concerns about the ”œinsuffi- cient process” and suggested that a future committee be provided with a short list of qualified nominees, rather than one for each vacancy. Such a move could lead to partisan attacks and bargaining (particularly in the cur- rent minority context). Among other potential results, certain qualified peo- ple could hesitate to let their names stand as candidates. The role of any future committee should remain one of review, not selection.
The Martin government’s Democratic Reform Action Plan has a number of worthwhile elements (described as ”œinitial steps” in the docu- ment). However, the focus is too nar- row. As Peter Aucoin and Lori Turnbull, writing in Canadian Public Administration have concluded, ”œthese reforms cannot assure citizens that their MPs, however much they are freed from party discipline, will be sufficiently responsive to their constituents’ wishes, preferences or interests.” Expanding the agenda would send a signal that the federal government is truly committed to its objective of reconnecting with Canadians.
In its platform for the 2004 elec- tion, the Conservative Party indicated that, if it formed the government, it would set federal elections on a fixed date every four years. Advocates of such a change make a number of claims.
First, it is argued that the prime minister’s ability to call an election when the climate of public opinion seems right can be used for partisan advantage. Critics also claim that the party in power can promote its own cause " for example, through advertising " in the period prior to an election, the date of which is not known to other parties. On this view, fixed-date elections would cre- ate a more level playing field among the parties.
It is also argued that parliamen- tary business would be more effec- tively managed than under the present arrangement, which often leads to bills being stalled or blocked in the uncertain, often heated atmosphere of the weeks leading to an expected election. Finally, some sug- gest that such a change would allow all parties, their candidates and organizers to plan their activities more effectively. There would be fewer last-minute scrambles to nomi- nate candidates or rent space for campaign offices, for example.
In the past, the rare advocate of fixed-date elections was often told that such a change would not fit with Westminster-style parliamentary gov- ernment, principally because it is constitutional practice that an elec- tion must be called if a government loses the confidence of the House of Commons (unless this occurs during the period shortly after an election and the leader of another party can command a majority in the House). The principle of fixed-date elections need not contradict this constitu- tional rule: if a government lost the confidence of the House, a general election would be held prior to the date fixed in legislation; otherwise, the fixed date would apply.
This seems to have been accepted without much debate in British Columbia. Shortly after it came to power in 2001, the Campbell govern- ment introduced legislation that set May 17, 2005 as the date of the next provincial election, with subsequent elections to be held every four years on the second Tuesday in May. In Ontario, the McGuinty government introduced a bill in June 2004 that would set October 2, 2007 as the date of the next provincial election and, for subsequent elections, the first Thursday in October every four years. The feasibility of fixed- date elections is further confirmed by Australian examples: the state of New South Wales and the Australian Capital Territory both hold elections on desig- nated dates (the former every four years, the latter every three).
While instituting fixed dates for federal elections may be relatively straightforward, certain implications need to be borne in mind. For exam- ple, if election dates were known in advance, parties with the resources could purchase significant amounts of pre-election advertising, potentially gaining an advantage over their less well-heeled rivals and calling into question the effectiveness of the elec- tion spending limits. It could be nec- essary to examine whether the Canada Elections Act should regulate key elements of pre-election spending, as has been the case in the United Kingdom since in 2000. Although the United Kingdom does not have fixed- date elections, there is a statutory limit on parties’ campaign spending during the 365-day period that ends on election day.
Although the potential impact of instituting fixed-date elections would be modest, the case for such a change is sound. Early tabling (and referral to committee) of draft legislation to this effect could provide a positive signal that the democratic reform agenda will be evolving.
In its platform for the 2004 general election, the New Democratic party called for ”œa referendum on whether to change the voting system to one based on proportional repre- sentation, similar to systems in Germany and New Zealand that respect voters’ choices, protect local representation and require broad lev- els of support for a party to qualify for seats in Parliament.” NDP leader Jack Layton initially called for the referendum to be held within a year. However, on September 1, 2004, Layton announced that the NDP would present a motion in the House of Commons this autumn to estab- lish a ”œcitizens’ assembly on real democratic reform”; its recommenda- tions would be submitted to a nation- al referendum within two years of the assembly’s creation.
If a new system for the way MPs are elected emerges, Canadians should indeed have the chance to vote on it. However, an adequate process leading to a referendum could take more time than what Layton is proposing, as demonstrated by two cases: New Zealand’s move to a proportional sys- tem, and the process to examine reform now underway in British Columbia.
In New Zealand, growing frustra- tion with distortions in party represen- tation and the power of single-party majority governments led to the appointment of a royal commission in 1984. In its 1986 report, the commission identified 10 criteria for judging electoral systems, surveyed alterna- tives (notably the German system) and recommended a mixed member pro- portional (MMP) system: half the members of the House of Representatives would continue to be elected in single-member districts, the other half from party lists.
Partly in response to pressure from the Electoral Reform Coalition, which worked with various organ- izations to promote reform, the New Zealand govern- ment agreed to hold two referendums. In the first (1992), first-past-the post was roundly rejected; in the second (1993), voters endorsed MMP. The new system applied in the 1996 and subsequent elections.
In British Columbia, an ambitious public involvement exercise, the Citizens’ Assembly on Electoral Reform, will complete its work by this December. The process began in September 2003: in each constituency, letters were sent to 100 men and 100 women randomly selected from the voters list; the recip- ients were invited to attend a meeting in their area; following explanations of what would be entailed, one man and one woman were chosen by lot. The Citizens’ Assembly has organized its work in three phases.
First, the learning phase. During six sessions that started in January 2004, each lasting most of a weekend, the members heard presentations from leading experts on criteria for evaluat- ing the electoral process and the main ”œfamilies” of electoral systems. On March 21, 2004, the assembly issued a ”œpreliminary statement.” It did not endorse a particular electoral system but drew attention to two features it valued: local representation and pro- portionality.
Second, the hearings phase. In May and June, hearings were held in 50 centres; 387 people made presenta- tions; some 2700 people attended (those other than presenters could offer comments or ask questions); in addition, submissions could be posted on the assembly’s excellent Web site.
Third, the deliberative phase. Between September and mid- November 2004, the assembly will con- sider whether to recommend a new electoral system and, if so, what that should be. If it agrees on a change, this will be put to a binding referendum on May 17, 2005.
Many observers will be awaiting the Citizens’ Assembly’s decision. Whatever the outcome of its deliber- ations and a potential referendum, it has already attracted considerable attention through its innovative ways of involving British Columbians in public dialogue on this important issue.
As for the federal electoral system, during the election Paul Martin said ”œwe can learn from what the provinces are doing and then make sure that when we proceed there will be no mis- takes.” Bearing in mind its minority sta- tus, if the government decided to go further, what process could it use?
The British Columbia and New Zealand experiences suggest that an electoral reform process should begin by identifying the deficiencies of the current system and the objectives an alternative system would be expected to serve. In New Zealand, the royal commission carried out these tasks. In British Columbia, the first fruit of the Citizens’ Assembly’s work was its ”œpreliminary statement”; this helped narrow down the issues and provide a focus for inter- ventions during the hearings phase.
Academics and others (such as Fair Vote Canada) criticize various impacts of the federal electoral sys- tem: distorted regional representation for parties; the unequal weight of votes; and the possibility of the win- ning party forming a majority government with less than 40 percent of the votes (this is sometimes linked to arguments about the excessive power of the prime minister). However, there is no consensus as to which weaknesses are the most significant. The same is true for the objectives of reform. Some advocates want to lessen regional divisions by ending the quasi-monopoly of party repre- sentation from certain provinces; oth- ers want to make it easier for minor and new parties to elect MPs; still oth- ers want to see increased representa- tion of women and minorities. In addition, some reform advocates see value in the dispersion of power that would probably result from the adop- tion of a proportional or mixed sys- tem that would make single-party majority government the exception rather than the rule.
An adequate process should also develop public understanding of the purpose of reform and of any alterna- tive system that emerges. As Matthew Mendelsohn and Andrew Parkin (with Alex Van Kralingen) have argued in Policy Options (July-August 2001, www.irpp.org), if citizens have had no say in shaping options well before a referendum on electoral system reform, frustration with the political process may result, and risk-averse vot- ers may reject change because they lack information.
Any proposal to change the federal electoral system eventually put before Canadians in a referendum should emerge from a process that meets the above tests. Although the details of the NDP’s citizens’ assembly proposal had not been announced at the time of writing, the idea has considerable merit. It may be possible to adapt elements of the British Columbia process to the federal context without creating a process that is unduly costly or unwieldy. In order to ensure that the development of any such process bene- fits from expert advice and public dis- cussion, the government could ask the Procedure and House Affairs commit- tee to examine the NDP proposal and other possible models.
The Procedure and House Affairs committee could begin its work by testing the level of public support for electoral system reform and exploring the objectives of such a change. In this regard, it could draw on the March 2004 report of the Law Commission of Canada, Voting Counts: Electoral Reform for Canada, which provides an in- depth analysis of the perceived weak- nesses and strengths of the current system, and outlines the objectives of reform. (The commission proposed a mixed electoral system by which two- thirds of each province’s seats would continue to be elected by first-past- the-post and one-third would be allo- cated from party lists on a proportional basis.)
There should be sufficient oppor- tunity for public involvement at this initial stage, perhaps including e-consultation processes along the lines of those used by the House of Commons Subcommittee on the Status of Persons with Disabilities in 2002-03. If a con- sensus to launch an in-depth public involvement exercise leading to a pos- sible referendum emerges, the commit- tee should undertake research and hear expert testimony on various citizen engagement processes. The govern- ment should resist endorsing unrea- sonable deadlines and any moves to develop an electoral system reform pro- posal through a process that does not allow for true citizen involvement.
And what about the Senate? The federal institution that is proba- bly the most in need of reform remains frozen in time. Although many senators make worthwhile con- tributions, particularly in their com- mittee work, the appointment method is indefensible for a 21st-century democracy.
The main political parties may recognize the need for change, but their remedies differ. Prime Minister Martin has said that if the provincial governments, acting through the Council of the Federation estab- lished last year, can come up with a consensus on reform he will give it serious consideration. The Conservative election platform called for Senate vacancies to be filled by candidates elected in province-wide elections. The NDP continues to call for abolition.
Although it is difficult to argue with the elective principle (and the author certainly does not), institut- ing elections of nominees for the present Senate is problematic. First, it would not change the inequitable provincial representation: to take only one illustration, New Brunswick (with a population of 729,498 in 2001) has 10 Senate seats, while British Columbia (3,907,738 residents in 2001) has only six. Second, the Senate’s powers " an absolute veto over all legisla- tion, including money bills " would remain unchanged. Senators with popular mandates would be inclined to use those powers. Real conflict with the House of Commons could arise even before the new group of Senators outnumbered those appointed the traditional way.
It is doubtful that Prime Minister Martin will lean toward such a change, so little more needs to be said about it. What should be done instead? In my view, the time has come for a renewed national debate on Senate reform. This debate should be informed by past attempts at reform, but the issue needs to be looked at through a new lens.
We could start by admitting that Senate reform is a national, not a regional, issue. Our second chamber, as with those in most other federa- tions, should have a purpose, structure and powers that are relevant to citi- zens in all regions.
That relevance can only be secured by having the Senate elected. As for the election method, a propor- tional electoral system would help ensure that the Senate, in additional to being a forum for debating provincial and regional perspectives, benefited from a broad range of par- tisan and other voices. Measures to encourage fair gender representation and possible designated seats for Aboriginal people should also be considered.
As for provincial representation, equality is central to the Triple-E model that became popular in the 1980s. But is it the only route? Premier Bourassa accepted an equal number of Senate seats in 1992, but this was accompanied by a controver- sial guarantee of Quebec’s share of House of Commons seats. Could suffi- cient support be found for a model based on weighted representation " as used for the German Bundesrat " in which seats per province would be close to equal but the larger provinces would have slightly more than the smaller ones?
The Council of the Federation can certainly play a worthwhile role in a renewed debate on Senate reform, but it is difficult to see a consensus position emerging from that forum in the short or even medium term. We need to hear from a broader range of interveners, including researchers and public affairs commentators. In addition, as with the emerging debate on elec- toral system reform, first principles need to be identified. What should be the repre- sentational roles of the Senate in the 21st century and how could they com- plement those of the House of Commons? Above all, the time has come to acknowledge that, when governments do try to strike an agreement on Senate reform, this should not lead to another attempt to negotiate a huge package of con- stitutional amendments. The future of Canada’s federal second chamber merits being pursued on its own " with vision and vigour.
Although the conditions for such an agreement are a long way from being ripe, the future of the Senate should be part of an expand- ed democratic reform agenda, along with the electoral system. This means extending the horizon for democratic renewal. While deadlines should be avoided, a commitment to engaging citizens in identifying objectives and shaping changes would be essential. The process, not just the outcome, holds promise of reducing the ”˜democratic deficit.”