Thank you, Mr. Chair. My thanks to the members of the committee for inviting me to appear today.
I'll be speaking mainly in French today, but my first words will be in English.
I would like to point out the fact that I'm not an expert on electoral reform, although I have examined electoral reform from a constitutional perspective. What I have done is to try to see how far Parliament could go without a constitutional amendment with regards to electoral reform in Canada. My perspective is that of a constitutional expert on electoral reform, not that of an expert on electoral reform per se.
This said, I was minister for the reform of democratic institutions in Quebec from 2005 to 2008, and in particular from 2005 and 2007, when electoral reform was the most debated in Quebec.
I would like to mention the contribution at the time of one of your MPs—also a member of this committee—Luc Thériault, who was then the critic for the official opposition when I was on the other side of the National Assembly.
I have prepared a synopsis of my presentation, which I think has been distributed to you. I hope it has. I did it in both official languages. I will be making my presentation in French, but the English-speaking members of this committee will be able to follow most of my presentation through the English version of my synopsis.
Let me start the formal presentation.
Mr. Chair, for my analysis, I examined various constitutional provisions. I mention them here because those I am going to discuss are probably, in my opinion, the most significant constitutional provisions in determining the extent to which Canada can move to reform a method of voting without a constitutional amendment.
In the Constitution Act, 1867, the sections I examined include section 37, dealing with the constitution of the House of Commons, section 40, dealing with electoral districts, section 41, on the continuance of existing election laws, section 51, on electoral readjustment, section 51A, on the right of a province to have a number of members in the House of Commons that is not less than the number of senators it has, and section 52, dealing with the increase of the number of members of the House of Commons.
In the Constitution Act, 1982, I specifically examined section 3, dealing with the right to vote, and with subsection 52(2), which provides a definition of the Constitution of Canada. This is not an exhaustive definition that—and this should be specified right now—makes no mention of the Canada Elections Act. I will be coming back to this. I also examined the entire part V of the Constitution Act, 1982, which contains the procedure for amending the Constitution of Canada.
I also examined paragraph 41(a) of the Constitution Act, 1982, which deals with the office of the Queen and the Governor General. This office cannot be changed except by the unanimous consent of federal and provincial levels. I also examined paragraph 41(b), dealing with the right of a province to a number of members in the House of Commons not less than the number of senators it has. Unanimous consent is also required to make amendments to that. I also examined paragraph 42(1)(a), dealing with the principle of proportionate representation of the provinces in the House of Commons. That is 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.
Of course, I also examined section 44, which attributes a power to Parliament to exclusively make constitutional amendments. However, these amendments must be in relation to the executive government of Canada, the Senate or the House of Commons. There are, however, some important exceptions that apply in the case of section 44. What is interesting in this section is that Parliament alone can amend the Constitution of Canada. As I just mentioned, it can also make amendments in relation to the executive government of Canada, the Senate or the House of Commons, subject, of course, to sections 41 and 42 that I mentioned previously, among others. They require unanimity and the 7/50 procedure respectively.
As I examined the jurisprudence, the cases that seemed to me to be the most relevant are the following: Figueroa v. Canada; the Reference re Senate Reform; Ottawa (Attorney General) v. OPSEU; the decision of the Judicial Committee of the Privy Council in In re Initiative and Referendum Act; and the Reference re Secession of Quebec.
In the light of all that I have read, my analysis leads me to say that, in the eyes of the Supreme Court of Canada, the single member simple plurality system, the “first past the post system”, is constitutional, despite its weaknesses.
It's good to know that the current system is in conformity with the Canadian Constitution, although it has weaknesses, as we all know.
Second, and what I am saying here is still essentially 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. In other words, the Supreme Court has shown itself to be open to a change in the way we vote and has mentioned that our Constitution does not require any particular voting method.
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.
Canadians are committed to a democratic form of government. Democratic principles therefore must be observed. The Supreme Court has said that Canadians are politically and constitutionally committed to a democratic form of government. In other words, maintaining a democratic form of government is constitutionally protected in Canada without the Court specifying what form of government that might be.
The Supreme Court also seems to mean that the choice of one method of voting over another is a matter of choice between competing political values. The government has a fairly wide latitude in the matter and it is not for the Court to intervene when it comes to reforming the method of voting, or at least, it is not for the Court to intervene too much.
This is, in my view, something that is fundamental. What the Supreme Court says is that electoral reform is something that belongs to elected representatives, to Parliament, to the government. It's not something that the Supreme Court of Canada would like to intervene in.
Maybe, if the court ever had to, if ever some of the main principles that I will be speaking about in a couple of minutes are affected, it would, but the first desire of the Supreme Court of Canada is not to intervene. Its first reflex is not to intervene. And the Supreme Court, in fact, confirmed that all of this is mainly a question of political decisions instead of judicial decisions.
So what are the main conditions that Parliament must fulfill in terms of reforming the method of voting? As I list those conditions, I am saying that Parliament can act alone to reform the method of voting, providing that it does not affect any of the principles that I will mention in a moment.
The first principle is well established in jurisprudence. This is the concept of effective representation. The Supreme Court mentions a relative equality between voters. This is not therefore total or perfect equality. But there must be relative equality in terms of the weight of each vote in Canada's overall political system. If the principle of effective representation were overstepped, it would probably lead the Supreme Court to intervene.
But as long as the principle of relative equality is respected, the Supreme Court of Canada is not interested in intervening.
Here is the second principle. Reform must not change the office of the Queen or the Governor General. As I said before, the office of the Queen and the Governor General are subject to the rule of unanimity, the procedure that requires amendment by unanimous consent.
Is it possible to have an electoral reform that does not affect the office of the Queen, or that of the Governor General? The answer is yes. The main functions of the Governor General and the Queen have to be respected if there ever is electoral reform, whatever it is, in Canada.
Parliament cannot infringe on 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.
This is a very interesting limit. At this moment it only applies to very small provinces that don't have many MPs and that have more senators than MPs. It allows them to have as many MPs as the number of senators they have. But if ever there is a change in the number of seats in Canada, we have to make sure there is no change that goes below the number of senators attributed to each province at this moment under the Canadian Constitution.
Of course, Parliament cannot affect the principle of proportionate representation of the provinces in the House of Commons because that it covered by the 7/50 formula. But here we come up against something much more delicate, probably as a result of the jurisprudence. I believe that the preamble to the Constitution Act, 1867 protects a British type of parliamentary system and the principle of responsible government.
There is jurisprudence from the Supreme Court of Canada that says that the preamble to the act of 1867 entrenches or protects the Westminster model of government and entrenches and protects the principle of responsible government.
Here the question is, how far does that go, first of all? How far does that protection go? I cannot say, to be frank, and no one could say. It would be for the Supreme Court of Canada itself to specify what it really means eventually, if ever there were litigation, a problem, or a reference, on this subject.
The first question therefore is to find out how far that protection goes. It comes from the preamble of the Constitution Act, 1867, but not explicitly so. It is implicit.
because the preamble says that we want a constitution that is based on the same principles as the constitution of the United Kingdom. The jurisprudence took that affirmation and found in it some kind of protection for the Westminster model of government and responsible government.
The first question therefore is to find out how far that statement of the courts goes and the second question is to find out what is the content of—
Westminster model of government. What's the content of that concept?
There is a risk in wishing to define a concept like that, but it seems to me that the Westminster type of government involves a certain number of principles.
The first principle is that executive powers are officially and theoretically conferred on the head of state and that they are concentrated under his purview.
Under the second principle, those executive powers are exercised in practice by the prime minister and the ministers.
Under the third principle, executive power is part of the legislative assembly. In other words, not only does the executive contribute to the exercise of legislative power, but it is also an integral part of the legislative assembly.
According to the fourth principle, executive power must be accountable to the legislative assembly. It must answer for government policies before the legislative assembly.
The next principle says that the democratic legitimacy of the executive power depends on, and is granted by, the legislative assembly.
Under the final principle, which goes back to the principle of responsible government, the prime minister must tender the resignation of his government to the governor general or must ask for the House to be dissolved if he does not enjoy the confidence of those the people have elected.
In my view, this is the definition of British parliamentary democracy that I give. Clearly, of course, other experts may wish to refine or add to this definition.
One final constraint on the Parliament of Canada results from a 1919 decision of the Judicial Committee of the Privy Council. This is In re Initiative and Referendum Act. It was referred to in 1987 by the Supreme Court of Canada in Ontario (Attorney General) v. OPSEU. The Judicial Committee of the Privy Council was referring to the provinces and the same principle probably applies to the Parliament of Canada. Parliament cannot bring about profound upheaval by introducing political institutions that are foreign to and incompatible with the Canadian system. In English, we would say that—
Parliament could not introduce political institutions foreign to and incompatible with the Canadian system.
You are going to ask me what that exactly means. Now, it is worth redefining it through jurisprudence. What we know is that Parliamnet could not, for example, entrust the people with all the legislative powers. Referenda could not become the only way in which laws are passed. The fact is that, beyond that, we do not know what the expression means.
I repeat that the Judicial Committee of the Privy Council was talking about provincial legislatures and referred back to subsection 92(1) of the 1867 act. The parallel also holds true for former subsection 91(1) of the 1867 act and the Parliament of Canada.
Finally, I would say that maybe there will be some experts saying that Parliament cannot affect the fact there are electoral districts in Canada. Section 40 of the Constitution Act, 1867, refers to electoral districts. Some experts may say that electoral districts are entrenched and cannot be affected by Parliament unilaterally, but I don't share that point of view. I think that Parliament can abolish or diminish the number of electoral districts unilaterally by virtue of section 44 of the act of 1982.