Thank you, Mr. Chairman.
I am honoured to be here today, and I appreciate the opportunity to address the committee.
I should like to confine my remarks to just two points. The first is constitutional and the second is political.
The first issue to be considered is the extent to which a change in the current process of electing members of the House implicates the amending provisions of the Canadian Constitution. As the committee is no doubt aware, this issue is whether Parliament can proceed under section 44 or whether it must use the general amending procedure, also known as the 7/50 formula, set out in section 42.
As perhaps you are also aware, a great deal of ink has been spilled recently by academics in law and politics debating this particular question. The newspapers have been filled with editorials by various scholars contending that the abolition of first past the post may be done by Parliament alone, under section 44, whilst others contend that a new electoral system will require the consent of the provinces, under section 42. The degree of certainty expressed by my colleagues in this literature is rather puzzling to me, for I believe any conclusion is premature at this stage.
It would appear to me that the question of which amending procedure is required must abide the advent of an actual proposal. This is because I believe the Supreme Court's recent jurisprudence on amending the Constitution 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. In short, while I'd like to say that changing the method of electing members of the House of Commons might be done under this section or that section of part V of the Constitution, if asked, I would be constrained, like any evasive lawyer, to say that I'd have to get back to you on that.
That's simple, because the Supreme Court has made a muddle of the amending process. The starting point for the analysis is the Supreme Court reference and the Senate reference. In both these cases, the court took up the question of how the composition of institutions may be changed. In both cases the Supreme Court took an extremely limited view of the process of constitutional amendment on the grounds that when amendments work a substantial change to the essential character of an institution, or where such a change would affect the rights of the provinces in a significant way, the amendments must utilize the 7/50 process.
In both cases, the court refused to limit its analysis to a purely textual review of the constitutional provisions, and this is significant. On the contrary, the court held that amendments to the Constitution are not confined merely to textual changes. They include changes to the constitutional architecture, although the court does not define for us exactly what the constitutional architecture is. It is this reliance on constitutional architecture that poses significant problems for navigating the waters of amendment. As of this moment, it seems difficult to predict whether the court might regard changes to the electoral system as merely housekeeping matters, allowing use of section 44, or whether such changes would constitute an alteration to the fundamental nature or role of the House and thus require the 7/50 formula.
My own view is that eliminating the first-past-the-post system might implicate section 42, given the court's treatment of recent attempts to alter the manner of selecting senators and justices. In striking down the attempt to create a system of advisory elections for the Senate, and an accompanying proposal for term limits, the court made it clear that changes that would fundamentally alter the Senate's role as a body designed to provide for sober second thought would be constitutionally suspect. Some have argued that we can ignore the Senate reference on the grounds that there are specific provisions in the Constitution dealing with the appointment of senators, but in the Supreme Court reference, the court struck down an attempt to alter the qualifications of justices.
Bear in mind that in the Supreme Court reference, what was before the court was an act of Parliament. What was before the court was an attempt by Parliament to change one of its own statutes.
The court declared that Parliament’s authority to amend the Supreme Court Act was limited because the act has, over time, essentially taken on a constitutional character. One might argue therefore that any attempt to alter the essential character of an institution or any attempt to alter a system of selecting members which then changes its essential character would trigger that 7/50 formula.
The use of constitutional architecture in the Senate reference as well as the concept of essential features in the Supreme Court reference are, I think, so devoid of precision and substance that one cannot say in advance whether a specific proposal will trigger the requirement for the 7/50 general amending provision. Morever, one might wonder whether the court would actually be inclined to treat the Elections Act as it did the Supreme Court Act and declare that first past the post is entrenched in the constitutional architecture. The Supreme Court Act of 1875 established the initial qualifications for judges. One would have thought Parliament would have been able to change that, but the court declared it could not do so. After the long period of time, it has become part of the furniture. One might question whether the Elections Act, and various predecessors, have done exactly that. I don't say; I wonder.
At this point, therefore, I think the committee is regrettably in the position of having to anticipate in advance whether any specific proposal will disturb the court’s so far nebulous concept of constitutional architecture or significantly alter what it calls the essential features of the House.
If pressed, I would suggest that there are two ways that the committee might do that, or any proposal might do that.
The first would be any system of voting that alters the relationship with, or the rights or the powers of, the provinces—perhaps a significant reworking of ridings that would dilute representation in some way. Of far greater concern, perhaps, is whether any reform system would substantially affect the relationship between the Prime Minister and the House. It could be argued that a Westminster-style government implies the stability provided by a prime minister able to control the House without frequent resort to coalition.
I regret that I can't be more specific on this point, and I dare say that if anybody comes forward and says, “Oh, go ahead and use section 44,” ask them if they're willing to bet the House on that, because until such time as the court defines “essential features” or “constitutional architecture”, no one can ever really predict whether any proposal that comes from the House will be regarded as mere housekeeping, thus implicating section 44, or whether it is a substantial change, requiring use of the general amending formula. The point I would simply like to make is there is no way to know at this point.
My political point is rather more straightforward. Regardless of the constitutional question, I would suggest to the committee that some form of direct consultation with the Canadian people is required, and I think everyone agrees with that. The arguments for a referendum have been rehearsed elsewhere, and I think little would be gained by my recapping them here. My own view is that referenda are incompatible with a Westminster-style government. I believe firmly in the sovereignty of Parliament and I think it is regrettable that the Canadian Parliament has, in recent decades, become rather timid in asserting its place in the constitutional system. I think both the House and the Senate ought to be more vigorous in asserting parliamentary prerogative. After all, the essence of the Westminster system is that the people are best represented in their Parliament, and not in the courts and not in the executive.
To some of my colleagues I know that makes me a bit of an anachronism, a dinosaur, in suggesting that the most appropriate way for electoral reform to be accomplished is by a subsequent parliamentary election. At present, I don't believe that it's possible for us to claim that there is a mandate, a democratic mandate, for any particular electoral reform. I would suggest therefore that the most appropriate way to gauge the support of the Canadian people would be for the government to go to the country a second time. At various times in our history, significant issues have been presented to the people in the form of an election. Recall the 1988 Canadian election, which was fought primarily on the question of whether the North American Free Trade Agreement ought to be ratified.
In conclusion, I would suggest that the most appropriate way to engage the consent of the people would be for the government to prepare a proposal that can be the basis of a subsequent election. That might occur by having the government resign right now, a prospect I know is fatuous in the extreme, or simply waiting until the next election.
In short, the most appropriate thing to do is to make the 2019 election about electoral reform.