Thank you, Mr. Chair, and good afternoon.
My remarks today will focus on the process of electoral reform in Canada, but I won't be speaking about the kind of electoral system that ought to be adopted. My remarks today are drawn from an article entitled “The Process of Electoral Reform in Canada: Democratic and Constitutional Constraints”. This article is forthcoming in the Supreme Court Law Review.
In the article I considered a number of possible mechanisms for the process of electoral reform, including a citizens' assembly, a commission, a referendum, and an all-party parliamentary committee. I did so by drawing on provincial and comparative international experience with electoral reform. I looked briefly at electoral reform efforts in British Columbia, New Brunswick, Prince Edward Island, Ontario, and Quebec, as well as electoral reform in France, Italy, New Zealand, Japan, and the United Kingdom.
My main conclusion is that although no one process or mechanism is required for electoral reform, the process must be, and must appear to be, democratically legitimate. To achieve democratic legitimacy, the process should visibly follow three norms: first, political neutrality or non-partisanship; second, consultation; and third, deliberation.
Electoral reform differs from the passage of ordinary legislation because it sets out the very ground rules by which political power is attained. For this reason, the process of electoral reform must be held to a higher standard of democratic legitimacy.
Let me talk about the first norm, political neutrality or non-partisanship.
This norm is important because it ensures that the process is as neutral as possible, which in turn helps to prevent the governing party from entrenching itself by selecting rules that favour itself at the expense of the other political parties. This norm is also the most difficult to achieve, in large part because the choice of process can have a determinative impact on the kind of substantive reform that's ultimately adopted. In other words, the choice of process can be as partisan as the choice of the electoral system, in the sense that a particular process could allow or could prevent a particular substantive outcome that is either favoured or disfavoured by any given political party. Any majority government, in particular, must guard against the perception of self-serving entrenchment by ensuring the process is as non-partisan as possible.
As for the norms of consultation and deliberation, these norms ensure that the process has canvassed and considered in detail a wide array of opinions and options. Consultation is connected to the democratic ideal of participation, while the norm of deliberation requires that a collective decision should be justified by reasons that are generally convincing to all of those who are participating in the deliberation. Valid options should not be excluded without consideration, either directly, or indirectly by setting arbitrary goals and limits from the outset.
To further enhance democratic legitimacy and the norms of political neutrality, consultation, and deliberation, I would make three observations.
First is that the proposed reform ought to have the support of all the political parties. In the event, though, that a consensus is impossible, it would be important for the proposed reform to secure the support of political parties that collectively achieved at least a majority, and preferably a supermajority, of the popular vote in the 2015 election. The composition of this special committee on electoral reform would enhance the real and perceived legitimacy of any recommendations issued by the committee, but it would be equally important for there to be agreement among the parties at the legislative level to avoid the perception of partisan self-interest.
Second, it would enhance the real and perceived democratic legitimacy of the process if an additional process option such as a commission, citizens' assembly, or referendum were implemented. While the town halls certainly add to the legitimacy of the process, they don't provide the kind of deep and detailed analysis of a commission or the more inclusive feedback of a referendum.
That said, I don't think that a referendum is required for the legitimacy of electoral reform, although it is of course one option as an additional process.
It should, however, be noted that a referendum is not necessarily a politically neutral choice. Based on the provincial experience with referenda on electoral reform, it is likely that a national referendum would fail, leaving the status quo first-past-the-post electoral system in place to the advantage of the larger parties.
A commission on electoral reform might be a better option as an additional process. Many recommendations from the 1989 Lortie Royal Commission on Electoral Reform and Party Financing, for example, were used to revise electoral laws, but there are other smaller-scale options for commissions. For example, New Brunswick and P.E.I. each established an eight-person commission, and the P.E.I. commission consisted in part of citizens. In Quebec, the parliamentary committee was assisted by an eight-person citizens' committee.
My third observation and recommendation is to extend the self-imposed deadline of December 1, 2016. While this special committee has heard from a number of witnesses, and while MPs have organized a number of town halls on electoral reform, the timeline appears to be unnecessarily hasty, and it runs the risk of undermining the perceived legitimacy of the process. The deliberative and consultative processes should unfold over a longer time period to reflect the importance and scale of electoral reform, particularly in light of the fact that there is no additional process, such as a commission.
My article also addresses the constitutional constraints on electoral reform, and while I cannot discuss this topic in any detail, given time constraints, my conclusion is that electoral reform can likely proceed without a constitutional amendment involving provincial consent, provided that the reform is consistent with certain constitutional limits. I'm happy to discuss the constitutional aspect, should there be any questions on this topic.
Thank you.