Thank you for this opportunity, Mr. Chairman.
Except for two brief opening comments, my thoughts will be on process rather than electoral systems, of which you've already heard much. My main addition to the mixed advice of the experts is to make the obvious point that the various electoral systems cannot be considered in the abstract, however elegant they may be.
We are a sprawling and highly urbanized federation with our own makeup and history, and our own political culture.
Also, and this is cautionary, changes to any political system with great complexities and feedback loops will bring unintended consequences sooner or later. For example, on the “sooner” side, in 1952, in my province, the disintegrating Liberal and Conservative coalition introduced a form of the alternative ballot, a scheme that the press claims is the preferred Liberal alternative. The aim was to keep the NDP, then called the CCF, out of power on the theory that the free enterprise voters would make one or the other of the two old parties their first and second choice. Result? Out of nowhere, a Social Credit government ruled B.C. for 20 years. You can't tell how even small changes will play out.
As a second brief example, who would have dreamed that what seemed like small changes to the U.S. primary system many years ago would lead to Donald Trump today?
Unintended consequences lurk in constitutional change, and that's the kind of change I say we're talking about.
Now, to my two main arguments. The first is that the electoral system belongs uniquely to the people, not to politicians, and citizens must be directly involved in any change.
You will properly require a supporting argument for my proposition that Parliament can't act alone, because in the British tradition, Parliament has always been supreme.
In Canada, from the beginning, Parliament and the legislatures faced constraints. Some of them were explicit in the British North America Act and some implied from the preamble's wording, “similar in principle” to the United Kingdom, which imported certain conventions, and so on. The power of Parliament to act was subsequently dramatically constrained, and those of the Supreme Court dramatically extended, by the 1982 constitutional amendments, including but not limited to the charter. In 2007 the same court developed a doctrine further constraining Parliament by incorporating ratified international human rights documents into our law. In 2014 came an even more relevant decision on the Senate.
In the circumstances of today, the law of today, I wish to pose three questions. One, can the Parliament of Canada unilaterally change the electoral system of the House of Commons in law? Two, if such a change were lawful, would it be morally proper? Three, if the answers to the first and second questions are yes, would it be politically wise?
Would such a change be lawful? No one can answer this question, including the government's lawyers, except the Supreme Court, which will certainly be asked if change is proposed. We do have a bit to go by, coming from the Senate reference of 2014. In that decision, the court substantially widened its powers of review of these matters, and I quote:
The Constitution should not be viewed as a mere collection of discrete textual provisions. It has an architecture, a basic structure. By extension, amendments to the Constitution are not confined to textual changes. They include changes to the Constitution’s architecture that modify the meaning of the constitutional text.
No one in this room needs to be told that since 1982 the Supreme Court can do anything it wants to do, especially in cases like this where the notwithstanding clause would not even apply in theory. These words must be taken seriously. What might they mean in this context?
The simplest example is federative in nature. The province of Quebec—and Professor Johnston adverted to this—could well argue that throughout our history, FPTP has contributed mightily to a block vote of MPs from that province, which in turn has enhanced their power in the federation. Any change would affect the architecture of confederation, without question. I'd hate to argue the other side of that case.
A broader argument is that FPTP makes majority governments far more likely, which is an indisputable fact. The alternative vote is, perhaps, an exception. That might also be part of the essential constitutional architecture of the country. It has certainly mattered throughout our history.
The court would look at these things, but it could ignore such reasoning, it seems to me, if sufficiently persuasive third-party support were offered, such as provincial consent in certain numbers or a popular referendum.
Thus I say to the committee, if you want to avoid prolonged litigation on this matter—an unpleasant possibility—you might well be advised to make any proposed change judgment-proof by demonstrating such extra-parliamentary support.
To move to my second question, the propriety of unilateral change, the Canadian state does not belong to Parliament; the beneficial owners are the Canadian people. Elected representatives are in the nature of trustees—respected, very broad powers, but limited.
In our system, almost all our decisions are made by you as representatives, and we do not have a political culture that would make frequent use of referenda either practical, desirable, or popular. Most people have neither the time nor inclination to make the studies and trade-offs that you do on our behalf.
However, this deference has limits. When it comes to the rules of the game, the very basic law of how decisions are made, people want and deserve a voice. I very much respected the words of Mr. Bricker on this when he said that the more they know, they more they want to have a say.
You can be absolutely certain that if electoral reform becomes a likely matter, the people will know a very great deal about it. The Charlottetown accord referendum stands as a very powerful precedent, wherein a solid majority of Canadians rejected virtually the entire Canadian establishment. My province has had a law for 25 years requiring that any constitutional proposal has to pass a referendum test.
I know you've been told by some that constitutional referendums always fail. I'm here to tell you that's not true. New Zealand has been mentioned, but confining our attention only to Canada, just a bit over 10 years ago, a proposed new electoral system in B.C. received the affirmative support of almost 58% of the electorate. The turnout was 61.5%. The measure secured an absolute majority in 77 out of 79 ridings. That referendum passed by any reasonable test, but the provincial government had set a 60% hurdle rate, so a marvellous opportunity for a natural experiment in thoughtful electoral reform was lost.
The fact is, with a good proposal and adequate consultation, constitutional referenda cannot only be won, but in the doing—and this goes again to Richard's point—confer a massive legitimacy not otherwise attainable. Such legitimacy should be the gold standard for any proposed change in basic law.
Central to the B.C. success was the developmental and consultative machinery for the new electoral proposal. The Government of British Columbia, in common with Ontario and P.E.I. in similar circumstances, accepted that the electoral system was owned by the people and that change should be developed and affirmed by the people. The government therefore mandated a citizens' assembly and gave me the honour of designing the machinery. Through the efforts of the chair, the staff, and its members, it worked supremely well.
The bottom line is that at the end of the day the people believed in it because it was credible and empowered. I am convinced that with the appropriate changes, a similar process could work on the national level, and I'd be glad to give details if asked.
I now come to my final point. I've argued that unilateral change to our electoral system by Parliament might well not be lawful, and suggested how to make it so. I've argued that it would not be legitimate if unilateral, and have suggested machinery to address that need.
Now let me suggest that you may ignore the first two arguments, but then you will fall prey to a third factor: unilateral change would not be politically wise. You are current practitioners; I'm not. However, I've spent one-third of my working life in politics and another one-third commenting on their doings, so I don't feel backward about giving you a bit of political advice.
If this Parliament, and in particular the governing party, proceeds to enact electoral change without court or citizen validation, it would face a storm of criticism. The attack lines virtually write themselves: “The electoral system belongs to the people, not the politicians”, “Our employees should not hire themselves”, and so on. Were I still in politics, such a debate would be great fun, but I most earnestly counsel you to avoid such a fight for fear of diminishing the already too little trust in our system.
Some on the government benches will say, “But we promised the last election would be the last with FPTP.” So you did. Every party makes unwise promises. Every citizen understands that. The question then becomes, after the election, which are crucial in electoral terms and which are not? This one, I say, is not.
My advice is to report to the House that you were all agreed that after careful committee study, it's more important to take the time to do this right rather than be in a hurry to do it wrong. Trust the people in this. You'll not regret it.
Thank you for your attention.
