Electoral Reform Committee on Sept. 29th, 2016

[The Chair, Liberal, Francis Scarpaleggia]

Welcome, all, to the 33rd meeting of Special Committee on Electoral Reform.

We welcome Ms. Georgina Jolibois here today.

Thank you for joining us, I think you'll find it very interesting. We've had some great testimony, and it's an extremely timely and interesting topic.

I would like to welcome our two witnesses: Roderick Wood, professor, faculty of law, University of Alberta; and Patricia Paradis, executive director of the Centre for Constitutional Studies at the University of Alberta. We're very pleased that you are able to be here today.

Without further ado, we'll start with Professor Wood for 10 minutes.

[Roderick Wood, Professor, Faculty of Law, University of Alberta, As an Individual]

Thank you very much, Mr. Chair, for your very kind invitation to appear today. I believe that a country that is willing to examine its electoral system is much stronger for doing so.

Twelve years ago, the Law Commission of Canada published its report on electoral reform. I was a commissioner with the Law Commission and I participated in the production of that report. What I wanted to do today was to talk a little bit about how it was that we came to the conclusion that we did. I can say that in the 12 years that have passed since the publication of the report I have not changed my view that the mixed member proportional system is a better choice than the existing system, and is to be preferred over other alternatives.

However, there is one element of the report that I have changed my mind about in light of new information that wasn't available at the time of the Law Commission's report. That is the issue of open lists versus closed lists, which I can talk about in a while.

In looking at the question, as law reform commissions do, we asked, “Is there a problem with the existing order?” What we heard was that there were severe concerns about the existing system. You are likely very familiar with these so I won't dwell on them, but briefly, the existing system results in disproportionality, the creation of artificial majorities, regional imbalances, and what the Jenkins commission referred to as the creation of electoral deserts, in which whole regions of Canada may have little or no representation in the government. It results in the under-representation of women, minorities, and first nations peoples. It gives a sense of the lost vote—“Why should I vote? It's not going to be counted. It's not worth anything”—and may even lead to strategic voting, the feeling that you have to vote for a less preferred candidate because otherwise your vote simply wouldn't count. It can also lead to what is viewed as a hyper-partisan adversarial political culture in the country.

Having looked at these problems, our next step was to look at whether there might be some alternatives that would better address these concerns. In order to do so, we had to come up with some criteria, some political values that may be promoted in a given electoral system so that we could test the other models against these criteria. When I look at them, they seem congruent with the criteria mentioned in the mandate of this committee. We thought that fairness in translating votes to seats, proportionality, and giving citizens the sense that their votes will be counted were all important matters.

We looked at the promotion of regional balance. All parts of Canada should be represented in the government. We should try to avoid the electoral deserts or wastelands that can be created, which then sometimes pit one region of Canada against another. We wanted a system that would promote effective and accountable government and effective opposition.

We looked to demographic representation, the idea that the government should reflect the diversity of the people in the society, particularly women, minorities, and first nations people. We wanted a system that might better promote inclusive decision-making and consensus-building in place of adversarial partisan politics.

Having defined these criteria, we then looked at the different electoral models and tried to evaluate how they stacked up against these criteria. We looked at alternative voting and saw that it has benefits over the existing system. For us, the difficulty with alternative voting was in its disproportionality. It really didn't address the question of proportionality, and possibly it might make things worse. It didn't address the problem of regional balance. It didn't address the lack of diversity in terms of the representatives in government. So, we moved on and looked at systems of proportional representation. We looked at list PR systems, such as they have in Europe; the single transferable vote, used in municipal politics and for a time provincially in Alberta and Manitoba; and mixed member proportional representation, MMP.

What we concluded was that of those, MMP for us was the best choice. I think the key factor for us was the geographic representation that it provided, that direct link between the voter, the constituency, and the MP representing that. We thought it was important to retain that feature of the electoral system, and the MMP had that element, yet it also addressed the other problems we had identified. As for the lack of proportionality, it was addressed by MMP; the idea of the wasted vote, that was reduced in the system of MMP; the regional balance, that was addressed; under-representation of minorities and women... We saw in New Zealand there was a sharp increase in representation after the introduction of MMP in those countries. For that reason, we thought that MMP was a better choice.

Following that, we looked at criticisms that had been launched against MMP, to see if they carried any validity. The three criticisms that are often made against MMP are that it creates unstable governments, that it creates two classes of MP, the list MP and the constituency MP, and that it is susceptible of having a splinter group, a small political party holding the balance of power, which would be undesirable. We looked at that and we thought that these criticisms were exaggerated.

We looked at countries that do have MMP—Germany, Scotland, Wales, and New Zealand—and there's no evidence that their governments are unstable. Yes, they govern without having a majority, but they're not unstable democracies.

We looked at the argument of the creation of two classes of MP, the worry being that the list MP, not being voted in, would be the second-class citizen. We saw that wasn't the case. In Germany, in New Zealand, they're both MPs and their parties ensure that the list members have an equitable division in terms of constituency work. In fact, for voter choice it enhances them, because you can go to your constituency MP, you also have a regional MP you can go to, and that may be a person from a different party.

Finally, the splinter-party worry and domination by a tiny, little party...well, that's controlled through thresholds, so we concluded that simply wasn't a problem.

After doing this, after deciding on MMP, there are a number of technical issues you have to address, if that were the route you were taking. There'd be the question of the open list versus the closed list, or the semi-open list. A decision would have to be made about that; you would have to decide about dual candidacy. Can a person run both on the constituency list and also on the party list?

On threshold requirements, what is it? Is it two-thirds, one-third for constituency versus list, or should it be sixty-forty, fifty-fifty as in Germany, and on what basis do you make that determination?

Finally, on threshold requirements, how severe do you want to make it? The more severe you make it, the harder it is for new parties to come into existence. It's a check against the splinter parties, but you don't want to make it too hard. You must get that balance right.

In terms of implementation, we thought that essentially there had to be a broad consensus. There had to be a public consultation and a broad consensus. We did not think there must necessarily be a referendum, although one should very carefully consider the possibility of a referendum on the matter.

One of the difficulties with a referendum, of course, is that in many cases, regardless of how much you try to have a public information campaign, many voters will not be informed and when it comes time to cast their votes it will be, better the devil we know than the devil we don't know, and first past the post will remain, out of inertia.

One possibility would be to have the referendum after the change. That may sound strange, but essentially what you'd be doing is offering people a trial period.

You'd say, “Voters, here's a new system. We've consulted broadly. This is what we are proposing to put in. Try it out for an election, and at the next election you'll vote on whether to retain it or revert to the old one.” Then, voters would be voting fully informed. They would have experience with the old system and the new one. You would have an informed choice made by the electorate, which otherwise is difficult to achieve with electoral reform.

Thank you very much.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much, Professor Wood.

We'll go now to Ms. Paradis.

[Patricia Paradis, Executive Director, Centre for Constitutional Studies, University of Alberta, As an Individual]

Thank you, Mr. Chair.

I would also like to thank you very much for the invitation to address the committee. It's a wonderful opportunity, and it's a great thing that we are actually engaging in the process in Canada. Thank you.

What I'm going to do is answer some of the questions that were put to us in the documentation you sent.

The first question was on why electoral reform is important.

The system in which Canadians elect their representatives to the House of Commons is, of course, foundational to the manner in which our democracy is realized. Our elected representatives significantly impact the ways in which we govern ourselves internally and the ways in which we function on the world stage. Therefore, Canadians must be confident that their electoral system is effective and that their votes are reflected in election results. They need to know that their votes count.

Electoral reform provides an opportunity for examination and evaluation of our current electoral system, with a view to changing it if it does not align with the expectations of the electorate. It is critical to our healthy democracy.

In terms of the strengths and challenges of Canada's current electoral system, I think my colleague has given you many of those. However, as you've heard from many people who have presented before you in the last number of weeks, no perfect system exists. Each has trade-offs, strengths, and weaknesses. No system is inherently more democratic than another.

My preference is for a proportional system. There are many of those, and many ways they can be implemented. There is no one way to achieve what people call “proportional”.

There are questions that can be asked that invite comparisons, which will help us to find the best systems, questions such as these: Which system gives us the least fractious path to law-making? Which would least paralyze effective government? Which would push us most to months of post-election wrangling to create coalitions, and to the threat of evaporation of coalitions?

I'm not going to go through the advantages and disadvantages of each of the systems; I know you've heard these. I'm going to move on, then, to answer whether I consider Canada's current electoral system to be fair, inclusive, and representative, and I would say no on all three.

What do I think of mandatory voting?

Low voter turnout, I would suggest, is a systemic rather than a specific problem. Making voting mandatory is certainly not going to fix the problem. However, mandatory voting would engage more of the Canadian electorate in its fundamental democratic role. Making voting mandatory impresses upon people the importance and significance of voting. It is a community exercise, one that we participate in together for the greater good, the effective governance of our country.

As someone who runs the Centre for Constitutional Studies and who does research and public education on the Constitution, I'm constantly reminded of how little Canadians know about their democracy, their democratic system, and their Constitution. If mandatory voting would get them some small way towards understanding that a bit better, that would be great.

It is inevitable that online voting must be made available to the electorate. Voters want convenience with respect to voting, and online voting increases accessibility for those with disabilities. For example, remote online voting is already made available in Ontario and Nova Scotia. Canada is considered a leader in this regard. However, we must, of course, ensure that the system is designed to be secure, reliable, and, importantly, simple to use.

The big question that I'm going to attempt to answer today is what I think should be the future steps for electoral system reform.

First of all, as I understand it, this special committee will be tabling its report to the House. The extent to which the House itself can be brought to understand and appreciate the work that's been done by this committee, and to appreciate the number of Canadians who have stepped up to speak to you and give their points of view, and to consider your report, will be very important. If we could get some form of consensus or agreement within the House, that would certainly go a long way.

There will obviously need to be, at some point, a decision made regarding what electoral system we're going to choose for Canada.

Once that's done a strategy will need to be developed regarding reform, which will, of course, be contingent on the type of reform chosen. The decisions that need to be made, it seems to me, are going to be around the constitutionality of reform and whether constitutional amendment is necessary. If so, whether amendments can be made unilaterally or whether the general amending formula, which includes the provinces, the 7/50 formula, must be engaged. Then whether there should be a reference to the Supreme Court of Canada regarding the necessity for constitutional amendment if, indeed, there is a decision around constitutionality or that might in itself be a question one puts to the Supreme Court of Canada: is electoral reform a constitutional matter? Is the Canada Elections Act part of our constitutional architecture? Lastly, there will be a need to consider a referendum.

On the issue of constitutionality of electoral reform, does electoral reform require constitutional amendment? The Canada Elections Act would of course need to be amended, assuming a reform was suggested or recommended. The question is whether the government can simply table a bill or whether electoral reform requires constitutional amendment. That depends on whether reform of the electoral system is seen as constitutional in nature. The question is whether electoral reform fundamentally affects the role, functions, or the principle of proportional representation of the provinces in the House of Commons, which would affect the “structure of government that the constitution seeks to implement”. I'm quoting there from a paragraph in the Senate reform reference. That's the Supreme Court of Canada decision from 2014. It laid out what the court means by “constitutional architecture”. It's a very interesting decision.

Paragraph 26 of that decision talks about ”the structure of government that the Constitution seeks to implement”. The question is: would electoral reform affect the structure of government that the Constitution seeks to implement? My straightforward answer to that question is no, I don't see how it can engage the Constitution. But I know that you've heard from experts who have said it certainly does engage it, so I'm not purporting to be a legal expert in this regard. But clearly the nature and type of reform selected would impact this internal architecture.

Some argue that the electoral system is constitutional, given the Supreme Court Act reference and the Senate reform reference. The electoral system is not specifically included in the constitutional text, it's not referred to in the Constitution specifically, but some suggest that the impact of those two decisions from the Supreme Court of Canada is that the electoral system is part of our constitutional architecture.

My view is that these two references are different in substance than electoral reform. One was on the Senate, one was on the appointment of Supreme Court justices. The nature of reforms contemplated in the Senate reform reference for example would fundamentally alter its function. They were talking about electing senators, for example. Unless the electoral system proposed changes to the structure of government that the Constitution seeks to implement, in other words changes to the purpose, role, or function of the House, then it should not be deemed constitutional.

But if I'm wrong, and electoral reform is found to be constitutional, then how would we go about amending the Constitution? There are two ways. One is Parliament proceeds unilaterally using its exclusive jurisdiction under section 44 of the Constitution, or you go to the general amending formula, which includes the provinces. You've heard from experts, I know, who would say if you went to the 7/50 formula that would be the death knell for reform. The question you would need to ask, of course, is whether or not the nature of the reform you were proposing engaged the provinces' interests in such a way or changed the nature of the House in such a way that the provinces needed to weigh in.

The argument has been made that moving to a proportional system such as MMP would engage provincial interests to the extent that the general amending formula would be needed. Again, that would need to be determined, probably, if there were a question, by going to the Supreme Court of Canada. As views about whether and to what extent electoral reform engages the Constitution, a reference to the Supreme Court on this issue may be wise, especially if a proposed electoral system will change electoral boundaries.

Clearly, legal opinions on this subject need to be sought. A reference would provide certainty and would prevent constitutional challenges to processes, procedures, and legislation that would potentially take years to resolve in the courts. It would also provide legal legitimacy for the electoral system that is chosen.

I am suggesting that the time it takes to go to reference might be shorter than the time it will take to have challenges brought to the courts after the fact if no reference is sought.

This is a safe option but one that would significantly extend the time needed for the electoral reform process. I'll leave it at that.

As for a referendum, I'll just quickly say that there is no legal requirement for a referendum. It should be avoided if at all possible; that is, if processes can be put in place to ensure the political legitimacy of reforms, then avoid the referendum if possible.

My friend's suggestion of a referendum after a try-out period is one I had not heard, and it might be one that should be considered.

Barring a process or processes that can achieve the level of political legitimacy of a referendum, one should be held with the following caveats: of course—and you've heard this from others—a referendum should be carefully strategized; the question asked to the electorate should be clear and unambiguous; educating the public should be done in a non-partisan and objective manner; use of appropriate social media, television, and print media to provide neutral, accurate, accessible information to the electorate about proposed changes is essential; and information needs to be presented in multiple formats and in clear, understandable fashion.

Planning for and executing a referendum will take time. It is a process that should engender pride in Canadians and trust in their government. It cannot and should not be rushed to meet an arbitrary deadline such as the next election.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

We'll start our round of five-minute questions and answers with Mr. Aldag.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Thank you.

I'd like to thank both of our witnesses for being here today. It's a new day for us and a new province, and it's great to hear some of the Alberta perspective on this very important issue.

I'd also like to thank the members of the audience for joining us today and for taking time out to be part of the discussion. I hope you can stick around and be part of the open-mike session so we can get your thoughts on this.

It's great to be in the greater Edmonton area, so thanks for being here and joining us.

Ms. Paradis, I'm going to start with you. I really appreciate your comments. They give a bit of a different perspective from what we've heard recently, and the new information is always very welcome.

You were talking about the referendum question, and it has come up from time to time at our table. We've spent some time on things like legitimacy. You indicated that the process that we embark on could give electoral reform legitimacy, but if not, then a referendum could.

What steps do you think would be required to get to that legitimacy versus having a referendum?

[Patricia Paradis]

I was of course afraid you were going to ask that question.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

I'm sorry, but I just had to go there.

[Patricia Paradis]

Perhaps this is really pie in the sky, but given the nature of the way in which this committee has functioned, its composition, etc., when it goes back to the House, I'm just wondering if there could be some campaign or education process that would allow everyone in the House to actually understand the significance of what you've heard from Canadians so that everyone in the House could actually get on board so you won't have that strong partisan divisiveness in the House, and people will really step up to the plate and say, “You know, at the end of the day this is about our electoral process. This is very significant. This is how each one of us MPs actually got here.”

If Canadians could see that the majority of people in the House had come to an agreement on proposed reforms, I wonder to what extent that would have an impact on Canadians. If, however, there is divisiveness in the House and you have, for example, one party saying that you must go to a referendum and the other saying that no, you don't, and on and on, then Canadians are going to wonder how we can get legitimacy, and where we can get it.

I think we need some guidance from the House.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

On that, you mentioned having us take back to the House what we've heard from Canadians, yet one of the things we've struggled with is that if you look in the room—and I appreciate the turnout today—this doesn't represent all of Edmonton, let alone all of Alberta. I wonder how we get the greater input of the population. There are other elements to this; there are many prongs to consultation. There's an online piece right now, so any Canadian can provide their input, provide a submission to us to consider, but we're also hearing that not a lot of people are aware of this process, and a lot of Canadians aren't engaged in it.

With those barriers or challenges, do we need to do something else on this path to legitimacy?

[Patricia Paradis]

There are experts out there who strategize around these kinds of things, and we're very fortunate to be in the 21st century, with online availability as it is. One thing you might consider, because I'm definitely not in the camp of “let's go to a referendum”, is to come up with a strategy to try to engage the population. People have talked about citizens' assemblies and all of that, but there might be online ways to get people to engage. That would take some creativity.

I thought the way in which the government rolled out the census strategy was quite engaging. People actually did step up. It was mandatory, but the way it was done was interesting. So there are creative ways to do this, and maybe we need to look to third party experts.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

That's excellent.

Professor Wood, I appreciated hearing in your opening comments your perspective on the work the Law Commission had done. You indicated that the one thing you had rethought was the list issue. If you could take the little bit of time I have left to expand on that, I think it would help set the stage for the rest of the conversation.

[Roderick Wood]

Briefly, with the closed list, the parties decide the ranking; with the open list, the voters decide. At the time of the report, we heard that voters in New Zealand said the parties shouldn't decide; the voters should decide the ranking. We were very concerned the proposal for MMP might hit headwaters because of that alone.

Since that time the New Zealand Electoral Commission has reviewed closed list versus open list. They found there was a change in view, and that over 60% of the respondents say the status quo is fine; they're comfortable with a closed list. So that was a big change, as well as the reasons I gave.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Would that be too big a step for Canadians to jump into? Would there be a transitional step to get there?

[Roderick Wood]

On closed list?

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Yes.

[Roderick Wood]

I don't think so. If properly understood, it's not a problem. You have to understand that there's the constituency vote and the party vote, and when you're voting for the party, the party is setting up its view of its candidacy on that side. They're putting together their ranking of their people they think give the message of their values and ethos. It also allows them to adjust for diversity, and that should be promoted.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Mr. Reid, please.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Thank you to our witnesses. You've come from Edmonton, and we've come from Vancouver, so I guess it is an open question who was more inconvenienced by the fact that we're meeting here.

I want to deal very directly with the question of referendum. I should tell you that, from the point of view of my party and of myself, there is no possibility of what we would regard as legitimacy without a referendum and, to be clear, a referendum before as opposed to after.

The reason for saying before as opposed to after is easily illustrated by a number of analogies. Would it have been more legitimate for Quebec to separate in 1995 and then hold a referendum after the fact to see if people approved? The Brexit referendum has been frequently criticized. People don't like referendums, but would it have been better for the United Kingdom to separate from the European Union and then find out whether voters liked it? The Charlottetown accord is something similar. We were all told that this was something that was really good for us, we needed it, and it was going to resolve our national unity crisis. But in the end, voters rejected it, and I think it would have been very wrong to impose that on Canadians without having consulted with them first.

I want you to just imagine the problem that arises here. Let's say we decide we'll have a referendum after the fact. We'll put into place MMP. I'm not being disrespectful of MMP; I think of all the alternatives it's the one that probably makes the most sense for a variety of reasons. But let's say we put the new system in place, have an election, then have a referendum, and it turns out the majority of people don't support the system after we've just used it. They've effectively said that this system, the system in which you've just elected a government, was illegitimate and that, to some degree, the government elected by it has a legitimacy that's tainted. To me this just invalidates the whole thing.

Someone actually said, “Why don't you have the referendum at the same time as the new election”? Can you imagine if you get your system rejected and get a new government? What do you do then? So holding off the referendum so we don't find out what people think for a year or two, I don't see how that improves it. This is just a terrible idea, and it's clearly just not legitimate once one thinks it through.

Having said that, I do think the idea of having a referendum, approving a system.... That's what they did in New Zealand. They had a referendum, adopted a new system that the voters had approved, and then held a referendum a little while later to see if they still approved it. It turned out that, of course, they reinforced the decision they'd made about a decade earlier; they thought the system was a good one. That, I think, makes some sense, and it does establish that, whether we adopt a new system now or change that system after the fact, people are sovereign. That would be the observation I'd make.

The comments that you both made about the need for public education and really thinking that process through are absolutely legitimate. It's been repeated over and over again, including by people who were involved in the process in British Columbia where, of course, they did get a majority in favour of changing the system and would have changed the system were it not for their undemocratic 60% threshold. That's my rant. Thank you for listening.

In the two minutes I have remaining, Professor Paradis, I want to address the one constitutional issue that I think is paramount and that does take a number of our options off the table unless we want to go through dealing with the 7/50 system, and this is the principle of proportionate representation that is baked into our Constitution and cannot be changed without some form of amendment.

As long as we come up with a system that does not change the number of seats in the House of Commons—which is doable either under STV or MMP—I can't see a constitutional problem. But if you were to change and say we're going to have a top-up of 15% per province, which is one of the numbers that's been tossed out, you'd have to have it 15% for every province, it seems to me, or else you'd run into a problem. That is not necessarily easy to do, especially with the small provinces.

Can I just get your comment on the concern I have there? Is it legitimate or not legitimate in your view?

[Patricia Paradis]

Are you referring to the section in the Constitution that specifically refers to the proportion that—

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I'm referring to section 52, where it says, “The Number of Members of the House of Commons may be from Time to Time increased by the Parliament of Canada,...”—so there's no problem so far—“...provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.”

I don't want to wind up adding seats in a way that causes Quebec's share, which is 25% now, to go to 24%, for example. To me that would be a clear violation of that principle. You have to keep the proportions where they are or else get a 7/50 amendment.

[Patricia Paradis]

Yes, I think if you affected the proportionality in the way that you've just described, you might well need a constitutional amendment.

But I think we need to really understand what is meant by proportionate. There are many different points of view on that issue. I can't state unequivocally that absolutely this would be the way to go. I really think that you'd need to get legal opinions on that subject because it's just not that clear.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I know I'm basically out of time, but just this quick thought. What would make the most sense if we were to attempt a model that involves increasing the number of members in the House? We actually would have to take that formula to the Supreme Court and ask for their reference: does this formula meet with your standard for how you define “proportionate”? Would you agree with me on this? Does that seem like a reasonable way to handle that?

[Patricia Paradis]

Well, the question you'd have to ask the Supreme Court is whether or not that change would be constitutional. That would be your question. I am absolutely not certain that the Supreme Court would say yes, because we don't want to be in a situation in our country where we're expanding constantly what is constitutional. We want to continue to give Parliament its just due.

When it comes to numbers, numbers have been changed in the past without constitutional amendment. The thing that threw a bit of a wrench into the works was the Senate reform reference, because people have interpreted that to mean certain things. The one good thing about going to the Supreme Court is that maybe they'd clarify what they actually meant in that regard, and from a legal standpoint that would be great for us.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much.

Mr. Boulerice, you have the floor.