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.