Electoral Reform Committee on July 26th, 2016

[The Chair, Liberal, Francis Scarpaleggia]

Welcome to meeting number eight of the Special Committee on Electoral Reform. Today we have Professor Peter Russell, professor emeritus at the University of Toronto, and Professor Patrice Dutil from Ryerson University.

We greatly look forward to what both of you have to say about electoral systems.

Thank you kindly for making yourselves available this last week of July. It's greatly appreciated. Your input this afternoon will help us immensely.

Without further ado, I will now turn the floor over to Professor Russell for 20 minutes.

[Professor Peter Russell, Professor Emeritus, Department of Political Science, University of Toronto, As an Individual]

Thank you, Mr. Chair.

I thank the members of the committee for giving me an opportunity to share my ideas with you on this very important topic you are working on. I congratulate all 12 of you for working on this committee and devoting some real time. I guess it's not just time; it's your head you have to really apply. There are some complicated questions when you get down to alternatives.

I'm here today making a kind of one-dimensional pitch to you. It's set out in my paper, which I'll just skim through, but my one-dimensional pitch is that the one thing, the top thing, the key thing that your committee's recommendations should point toward is creating a House of Commons that represents the political preferences of the people. Now that's quite an idea, isn't it? Imagine an elected assembly representing the people in their political choices.

There are many other values and concerns that go into an electoral system, and they've been set out in various documents to you: accessibility, simplicity, blah, blah, blah. However, members of Parliament on this committee, if your recommendations do not really address this fundamental concern about making our Parliament represent the people, and you might do very well in some of the other concerns, but you will be a failure. You will be a failure because your job is to really deliver recommendations that can make us a representative democracy. That's what we're supposed to be.

So that's what I'm all about and all over.

In my paper I try to explain briefly why the first past the post system, which Canada has had at the federal level from Confederation until today, no longer fits the political circumstances of the country and has not done so since 1921. Why 1921? Yes, I said 1921; that's when things changed. From 1921 on, we did not have a two-party system. Up until 1921 there were two parties. Do the math. One was going to have a majority and the other was not. You were going to get governments that pretty well represented the people—no problem and no issue. It was a natural for our founding fathers—there were no mothers.

Then in 1921, Conservatives under Arthur Meighen actually came third and the Progressives came second to Mackenzie King's Liberals. From that time on we've had a multi-party system, mostly four or five parties, and that kind of party system is really torpedoed, undermined, by the first past the post system. You can see that clearly when you look at the top of page 2 in my brief, where I give the results of federal elections since 1921. We've had 30 elections at the federal level since 1921. Fourteen produced false majority governments. I'm going to come back and defend my use of that term and explain it, but basically, it means governments with a majority of seats in the House of Commons but not supported by a majority of the people. We've had that. That's been the most frequent result, false majority governments.

Just behind it, 13 times, we've had minority governments. Only three times in 30 elections have we had what you could call a true majority government, a government led by a party that won 50% or more of the seats, but also, most significantly, 50% of the popular vote. It was always just over 50%: Diefenbaker's landslide in 1958, Mackenzie King during the war, 1940, and Brian Mulroney in 1984. But they're very exceptional. If you look at our so-called majority governments in the last period, since the late eighties, no government with a majority has had more than 43% of the popular vote, but they have had a majority of seats in the House of Commons and been in a position to control really what happens there and to control government. Indeed, today, 43%, my goodness, party leaders, Liberals and Conservatives, they salivate when they hear that number. They haven't got close to it in recent years. They haven't even hit the 40% mark in the last couple of elections that have produced majority governments.

As I say in paragraph seven, as a parliamentary democracy Canada surely can do better than being most often governed by politicians who were not the first choice of 60% of the people, but who have the power to control Parliament. Electoral reform should, above all, be directed at that situation. That's the number one target I think your committee should have.

I'll go on to talk about some of the concerns people have in a way about what I've just said. I hang out in South Rosedale with Liberals and Conservatives. They're not very interested in electoral reform. When I tell them it's almost guaranteed that no party will have a majority in Parliament, they gasp in horror. “Oh, my God. Oh, my God. Oh, we've got to have a majority in Parliament.” I start the conversation by saying, “Wouldn't you like to have a House of Commons that represents the people, the political preferences of the people?” “Yes, of course, of course, of course. Oh, yeah, give me that. I mean that's what democracy is all about.” Then it's, “Peter, do you mean to say that when they have this sort of system, some proportionality that makes the elected assembly reflect the political choice of the people, they don't have majority governments?”

I say, no, I'm afraid they don't. It's very rare. Why is that? We don't have any popular political parties anymore, not really popular. Popular parties are a rare breed. By “popular”, I mean 50% or more of the population. This is in any of the western democracies. Not just here, everywhere. People have very different views. It's not just Tweedledum and Tweedledee, Tories and Liberals. They have many different ideas. If a country's electoral system and system of representative democracy doesn't respond to that reality—and we haven't for nearly a century—it's really not delivering the kind of representative democracy people need.

With my neighbours and my friends—and they're good people—who are alarmed, and say, “Parliaments with no majority?”, and they shiver and if they have hair it stands on end, I say, “Now, look...”, and then what they sometimes do right away is say, “Italy and Israel, we'd be like Italy and Israel.” Actually, they haven't kept up with Italy. If they did, they'd know it's gone almost the reverse of proportional representation, and Israel has no threshold for its smallest parties. But what they don't know is that almost all of the parliamentary democracy world, that's the countries that practise parliamentary democracy, have some system of proportional representation that represents the political divisions in the country fairly accurately, and they rarely ever have a majority government. They have minority governments or coalitions.

Once you get that out, then you have to ask, what are those countries? Well, they're messy old countries like The Netherlands and Germany and New Zealand, and you can reel off—and I do in my paper and in my book, Two Cheers for Minority Government—a dozen or more countries that have governed themselves extremely well with no government having a majority of seats in their parliaments.

In my book I also look at how this has worked out in Canadian history. In my book, Two Cheers for Minority Government, I take the minority governments we had from 1921 up until publication in 2006, and I do a profile. Mackenzie King had three. I go on and I do Diefenbaker's and Pearson's and King's and Clark's—a disaster that one—and Stephen Harper's. What I hope I show, and there's lots of evidence in the book, is that these were pretty darned effective governments. They really did get things done. It wasn't a matter of being stalemated and crippled and feeble. They were some of the most dynamic governments we've had.

I take a look at some of the provincial situations where there's been no majority in a legislative assembly and how productive governments have often been in the provinces. My model is Davis' six years. Bill Davis' Conservatives had a minority situation through the 1970s right up to 1981. It was an era of tremendous reform and accomplishment for Ontario. Most of the time Mr. Davis' Conservatives reached out to Stephen Lewis' NDP and they put together a really interesting program of policy reform for the Province of Ontario.

My point here is to underline that those screams of horror at the prospect of no single party having a majority in Parliament, you should be able to deal with those with evidence. We have a very well-educated population, evidence-based thinking is, I hope, really on these days. Ask them to look at the evidence, not the little tidbits they've heard about Israel and Italy, but the evidence. They can start with my book. They don't have to start there but it's the only book on minority parliaments in the English-speaking world right now. Look at the evidence before they lose sleep over the possibility of a proportional representation system giving us no majority in Parliament.

I go on in the paper to say besides governments based on what I call minority parliaments, parliaments in which no party has a majority, Parliament itself works better—there's lots of evidence about that—when no party is in a position to really control it, when there's a real incentive to survive, to put together policies that accommodate more than the plurality party in the House. I think a textbook example, in my opinion, was the first year of Stephen Harper's first minority government. He didn't have a natural ally in the House of Commons, an opposition party that was close to his party, but he managed to reach out on policy after policy, foreign and domestic, to different parties to put together policies that were not an abandonment of Conservative positions but a modification and adjustment of them, and at the same time got through four of his five election priorities.

More often, minority parliaments have two parties that can be more natural allies. My point is that minority parliaments—parliaments in which no party has a majority—can produce strong and effective government but also, and this is so important, they can make Parliament really matter, really be significant from the time it meets until the next election. It's difficult to say that about parliaments in the past—not the present one—that have been dominated by a false majority government.

I promised to explain the falseness. The only reason I call a majority government false when it hasn't been supported by the majority of the people is that I've seen several times both Liberal and Conservative false majority leaders say, “We got a mandate from the people; the people voted us in”. That is—excuse me, members of the public—BS. They did not. That leads to the arrogance that is just lethal in a parliamentary democracy.

I will give up calling them these false majority parliaments when their leaders give up saying, “We got a direct mandate from the people”.

Now, I'll say just a word or two about minority governments versus coalition governments. I have a section on that. I prefer a minority government to a coalition, on the whole, and I think most Canadians do.

We have not had a coalition government, since 1921. We had one just before 1921—Robert Borden's Unionist coalition—but that was a wartime effort when the Liberals split.

I think the advantage of a minority government over a majority coalition...and let me pause to underline what you probably know. Coalitions can be minority coalitions. The one that Mr. Layton and Mr. Dion planned to put together in 2008 would have been a minority coalition.

The disadvantage of a coalition in terms of parliamentary life is that most of the give and take, the reaching out and making broader policies that are more inclusive, takes places in a coalition when the leaders negotiate a deal that brings the two parties together to share cabinet positions. After that, a majority coalition can be as dominating of Parliament as a false majority government. I think we saw that most recently with Cameron and Clegg in the United Kingdom.

On the whole, I prefer the minority government solution.

Let me acknowledge that the downside to minority parliaments is the danger of too many votes in the House of Commons because confidence votes, when you have them often, create a sort of crisis-to-crisis situation. If every vote becomes a matter of the government's survival, you get a crisis situation in the House of Commons—and some of you have experienced that—and you really don't get any interesting and collegial co-operation in making policy. I worry about that.

My answer is that, under an electoral system that's proportional, I think there is less likely to be a lot of votes of confidence. You get a lot of votes of confidence when there is a really good possibility that you can bring the government down, have an election, and get a majority. And oh boy, do party leaders love majorities. I'll be very blunt; I mean Liberal leaders and Conservative leaders. Life is a lot easier, but it's more than that. With Liberals and Conservatives, the gold standard of a leader's success is winning a majority, and that's the way the public and the media gauge them. “He hasn't got a majority yet; he's not really being a great Conservative or a great Liberal leader”.

When you change your electoral system to suit a country in which no party is very popular, in which getting 40% is really as high as you'll get, I think that culture will change and the people, the media, and the political leaders will realize that just bringing down a government to force an election is not very smart because you really don't know what's going to happen with a system that really does accurately reflect the views of the people.

One reform that I urge you, as parliamentarians, to think about in this context is what some of the European parliamentary democracies with PR have developed, the constructive non-confidence vote, requiring that the mover of the non-confidence vote attach to that vote—and this would have to be in your parliamentary rules and the Speaker would have to enforce it—a choice of the next government leader. They say, “Support my motion to bring the government down, and support this political leader.” It's usually the leader of their own party. It would still be a minority party. Indeed, what happens is that if you bring the government down, you would have another government, another combination of political parties that can produce a minority government that can survive in the House of Commons.

European parliamentary democracies with proportional representation have found this to be a very good stabilizing device. That's entirely in your hands. It would be something that a House of Commons, having a adopted a proportional representation system, would want to look at carefully.

[The Chair, Liberal, Francis Scarpaleggia]

Professor Russell, these are fascinating and original ideas that we have not heard to this point. I'm sure there are going to be many questions for you to explore them further. Would it be okay if we went to—

[Prof. Peter Russell]

I'm just going to give you one more prayer.

I get down on my hands and knees because this is just a stabilizing reform—it's my last one, Mr. Chair—if you do change the electoral system.

I think most of the public here doesn't know what I'm going to say. We're virtually the only parliamentary democracy in the world that really has no rule about when Parliament should meet after an election. Think of that. Parliament must have a session once a year, but that means that after an election, when people ask when Parliament is going to meet, no one knows. That's particularly dangerous when no party has a majority, and the public, and indeed the international community, is asking, “Who is in charge in Canada?” Hell, we won't know until Parliament meets, because we must have a majority in Parliament. When is Parliament going to meet? “I don't know” is the response.

Ladies and gentlemen, that's the situation. Once, the country waited five months for a minority Prime Minister, Joe Clark, a wonderful Canadian. I'm not here to malign him.

This is the simplest thing. I've written about the reform in my book. It just requires an act of Parliament. There are models: New Zealand and Australia. One has a one-month rule; the other has an eight-week rule.

[The Chair, Liberal, Francis Scarpaleggia]

As you know, the members of this committee are pretty keen on meeting. We're even meeting in the summer.

[Prof. Peter Russell]

Mr. Chair, it would be just terrible if you get a new electoral system, a proportional representation producing a true representation of the Canadian people, and you elect members of Parliament and don't know when it will meet.

[The Chair, Liberal, Francis Scarpaleggia]

I think you're right, professor, in the sense that any change in the system would have to bring along with it many changes to the rules of the House.

[Prof. Peter Russell]

Yes. I'm sorry to have overstepped my time.

[The Chair, Liberal, Francis Scarpaleggia]

No, it was fascinating what you had to say, but we will get to a round of questions. There will be many questions for you, I know for sure.

Professor Dutil, you may go ahead.

[Prof. Patrice Dutil, Professor, Ryerson University, As an Individual]

Thank you, Mr. Chair.

Members of the committee, thank you very much. I'm honoured and delighted to be invited to address this august committee and to discuss the merits and demerits of electoral reform. Your work is very important. It's extremely valuable and it comes at a good time in our history.

You're going to find that I'm quite at odds with my colleague. Where he sees vices, I see virtues. I want to say from the outset that I'm not against electoral reform. I had the opportunity of speaking to a committee of the Ontario legislature in May where I argued that the province's municipal election laws should be amended to allow parties to be funded and to operate freely within the parameters of provincial electoral laws.

Sometimes electoral reform is necessary in order to create a legislative assembly or a city council that will offer better government and better governance. However, I am against reforms that are poorly thought out, ideas borrowed from completely different jurisdictions that will bring Canadians to the edge of the precipice. Advocates of electoral reform urge Canadians not to look down, to take a leap. I'm positively shocked sometimes at how their predictions and conjectures about the consequences of the changes to our electoral system are vague. They have clearly forgotten the old dictum that doctors learn from their earliest studies: first, do no harm.

Electing members of Parliament is not just a question of getting the right kind of demographic representation or a perfect match of votes to results. The purpose of elections is also to give Parliament a good chance of supporting an effective, functioning cabinet that can get on with the work of managing a government, an effective one that can capture perhaps not all the votes or even a majority of the votes, but will capture the zeitgeist of the times and respond to it.

There are two tests for elections and they are not divorced from one another.

Before going further, I'd like to, if I may, Mr. Chair, share my answers to the questions that have been asked.

I haven't seen any evidence that any other voting system would do a better job than the current one of meeting those two criteria.

The current system will be 225 years old next year. It has stood the test of time. It has shown itself to be flexible by accommodating ideas and new dynamic movements. It has conveyed the will of generations of Canadians to Parliament. It has allowed for changing governments in power, as well as regular turnover within the ranks of the House of Commons. It is stable and accepted by the vast majority of Canadians.

Our national parties have done a good job collectively in keeping this country together. Collectively over time they have delivered good, stable government that was broadly representative of the people. Why get rid of something that has worked well in favour of a complicated system few understand, or of a system that would reward small regional or sectoral interests by giving them the balance of power or the opportunity to hold governments hostage at any given turn? This country is hard enough to govern as it is. Our national parties have been the crossroads of ideas in our country, and the system that has allowed them to flourish should be allowed to continue.

I am opposed to mandatory voting. I don't think that someone who hasn't considered the issues or who doesn't care enough about them should be forced to vote. What would be the point? Forcing people to do something they don't want to do isn't a good habit to get into in a liberal society.

We know who does not vote: people who are younger, who earn less, who are less educated in terms of schooling and in terms of democracy. A Statistics Canada study in 2011 asked people why they do not vote. We can talk about the solutions, but let me give you some of the figures.

There were 1.3% of respondents who said it was because of religious beliefs. There were 3.7% who said it was because they were not on the voters' list. That can be fixed. There were 3.8% who said they forgot to vote. That could be fixed a little bit, too.

There were 7.6% who said they didn't like the issues or the candidates. That's your fault. There were 8.5% who said they were ill or disabled. That's something that maybe can be fixed. Elections Canada has done a good job.

There were 10% who said they were out of town or away. That can be fixed. There were 11.4% who said “other”. Maybe among those people, some did not think that their vote counted. Eleven per cent out of 40% gives you about 4% of the population.

There were 22.9% who said they were too busy. There were 28% who said they were not interested.

You have a real problem here that I think can be addressed with good programs. Many programs already exist. It's just a matter of doing a better job. Again, that's a 2011 survey. Changing the electoral system will not change these attitudes.

The third point is that I do support continued research on online voting and its eventual adoption once we are all assured that it is accurate and foolproof.

I'd like our parliamentary system to function better. Let me be clear. I want it to have better representation and greater legitimacy. It is incumbent upon parliamentarians to make that ideal a reality and to work within an electoral system that has allowed for the election of stable governments responsive to the issues facing Canadians.

Parties should put forward more female and minority candidates. But you don't need to change the system to make that happen.

If you want Parliament to be more representative of the people, I would invite you to consider the Senate. Remember, it was created to balance out the electoral distortions of the House of Commons. Mostly, we've allowed our governments to make a hash of this noble institution. I don't want it to be elected, and I don't want it to be equal. It has all the attributes to be effective without frustrating the will of the duly elected members of the House of Commons. Imagine an upper house that contains representatives of segments in our society that don't make it to the House of Commons. There should be members of the Green Party and the NDP in the Senate, recognized as such.

I'm delighted that this Parliament has a record number of people from the first nations. There are many other minorities that are represented now in the House of Commons, but there are so many who have no representation in Ottawa, yet the lever is right there and it could be pulled with the next vacancy. The age of retirement guarantees turnover. I urge you to consider this idea.

The problem is politics, not the system. All it takes is goodwill and enlightened politics. There is no need to change the system.

You've been asked to examine the issue of engagement. There is no evidence that alternative systems favour participation more than others, except in two cases. The first one is mandatory voting. The seven jurisdictions that have adopted it typically boast a participation rate of well over 80%. If you want that, consider forced voting. The second one is something you never hear about. It's voting on Sunday, which is a typical practice in Europe. Give people a day off to vote. Vote on a Sunday when most people are not at work, dealing with kids, dealing with school, taking them to lessons, doing all the things that a normal family does during the week. Give them a chance to go vote. Of course, advanced polls are to be encouraged.

I'm on public record already on the idea that any proposal coming out of the government should be put to a referendum. I want to address the issue of the referendum. I made the argument in the Toronto Star two days after the throne speech was read. Last month I published a study on the precedents of electoral reform in this country, and it was published by the Fraser Institute. My point was that there's a very rich history of electoral reform in this country, which has established a series of precedents. My argument is that the same principle has to be followed for any electoral reform this government proposes.

In 1981 the Supreme Court of Canada was faced with a particular problem: the federal government wanted to make massive changes to the Constitution, but there was no clear recipe for how to do it. The issue was referred to the Supreme Court, which affirmed the existence of constitutional conventions in Canada. A majority of the justices found that the Government of Canada's plan violated those conventions by trying to act unilaterally. The key point from the Supreme Court's statement was that precedents and constitutional conventions mattered. They are important because they capture a certain idea of political culture and practice.

In the context of the British system, which works without constitutional text and is therefore instructed only by past actions, the British expert Sir Ivor Jennings argued that constitutional conventions “provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas”. Jennings articulated a set of questions to test the validity of constitutional conventions. For him, three conditions had to be met in order to do so, and together they became known as the Jennings test. What were those three questions? Question one, were there precedents? Question two, did the actors in the precedents believe that they were bound by a rule? Question three, would there be a constitutional reason for the rule?

The Supreme Court applied the Jennings test, and it judged that there did exist a convention that Ottawa, the provinces, and even the British Parliament had lived up to in order to change the Constitution in the past. The court concluded that the government needed a substantial measure “of provincial consent”, and the rest is history.

I put it to you that the Jennings test applies to this situation. The voting system in practice in Canada is not enshrined in the Constitution. The Constitution Act does specify that members of Parliament must be elected, but says nothing about what system is to be used to choose winners. There is, moreover, no constitutional amending formula that applies to any changes to the way Canadians vote. However, there are precedents and conventions about how elections are determined, and they have been part of the Canadian political culture for centuries. The Jennings test for conventions thus applies.

First, on the issue of precedents, over the past decades four provincial governments, P.E.I., Ontario, New Brunswick, and British Columbia, committed to put the question to the people. In New Brunswick in 2006, the PC government lead by Premier Lord promised a plebiscite on electoral reform, but it was never held because the government was defeated. There will be a second referendum, again on electoral reform, in Prince Edward Island this fall.

On the second issue, all the key actors believed that they were bound by a rule, in Ontario, Premier Dalton McGuinty declared in 2004:

We're going to the citizens of Ontario. We believe the issue of electoral reform is so fundamental, so basic, that we're asking the people of Ontario for their judgment in this matter.

Kuldip Kular, the parliamentary assistant to the Attorney General, declared:

Ontario’s electoral system belongs to Ontarians, not to elected officials or appointed commissions. So we are asking Ontarians to decide for themselves how our political system should work and how they want to elect MPPs here to Queen’s Park.

In British Columbia, Premier Campbell even established a minimum level of support for the plebiscite—it was applied elsewhere—to be accepted. For reform to be enacted, at least 60% of the valid votes had to be cast in support of any proposal and a simple majority in favour in at least 60% of all electoral districts had to be achieved. Many people argued that the threshold was too demanding. Premier Campbell defended the decision with these words:

We believe this is a fundamental and significant change, and we therefore have placed a double approval process in place. There are some who have already suggested that that is too high an approval rating. Clearly, the government disagrees with that. We believe this is a significant change. It’s a significant change that should require the kind of approval that says, indeed, a great majority of people in this province feel that they will benefit from this change....

The idea of public approval, and public approval with a supermajority, has been adopted by all other jurisdictions because it is that important. P.E.I.'s House Speaker, Gregory Deighan, put it most eloquently. “It stands to reason”, he said, that Islanders “should have a strong voice in determining how these electoral systems work because they do have a significant bearing on the...results of an election”.

Other Westminister jurisdictions over the past 25 years have also gone to the people. Australia, which has long made important changes to its electoral system without consulting the public, changed in 1992 when the Australian Capital Territory put the question to its people. It's a small jurisdiction of about 300,000 people. The 1992 referendum in the ACT, the Australian Capital Territory, was an advisory poll that was held simultaneously with the election. The question simply asked if voters preferred the traditional first past the post system or the single transferable vote system. The members of the ACT, the citizens of the ACT, voted in favour of that.

New Zealand went to the people three times, first in 1992, then in 1993, and then in 2011. In all three cases, the premier said, and I'm quoting the premier of 2008, Mr. John Key, “Finally, we’ll open our ears to New Zealanders’ views on their voting system”. Now it has passed in New Zealand. They adopted change.

Following the 2010 general election in the United Kingdom, the Conservative Party led by David Cameron and the Liberal Democratic Party led by Nick Clegg agreed on a coalition government that committed the government to holding a referendum. Prime Minister Cameron emphasized the need for a clear public mandate. In January 2011, the Prime Minister said that a referendum was necessary in order to “allow the people to decide on voting reform and that a referendum was a democratic step”.

A month later, the Prime Minister declared, “Far above our beliefs about how the voting system should work, we share a much more important belief—a belief in democracy and the voice of the people being heard”.

It's clear that the other Westminster systems have also considered electoral change. What is remarkable is that in the last 25 years governments felt compelled to allow the voters to have a say. The Canadian practice at the provincial level was thus consistent with other systems that have operated under the principles of the United Kingdom, as we say in our Constitution.

The Jennings test on validity of the conventional rule can thus be applied to the necessity of seeking popular agreement on electoral reform. To the Jennings question of what the precedents are, the record is clear. To the question of whether the leaders understood that they were under a rule, the record is also clear.

Governments have been convinced that electoral reforms could not be introduced without the express consent of the majority, in some cases, a super majority, of the electorate. National governments, such as the United Kingdom's and New Zealand's, did so. The governments of major Canadian provinces such as Ontario and British Columbia did so, as have smaller provinces such as New Brunswick and Prince Edward Island.

Progressive Conservative-dominated governments felt compelled to consult the electorate, as Liberal and Labour governments did. Minority and coalition governments have used referendums, and so too have governments with total dominance. The referendum has traditionally been the instrument used to consult voters on changes to the way their representatives are elected.

Do I have another five minutes, Mr. Chair?

[The Chair, Liberal, Francis Scarpaleggia]

You have less than four minutes.

[Prof. Patrice Dutil]

I'm getting to my last point.

The way we vote shapes our political culture. Canada is not perfect, and its democracy has its flaws. But we also have to recognize that the system has worked and that, because it has enjoyed the electorate's approval for generations, the electorate must be consulted. The Government of Canada cannot just assume that it can unilaterally change how Canadians vote. It does not have an exclusive claim to the electoral process, and it must respect conventions.

The fact that electoral reform has already been rejected four times by Canadians in plebiscites adds all the more urgency and morality to the matter. The past views that voters have expressed cannot be simply discarded. As is the case in any other jurisdiction, the federal government must conduct rigorous and comprehensive consultations but not simply driven by the self-appointed advocates of reform. Beyond that, the process must include a referendum, no matter how much it costs or how long it delays decisions. Regardless of the result, the government must abide by it. Without going to the people, it can expect no legitimacy to make any changes to the precious process of elections, the very essential tools of our democratic civilization. The way we vote is not a mere trifle. It is structural.

Now I will put my political historian's hat on and tell you more about how this has affected our political culture. There is a danger in wanting to make changes to the structures that correct flaws in our political parties. The Prime Minister indicated that first past the post is a voting system that generates disparities between votes gained and the number of seats secured. Since 1960 we have had 10 elections that resulted in majority governments but only in one case, in 1984, did the winning party receive more than 50% of the vote. They were obviously reading Professor Russell's book. I ask, what's wrong with this? Canadians seem perfectly at ease with the system. What's wrong with giving a group of parliamentarians the right to govern, knowing that most people voted against them?

This is where I come to the issue of political culture. The net effect is modesty. Governments know that they are few years or even months away from being turfed from power. It sharpens the mind. It means consultation. It means gradual change, but it does mean change. It means waiting for consensus to take shape in the population. That's political culture at work.

The other effect, of course, is that it creates genuine competition among parties to improve their results. Look at the progress this country has made since 1960, most with governments shaped with less than 50% of the vote. We are the envy of the world. People risk their lives to live in a system where a party that receives a minority of votes rules. It's not an accident. People in Parliament ignore it at their peril. Canadians favour a political culture that allows for a clear transfer of power from one party to another. We like turnover. It's painful for you, I know, but we want to be able to kick the “bums” out when they stop listening. Canadians favour this system.

Are there riots in the street when electoral results are delivered? No. Why? Because the system did its job. It elected a representative for the riding, not a representative for a political brand. Our political culture holds you to serve your constituents. There are regulations that govern your constituency offices. You're not allowed to show your colours. I know some of you do and you're not supposed to. You do it at your own peril. Our political culture is not harsh. We don't expect the parties to deliver on all of their commitments, only the important ones. A system that creates modesty, a system that does lead to arrogance, but the arrogant have discovered that they don't stay in power very long because our system allows people to remove governments.

In conclusion, Mr. Chair, my advice is fourfold.

Remember, first, that the key purpose of elections is to allow Parliament to form effective and efficient government.

Second, you should seriously consider holding voting on a Sunday or public holiday.

Third, you should use this as an opportunity to ask Canadians whether they think it should be mandatory to vote.

Finally, agitate to make the Senate more representative, starting now.

Thank you for giving me an opportunity to speak to you today.

[The Chair, Liberal, Francis Scarpaleggia]

Thanks to both of you for making such passionate presentations and explaining your respective points of view. I think we are about to embark on a lively and thought-provoking discussion, which is what we want.

We will stick to what has become the committee's standard practice, in other words, two rounds of questions with each member allotted five minutes for questions and answers.

We'll start with Mr. Aldag.

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

That's great, thank you.

I'm going to start by just noting that many of us are following feedback from Twitter. One of the early pieces I just wanted to pass on is that Jennifer Ross wanted to thank Professor Russell for posting his brief on the website so that others would be able to follow along. I just wanted to pass along that thank you. As well, I appreciated your light way of presenting very excellent content. I really thank you for that.

For the first question, I'm going to go to Professor Dutil. You've made your comments and your thoughts on referendums very clear, and I appreciate that. In a Toronto Star December 9 article—something that popped up when I Googled your name—you talked about this idea of electoral reform. You noted that our government “must conduct true consultations—rigorous and comprehensive consultations that are not simply driven by the self-appointed advocates of reform.”

Our government hasn't made a clear decision yet on whether or not a referendum will happen. We're in the information-gathering stage now. We're looking at the benefits, pros, and cons of that. I'd like your thoughts on what those other “true consultations”, from your perspective, would look like. What else can we do to make sure we're gathering a range of perspectives and true input from Canadians on this very important issue?

[Prof. Patrice Dutil]

Thank you for your question. I wrote this in December. I think that what has happened, what has transpired, is very good. I like the composition of this committee. I think you've set very high objectives. You have a good budget to get the job done. My only worry is that the kind of people who come to these meetings are likely to be convinced that electoral reform is necessary. People who don't think it's necessary are not likely to take the trouble to defend what they think is obvious. That's what I'm saying.

You have to make an effort. It's not easy, and I appreciate all the efforts being made. But you have to seek out as many voices as possible, not just the people who are in favour of electoral reform. Let's be blunt. The people who are in favour of massive electoral reform, of proportional representation or other systems, have been at this for a generation now, 25 years. The people who want to support the system are the silent majority—call them what they are—the people who think the system is actually functioning quite well and really doesn't need very much reform.

I think if you can come up with practical ideas, ideas that are realizable, that are possible, that could be done, you might actually come out of this exercise with something genuinely good. The issue of mandatory voting is an example. Use the opportunity to ask people if they think this is a good idea. I've told you I'm not in favour of it. I don't think it's consistent with our values, but maybe Canadians are in favour. There's a good reason, by the way, why you might want to consider that. The experience of western democracies is that mandatory voting will boost your participation rate by about 8% to 10%.

Canada has an average of about 70% participation rate going back to 1867. That's not bad. It's not great, but it's not bad. If you want to add mandatory voting to that, you can put an extra 8% to 10%. That would bring you up to 80%. Then if you want to vote on Sunday, there are studies that show that Sunday provides you another premium of about 6% or 7%. That's Sunday mostly, but also Saturday. The third most popular day is Monday. When do we vote? We vote on Tuesday, Wednesday, or Thursday. Try Sunday voting. Ask people; that is my point. Ask people if they would mind voting on a Sunday. It used to be an idea that was received with a great deal of hostility. I think times have changed. Again, with the combination of mandatory voting and Sunday voting, you might be looking at a premium of 10% to 15%. Who knows? All sorts of people have different reasons not to vote, and there are all sorts of variations on that.

Anyway, I think good, practical ideas can actually lead this committee to deliver something that's tangible and applicable quickly.

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

I'll leave it at that. Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Go ahead, Mr. Reid.

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

Thank you.

Thanks to both of our witnesses.

I've read with great interest Professor Dutil's paper, “The Imperative of a Referendum”, and also some years ago I read with great interest Professor Russell's book, Two Cheers for Minority Government. In fact, Professor Russell, you came and spoke about this book to a committee that I sat on a few years ago. I'm sure you don't remember me, but your presentation was very memorable, so I remember you.

I did want to start by going to Professor Dutil, and I have two questions for you. The first one is this. You said in your presentation today, “Regardless of the result [of a referendum], the government must abide by it.” Those are your exact words. I just want to be clear that, when you say this, you do not mean that if there is a referendum and it rejects a new proposal, this ends the discussion, or alternatively, that if a new method is adopted, approved by the people, this eliminates the possibility for further reforms. That is to say, I assume you are not saying that the results of the second referendum in British Columbia, the proposed second referendum in P.E.I., or the 2011 referendum in New Zealand, all of which are different versions of looking at the same question again, are illegitimate.

[Prof. Patrice Dutil]

I could add a lot more subclauses to what I wrote. I would assume that the question will be clear. I would favour a supermajority on these issues, quite frankly, as the provincial governments did in Canada and as they did in Australia and New Zealand, because these matters are very important. It can't just be decided by 50% plus one.

I think if you meet all those conditions, if you have a fair vote, yes, I think governments have to abide by them. I'm a democrat. I think governments should have to abide by them. Am I understanding your question?

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

Yes, abide by the decision to either implement or not implement a system. I'm just saying that revisiting the question at a future date is not something you're actually precluding as a possibility, or am I wrong?

[Prof. Patrice Dutil]

Well, no. I would not want our system to be making a habit of turning to the people every few years and asking them if they're happy with the electoral system. No. I think that maybe once a generation, maybe once every two generations, or maybe once a century might be a good idea. Who knows what our democracy is going to look like with electronic voting in 15 to 20 years' time? I really can't speculate into the future. I wish I could.

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

Let me ask you a different question regarding the Jennings test. My own teacher regarding constitutional conventions was the writings of Albert Venn Dicey, a generation or two before Sir Ivor Jennings, and I haven't read Jennings, so let me just ask this question. He lays out his three rules, one of which is whether the key actors in the precedents felt they were bound by a rule. This appears to assume that conventions grow over time and that they can't be eroded, so I have to ask this question.

We today face a Prime Minister who says, “I reject a convention that other provincial actors in Canada and other actors across the Commonwealth have accepted exist. I say that whatever they felt bound them, I am not bound to go to the people. I have my mandate from the 2015 election. I will proceed forward without a referendum.” He then goes on to criticize referenda in various ways, but let me ask the question. How does all this work when you are faced with an actor who takes that point of view toward what appears to have been an established convention?

[Prof. Patrice Dutil]

I raised the Jennings test because, again, it was specifically applied by the Supreme Court of Canada in 1981. It's not something I just pulled out of a hat. The Supreme Court applied the Jennings test, and I think the Jennings test applies itself again in the situation where you are trying to change a fundamental aspect of our Constitution. It's an unwritten aspect, but we've been voting by the first past the post system since 1792. That predates everything. The first election in Lower Canada was in 1792. We've been using this kind of system ever since.

You're touching on a pillar of our system, and we don't have any constitutional amendment formula for pillars of our system. In a situation like that, you have to identify whether this is in fact a convention. The Jennings test gives you a test to determine whether it's a convention. I think it meets that test, but it's not going to be my decision. I suspect that what should happen is that either you or the government refer it to the Supreme Court and let the Supreme Court decide: does this Jennings test apply in this case? We're all going to have to live by that kind of decision.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

It is now Mr. Cullen's turn.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Chair.

Mr. Dutil, are you making the contestation that minority parliaments are not effective?