Evidence of meeting #1 for Subcommittee on Private Members' Business in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was section.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Michel Bédard  Committee Researcher
Clerk of the Committee  Mr. Olivier Champagne

12:10 p.m.

Liberal

Stéphane Dion Liberal Saint-Laurent—Cartierville, QC

That depends on what is done. Are you saying that the House of Commons can amend proportional representation in the House of Commons as it sees fit and that Parliament can decide on provisions that would mean the House of Commons could assign seats the way it wants to? Is there not a threshold beyond which the 7/50 formula becomes relevant?

12:10 p.m.

Committee Researcher

Michel Bédard

I presume there may be a threshold, but in the past, the seat distribution and readjustment formula has been amended quite frequently. As I understand it, Parliament has acted alone in this area since 1982.

12:10 p.m.

Liberal

Stéphane Dion Liberal Saint-Laurent—Cartierville, QC

Yes, but if I understand correctly, this bill would lock in a province's representation. It would mean that a province could not be over or under that threshold. It would keep the same number of MPs it had in 2006. That is what this bill says.

However, the bill does not specify for how long that would apply. I can certainly imagine someone going to court and saying that this violates the principle of representation by province which, according to the court, should be fairly flexible. It has never said that it must be perfectly exact. Could there not be a constitutional issue here if we were to say we were locking in a province's representation forevermore? This is a bill passed by Parliament alone.

12:10 p.m.

Committee Researcher

Michel Bédard

If my understanding of the provisions dealing with seat distribution in the House of Commons is correct, there are several rules that apply. For example, grandfather clauses ensure that a province will always have at least the same number of senators—

12:10 p.m.

Liberal

Stéphane Dion Liberal Saint-Laurent—Cartierville, QC

Yes, but that grandfather clause does not call into question the principle that all voters are equal. It simply forces us to add seats to ensure that there is voter equality. As for the other clause—the one that prevents there being fewer MPs than senators—it is in the Constitution. If we're saying that a province has guaranteed representation—maybe forever; I really don't know—that is definitely something that could be challenged because of the voter equality principle, which is a constitutional principle.

12:10 p.m.

Conservative

The Chair Conservative Harold Albrecht

Mr. Toone.

12:10 p.m.

NDP

Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC

Other principles are also at issue here. The Supreme Court ruled that there exists what is called a community of interest. That is a fundamental principle of representative democracy in Canada. I do not believe this bill is an attempt to challenge the constitutionality of the right of representation in the House of Commons. This is simply about complying with court rulings that say there needs to be a broader approach taken to this than what is the case in the United States, where they have direct proportional representation with no nuance. In Canada, that is not the case.

It was mentioned earlier today that the Canadian Constitution is like a living tree. As a result, interpretation of the Constitution will evolve over time, and the Supreme Court has given its interpretation. I see no reason why this would not be deemed a votable item.

I guess there would need to be some debate, but this is a bill like any other. The House of Commons always has the right to propose other bills. Indeed, I believe the government will be introducing one in this parliamentary session, probably one of a similar nature. If one is not unconstitutional, I see no reason why the other would not be considered a votable item.

12:15 p.m.

Conservative

The Chair Conservative Harold Albrecht

Mr. Reid is next, and then we'll go back to Mr. Dion.

12:15 p.m.

Conservative

Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON

The preamble of the bill attempts to present the kind of case one would present before a court, if one were arguing that this was in fact constitutional. I think the case is well presented but it's flawed. It says: “Whereas the principle of proportionate representation of the provinces must balance the fair and equitable representation of faster-growing provinces and the effective representation of smaller and slower-growing provinces...”.

That's the starting point; that's one paragraph. I don't actually think that's what anybody would think is the principle of proportional representation. The principle is one of the things that might be thrown into a balance, but you can't say that included within proportionate is something else.

As Mr. Dion noted, section 51 of the Constitution Act, 1867, as amended, deals with the general amending formula. That's the part that was amended in 1985. The part that guarantees that no province will fall below the number of senators it has...that's what guarantees the four seats to P.E.I. That is included separately, to make the point that this is not part of the proportionate. This is distinctly not proportionate.

Our whole constitutional battle at the time of the coming together of Confederation in the 1860s was over the question of proportionate representation by population versus some kind of fixed representation formula. The compromise that was reached was one chamber is fixed and one chamber is representation by population, a model that was used previously in the United States and subsequently in Australia. To say one remains fixed while the other keeps on adjusting to an ever less proportionate level is not part of the principle of proportionality. It is, in fact, a rejection or a diminution of it. That's a problem.

I'll say this, not as a constitutional argument but a personal argument, that as an Ontario MP who represents not the conveniently located people of downtown Toronto--who can get from one end of the riding to another--but a riding that takes two hours to cross, consisting of people who are below rather than above the average national income, who have no special favours presented to them by government, and who get proportionately fewer government benefits than other people in other parts of the country who have similar income levels, I am hard pressed to see why we should in perpetuity be treated as fractions of persons.

That seems to be the fundamental injustice with this proposal, because that is what has happened. We are part of Ontario as opposed to part of a province that has a declining proportion of the Canadian population, through no fault of our own. I don't think that's proper. But that is the argument, or the reverse of what I just said is the argument presented in the next paragraph. I'm now quoting from the third paragraph of the preamble: “Whereas the populations of faster-growing provinces are currently under-represented in the House of Commons and members of the House of Commons for those provinces therefore represent, on average, significantly more populous electoral districts than members for other provinces...”.

This is presented as part of the argument. This is, in fact, to use the traditional language of the English law, the mischief we should be trying to correct rather than something we should be trying to entrench as a principle. I simply throw that out.

With regard to the argument that's presented in the preamble about the Constitution Act, 1985, moving to a less proportionate level of representation than had existed under the previous Representation Act.... These, of course, are the successive versions of section 51, as they get enacted unilaterally by the federal government and added to the Constitution.

I reject that argument as a precedent because if you look at that particular bill, which became part of the Constitution, it's clear that it was not passed with the purpose of making the system less proportionate. It was passed for another purpose, and accidentally and unintentionally had the result of causing the system to be less proportionate than it had been under the previous formula that we adopted in the 1970s.

I'm reading from the Elections Canada website, where they discuss the current formula. They say, explaining why the bill was adopted:

Following the 1981 census, calculations revealed that the amalgam formula--

This had been adopted in the 1970s.

--would result in a substantial increase in the number of seats in the House of Commons both immediately and after subsequent censuses (369 seats were projected after 2001). Effectively putting a hold on the process already underway to reassign seats, Parliament passed the Representation Act, 1985.

The goal was to prevent the overall size of the House from going out of control at the time. It was not to have the effect of causing a permanent departure from proportionate representation. I throw those things out as considerations as to why this is being attempted using the wrong section of the Constitution.

I want to stress that I do think it is possible for someone to introduce a private member's motion that would start the process of looking for the consent of seven provinces. I say that because I introduced such a motion with regard to a different matter: getting rid of the federal disallowance power in the 38th Parliament. That was the item that came up for discussion.

The committee sought expert testimony, and they confirmed that private members' motions could be brought forward for the purpose of initiating constitutional amendments under the 7-50 formula or the unanimity formula, as the case may be, but they have to be in the proper format as motions, not as bills.

12:20 p.m.

Conservative

The Chair Conservative Harold Albrecht

Mr. Bédard.

12:20 p.m.

Committee Researcher

Michel Bédard

As regards this particular bill, I had not identified it as potentially problematic. That is why my analysis was not as detailed here as for other bills which had been identified as potentially problematic, since there are probably 30 or more bills or motions to review in a single meeting. So, if the subcommittee wishes additional information from the analyst, I would suggest that information be provided to subcommittee members at another meeting or at another time.

12:20 p.m.

Conservative

The Chair Conservative Harold Albrecht

I think we're at the point where we're ready to move ahead.

Mr. Dion has another intervention, and then I'd like to call the vote.

12:20 p.m.

Liberal

Stéphane Dion Liberal Saint-Laurent—Cartierville, QC

I'm sure that Parliament has the authority to come up with a formula that is not exactly proportional representation. It has been done in the past. When it was challenged in court, the court said Parliament has this authority.

There is a question here.

I would like to continue in French.

Does Parliament have the power to make a law that clearly contradicts the principle of voter equality, to the point where that principle could be called into question? Over time, that is what would happen. At this point, I have serious doubts about this. I do not believe that Parliament alone has the power to lock in the representation of a province, however its population may change.

At the same time, our analyst has a somewhat opposite view of this, although he did qualify it somewhat. He is not absolutely certain, but nor do I claim to be 100% certain. So, I don't intend to block this bill. However, I would like to benefit from some additional expertise. I really like the idea of hearing from other experts in addition to our analyst, since he has said that he is not totally sure about his recommendation.

So, if we say no, that will mean that experts will come and discuss this with us. Right? I actually don't know how I am going to vote, because I'm still a little confused about all these votes. We're in favour of no and opposed to yes.

12:20 p.m.

Conservative

The Chair Conservative Harold Albrecht

I think the process is that if we reject this and make it a non-votable item, the person presenting the bill appeals to this entire committee, and then we have the discussion with the entire committee.

12:20 p.m.

Liberal

Stéphane Dion Liberal Saint-Laurent—Cartierville, QC

But I would prefer instead to have a.... If we say yes, that means that.... I understood that if we say no, then the whole committee will have an opportunity to hear experts who come in.

12:20 p.m.

Conservative

The Chair Conservative Harold Albrecht

If we say yes, it goes to the House, and it becomes an item to vote on with the normal process of private members' legislation.

12:20 p.m.

Liberal

Stéphane Dion Liberal Saint-Laurent—Cartierville, QC

And if we say no?

12:20 p.m.

Conservative

The Chair Conservative Harold Albrecht

If we say no, that person has the opportunity to appeal to the committee.

12:20 p.m.

Liberal

Stéphane Dion Liberal Saint-Laurent—Cartierville, QC

To the whole committee?

12:20 p.m.

Conservative

The Chair Conservative Harold Albrecht

That's correct.

Go ahead, Mr. Bédard.

12:20 p.m.

Committee Researcher

Michel Bédard

The third option is for the subcommittee to meet in a week or at a later point during the session to have a fuller briefing on the bill.

12:20 p.m.

Conservative

The Chair Conservative Harold Albrecht

I'm just going to say that as chair I question the wisdom of that, simply because we're going to go around this again, and I think the more people who are involved in the reconsideration, the better it is for the process. But it's this committee's choice to either vote it up or vote it down.

Is someone prepared to make a motion that this be designated non-votable?

Okay. We have a motion that Bill C-312 be designated as a non-votable item.

12:25 p.m.

NDP

Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC

Is it possible to have a recorded vote?

12:25 p.m.

Conservative

The Chair Conservative Harold Albrecht

A recorded vote, please. All in agreement with that motion? All opposed?

(Motion negatived: nays 2; yeas 1)

Mr. Dion.

12:25 p.m.

Liberal

Stéphane Dion Liberal Saint-Laurent—Cartierville, QC

My point has been made. Our colleagues in the House will benefit from our views.