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.