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ERRE Committee Report

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CHAPTER 2
 ELECTORAL REFORM AND THE CONSTITUTION

A.  Constitutional Basis of the Federal Electoral System and Implications for System Reform

The Committee’s mandate directed it to “take into account the applicable constitutional, legal and implementation parameters in the development of its recommendations.”[17] Indeed, some of the debate around electoral system reform has centred on whether and to what extent such reform could require constitutional amendment, particularly amendment that would necessitate provincial support. While Canada’s constitution does not contain any specific reference to what electoral system should be used to elect members to the House of Commons, it does contain sections that have some application to the operation of the electoral system, which are summarized below.

The Committee heard from a number of constitutional experts on the subject of electoral system reform. Overall, most experts suggested that the types of reforms contemplated by the Committee would not necessitate provincial support, provided certain requirements are met. Still, a few experts expressed concern as to whether the Supreme Court of Canada’s 2014 decision in the Reference re Senate Reform[18] (“Senate Reference”), and in particular its discussion of “constitutional architecture” in relation to the “structure of government that the Constitution seeks to implement” would include electoral reform. One expert suggested that it could be worthwhile for the Government, if and when it proposes a particular model of electoral system reform at the federal level, to seek a reference to the Supreme Court of Canada on this issue.[19]

1.   Constitutional Provisions related to the Federal Electoral System and Reform

A number of provisions of the Constitution Act, 1867 and the Constitution Act, 1982 are relevant in determining, as noted by Benoît Pelletier, “the extent to which Canada can move to reform a method of voting without a constitutional amendment.”[20]

The constitutional authority setting out the manner in which members are elected to the House of Commons are: sections 37, 40[21], 41, 51, 51A, and 52 of the Constitution Act, 1867. As well, section 3 of the Canadian Charter of Rights and Freedoms (in the Constitution Act, 1982) provides for the right to vote and stand for election to the House of Commons. Finally part V of the Constitution Act, 1982 outlines the rules for amending the Constitution of Canada.[22] Different amending formulas apply to the relevant sections of the Constitution Act, 1867, thereby potentially limiting Parliament’s capacity to act on its own initiative to adopt a new electoral system.

Constitution Act, 1867:

  • Section 37 lists the number of House of Commons seats allocated to each province and territory. At confederation in 1867, this section listed the total number of seats for each of the four provinces in accordance with section 40. Every time a redistribution takes place under the aegis of section 51 of the Constitution Act, 1867, the list of seats in section 37 is automatically updated.
  • Section 40, which is now spent (no longer in force), set out the number of seats per province for the first Parliament of Canada in 1867, as well as the initial rules for determining electoral district boundaries. The number of seats in this first allocation conformed, insofar as possible, with the requirement for each province to be represented proportionately, in accordance with its population.
  • Section 41 sets out the continuance of existing election laws (at the time of Confederation) until the Parliament of Canada provided otherwise. As other laws have been adopted, this section is spent (no longer in force). Elections are now provided for by the Canada Elections Act,[23] and the qualifications and disqualifications of members by the Parliament of Canada Act.[24] Other parts of the electoral process are set out in other legislation, primarily the Electoral Boundaries Readjustment Act.[25]
  • Section 51 sets out the basis for adjusting seats in the House of Commons. As currently enacted it contains a list of six rules under which the number of members of the House of Commons for each province is to be determined, following each decennial census. Parliament has significantly rewritten the rules in section 51 on several occasions. Section 51 may be amended unilaterally by Parliament only as long as the changes to the rules do not violate the constraints imposed by sections 51A and 52 (described below).
  • Section 51A, also known as the “senatorial clause,” specifies that a province can under no circumstance have fewer seats in the House of Commons than it does in the Senate.[26] Section 51a may only be amended through the “unanimity formula” set out in section 41 of the Constitution Act, 1982 (described below).
  • Finally, section 52 lays out two basic principles intended to guide and limit Parliament’s ability to change the composition of the House of Commons. First, it requires that each province be represented by a number of MPs that is proportionate to its population. Second, it assumes that changes to the number of MPs will increase, rather than decrease, the total membership of the House of Commons. It states that: “The Number of Members of the House of Commons may be from Time to Time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.”

The term “proportionate representation” refers to the concept of representation by population, and is intended to ensure that the number of citizens represented by each Member of Parliament is roughly the same in each province. This guarantee of “proportionate representation” may be amended only through the general amending formula set out in section 38 of the Constitution Act, 1982, described below. Several of the rules adopted by Parliament over the course of the 20th century and incorporated into sections 51 and 51A have provided specific exceptions to the requirement of “proportionate representation”, with the collective effect of preventing the number of seats for several provinces from dropping between one redistribution and the next.[27] It is unclear whether it is within Parliament’s power to unilaterally add new rules that would further depart from the principle of proportionate representation in the context of electoral system reform.

Constitution Act, 1982:

The Constitution Act, 1982, which contains the Canadian Charter of Rights and Freedoms (the Charter) and the amending formula for the Constitution (Part V), provides further details with respect to the operation of Canada’s electoral system:

  • Section 3 of the Charter states that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
  • In terms of amending the Constitution, section 44 of the Constitution Act, 1982 entitles Parliament to amend “the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.”
  • However, Parliament’s power to act unilaterally (for example to amend the seat allocation formula under section 51 of the Constitution Act, 1867) is tempered by sections 41(b) and 42(1)(a) of the Constitution Act, 1982:
    • Section 41(b) requires the approval of all provinces in addition to the consent of the Senate and the House of Commons for amendments to the “senatorial clause” at section 51A of the Constitution Act, 1867.
    • As well, section 42(1)(a) prescribes that an amendment to the proportionate representation of provinces in the House of Commons[28] must be made using the general amending formula set out in section 38, which requires the support of at least seven provinces representing at least 50% of the population of all of the provinces, in addition to the consent of the Senate and House of Commons.

2.   Selected Canadian Jurisprudence: Electoral Reform and the Constitution

While there is a growing body of jurisprudence analysing the right to vote set out in section 3 of the Charter, the courts have very rarely pronounced on the relationship between this right and the possibility of reforming Canada’s first-past-the-post electoral system. In two instances, the Supreme Court of Canada’s 2003 decision in Figueroa v. Canada (Attorney General)[29], and the Quebec Court of Appeal’s 2011 decision in Daoust c. Québec (Directeur général des élections)[30], the courts have held that section 3 of the Charter does not guarantee any particular type of electoral system, including first-past-the-post, but rather a right to play a meaningful role in the electoral process.

However, these cases did not contemplate how other constitutional provisions, particularly around proportionate representation of the provinces, could be triggered by electoral system reform. As well, the Supreme Court of Canada’s 2014 decision in the Senate Reference[31] has raised questions for some about whether the method of selection, as well as perceived role or nature of MPs, though not explicitly set out in the Constitution, are nonetheless a part of its “architecture.” If so, experts have questioned whether or not electoral system reform could trigger the need for constitutional amendment, either the kind that can take place within the sole purview of Parliament, or that would require provincial consent in accordance with the general amending formula (the 7/50 rule) set out in section 38 of the Constitution Act, 1982.

B.  Witness and Submission Observations on the Constitutionality of Electoral System Reform

Most experts who testified before or submitted briefs to the Committee suggested that the types of electoral system reforms contemplated by the Committee would not amend the Constitution in such a way as to necessitate provincial support, so long as the reforms respected certain constitutional parameters, such as proportionate representation between the provinces. Still, some experts questioned whether the notion of “constitutional architecture” referred to in the Senate Reference could be interpreted to include some elements of the current electoral system or role of MPs in the House of Commons thereby requiring some level of provincial approval.

Constitutional expert and former Quebec cabinet minister Benoît Pelletier observed that while the current electoral system is constitutional, it is not the only system that could conform to the Constitution.[32] Indeed, he noted how the Supreme Court, in Figueroa, highlighted how the choice of electoral system is essentially a political matter, up to Parliament to decide (within certain parameters).[33] Should the reforms of the electoral system be found to contravene those parameters, constitutional amendment would be required. For example, as discussed above, any change to the principle of proportionate representation between the provinces would be:

… subject to the 7/50 procedure, meaning the consent of the House of Commons and the Senate, subject to the Senate having only one suspensive veto of 180 days, and at least seven provinces representing at least 50% of the population of all the provinces.[34]

As well, Professor Pelletier identified the following elements as being fundamental to the constitutionality of any electoral system in Canada:[35]

  • Effective representation (relative equality between voters);
  • The office of the Queen or the Governor General (which require unanimous consent to be amended);
  • The “Senate floor” provision, protecting the right of the provinces to have a number of members of the House of Commons that is at least equal to the number of senators;
  • The principle of proportionate representation of the provinces in the House of Commons; and
  • The principle of responsible government.[36]

Professor Pelletier added that “Parliament cannot bring about profound upheaval by introducing political institutions that are foreign to and incompatible with the Canadian system,” meaning that, for example, “referenda could not become the only way in which laws are passed.”[37] Finally, he said that Parliament could, should it wish, unilaterally abolish or diminish the number of electoral districts in Canada.[38]

Emmett Macfarlane, whose research focuses on legislative responses to court rulings on rights and their implications for public policy, also took the position that, within certain limits, Parliament can undertake electoral system reform without constitutional or legal constraints.[39] He suggested that even if the electoral system could be interpreted as being constitutionally entrenched as part of the “constitutional architecture” (taken to be a part of the Constitution and thus having to follow constitutional rules on amendment), it does not engage provincial interests and thus reform would not trigger the general amending formula.[40]

Yasmin Dawood also suggested that “electoral reform can likely proceed without a constitutional amendment involving provincial consent, provided that the reform is consistent with certain constitutional limits.”[41] However, she noted that the Supreme Court of Canada’s 2014 Senate Reference has raised the question as to whether provincial consent could be required.[42]

Matthew P. Harrington went further, suggesting that the use of “constitutional architecture” has “created a great deal of ambiguity and confusion, so much so that I think it's now nearly impossible to determine whether a change in the method of electing members of either branch of Parliament is significant enough to require provincial consent.”[43] He suggested that there are two ways that a proposal for electoral system reform might impact the “nebulous” concept of “constitutional architecture” or “significantly alter what it [the Supreme Court of Canada] calls the essential features of the House [of Commons]”: altering the relationship or rights of the provinces, or substantially affecting the relationship between the Prime Minister and the House.[44] Thus, Professor Harrington indicated that “eliminating the first-past-the-post system” could “implicate section 42” of the Constitution.[45]

Peter Russell remarked on the possible constitutional implications of specific electoral system reform options, and posited that a mixed member proportional representation (MMP) system could be more likely to risk challenging the “constitutional architecture” than a single transferable vote (STV) system, as MMP “produces two kinds of members of Parliament,” and STV has already been used in Canada in the past.[46] As discussed later in this report, however, others have testified before the Committee that there would be no real difference between MPs elected in an MMP system.

Finally, Patricia Paradis, Executive Director for the Centre for Constitutional Studies at the University of Alberta, suggested that depending on what type of electoral system reform is proposed, it might be worthwhile to seek a Supreme Court reference to confirm the constitutionality of the proposal, as a reference would be more definitive and less time consuming than a court challenge.[47] She added that should electoral reform be found to be a constitutional matter (implicating the Constitution), then the appropriate constitutional amending process would need to be applied.


[17]               ERRE, About, 42nd Parliament, 1st Session.

[18]               Reference re Senate Reform, [2014] 1 SCR 704 (“Senate Reference”).

[19]               ERRE, Evidence, 1st Session, 42nd Parliament, 29 September 2016, 1355 (Patricia Paradis, Executive Director, Centre for Constitutional Studies, University of Alberta, as an Individual).

[20]               ERRE, Evidence, 1st Session, 42nd Parliament, 22 August 2016, 1425 (Benoît Pelletier, Full Professor, Faculty of Law, University of Ottawa, as an Individual).

[21]               Section 40 of the Constitution Act, 1867 sets out the electoral districts of the four provinces (Ontario, Quebec, Nova Scotia, and New Brunswick) at the time of confederation. This provision is now spent, as electoral districts are now established by proclamations issued from time to time under the Electoral Boundaries Readjustment Act, R.S.C. 1985, c. E-3, as amended for particular districts by Acts of Parliament.

[22]               Section 52(2) of the Constitution Act, 1982 defines the Constitution of Canada as including: the Canada Act, 1982 (which includes the Constitution Act, 1982), and the Acts and orders referred to in the schedule (mainly the Constitution Act, 1867). The Supreme Court of Canada has reiterated that the definition found in section 52 is not exhaustive.

[23]               Canada Elections Act, S.C. 2000, c. 9.

[24]               Parliament of Canada Act, R.S.C., 1985, c. P-1.

[25]               Electoral Boundaries Readjustment Act, R.S.C., 1985, c. E-3.

[26]             This section is the constitutional basis for the allocation of four seats to Prince Edward Island, when adherence to the principle of “proportionate representation” set out in section 52 would otherwise require that the number of seats allocated to the province be lower.

[27]             For an analysis of recent changes to the redistribution formula, see for example: Michael Pal, “Fair Representation in the House of Commons?” (May 2016). Journal of Parliamentary and Political Law Special Edition: The Informed Citizens' Guide to Elections (2015); Ottawa Faculty of Law Working Paper No. 2016-02. Available at SSRN: https://ssrn.com/abstract=2705498.

[28]             At section 51A of the Constitution Act, 1867.

[29]             Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, 2003 SCC 37, at para 37: In this case Supreme Court Justice Iacobucci reviewed the perceived advantages and disadvantages of various electoral systems and what latitude should be given to the Government in determining how to design an electoral system in accordance with section 3 of the Charter: [emphasis added]

Finally, although certain aspects of our current electoral system encourage the aggregation of political preferences, I do not believe that this aspect of the current electoral system is to be elevated to constitutional status. In his reasons, LeBel J. argues that first-past-the-post elections favour mainstream parties that have aggregated political preferences on a national basis. This might, indeed, be true. But the fact that our current electoral system reflects certain political values does not mean that those values are embedded in the Charter, or that it is appropriate to balance those values against the right of each citizen to play a meaningful role in the electoral process. After all, the Charter is entirely neutral as to the type of electoral system in which the right to vote or to run for office is to be exercised. This suggests that the purpose of s. 3 is not to protect the values or objectives that might be embedded in our current electoral system, but, rather, to protect the right of each citizen to play a meaningful role in the electoral process, whatever that process might be.

[30]             Daoust c. Québec (Directeur general des élections), 2011 QCCA 1634 [unofficial English translation], application for leave to appeal to the Supreme Court of Canada dismissed (2012 CanLII 22108, 26 April 2012): This case involved a direct challenge to first-past-the-post. The Court of Appeal rejected the petitioners’ call to declare the system unconstitutional and thus inoperative and followed Figueroa in concluding that section 3 of the Canadian Charter does not guarantee any particular type of electoral system. Justice Dufresne, writing for the Quebec Court of Appeal (unofficial translation), noted that effective representation of citizens, regardless of the type of electoral system used, satisfies the right to vote enshrined in section 3 of the Canadian Charter and section 22 of the Quebec Charter: See paras 55 to 57.

[31]             Reference re Senate Reform, [2014] ISCR 704, 2014 SCC 23. In this decision, the Supreme Court determined that all of the reform options contemplated required some form amendment to the Constitution of Canada, as defined by section 52(2) of the Constitution Act, 1982. The Court reiterated that the definition found in section 52 is not exhaustive. Indeed, the rules of constitutional interpretation led the Supreme Court to conclude that the Constitution has an “internal architecture” or “basic constitutional structure”, such that the “individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole” (at paragraph 26).

[32]             ERRE, Evidence, 1st Session, 42nd Parliament, 22 August 2016, 1425–1430 (Benoît Pelletier):

In the light of all that I have read, my analysis leads me to say that, in the eyes of the Supreme Court of Canada, the single member simple plurality system, the “first past the post system”, is constitutional, despite its weaknesses. It's good to know that the current system is in conformity with the Canadian Constitution, although it has weaknesses, as we all know. Second, and what I am saying here is still essentially from the perspective of the Supreme Court of Canada, the Constitution does not require any democratic electoral system in particular and does not view the system as immutable. In other words, the Supreme Court has shown itself to be open to a change in the way we vote and has mentioned that our Constitution does not require any particular voting method. So, the first past the post system conforms with the Constitution, but it's not the only system that could conform with the Canadian Constitution and with Canadian values.

[33]             Ibid. (Benoît Pelletier):

The Supreme Court also seems to mean that the choice of one method of voting over another is a matter of choice between competing political values. The government has a fairly wide latitude in the matter and it is not for the Court to intervene when it comes to reforming the method of voting, or at least, it is not for the Court to intervene too much. This is, in my view, something that is fundamental. What the Supreme Court says is that electoral reform is something that belongs to elected representatives, to Parliament, to the [G]overnment. It's not something that the Supreme Court of Canada would like to intervene in.

[34]             Ibid., 1425 (Benoît Pelletier).

[35]             Ibid., 1430–1435.

[36]             Ibid., 1435. Professor Pelletier then outlined his understanding of the principles underlying the Westminster model of responsible government:

The first principle is that executive powers are officially and theoretically conferred on the head of state and that they are concentrated under his purview. Under the second principle, those executive powers are exercised in practice by the prime minister and the ministers. Under the third principle, executive power is part of the legislative assembly. In other words, not only does the executive contribute to the exercise of legislative power, but it is also an integral part of the legislative assembly. According to the fourth principle, executive power must be accountable to the legislative assembly. It must answer for government policies before the legislative assembly. The next principle says that the democratic legitimacy of the executive power depends on, and is granted by, the legislative assembly. Under the final principle, which goes back to the principle of responsible government, the prime minister must tender the resignation of his government to the governor general or must ask for the House to be dissolved if he does not enjoy the confidence of those the people have elected. In my view, this is the definition of British parliamentary democracy that I give. Clearly, of course, other experts may wish to refine or add to this definition.

[37]             Relying on 1919 decision of the Judicial Committee of the Privy Council In Re Initiative and Referendum Act, referred to in 1987 by the Supreme Court of Canada in Ontario (Attorney General) v. OPSEU.

[38]             Ibid., 1440 (Benoît Pelletier):

Finally, I would say that maybe there will be some experts saying that Parliament cannot affect the fact there are electoral districts in Canada. Section 40 of the Constitution Act, 1867, refers to electoral districts. Some experts may say that electoral districts are entrenched and cannot be affected by Parliament unilaterally, but I don't share that point of view. I think that Parliament can abolish or diminish the number of electoral districts unilaterally by virtue of section 44 of the act of 1982.

[39]             ERRE, Evidence, 1st Session, 42nd Parliament, 23 August 2016, 0955 (Emmett Macfarlane, Assistant Professor, University of Waterloo, as an Individual).

[40]             Excerpts from Emmett Macfarlane, “Submission to the House of Commons Electoral Reform Committee,” 23 August 2016:

1.     Barring radical changes that affect specific constitutional guarantees, there are no legal or constitutional constraints on Parliament’s ability to implement electoral reform. As is explained below, electoral reform may count as a constitutional change requiring formal amendment, but it is one that Parliament is free to implement unilaterally under section 44 of the amending formula.

2.     The electoral system itself is not explicitly set out in the constitutional text or the amending formula. Yet recent Supreme Court jurisprudence on the amending formula – specifically the 2014 Senate Reform Reference and the 2014 Supreme Court Act Reference – while not specifically addressing electoral reform, outlined reasoning that strongly suggests the electoral system is part of the “constitutional architecture.” The Supreme Court stated that the constitutional architecture includes aspects not included in the constitutional text. Given its status as an essential feature of the House of Commons, it would seem that the electoral system would be considered part of that basic structure.

3.     The Court’s reasoning in the Supreme Court Act Reference also suggests that parts of ordinary statutes (like the Canada Elections Act) might be, in effect, constitutionally entrenched. If this logic applies to the electoral system, then electoral reform should be considered a change of a constitutional nature requiring formal amendment. However, barring very specific changes (see the next paragraph), electoral reform is not a change that implicates provincial interests in the way that reform of the Senate does. Where the regional nature of Senate representation implicates provincial interests, the representational role of the House of Commons is intended to reflect the national will. I therefore conclude that even if electoral reform requires a constitutional amendment, it is one that Parliament is free to implement unilaterally under section 44 of the amending formula (notably, in the same manner it did when reapportioning seats in 1985 and 2011).

5.     Neither the existing electoral system nor any of the alternative systems typically considered in the Canadian context violate the Charter of Rights and Freedoms. The relevant Supreme Court jurisprudence on the Charter’s democratic rights has suggested that Parliament should enjoy wide discretion in its choices regarding the electoral system. Further, challenges to the current First-Past-The-Post (FPTP) system on Charter of Rights grounds – the most recent of which was heard by the Quebec Court of Appeal in 2011 – have seen the system upheld as constitutional.

[41]             ERRE, Evidence, 1st Session, 42nd Parliament, 29 August 2016, 1510 (Yasmin Dawood, Associate Professor and Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, Faculty of Law, University of Toronto, as an Individual).

[42]             Ibid.:

I will say that until the Supreme Court's Senate reference decision, it seemed pretty clear that Parliament could actually make electoral reform decisions or changes to election laws, provided it went through the normal parliamentary process. The court, in many of its cases, has said that the electoral system falls within the domain of Parliament.

The court has recognized a number of constitutional limits on what Parliament can do. These tend to centre around the right to vote, as protected by section 3 of the charter. There are also distributional requirements in section 51A of the Constitution Act. Apart from those types of restrictions, it would have seemed, before the Senate reference decision, that Parliament could bring about electoral reform.

As you know, in the Senate reference decision the court said that various proposals to reform the Senate did in fact amount to a constitutional amendment, even though they didn't actually envision any changes to the constitutional text. For example, concerning the consultative elections, the proposal was that these would take place without actually changing any of the language of the Constitution, but the court found nonetheless that this amounted to a constitutional amendment.

The point is that the question now is whether electoral reform it is the kind of amendment to the Constitution that would in fact require provincial consent according to the 7/50 rule, whereby seven provinces that have 50% or more of the population agree to the change.

What I did in the paper I was describing was try to figure out whether there's a way around this. Is there a way for a future court decision to say no, to say that in fact electoral reform does not need to be approved via a constitutional amendment involving provincial consent? In my opinion, there is an argument for that. There is also the argument on the other side that in fact a constitutional amendment involving provincial consent is required.

[43]             ERRE, Evidence, 1st Session, 42nd Parliament, 23 August 2016, 1420–1425 (Matthew P. Harrington, Professor, Faculty of Law, Université de Montréal, as an Individual).

[44]             Ibid.

[45]             Ibid., 1420.

[46]             ERRE, Evidence, 1st Session, 42nd Parliament, 26 July 2016, 1525 (Peter Russell, Professor Emeritus, Department of Political Science, University of Toronto, as an Individual):

I think an MP would run the risk there, because it produces two kinds of Members of Parliament. That phrase in the Senate reference about the architecture of the constitution, you would agree with me, is not a precise phrase, and creating two kinds of members might be found to be a deviation from the architecture. However, having multi-member ridings in various versions of the STV system, I think, would be okay. We've actually had that in Canadian history. That's another reason why I've moved from MMP to STV, because I think there's less of a constitutional doubt about the latter.

[47]             ERRE, Evidence, 1st Session, 42nd Parliament, 29 September 2016, 1355 (Patricia Paradis).