A Liberal majority government – what constitutional issues will it face?

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I do not think that anyone forecast a Liberal majority of the magnitude that swept the country last night. Sixty-eight and a half percent of eligible Canadian electors voted last night. Prime Minister-elect Justin Trudeau said that Canadians wanted “change – real change”. I think he is right. But what sort of change will that include and will it involve constitutional issues? The answer I think is “yes”. I will touch upon only four issues which require constitutional review or involves constitutional values.

Electoral reform

The Liberals campaigned on a platform that promised, amongst many other things, an all party review of our electoral system. Canada uses the first-past-the-post electoral system. The perversions of democratic will can be seen in this election’s results. The 42nd Parliament will likely be comprised of the following:

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Of interest, in 2011, the Conservatives actually had a higher percentage of the popular vote (39.62%) than the Liberals in 2015 (39.47%) but reaped a smaller number of seats for their majority (166).

So the result of our first-past-the-post system is that, with only 39.47% of the popular vote, the Liberals will govern with 54.4% of the seats in Parliament. Over 60% of Canadians voted for a party other than the Liberals in last night’s election but they are represented by 45.6% of the members of Parliament.

In my opinion, one of the first orders of business for this new Liberal government will be to strike the all-party committee to review our electoral system and to propose a new model for the election of our members of Parliament. Some form of proportional representation would make our House of Commons more representative of the will of the people and therefore, our federal governance more democratic.

Senate appointments

There is currently 22 vacancies in Canada’s Senate. While outgoing Prime Minister Harper and NDP leader Thomas Mulcair both declared that they would not appoint new members to the Senate (as noted in an earlier blog (August 1, 2015), it is the Governor General who appoints – not the Prime Minister), incoming Prime Minister, Justin Trudeau, never made such a statement. He is unfettered by such political baggage and, in my view, must quickly provide his recommendations to the Governor General who can then replenish the ranks of the Senate’s memberships so that it can continue to fulfill its important constitutional role, namely, that of second sober thought and review. In so doing, I would recommend that Mr. Trudeau look at how he selects such candidates for his advice to the Governor General. Party affiliation should be the least of his concerns and diversity and occupational and educational qualification should be at the top of the criteria that he considers.

Senate reform

Not only must the Senate be given its full complement of members, but its role needs to be clarified, reformed and modernized. It will not suffice to top up its members and to sweep the issue of the Senate under the carpet, hoping that the likes of the Mike Duffy trial will not resurface again. Canada is a federation and should have an effective bicameral national Parliament. For the last number of years, it has been operating as a unicameral Parliament, with the Senate’s only role being viewed by Mr. Harper as being able to pass his legislative agenda. Whether we choose to retain the Senate solely as an appointed chamber of sober second thought or whether we decide to make it something more vigorous or representative will depend on constitutional review and, most likely, intergovernmental negotiation. This task will take more than a few months and the sooner it is started the better.

Resumption of federal-provincial meetings

While not strictly speaking constitutional, the need to resume a greater degree of cooperation, collaboration and open conversation between the first ministers and their governments is pressing. The sort of unilaterialism as has been practised by the Harper federal government for the last decade has been isolating and counter-productive.

Resumption of Charter review of legislative and policy initiatives

While the Charter review of legislative and policy initiatives had not ceased under the Conservative government, the bar for passing muster had been put so low that virtually any initiative with any chance of survival of a Charter challenge was allowed to go forward. Immediately, the new federal government can raise that bar to one of likelihood or strong likelihood of survival of a constitutional challenge. As past Canadian Bar Association president Simon Potter said in a presentation to a conference of the Constitutional Law and Human Rights Section in Ottawa in June 2014, each branch of government must actively support the Constitution — the legislative, the executive and the judiciary each have a role in supporting and sustaining that constitutional tree and it should not be left to the judiciary to be the only protector of our constitutional values and principles.

The new government in Ottawa and the new Prime Minister Justin Trudeau have important tasks to undertake over the next four years. I am convinced that these items that I have outlined above will form part of their work. Like all Canadians, I wish them well as they embark on their ambitious agenda of change.

I remain

Constitutionally Canadian

Arthur Grant

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2 thoughts on “A Liberal majority government – what constitutional issues will it face?

  1. I am curious on the section you write about electoral reform. Aside from the obvious claim that the national vote represents the democratic will of the people of Canada, what do you have to say about its importance in a parliamentary democracy? I understand that on the face it appears that a House of Commons which does not reflect the national popular vote could be undemocratic but when we consider that the House is composed of members who have been elected in ridings which translate into seats, there were 338 elections last night that gave us the parliament we have today. Surely the fact that people voted for a local candidate in their local ridings makes the parliamentary system more democratic. With all of the known versions of proportional representation there is a need to assess the national vote, but in a purely parliamentary system the national vote is irrelevant. For me, this becomes even more import in Canada when we consider its geographic size, small population (which specific dense pockets) and spectrum of cultures. How could you possibly say that a collection of votes nationally is more democratic than a local election with a local candidate?

    • Thanks for your thoughtful comment. There are all sorts of forms of proportional representation that can be considered. Countries which are geographically large and diverse such as Germany and Australia have used forms of proportional representation. In Australia they use a Single Transferable Vote (STV) system. In Germany they use a Mixed Member System (MMS) of proportional representation. In each case, there is a link between the constituent and the member elected (STV) or the constituent and some of the members elected (MMS). Thus, the voice of the riding does not have to be lost if one moves to a proportional representation form of electing members of Parliament. It depends on the type of proportional representation that is ultimately adopted. This is what the all-party committee will have to consider – what changes do we want to make to our electoral system to make our members more representative of the electors’ will yet at the same time being reflective of the diversity and geographic breadth of the country.

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