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.
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:
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.
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.
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.