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The Munk Debates

Home Opinion

BENJAMIN PERRIN

Why Canadas top court should weigh

in on electoral reform
BENJAMIN PERRIN
Contributed to The Globe and Mail
Published Friday, Jul. 22, 2016 6:00AM EDT
Last updated Thursday, Jul. 21, 2016 5:54PM EDT

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Benjamin Perrin is a law professor at the University of British Columbia and

a senior fellow at the Macdonald-Laurier Institute for Public Policy.
---------------------------------------

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has been at the core of Canadian democracy since Confederation. No

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matter which model it ends up proposing, significant changes to how

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formed must be referred to the Supreme Court of Canada and a

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Any major electoral reform proposal should first be referred to the top
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The House of Commons special committee on electoral reform has

started hearings into alternatives to the first-past-the-post system that

Parliament to adopt. Only this will ensure the legality of proposed

changes.

Victoria Woodhull
When the former Conservative government wanted to reform how
senators were selected, the Liberals were adamant that the court be
consulted. In the 2014 reference case, the court ruled that consultative

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elections for senators triggered the general amending procedure in the

Constitution, requiring approval of at least seven provinces representing
at least 50 per cent of the population. This scuttled the governments
attempt to unilaterally adopt legislation to that effect.
In a reference decision on electoral reform, the court would determine
whether Parliament has the authority to change the rules by which MPs
are chosen or whether provincial approval is required, and to what
extent. There is some uncertainty as to whether Parliament has such
power acting alone, which may vary depending on the electoral model
chosen.

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Imagine that Parliament were to adopt major electoral reform without

consulting the court and an election were held under the new rules,
resulting in a newly composed Parliament and government. If a
constitutional challenge were then brought that found Parliament lacked
the authority to change these rules on its own, it would create a
constitutional crisis that could invalidate all of the laws and actions
taken by such a government. Why would we risk such a disaster?
If ever there were a case for prudence, this is it. With clear questions,
the court can provide clear answers on proposed electoral reform before

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it is adopted. The court has shown it can act expeditiously in such

matters. The sooner a reference is made, the sooner we will receive a

response.

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While a court reference on electoral reform would ensure legal
legitimacy, it does not provide political legitimacy. Changing the rules by
which MPs are chosen is an extraordinary change to the foundation of

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our democratic system. It is not ordinary legislation. Nor did Prime

Minister Justin Trudeau run on a specific electoral reform proposal,
although he has expressed favour for one model that analysts say
would benefit his party.
A referendum is the only way to ensure political legitimacy of any reform
proposal. Canadians were rightly given a voice on major constitutional
reform in 1992, rejecting the Charlottetown accord. It is beyond ironic
that a project professing to enhance our democracy could be advanced
unilaterally by a majority government elected with less than 50 per cent
of the popular vote.

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Holding a referendum on electoral reform would allow Canadians to say

whether they want to change the system or not, and, if so, which model
they prefer. Failing to do so would indelibly stain the Liberal government
as opportunist for using its majority to entrench new rules that favour
the partys electoral outcomes for decades to come. The cynicism that
would be bred by such a move would be palpable hardly sunny
ways.
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social media are incredibly poor substitutes for a referendum conducted

using a secret ballot, supervised and run by Elections Canada. The
broad support that is required for major electoral reform can only be
accurately and objectively gauged by a referendum. Theres no
reasonable excuse for the Liberal government not to make it happen.
No matter which model of electing our MPs and forming our government
is preferred, we need to get it right. Only a Supreme Court reference
and subsequent national referendum will ensure that electoral reform
has both the legal and political legitimacy that Canadians deserve for
such a major change.
!

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