The Process of Electoral Reform in Canada: Democratic and Constitutional Constraints
Supreme Court Law Review, Forthcoming
18 Pages Posted: 30 Aug 2016
Date Written: July 15, 2016
This Article considers the process by which electoral reform ought to take place, focusing in particular on the democratic and constitutional constraints that bear on electoral reform. It outlines a number of possible process options — including a citizens’ assembly, a commission, a referendum, and a parliamentary committee — and it argues that although no single mechanism is mandated, the process must visibly follow the norms of political neutrality, consultation, and deliberation in order for the proposed reform to be democratically legitimate.
This Article also addresses the question of whether a constitutional amendment involving provincial consent is required for electoral reform. The Supreme Court has recognized in many of its cases that the electoral system is political in nature but nonetheless subject to certain constitutional limits. The Court has also stated in its prior cases that the choice of the electoral model falls within the domain of Parliament. The remaining question, however, is whether the Senate Reference has changed the legal landscape such that Parliament would now be required to obtain provincial consent in order to usher in electoral change. This Article argues that given the salient differences between Senate reform and electoral reform, the Court could distinguish the Senate Reference and find that its earlier precedents on the electoral system remain valid. The Article concludes that electoral reform can likely proceed without a constitutional amendment involving provincial consent, provided that the reform is consistent with certain constitutional requirements.
Keywords: Electoral Reform, Democratic Legitimacy, Process, Constitutional Amendment, Political Neutrality, Consultation, Deliberation
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