Constitutional Amendment after the Senate Reference and the Prospects for Electoral Reform
(2016) 76 Supreme Court Law Review 2nd 377
22 Pages Posted: 3 Feb 2017 Last revised: 25 Mar 2017
Date Written: December 1, 2016
The Canadian federal government committed that 2015 would be the last election under the first past the post (“FPTP”) system used since 1867. If the federal electoral system does change, it will be a break from the recent politics of reform. Over the last decade, numerous attempts to reform provincial electoral systems have failed. The additional potential hurdle facing the federal government, which was not relevant for the provinces, is the uncertainty relating to the rules on constitutional amendment, particularly in light of the Reference re Senate Reform. The central questions I address in this article are whether federal electoral reform requires recourse to the formal amendment rules in Part V of the Constitution Act, 1982 and, if so, whether provincial consent is required.
This article proceeds as follows. Section II analyzes the reasoning in the Senate Reference, in order to establish the baseline rules for when unilateral Parliamentary action is permitted and when provincial consent is mandated. Section III assesses the broader constitutional implications of the Senate Reference. It investigates what zones of certainty and uncertainty exist with regard to constitutional change and the main institutions of the federal government. Electoral reform lives squarely within the constitutional grey zone produced by the Senate Reference. Section IV outlines the considerations relevant to whether the formal amendment procedures apply to electoral reform. Section V considers what reforms can be achieved by Parliament alone, if electoral system change is deemed to constitute a Part V amendment. I conclude that on the Supreme Court’s current jurisprudence, there is legitimate uncertainty surrounding the constitutionality of unilateral federal action introducing a mixed member proportional or proportional representation system. A ranked ballot, however, likely stands on firmer constitutional ground.
Keywords: electoral reform, constitutional amendment, proportional representation, Senate Reference, Part V of the Constitution Act 1982
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