IS PROPORTIONAL REPRESENTATION CONSTITUTIONAL?
B. Thomas Hall
September 2007
On October 10, 2007, Ontarians will vote in both a general election and a referendum. The referendum will ask them to choose between the existing First-Past-The-Post (FPTP) electoral system, in which the candidate with the most votes in a riding is declared elected, and a Mixed-Member-Proportional (MMP) electoral system, which combines voting for a party with voting for a “Local Member” elected under FPTP. This combination of voting separately for candidates and for parties results in a form of PR.
What’s wrong with the MMP electoral system? Surely, you say, a system that produces a legislature that mirrors voters’ preferences is desirable. I’m certainly not a big fan of FPTP, since that system allows a candidate to win with less than 50 % of the vote. But I’m concerned that this form of PR may not be constitutional. This does not imply, of course, that FPTP is the only constitutional electoral system. Let me explain why I’m concerned.
In the last federal election did you vote for Stephen Harper, Paul Martin, Jack Layton or Gilles Duceppe? Of course you didn’t unless you voted in one of the ridings they ran in. Thus most of you didn’t get to vote for one of the party leaders. Well then, did you vote for the Conservative Party, the Liberal Party, the NDP or the Bloc Québécois? But you couldn’t have voted for the BQ unless you lived in a riding where there was a BQ candidate.
That’s a significant point, because you couldn’t have voted for the Conservatives, the Liberals or the NDP either. You could only vote for a Conservative candidate, a Liberal candidate, an NDP candidate, or one of the other smaller party candidates or an independent candidate who ran in your riding.
Under our current electoral system, voters have to vote for individuals. They may decide to vote for a particular candidate because he or she is running as a member of the Trust-Me Party, or they may decide not to vote for that candidate for the same reason. But the ballot they cast will be for one of the candidates running in their riding, not for a party or a party leader. We elect individuals to represent those of us who live in the riding. This is true for general elections as much as for by-elections.
The preamble of the Constitution Act, 1867 states that the three original provinces were to be united into “One Dominion ... with a Constitution similar in Principle to that of the United Kingdom”. It has surely been part of the constitution of the UK, and of England, that inhabitants of the Kingdom have selected individuals to represent them in the House of Commons. Political parties were a later innovation designed to promote the views of like-minded Members of Parliament who worked together in the House.
In addition to these facts from our constitutional history, we must also consider section 3 of the Canadian Charter of Rights and Freedoms, which guarantees that “Every citizen of Canada has the right to vote in an election for members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” This means, of course, that each citizen has the right to cast a ballot and the right to run for office. But it also means much more.
In a series of cases over a number of years, the Supreme Court of Canada has declared that the purpose of the right to vote is the right to “effective representation” in the provincial legislatures and the House of Commons. In a 2003 decision, Figueroa v. Canada (Attorney General), Mr. Justice Iacobucci, writing for the majority of the Court, said, “The right to run for office provides each citizen with the opportunity to present certain ideas and opinions to the electorate as a viable policy option
The question that section 3 of the Charter raises is whether MMP adversely affects the right of some citizens to run for office. In effect, Ontario’s proposal for MMP reserves approximately one-third of the seats of the Ontario legislature for people who have been selected by political parties. The voters do not elect these people to the legislature. Rather, they give their votes to the political parties, which are then entitled to give seats to a corresponding number of party members. A citizen can’t vote on these list members.
It’s true that Justice Iacobucci also says, in paragraph 37 of Figueroa, that “the Charter is entirely neutral as to the type of electoral system in which the right to vote or to run for office is to be exercised.” But he is responding to Justice LeBel’s assertion that the current electoral system encourages the aggregation of political preferences by favouring mainstream parties so as to increase the likelihood of majority governments. Justice Iacobucci says he does not believe that that aspect of the electoral system has constitutional status. He also says, in paragraph 80, that “Legislation enacted for the express purpose of decreasing the likelihood that a certain class of candidates will be elected is not only discordant with the principles integral to a free and democratic society, but, rather, is the antithesis of those principles.” In other words, legislation enacted for the express purpose of increasing the likelihood that a certain class of candidates, e.g. members of mainstream parties, will be elected is discordant with the principles integral to a free and democratic society.
Favouring political parties by setting aside a third of the seats for party members may well infringe other citizens’ right to be “qualified for membership” in the legislature. Any condition or restriction on this right would have to be justified to the Court by the government as a reasonable limit in a free and democratic society, as prescribed in section 1 of the Charter. Furthermore, section 2(d) of the Charter guarantees the citizen’s freedom of association. This surely includes the right to be outside a political party.
B. Thomas Hall recently retired after 23 years as a non-partisan procedural adviser at the House of Commons. He is not a member of any political party.
