Saturday, December 24, 2022

Should the Charter Challenge for Fair Voting be worried about the Supreme Court 2014 ruling on Senate Reform?

This question was precipitated when an audience member asked a peripheral question about the Charter Challenge for Fair Voting  at a Dec 11, 2022 Fair Vote Canada webinar in which the main topic was Dennis Pilon presenting his new paper called, “Myths, Damn Myths, And Voting System Change (Download PDF of his paper at this link).

(By the way, Pilon’s paper is fantastic, but it's not the topic of this post.)

At the 44 minute point (see link to recording) a member of the audience asked Pilon what he thought of the Charter Challenge for Fair Voting.

Here's part of his response: “…[the Supreme Court] said that Stephen Harper couldn't change the basis of appointing Senators because the Senate was part of what they called the constitutional architecture of the country.  The risk here is that they may say the same thing about the voting system.”

“Risk” is always a matter of degree. I’m not saying that there’s zero risk, but I wanted to be fair to the Charter Challenge, and so here I take a deeper dive into the degree of “risk” which Pilon mentioned.

Here’s a quote from the Supreme Court ruling in which they mention the “architecture” that Pilon referred to:
“We conclude that introducing a process of consultative elections for the nomination of senators would change our Constitution’s architecture, by endowing senators with a popular mandate which is inconsistent with the Senate’s role as a complementary legislative chamber of sober second thought,” “This would constitute an amendment to the Constitution of Canada in relation to the method of selecting senators.” 

New mandates versus pre-existing rights:

Newly endowing a legislative chamber with a new popular mandate is qualitatively different from simply taking steps to ensure that all Canadian citizens can exercise their pre-existing rights to effective representation and equal treatment.

Here’s how these two are different:
In the first case, the entire Senate would be given a popular mandate which was not pre-existing. On the other hand, an improvement to the electoral system would simply ensure that a pre-existing right to effective representation that did previously belong to all voters would then finally simply be implemented in a more effective way that treats all citizens more equally.

In fact, previous governments at the provincial level have already implemented (and rescinded) proportional voting with no constitutional problems.

The 2014 Senate Reform Case wasn’t a Charter Challenge:

The Senate reform case dealt with the “Procedure for Amending Constitution of Canada” section of the Constitution Act, 1982 (section 44), but not the Canadian Charter of Rights and Freedoms (sections 1-34). (See links here and here)
In order to be successful, a Charter Challenge doesn’t have to amend the Constitution. A Charter Challenge simply asks the courts to interpret and enforce the Charter, which is, itself, already part of our Constitution. There have already been several successful examples (See link).

Does federal electoral reform require substantial provincial input?

To reform the Senate, our constitution does stipulate that we need “substantial provincial input” (See MacFarlane’s article)

But our Charter Challenge for Fair Voting is different: It’s an effort to change the electoral system at the federal level which does not require that “substantial provincial input.”

The constitution does stipulate that each province get a certain number of seats in a federal election but there are models of electoral systems which detour around that constitutional quagmire obstacle: See Wilf Day’s blog post entitled, “With proportional representation, will my region lose representation?”  Day begins his article by recognizing the constitutional parameters.


Should the Charter Challenge for Fair Voting be worried about the Supreme Court 2014 ruling on Senate Reform?

Worry is a matter of degree, just like risk is. When answering that question for yourself you need to simultaneously ask, “What are the risks of the alternatives? Are they greater, less, or the same?”

Here’s my own answer: I know I’m taking a risk when I donate to the Charter Challenge, but the risk is calculated and studied. Hopefully after studying this blog post I’ve made you feel more knowledgeable and more confident about investing in the Charter Challenge for Fair Voting.

About the alternatives: I think it’s wise to water all the plants, in case one yields less fruit, or yields fruit a lot slower than the other. But that’s a topic for another blog post.