Is Proportional Representation Unconstitutional?

Opponents sometimes claim that proportional representation means amending the constitution or could be subject to a constitutional challenge.

In fact, proportional representation designed for Canada – whether Mixed Member Proportional, Single Transferable Vote, or a hybrid of those, is just an act of legislation.

The only model of proportional representation that is unconstitutional in Canada is one where ridings cross provincial boundaries. For example, implementing a nation-wide, party list system like Israel. Such a system is highly unsuited for Canada and nobody has ever proposed it.

Origin of the Myth

The preamble to our constitution reads:

“Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom.”

Opponents have seized on the idea that first-past-the-post, and single member ridings, are part of the UK constitution. They’re not.

Consider this:

  • In 1867, even the UK did not exclusively use first-past-the-post.  In 1832 about 62 ridings elected two MPs. By 1867, four UK cities had three MPs each instead of two, elected by “limited vote” – a semi-proportional system.
  • In the 1800’s, even Canada did not exclusively use first-past-the-post. In 1885 Ontario copied the UK’s “limited vote” in a Toronto riding with three MPPs.
  • Sections 40 and 41 of the Constitution Act 1867 clearly empower the federal parliament to alter its own election rules.
  • If electoral systems were entrenched into the constitution, that would apply equally to provinces. However, we have had 10 voting system reforms at the provincial level, including proportional Single Transferable Vote, which was used in Manitoba from 1927-1953.
  • In 2004, the Law Commission of Canada released its report, “Voting Counts: Electoral Reform for Canada”, recommending Mixed Member Proportional representation. This report was written by top legal scholars, such as Nathalie DesRosiers, who is now Dean of Common Law at University of Ottawa. Their report stated: “This Report aims to add corrective features to our electoral rules that do not involve constitutional amendments, and hence do not deal with Senate reform.”
  • In total, 12 commissions and assemblies in Canada have now recommended made-in-Canada proportional representation, going back to a federal recommendation in 1979. It’s implausible that they all missed the constitution.

Despite all this, recently two U.S. law clerks argued in the National Post that PR is unconstitutional. As Canadian Professor Dennis Pilon explains in his well-researched National Post rebuttal: You can’t hide behind the Constitution to spare us electoral reform

“The attempt to cast the voting system as unconstitutional is a fairly recent innovation, one that lacks historical perspective. “

Maryam Monsef, Canada’s Minister of Democratic Institution, stated that any electoral reform will fall “ “within the constitutional framework.”

The government has set a realistic timeline to Make Every Vote Count in 2019.  They will not be distracted by unfounded red herrings brought up by opponents.

References:

Wilf Day’s Blog on MMP for Canada

You can’t hide behind the constitution.” By electoral reform expert Dennis Pilon:

History of STV in Canada

Voting Counts: Electoral Reform for Canada” – Law Commission of Canada (2004)