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PATRICE DUTIL

Without a referendum, electoral

reform is unconstitutional
PATRICE DUTIL
Contributed to The Globe and Mail
Published Thursday, Jun. 23, 2016 6:00AM EDT
Last updated Thursday, Jun. 23, 2016 8:47AM EDT

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Patrice Dutil is a professor in the department of Politics and Public

Administration at Ryerson University

IN THE KNOW

The Trudeau government wants to change the way Canadians elect

their federal government, apparently without first specifically consulting

U.S. ELECTION 2016

Canadians via referendum. Yet with less than 40 per cent of the vote
last election, it has no mandate to transform the oldest practice of

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Canadas democracy. Any attempt to do so without consent from the

electorate would be unconstitutional because it would not follow the
conventional practice.

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Precedents and conventions matter. The Jennings Test (named after

Sir Ivor Jennings, an English constitutional scholar) prescribes three

COCKTAIL BASICS

conditions that must be met before a practice becomes a convention:

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Were there precedents? Did the key actors in the precedents feel bound
by a rule? Would there be a constitutional reason for the rule?

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In 1981, the federal government wanted to unilaterally reform the

Constitution. A majority of the Supreme Court said no based on the

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Jennings Test, convention dictated that the government first obtain

agreement from the provinces.

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In regards to electoral reform, over the past decade, four provincial

governments pushing for electoral reform Prince Edward Island (2005),
British Columbia (2005 and 2009) and Ontario (2007) put the question
to the people for approval. New Brunswick planned a referendum but
then the government was defeated. P.E.I. may have another one this

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year. This is a solid record of precedents.

To answer the second Jennings question: In all cases, government
leaders felt bound by convention. In P.E.I., then-House Speaker Gregory
Deighan eloquently stated that Islanders should have a strong voice in
determining how these electoral systems work because they do have
significant bearing on the final results of an election.
In B.C., then-premier Gordon Campbell said electoral reform was a
significant change that required approval from a great majority in the
province.

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And former Ontario premier Dalton McGuinty said that electoral reform is
so fundamental, so basic that the government must ask the people of
Ontario for their judgment in this matter.
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In all four cases, incidentally, the people said no.

The convention of going to the people on electoral reform also exists in
other parliamentary democracies such as the United Kingdom, Australia
and New Zealand. Most recently, following the 2010 general election in
the United Kingdom, the coalition government committed to holding a
referendum on the question of electoral reform. Liberal Democratic Party
leader Nick Clegg said the final decision should be made not by us, but

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by the British people. Prime Minister David Cameron called the

HIGHLIGHTS

referendum, which was held in 2011 with the reforms rejected, a

democratic step.
As for the third Jennings question whether theres a constitutional
reason for the rule the answer is yes. Canada adopted a Westminster
system of Parliament that created a balance of power between the
Crown, the two Houses of Parliament, and the Courts. The electoral
system was a fundamental part of that bargain, based on conventions.
It follows that any change to that balance including electoral reform
would have to be ratified by those most affected. In this case, that
would be the people.
The Canadian electoral system functions on law, but also on a system of
conventions understandings based on precedents, a recognition that

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strong public support clearly expressed in referenda is essential before

any changes are made, and an obvious understanding of how a
Westminster-style parliamentary system works to deliver effective
government. To change that, past governments have agreed that the
question must be put to a referendum.
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Why should it be different for the government led by Justin Trudeau?

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