HE WHO VOTES DECIDES NOTHING ...

Richard Warman Faculty of Law McGill University, Montreal August 2003

A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master of Laws.

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Warman, Richard. LL.M. McGill University. August 2003. He Who Votes Decides Nothing ... Supervisor: Colleen Sheppard

What is the meaning of the right to vote, and the concurrent right to play a meaningful role in the electoral process as guaranteed by s. 3 and informed by the equality provisions of the Charter ofRights and Freedoms? These questions, and whether the current Canada Elections Act adequately respects them are considered in light of jurisprudence conceming democratic rights including the Supreme Court' s recent Figueroa decision.

The English Jenkins Commission is examined, as are the les sons to be leamed from the experiences of Germany, South Africa, Italy, and New Zealand with proportional representation voting. At home, the tentative steps toward voting reform in Quebec, British Columbia, PEI, and the work of the Law Commission of Canada are discussed. Finally, basic goals for voting reform are suggested and measured against model recommendations. The prospects for reform ultimately depend on a rebalancing of the values of democracy and power.

11 RÉSUMÉ

Quelle est la signification du droit de vote, du droit de jouer un rôle significatif dans le processus électoral, tels que garantis à l'article 3 de la Charte canadienne des droits et libertés, tenant compte des dispositions de la Charte relatives à l'égalité? Ces questions sont évaluées à la lumière de la jurisprudence relative aux droits démocratiques, dont la récente décision Figueroa de la Cour suprême, afin de déterminer si la Loi électorale du Canada respecte ces garanties.

L'auteur examme les travaux de la Commission Jenkins ainsi que l'expérience allemande, sud-africaine, italienne et néo-zélandaise sur la représentation proportionnelle. Au niveau domestique, sont soupesés les efforts de réforme électorale du Québec, de la Colombie-Britannique, de l'Île-du-Prince-Édouard et de la Commission du droit du Canada. De cette analyse, des objectifs de base sont proposés et comparés aux recommandations suggérées. Les perspectives de réforme dépendent ultimement d'un rééquilibre entre valeurs démocratiques et pouvoir.

111 ACKNOWLEDGEMENTS

My thanks to my thesis supervisor Colleen Sheppard for displaying the patience of Job, and to my family and my partner for reminding me from time to time of the last stanza in Robert Frost's "Stopping by Woods on a Snowy Evening".

My appreciation also to Tim Buck, Miguel Figueroa, and Joan Russow, for demonstrating the courage of their convictions.

IV TABLE OF CONTENTS

ABSTRACT ...... 11

RÉSUMÉ...... 111

ACKNOWLEDGEMENTS ...... IV

INTRODUCTION: HE WHO VOTES DECIDES NOTHING...... 1

CHAPTER 1- DEMOCRACY IS LIKE A BIRTHDAY PARTy...... 5 1.1 Univers al Suffrage, But Sorne AnimaIs Are More Equal Than Others...... 6 1.2 First Nation, Last Vote...... 9 1.3 Green Party of Canada Challenges the Constitutionality of the Canada Elections Act...... Il 1.4 Legal or Political Question? Is the Issue Justiciable? ...... 15 1.5 The Fundamental Principles of the Constitution...... 16 1.6 Section 3 of the Charter...... 18 1.7 Sections 15,27, and 28 ofthe Charter...... 22 1.8 Oakes test...... 24

CHAPTER 2 - THE BRITISH JENKINS COMMISSION...... 28 2.1 Lost Souls...... 32 2.2 The Bugbear of Stable Govemment...... 34 2.3 The Liberal Democrat Common Denominator...... 35

CHAPTER 3 - LESSONS FROM ABROAD...... 48 3.1 Is New Zealand Worthy of Our Flattery? ...... '" 48 3.2 South Africa ...... '" ...... 51 3.3 Italy, There Were Seamonsters...... 55 3.4 Germany...... 58

CHAPTER4- WHAT IS TO BE DONE?...... 61 4.1 Whither Quebec?...... 61 4.2 Prince Edward Island...... 64 4.3 British Columbia...... 66 4.4 Law Commission of Canada...... 69 4.5 What Could Be Done?...... 71

CONCLUSION...... 79

BIBLIOGRAPHY...... 81

V INTRODUCTION

He who votes decides nothing, he who counts the votes decides everything.

Joseph Stalin, 1938

Beginning with this premise, the question that this thesis seeks to address is: 1s Canada's method of counting votes under the Elections Act] broken, and if so, what can we leam from experiences at home and abroad as to how we might best go about fixing this fundamental aspect of our democracy?

The first chapter looks at how we could recognize if our voting system had in fact broken down. There have long been valid criticisms of the First Past The Post (FPTP) voting system, and such criticisms have taken on new meaning in the era of the Charter of

Rights and Freedoms. 2 The susceptibility of the vote counting provisions of the Elections Act to challenge under sections 3 and 15 of the Charter was first developed at length by emerging elections scholar Trevor Knight. 3 Since then, the Supreme Court has expanded upon its earlier vision of the meaning of section 3. Whereas the Saskatchewan Boundaries4 case spoke of the right to effective representation, the Supreme Court in the recent Figueroa5 case extended this to include the right to play a meaningful role in the electoral process.

With the advent of increased Charter scrutiny of the election system, this may give added weight to the prospects for success of legal challenges based on the alleged systemic exclusion of women, Aboriginals, and other minorities from public office. The nature of this exclusion is examined by comparison with the suc cesses of other countries in these

1 Canada Elections Act, R.S.C. 2000, c. 9. 2 Canadian Charter ofRights and Freedoms, Part 1 of the Constitution Act (no. 2), 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [hereinafter Charter] 3 T. Knight, "Unconstitutional Democracy? A Charter Challenge to Canada's Electoral System" (1999) 57:1 U.T. Fac. L. Rev. 1 at 5. [herinafter "Unconstitutional Democracy"] 4 Reference Re: Electoral Boundaries Commission Act, [1991] 2 S.C.R. 158. [hereinafter Saskatchewan Boundaries] 5 Figueroa v. Canada (Attorney General), 2003 SCC 37. [hereinafter Figueroa]

1 areas and their respective electoral methods. Further, the chapter takes into account the most recent of such challenges launched by the Green Party of Canada in co-operation with Professors David Beatty and Ed Morgan of the Test Case Centre at the University of Toronto's Faculty of Law on these grounds. In doing so, the history ofjudicial consideration of democratic rights in Canada is explored including whether the issue is even justiciable through the lens of the Supreme Court' s decision in the Secession Reference6 and the fundamental principles of democracy laid out therein, as weIl as how the evaluation of the section 3 and 15 claims may unfold in light of other cases such as Sauvë and Figueroa.

The second chapter looks to England as the source ofCanada's voting system, and their recent efforts to grapple with the issue ofvoting reform through the work of the Jenkins Commission and the will-o' -the-wisp recommendations that emerged from there. The discussion looks at the similarities and differences leading to the demands for change and the inherent weakness built-in to the structure of the Commission from its inception.

While the Commission gains faint praise for dispatching sorne of the traditional myths used to support the retenti on of the First Past The Post system of voting, it falters in the end with recommendations that fall weIl short of their original potential mark. This ground is recovered to sorne extent with the Commission's useful analysis of the merits of the Alternative, or Preference Voting method in relation to Single Member Districts in overcoming the almost invariable problem of candidates being elected with less than 50% support under First Past The Post.

Continuing to explore the international perspective, chapter three examines the possible les sons for Canada from the varying experiences of Germany, South Africa, Italy, and New Zealand in using Proportional Representation (PR) systems that more accurately reflect the true results of the voting.

6 Reference Re Secession ofQuebec, [1998] 2 S.CR. 217, [1998] S.CJ. No. 61. [hereinafter Secession Reference] 7 Sauvé v. Canada (Chief Electoral OjJicer), [2002] S.CJ. No. 66. [hereinafter Sauvé]

2 New Zealand is ofparticular interest with regard to voting law reform given their similar shared history and recent transformation from using First Past The Post to Proportional Representation and their subsequent experiences in the representation of women and Aboriginals in Parliament. While the history behind South Africa's change from FPTP to Proportional Representation is substantively different, their process is equally instructive as an example of a country that when given the chance to develop a new election system made the conscious decision to move to PR from FPTP.

As opponents of any move towards PR invariably raise the examples of Italy or Israel, it becomes essential to identify their position as a tiny minority within the international use ofPR. As weIl, it is useful to more closely consider the history ofPR in Italy as illustrative ofhow challenges within any given PR system can be identified and necessary changes introduced. Finally, the functioning and effects in terms of representation of Germany's long-standing experience with Proportional Representation are discussed along with the message this entails for the ability to obtain both democratic equality and stability.

Returning home, chapter 4 fulfills the need to consider the domestic work already begun in the area ofvoting reform in Quebec, Prince Edward Island, and British Columbia, and also under the auspices of the Law Commission of Canada. Of the field, British Columbia currently leads the way in having already established the framework and timeline for a Citizens' Assembly to consider what, ifany, alternative to FPTP should be put before voters in a referendum. Quebec, however, appears to be not far behind where a government minister announces that the next provincial election in 2008 will be conducted under sorne form of proportional representation.8 In terms of PEI, the Legislative Assembly requested and has now received a study from Elections PEI that focused on PR systems currently in use in similar islandjurisdictions. For its part, the Law Commission of Canada has also begun to attempt to stimulate discussion on the

8 "Next Quebec Election Will Be Proportional" Fair Vote Canada Newsletter (July 2003) as downloaded from www.fairvotccanada.org/fvc/Current News/ on 23 July 2003. [hereinafter "Next Quebec Election"]

3 topic of voting reform through its issuance of a discussion paper and the holding of public forums with a report anticipated in Autumn of 2004.

Finally, recommendations are made regarding the potential structure of a new voting system for Canada based on the lessons leamed to date both at home and abroad. In doing so, a number of key goals are identified that any proposed new voting system for Canada should strive to accomplish, and the recommendations for reform are then measured against these.

In the end, if those who count the votes are to give meaning to the will of those who cast the votes, then they must be given the tools to do so.

4 CHAPTERI

DEMOCRACY IS LlKE A BIRTHDAY PARTY ...

Democracy is like a birthday party, sorne people get invite d, and sorne people don't. .. 9

The most fundamental problem with the current Canadian election system is that it habitually does not give the majority of citizens what they have voted for. 10 It is as though the people who developed our electoral system were haunted by Henry Ford's maxim about the colour of cars, and decided to design a system where you can vote for any party you like so long as it' s black.

This arrangement may seem fine ifyou happen to be a supporter of the dominant party, but somewhat less satisfactory ifyou're not. In describing the inherent risks ofsuch an environment, Professor LaniGuinier observed that:

The problem of majority tyranny arises, however, when the self-interested majority does not need to worry about defectors. When the majority is fixed and permanent, there are no checks on its ability to be overbearing. A majority that does not worry about defectors is a majority with total power. 1 1

In the ultimate analysis it cornes down to a struggle between power and democracy. In the reasons that fo11ow 1'11 try to outline why it's important that we move to a more substantively democratic voting system. Canada has fallen behind much of the rest of the democratic world, but it' s never too late to catch up.

Under the First Past The Post voting system, winners need only achieve a plurality of votes meaning more than any other candidate, and not a majority involving more than

9 Herb Gray, Canadian eIder statesman and Liberal Member ofParliament for Windsor West for nearly 40 years. The statement was made to me in 1995 at an "aU-candidates" debate that had deliberately excluded candidates who were not from one of the dominant parties. 10 "Unconstitutional Democracy", supra note 3 at 5. Il L. Guinier, The Tyranny afthe Majarity (Don Mills: MacMillan Canada, 1994) at 4.

5 50%. Expressions of concem with regards to the shortcomings of our FPTP voting system have been steadily mounting. In addition to addressing the distortion between what Canadians vote for and what they receive as mentioned above, it' s also crucial to consider who gets in, and who gets left out. For far too long, women and Aboriginals have found themselves for the most part on the outside looking in.

If democracy is in fact like a birthday party, there are many reasons why it's time to open up the invitation list a little.

Universai suffrage, but sorne AnimaIs are more equai than others

As a variable in examining political participation and representation, gender is a relatively easy factor to study compared with more intricately interwoven considerations surrounding race and ethnicity. For this reason, the historical failure ofCanadian political parties and the Canadian political system to integrate women has been particularly conspicuous. As noted by political scientist Manon Tremblay:

A study ofwomen's participation in Canadian politics might be said to be the study ofits absence. Historically, women have been excluded from political institutions, and according to the Royal Commission on Electoral Reform and Party Financing, they remain the group with the most pronounced disparity between demographic weight and representation on decision-making bodies. 12

Tremblay goes on to remark that while women have not been apolitical, their involvement has tended to be through social movements as opposed to organized electoral politics. That women have been excluded from proportion al federal political representation can be readily shown by comparing the percentage of women elected as Members ofParliament with their percentage of the broader population as a whole. The results of the last two federal elections are illustrative of the problem. In both the 1997,

12 Lortie Commission, 1991 :97 as cited in M. Tremblay, "Women and Political Participation in Canada" (2001) 3 Electoral Insight 1 at 4. [hereinafter "Women and Political Participation"]

6 and the most recent 2000 federal election, women made up roughly 50.5% of the population13 and yet made up only 20-24% of the total candidates14 and were elected each time in under 21 % of the seats in the House of Commons. 15

The reasons for women's exclusion from the realm of elected representatives have been attributed to a mixture of impediments resulting in a political playing field that is less than level. As Tremblay points out, the list includes the lack of role models that could demonstrate that such a path is open to them, Statistics Canada reseatch demonstrating that women continue to perforrn the majority of domestic work and child care, and also the economic reality that women's incomes are generally substantially lower than men's thus resulting in fewer resources capable ofbeing marshaled for a nomination or election campaign. 16

Despite aIl of these other barriers, "[s ]tudies have shown that type of electoral system is the single most important variable in explaining cross-national differences in the level of electoral representation of women" and that " ... the general rule is that countries with PR systems elect more representative legislatures.,,17 Numerical comparisons of the representation of women in national parliaments demonstrate that the introduction of proportional representation provides a good head start towards equality in representation.

13 See: Women in Canada on Status ofWomen website at: http://www.swc­ cfc.gc.ca/dates/whm/2000/stats e.html as downloaded on 10 July 2003. 14 Distribution ofConfirmed Candidatesby Political Affiliation and Sex 1997 and 2000 on Elections Canada website at: http://www .elections. cal content. asp? section=gen&document=synops isO 3 &dir=repldec3 097 &lang=e& texto nly~false and http://www .e lections. cal content. asp? section=gen&docllmen t=synopsisO 3 &di r=rep/3 7 g& lan g=e&texton Iy= false as downloaded on 14 July 2003. 15 Distribution ofSeats by Party Affiliation and Sex 1997 and 2000 on Elections Canada website at: . http://www.elections.ca/content.asp?section=gen&docllment=res tab le07 &dir=rep/dec3097 &lang=e&texto nly=false and http://www.elections.ca/gen/rep/37g/table7 e.html as downloaded on 15 July 2003. 16 M. Tremblay, "Women and Political Participation in Canada" (2001) 3 Electoral Insight 1 at 5. 17 T. Arseneau, "Electing Representative Legislatures: Lessons from New Zealand" in H. Milner, ed., Making Every Vote Count (Peterborough: Broadview Press, 1999) 133 at 134. [hereinafter "Lessons from New Zealand"]

7 Country

Chart: Representation of Women in World Parliaments Source: Inter-Parliamentary Union18

As becomes readily apparent, the Scandinavian countries with their forms of Proportional Representation succeed in obtaining roughly double the figures of Canada and Great Britain. Proportional Representation voting systems attempt to marry a party's share of seats with their share of the popular vote. In contrast, the United States, one of the few

18 Inter-Parliamentary Union website at: www.ipu.org/wmn-e/classif.htm as downloaded 22 September 2002.

8 other remaining industrialized Western democracies to use FPTP ranks a dismal 56th with only 14%, or roughly a third that of the Scandinavian countries.

Experience has shown that the strength of the systems in countries with Proportional Representation is that they produce parliaments that are more reflective of their societies through the provision of better access to seats in which there is a chance of winning, often through the creation of larger constituencies. 19 Although not identical, the challenges facing women in their quest for fair political representation are often shared by Aboriginal people.

First Nation, Last Vote

Given that 'status lndian' members of First Nations living on reserves in Canada could not vote in federal elections until 1960 without forfeiting all rights related to their treaty status, the paucity of Aboriginal representation in Parliament should perhaps come as something less than a revelation.20 It is surprising, nonetheless, that between 1867 and 2003, there have been only 17 self-identified Aboriginal members ofparliament, and that there are currently only 4, or roughly 1.3% of the total Members ofParliament compared with comprising roughly 4% of the population.21

One of the major ways in which the challenges facing Aboriginal people in Canada differ from those encountered by women is that whereas women are found in roughly equal numbers to men throughout Canada, Aboriginal peoples generally have only thinly populated representation in ridings except in the far North. Without arguing that Aboriginal people form a cohesive voting block, this limited and dispersed presence mimi cs more the problems faced by parties such as the Greens, the NDP, and the Conservatives in that they fail to elect representatives proportional to their national

19 "Lessons from New Zealand", supra note 17 at 134-135. 20 T. Knight, "Electoral Justice for Aboriginal People in Canada" (2001) 46 McGill L.J. 1063 at 1066-1067. [hereinafter "Electoral Justice"] 21 Members of the House of Commons - 1867 to date oflndian, North American lndian or Metis Origin from the Parliamentary website: www.parI.gc.ca/in formation/about/people/key/ AboriginaI.asp'?lang=E&Hist= Y &leg=H as downloaded 15 July 2003.

9 support because it is insufficiently concentrated in any one area to form a critical mass. As the Bloc Québécois and the ReformlAlliance Party have repeatedly demonstrated, geographic concentration is the only way to ensure representation that miITors popular support for the non-dominant party under the CUITent voting system in Canada.

The Committee for Aboriginal Electoral Reform described what this means for First Nations' representation in Canada:

[w]hile CUITent electorallaw allows for group interests to be taken into account in the drawing of electoral boundaries and has worked to the bene fit of official language minority groups and geographically concentrated ethnic communities, the existing law is not capable of accommodating the broad geographic distribution of Aboriginal peoples.22

The suggested means to remedy this under-representation have inc1uded the use of designated seats for Aboriginal people23 as in New Zealand and also Proportion al Representation systems that make use of large districts from which multiple candidates will be selected.24

The remedial potential of Proportional Representation will be considered after an examination of thé legal mechanisms that might be used to ob tain such remedies. In the course of outlining CUITent litigation, the distortions mentioried above and others will be further elaborated upon in order to demonstrate the range of negative outcomes that result from the CUITent voting system inc1uding Balkanization, pressure to engage in strategic voting, and representation that differs substantially from actual voting results.

22 "Electoral Justice" supra note 20 at 1069. 23 Canada, Royal Commission on Electoral Reform and Party Financing, vols. 1-4 (Ottawa: Supply and Services Canada, 1991) Recommendation 1.4.12. 24 "Electoral Justice" supra note 20 at 1070-1071.

10 Green Party of Canada challenges the constitutionality of the federal Elections Act

On 1 May 2002, the Green Party of Canada with the assistance of Professors Ed Morgan and David Beatty of the Test Case Centre at the University of Toronto Faculty of Law filed an application with the Ontario Superior Court of Justice. The application seeks an order that the combined operation of sections 2( 1), 14( 1), and 189 of the Canada Elections Act S.C. 2000, c.9 (the Act) that establish the single member plurality (or First Past The Post) system ofvoting violate both the right to equality under s. 15, and the rights of voters and candidates under s. 3 of the Charter ofRights and Freedoms, and are not saved as reasonable limits under s. 1. Given the recent willingness of the Supreme Court to fulfill the large and liberal interpretation due to section 3, however, it may in fact be more constructive to consider how not only section 15, but also sections 27 and 28 inform the implicit equality concems encompassed within the rights to vote, and to play a meaningful role in the electoral process.

In the Green Party's legal challenge, rather than attempting to pre-determine the outcome, however, the remedy requested is that the Court suspend the operation of any finding of unconstitutionality, "for a period of2 years to allow the Parliament of Canada to amend the Act in a way which embodies the princip le of proportional representation and does not violate the said sections of the Charter.,,25

Proportional representation has existed as a means of legitimizing voting results in Europe for over 100 years. In Canada, however, sustained federal govemment interest in proportional representation has failed to manifest itself. Support for electoral reform among serving federal govemments may be feared as being counter-productive to self­ interest.26 A recent example ofthis kind ofresistance to similar democratic reforms can be seen in the opposition to changes to political party funding in Canada that would

25 Application Record, Russow et al. v. Canada (Attorney-General) et al., Toronto Ol-CV-210088 (Ont. Superior Court) at 3. [hereinafter Russow] 26 "Unconstitutional Democracy", supra note 3 at 22.

11 dramatically limit the ability of non-citizens such as corporations and unions to attempt to influence politics through donations.27

Parallel impediments are likely to exist in terrns of voting reforrn. The individual party in power may recognize the long-terrn benefits in leveling out the dramatic shifts of fortune common under First Past The Post, but be reluctant to give up the traditional exclusive power that cornes with victory under the current system. This system unfortunately locks in a forrn of willing suspension of disbelief where governments perpetually believe that they will win the next election.

Professor Alan Cairns has been studying and writing about the Canadian electoral system since 1967. In a recent analysis prepared in support of the Green Party's constitutionai challenge, Professor Cairns outlined the fact that Parliament reflects the poiiticai will of Canadians only ifviewed through a fun-house mirror.

In reviewing the history ofrepresentation achieved by the CCF/NDP, for example, Professor Cairns reveals that, "in six of the ten federai elections that took place between 1935 and 1965, the CCF/NDP received Iess than halfthe seats to which it would have been entitled had seats been awarded according to the proportion of the popular vote achieved.,,28 If one examines the official voting results from the three most recent federai elections, the nature of this type of distortion as a persistent democratic malady is rapidly revealed.

The results of the 1993 federai election were devastating for the Progressive Conservative Party as they entered a taiispin descending from a majority government to a tiny rump of two seats. Professor Cairns points out that despite winning 16% of the popular vote, the Conservatives received only 0.67% of the seats. This, compared with the Bloc Québécois who received roughly 18% of the seats with 13.5% of the vote, and that the Reforrn Party obtained almost proportionai results taking 17.6% of the seats with 18.7% of popular

0d 27 Bill C-24, An Act ta Arnend the Canada Electians Act and the Incarne Tax Act (Palitical Financing), 2 Sess., 3ih ParI, 2003 (assented to 19 June 2003). 28 Russaw, supra note 25, Cairns' affidavit at para. 8.

12 support.29 The chasm between votes and results is demonstrated most vividly by two facts, first that expressed as a ratio that each vote for the Bloc Québécois was worth the equivalent of 32 votes for the Conservative Party in terrns of the number ofMembers of Parliament elected respectively. Secondly, even though the Conservatives won more votes than the Bloc Québécois and almost as many as Reforrn, they won only two seats compared to the other two parties who elected 54 and 52 candidates respectively.30

Although this constitutes one of the more extreme examples, the unacceptably high differences between the respective parties' ratios of votes to seats continued into the 1997 election. The Liberal Party again won a majority of seats at 51.5% with only 38.5% of the vote, while the Bloc was over-represented and the Conservatives obtained barely a third of their legitimate seats winning only 6.6% of seats with 18.8% of the votes.31

What is perhapsmost inequitable is that under the provisions of the Canada Elections Act, parties that win a majority of the popular vote can in fact end up losing the election. As described in the Green Party's Application Record,

In 1957 and 1979, the Progressive Conservatives were able to assume the powers of government even though they received fewer votes than the LiberaIs. More recently, in the 1998 provincial election in Quebec, the Parti Québécois elected 50% more members than the LiberaIs and forrned the government even 32 though they received a smaller percentage of the popular vote.

During the most recent election in 2000, the Liberal Party again obtained a majority government, this time with just over 40% of the vote. The domination of the winning party fueled by the voting system's irregularities again contributed to the Progressive

29 Ibid., at para. 10. 30 Ibid. 31 Distribution ofSeats by Political Affiliation and Percentage of Votes by Political Affiliation from Elections Canada website at: http://www .e lections. calcontent. asp? section=gen&document=res tab le09&dir=repldec3 097 & lan g=e& texto nly=false and htt!): 1Iwww.elections.ca!content.as!) ? scction=gcn&document=res tab 1c07 &dir=repldec3 097 & lang=c&texto nly=false as downloaded 12 May 2003. 32 Russow, supra note 25, factum of the applicants, at para. 15.

13 Conservative Party obtaining 12% of the vote, but being relegated to one third ofthis at 4% of seats. Under-representation ofthe NDP remained true to form at approximately halfthe seats that should have been theirs according to their share of the popular vote.33

In the absence of changes to develop a more democratic system, if the current federal Liberal Party leadership contest provides its widely predicted result, we will have entered a system where aIl other party leaders become the proverbial Peters being robbed to pay Paul.

Vote theft, however, is not without its share of advocates within virtuaHy aH of the currently dominant parties who not infrequently attempt to exploit the systemic distortions caused by the voting system instead of making any effort to correct them.

Rather than putting their best foot forward and encouraging citizens to vote for what they believe in, dominant party candidates sometimes engage in a cynical appeal to voters to engage in 'strategie voting' that almost invariably translates into 'you may not support me but vote for me because another candidate that might win is even worse'. Under our current system, a vote for a non-winning candidate does not count towards representation creating what is perceived to be a 'wasted vote' syndrome.34 This factor is taken advantage ofby the NDP who appeal to votes from smaller progressive parties, the LiberaIs who attempt to prey on virtually everyone, and the Conservatives and Alliance who appear locked in a perpetuaI struggle to beggar thy neighbour on the right. In an attempt to counter the blatant efforts of the US Democratie Party to appeal to US Green Party supporters through fear of 'electing George Bush', Green Party presidential candidate Ralph Nader reminded citizens wryly that, "when you vote for the lesser oftwo evils, you still get evil. ,,35

33 Distribution ofSeats by Political Affiliation and Percentage of Votes by Political Affiliation from Elections Canada website at: http://www.clcctions.ca/gen/rcp/37g/table7 c.html and http://www.clcctions.caJgen/rep/37g/tablc9e.htmlas downloaded 13 May 2003. 34 "Unconstitutional Democracy" supra note 2 at 5. 35 Sec onlinc: http://wcb.grccns.org/s-r/23/23-02b.html as downloaded 2 September 2002.

14 When a system, by its very nature fosters Balkanization, and creates large-scale distortions that encourage appeals to voters to cast their ballots based on something other than their conscience, Lenin's ghost asks: what is to be done? Sorne have chosen to pursue the perceived need for voting reform through litigation, and thus the following sections will attempt to examine in greater detail the current constitutional challenge as an example of efforts to press for change.

Legal or Political Question? Is the Issue Justiciable?

In the Reference re Secession of Quebec36 decision, the Supreme Court has indicated that it will not shy away from important legal cases that bring with them the concurrent potential to have a substantial political impact as well. In the circumstances surrounding the Secession Reference case, after restating the need for, " ... a sufficient legal component to warrant the intervention of the judicial branch,,37, the Court went on to remark that in their view:

[t ]he questions posed by the Govemor in Council, as we interpret them, are strictly limited to aspects of the legal framework in which that democratic decision [re: secession] is to be taken. The attempted analogy to the U.S. 'political questions' doctrine therefore has no application.38

In the context of the Green Party's constitutional challenge to the electoral system, it is open to argue the same principle, namely that what is being put before the courts is merely the legal framework within which democratic elections are to be held. The actual content of a revised system would remain to be determined by Parliament within the framework.

36 Secession Reference, supra note 6. 37 Ibid. at para 26. 38 Ibid. at para 27.

15 The Fundamental Princip les ofthe Constitution in the Context ofDemocratie Rights

In considering similar democratic rights during the Secession Reference, the Supreme Court outlined what were felt to be the most relevant foundational constitutional principles. Apart from federalism, which is not directly at issue in this case, the crucial constitutional principles named were democracy, constitutionalism and the mIe oflaw, and respect for minority rights.39

With regard to democracy, the Supreme Court in the Secession Reference stated that, "[t ]he consent of the govemed is a value that is basic to our understanding of a free and democratic society,,40 and that democracy was intertwined with the rule of law within a constitutional structure. This mixture, and its relevance to the CUITent voting litigation is perhaps best described by Chief Justice McLachlin's words in the prisoner voting rights case of Sauvé v. Canada (Chief Electoral Officer) wherein she said:

[t]he legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote. As a practical matter, we require an within our society's boundaries to obey its laws, whether or not they vote. But this does not negate the vital symbolic, theoretical, and practical connection between having a voice in making the law and being obliged to obey it. This connection, inherited from social contract theory and enshrined in the Charter, stands at the heart of our .. 41 system 0 f constItutlOna1 democracy.

Is it possible to maintain the appearance of consent and the existence of a binding social contract where under the CUITent electoral system a minority has the power to elect a govemment that will then rule over the majority?

39 Ibid. at para 49. 40 Ibid. at para 67. 41 Sauvé, supra note 7 at para. 31.

16 Ifthere is a perceived breach ofthat consent and the social contract aspect of representative govemment, then the ability must exist for citizens to challenge legislation before the courts as outlined under the third fundamental principle of constitutional supremacy. The Court in the Secession Reference states that:

... the constitutionalism principle requires that aIl govemment action comply with the Constitution. The rule of law principle requires that aH govemment action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of govemment was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy.42

The question as to whether the existing vote counting scheme under the Elections Act violates s. 3 of the Charter thus faHs to be determined by the courts. The need to take into account the implications of equality rights guaranteed under ss. 15,27, and 28 in answering this question is reflected in the words of the Supreme Court in describing the protection ofminorities (or majorities in the case ofwomen's electoral rights) as the fourth fundamental principle of the Constitution in the Secession Reference. 43

The Court notes that the protection of the rights of minorities is influenced by the other three fundamental principles discussed, and remarks on the constitutional importance of the fourth principle stating that, "[u]ndoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. ,,44

AH three fundamental principles of democracy, constitutional supremacy, and the protection of minorities will be reflected in the discussions of the legal foundations for the Green Party's challenge to the CUITent voting system under the Elections Act.

42 Secession Reference, supra note 6 at para. 72. 43 Ibid. at para 79. 44 Ibid. at paras. 80-81.

17 Section 3 of the Charter

In the face of such persistent and drastic distortions, it is necessary to consider at what point the rights guaranteed under s. 3 of the Charter become unconstitutionally impaired where there is such disparity between the votes by differing individual citizens and the results for different candidates.

Section 3 of the Charter reads:

Every citizen of Canada has the right to vote in an election of members to the House of Commons or of a legislative assembly and to be qualified for membership therein.45

Do the kinds of repeated disparities in voting power described previously violate these parallel rights? If the guidance provided by the Supreme Court of Canada in the Saskatchewan Electoral Boundaries Commission Act46 decision is considered, the answer would appear to be yeso

In the Saskatchewan Boundaries case, the Court had before them a situation where the Saskatchewan provincial Conservative Party was seeking to remove the requirement that population disparities between ridings not exceed 15%. The move could be seen as an attempt at political gerrymandering with the goal being the weakening of voting power for urban voters, and the strengthening of voting power for rural voters where support for the provincial Conservatives was perceived to be stronger. The view that thinly veiled attempts at vote-fixing represents evidence ofpolitical and moral desperation is strengthened in that the Saskatchewan Tory party would subsequently self-destruct amid extensive graft scandaIs that led to the jailing of 13 former Conservative MLAs.

A willingness to engage in active vote-fixing measures, or even the preservation and defence of a system that accrues unfair benefits to the party in power should sound alarm bells about the need for greater surveillance of a government' s ethics across the board.

45 Charter, supra note 2. 46 Saskatchewan Boundaries, supra note 4.

18 In the boundaries decision, Justice Cory writing for the more astute three-person minority judgement that would have invalidated the proposed removal of 15% as the maximum perrnissible deviation said:

The right to vote is so fundamental that this interference is sufficient to constitute a breach of s. 3 of the Charter. To diminish the voting rights of individuals is to violate the democratic system. Such actions are bound to incur the frustration of voters and risk bringing the democratic process itself into disrepute. The haunting spectre of "rotten boroughs" is not that far removed as to be forgotten. The right to vote is too important to be diluted in the absence of sorne valid justification. No such justification exists in this case.47

Given that the minority of the Court would have preserved the 15% threshold as the maximum disparity in voting power, Justice Cory indicated that this level provided for the considerations of geographic dispersal within the province. It seemed to Justice Cory that the figure represented, " ... an entirely reasonable accommodation ofthe greater difficulties that may be encountered in representing sorne of the large rural ridings of Saskatchewan. ,,48

If a 15% disparity in voting power between fellow citizens represented the maximum perrnissible to the justices in the minority decision, then c1early the kinds of deviations outlined above that exceed this threshold by wide margins would have been viewed by the minority as unacceptable, and in need of remedying.

In contrast, Justice McLachlin (as she then was) writing for the majority felt that as absolute voter parity was impossible, the primary nature of the right to vote was to ensure, "effective representation".49 While voter parity was ofprime importance,

47 Ibid. at para. 172, Cory J. 48 Ibid. at para. 167, Cory J. 49 Ibid. at para. 183, McLachlin J.

19 McLachlin 1. indicated that an incomplete list of other factors such as,

... geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic.50

Even given these potential factors to be considered, the large-scale discrepancies in voter power outlined previously would seem to constitute violations of the s. 3 right to vote and become a representative.

Rather than accommodating the negative effects of geographic dispersal, the CUITent voting system exacerbates them and gives excessive power to those communities of interest that are geographically concentrated. Further, it can hardly be argued that any form of community history brings with it the right to partake in a persistently unequal division of power. As shown, the CUITent system does a profound disservice to the diverse community interests of groups such as those ofthe NDP, Greens, and now Conservative supporters who are spread across the country.51 Lastly, there is evidence that the FPTP voting system promotes the under-representation of women and minority groups and that there is a substantial improvement under a system of proportional representation. 52

Sorne would argue that the First Past The Post system constitutes an integral and entrenched part ofCanada's political history and is worthy ofpreserving partially or entirely on this basis alone despite the inherent distortions. 53 This argument is undercut, however, by two factors. Firstly, all of the countries within the United Kingdom have incorporated Proportional Representation into their elections of European Union parliamentarians.54 Secondly, even the majority decision in the Saskatchewan Boundaries case gave short shrift to attempts to justify discriminatory political exclusions based on historical tradition.

50 Ibid. at para. 184, McLachlin J. 51 "Unconstitutional Democracy", supra note 3 at 15-16. 52 D. Studlar, "Will Canada Seriously Consider Electoral System Reform? Women and Aboriginals Should." In H. Milner, ed. Making Every Vote Count, supra note 17 at 128-129. 53 "Unconstitutional Democracy", supra note 3 at 20 and 34. 54 "How the System Works - GB", BBC News (25 May 1999) from http://ncws.bbc.co.ukl2/hi/events/curos 99/voting in the uk/348838.stm as downloaded 10 June 2003.

20 Justice McLachlin said:

To retum to the metaphor of the living tree, our system is rooted in the tradition of effective representation and not in the tradition of absolute or near absolute voter parity. It is this tradition that de fines the general ambit of the right to vote. This is not to suggest, however, that inequities in our voting system are to be accepted merely because they have historical precedent. History is important in so far as it suggests that the philosophy underlying the development of the right to vote in this country is the broad goal of effective representation. It has nothing to do with the specious argument that historical anomalies and abuses, or to suggest that the right to vote should not be interpreted broadly and remedially as befits Charter rights. Departures from the Canadian ideal of effective representation may exist. Where they do, they will be found to violate s. 3 of the Charter. 55

Subsequent jurisprudence dealing with section 3 has been even stronger in defining and protecting the scope of these democratic rights. Where the Saskatchewan Boundaries case spoke of "effective representation", Justice lacobucci for the majority in the Figueroa case describes the rights as giving:

... every citizen ofthis country the right to play a meaningful role in the selection of elected representatives who, in tum, will be responsible for making decisions embodied in legislation for which they will be accountable to their electorate.

As this passage indicates, this Court has already determined that the purpose of s. 3 includes not only the right of each citizen to have and to vote for an elected representative in Parliament or a legislative assembly, but also to the right of each citizen to play a meaningful role in the electoral process. This, in my view, is a more complete statement of the purpose of s. 3 of the Charter. 56

Having defined the content of the rights found in section 3 of the Charter, the Supreme Court then goes on to provide a measure for determining if these rights have been violated. The Court reiterates the requirements of the adverse differential treatment

55 Saskatchewan Boundaries, supra note 4 at para. 187, McLachlin J. 56 Figueroa, supra note 5 at para 25.

21 standard saying:

It is not enough to offend s. 3 that the legislation differentiates between one citizen and another, or one political party or another. It also is necessary that the differential treatment have an adverse impact upon the applicant's right to play a meaningful role in the electoral process.57

The Significance ofsections 15, 27, and 28 of the Charter in Interpreting s. 3

In ascertaining the existence of such adverse differential treatment, it is important to consider the interwoven nature of the Charter rights guaranteed under section 3, and the necessity of giving them meaning within the framework of equality rights established by ss. 15,27, and 28.

Section 15(1) of the Charter provides that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnie origin, colour, religion, sex, age or mental or physical disability.

The importance of the related protection of diversity within our society is reinforced by the invocation in section 27 that the Charter is to be interpreted, " ... in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.,,58

In even stronger terms, section 28 delineates the Charter equality rights of women as inviolable by any other provision therein stating that, "[n ]otwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. ,,59 Based on this wording, it has been put forward that, " ... the principle of sexual equality set out in section 28 forms a substantive part of each right and freedom referred to in the Charter, inc1uding the rights of equality before and under the law in

57 Ibid. at para. 51. 58 Charter, supra note 2, s. 27. 59 Ibid. s. 28.

22 section 15.,,60 Supporting this connection, McAllister has noted that, "[t]his provision has not received much attention from the Supreme Court and, when it has appeared, it has been treated as an interpretive guide used in conjunction with s. 15." 61

That these equality rights may be used to interpret other provisions of the Charter such as section 3 can be seen in their prior judicial treatment in cases such as R. v. Tran 62 where s. 15 influenced the right to an interpreter under s. 14, and R. v. Osolin63 where ss. 15 and 28 were considered in determining the rights of an accused in sexual assault cases where those assaulted are so disproportionately women. 64

One of the foremost arguments in favour of such strong entrenchment of equality rights within the Charter is that they reflect the historical reality of the exclusion ofwomen, Aboriginal peoples, and other social and racial minorities from Canadian politicallife. Their forced absence was commented upon by Chief Justice McLachlin in the Sauvé case where she noted that:

Until recently, large classes of people, prisoners among them, were excluded from the franchise. The assumption that they were not fit or "worthy" of voting - whether by reason of class, race, gender or conduct - played a large role in this exclusion. We should reject the retro grade notion that "worthiness" qualifications for voters may be logically viewed as enhancing the political process and respect for the mIe oflaw.65

That this status as 'other' continues to impede the full participation ofwomen and Aboriginals in Parliament has been established earlier in this chapter. If political rights are to mean anything, however, they must be open to all regardless of gender, race, or other irrelevant consideration and should be reviewed through this lens. As it is, the substantive discriminatory effects ofthe FPTP voting method on these groups have meant a very real absence of the right to ob tain their fair shares of political power in Canada.

60 A. Bayefsky and M. Eberts, Equality Rights and the Canadian Charter ofRights and Freedoms (Toronto: Carswell, 1985) at 520. 61 D. McAllister, Taking the Charter to Cou~t: A Practitioner's Analysis (Toronto: Carswell, 1999) at 14- 71. [hereinafter Taking the Charter to Court] 62 R. v. Tran, [1994] 2 S.C.R. 951. 63 R. v. Osolin, [1993] 4 S.C.R. 595. 64 As discussed in Taking the Charter to Court, supra note 61 at 14-73. 65 Sauvé, supra note 7 at para 43.

23 The fact that such a reality is subject to judicial scrutiny is shown in comments on the requirement for a level electoral playing field, made by Justice lacobucci in the Figueroa decision where he states:

It is thus my conclusion that s. 3 imposes on Parliament an obligation not to enhance the capacity of one citizen to participate in the electoral process in a manner that compromises another citizen's parallel right to meaningful participation in the electoral process.66

Thus, if the CUITent First Past The Post system violates the rights to vote and be elected under s. 3 as informed by the equality provisions of the Charter, it remains to be considered as to whether such violations can be upheld under s. 1 as, " ... reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.,,67

The Oakes Test ln order to consider whether Charter violations may be maintained under s. 1 of the Charter, the Supreme Court has established the method for examination found in the case of R v. Oakes. 68 The govemment must demonstrate that the objectives of the legislation were pressing and substantial at the time of its implementation and then me et the three­ step test for proportionality between the pressing and substantial objectives of the legislation and the resulting discriminatory effects.

Pressing and Substantial Objective - Rational Connection

As pointed out in the application record of the Green Party in their constitutional challenge, under the Oakes test, the govemment must prove that the pressing and substantial purpose of the infringing legislation existed at the time of its implementation. It is not open to the State to attempt to justify the legislation's objectives based on circumstances that deve10ped subsequent to the law's passing.69

66 Figueroa, supra note 5 at para. 50. 67 Charter, supra note 2. 68 R. v. Oakes [1986] 1 S.C.R. 103. 69 Russow, supra note 25 at para 48, citing R. v. Big M Drug Mart [1985] 1 S.C.R. 295 at 335.

24 The reasons for developing the English FPTP election system based solely upon geographic constituencies is merely a holdover from property-holding requirements for voters that were prima facie discriminatory and class-based in their own right.70 Since Proportional Representation forms ofvoting did not emerge until the end of the 19th century, " ... the British Parliament simply extended 'the Westminster model' to Canada, as it did with aIl ofits colonies.,,71 Thus, the implementation ofthe FPTP system in Canada in 1867 occurred in the absence of any, " ... conscious, intentional decision to adopt that model in preference to a system based on a principle ofproportionality."n

By focusing on the macro-level of the electoral system, Knight in his ground-breaking study accepts that the govemment will be able to substantiate that the electorallegislation has a pressing and substantial objective and is rationally connected to the goal of electing the govemment. 73

To this end, the federal govemment attempted to argue in Figueroa that electorallaws that created an unequal playing field between larger and smaller political parties could be justified as pressing and substantial because majority govemments were more effective than coalition govemments.74

Although stating officially that he was leaving the question unanswered at this time, Justice lacobucci described such electoral engineering where sorne parties were favoured at the expense of others as, "extremely problematic.,,75 lacobucci suggested that harmful differential effects of the Elections Act will not be given blanket approval as pressing and substantial. In reasoning that willlikely foreclose any similar argument in the Russow case, Justice lacobucci elaborated stating that in the Oakes decision:

... Dickson C.J. concluded that the objective of the impugned legislation must not be "discordant" with the principles integral to a free and democratic society. Legislation enacted for the express purpose of decreasing the likelihood that a certain class of candidates will be elected

70 Ibid., Cairns affidavit at paras 4-5. 71 Ibid., Application Record at para 49. 72 Ibid. 73 "Unconstitutional Democracy", supra note 3 at 36. 74 Figueroa, supra note 5 at para. 79. 75 Ibid. at para. 80.

25 is not only discordant with the principles integral to a free and democratic society, but, rather, is the antithesis ofthose principles. Consequently, it is difficult to accept that the objective of ensuring that the electoral process results in a particular outcome is sufficiently pressing and substantial to warrant the violation of a Charter right. 76

If the government wishes to continue to argue that electorallegislation that favours sorne parties and disadvantages others can be seen as having pressing and substantial goals, it will apparently have to develop different justifications than those advanced to date.

Minimal Impairment

While it would appear the FPTP voting system cannot be sustained based on the absence of a pressing and substantial objective at the time of its implementation, the system also fails a subsequent portion of the Oakes test, that of minimally impairing the infringed rights in question.

An examination of the detriment caused to women, Aboriginal peoples, and geographically dispersed political minorities demonstrates that the harm cannot be considered to minimally impair the right to equal political voice and effective representation when substantially more democratic alternatives are readily available.77

Systems ofvoting that utilize the principal ofproportional representation have been real­ world tested in similar political climates such as Germany and New Zealand among many others. The use by these countries of an even division between constituency based and proportional top-up seats has demonstrated that there are practical alternatives to the FPTP system that minimize the impediments to the equal representation of women, Aboriginal peoples, and geographically dispersed political communities.

If the current voting system fails the test for both a pressing and substantial objective at the time of its inception, and also the test for minimal impairment of constitutionally protected rights, the question becomes one of appropriate remedy. The Application Record filed by the Green Party asks that the court find that the provisions of the Canada Elections Act providing for the FPTP voting system unconstitutional and thus null and

76 Ibid. 77 "Unconstitutional Democracy", supra note 3 at 38.

26 void pursuant to section 52 of the Charter. Acknowledging that Canadians through Parliament should have an opportunity to develop a fair voting system, the Green Party requests that the court suspend its ruling, "for a period of two years to give Parliament sufficient time to study the available alternatives with a view to selecting the model that is most suitable to Canada's constitutional traditions and political needs.,,78

Given the recent Figueroa decision, such discretion must be seen to be the better part of valour in seeking to have the matter returned to Parliament rather than asking the courts to attempt the task. Justice Iacobucci made this c1ear in commenting that, "[t]he Charter aside, the choice among electoral processes is, as LeBel 1. states, a political one - and not one in which the Court should involve itse1f.,,79

In evaluating what might form an appropriate model for Canada, consideration will be given both to the example ofItaly that is traditionally raised as the 'worst-case' proportional scenario, and also alternatively Germany and New Zealand. Germany, on the basis of its longstanding use of proportional representation and similar federal structure, and New Zealand as a model ofwhat can be learned from a country that has recently abandoned FPTP in favour of Proportional Representation.

78 Russow, supra note 25 at para 57. 79 Figueroa, supra note 5 at para. 81.

27 CHAPTER2

THE BRITISH JENKINS COMMISSION - JUST A FLESH WOUND ...

80 In the classic 1970's film Monty Python and the Holy Grail , King Arthur is in search of the fabled treasure when his path is blocked by the Black Knight with whom he does battle. As their combat continues, the Black Knight suffers ever more egregious wounds as his limbs are cut offby Arthur one by one. Despite this, the Black Knight continues to cry out in defiance, taunting Arthur and maintaining that each new catastrophic loss is, "just a flesh wound" and that he will ultimately carry on the battle to the finish.

The recent British Report of the Independent Commission on the Voting System81 (hereinafter Jenkins Commission) is a Monty Pythonesque allegory. Each time the Commission Members cried out their terms of reference, their final recommendations cut away another limb from the potential body of democratic reform. In the end, they were left with nothing but a torso that could gnash its teeth about how it would accomplish its task while having systematically deprived themselves of the means of obtaining those same goals.

That a commission that held such promise, or at least the potential for bringing domestic

British democracy into the 21 st century could sell themselves so short could perhaps have been foretold based on the makeup of the five member Commission itself. In this case, it is a cautionary reflection of Marshall McLuhan's words that the medium can become the message.

80 Monty Python and the Holy GraU, Python Pictures UK, 1974. 81 United Kingdom, Report of the Independent Commission on the Voting System, vols. 1,2 (London: The Stationery Office, 1998) (Commissioners: Roy Jenkins (Liberal Democrats), Lord Alexander ofWeedon (Conservatives), Joyce Gould (Labour), John Chilcot, and David Lipsey (Labour, and Chair of Make Votes Count)). [hereinafter Jenkins Commission cited to vol. 1]

28 The Commission was chaired by the late Roy Jenkins (Lord Jenkins of Hillhead) , a former Labour Party cabinet minister, and subsequently leader ofthe Liberal Democrats in the House of Lords. The Conservative Party appointee was Lord Alexander of Weedon, chair of a bank, and the Labour government rounded out the membership with Joyce Gould, a Labour Party MP, John Chilcot, a senior civil servant, and David Lipsey, a Labour peer and Chair of the voting reform organization Make Votes Count.

Although it was obviously necessary to ensure representation from each of the three existing parliamentary parties, the danger oftheir constituting the dominant majority of the Commission' s members was that their concerns would become the touchstones for the Commission's ultimate recommendations. As will be seen in the subsequent discussion of these recommendations, whether consciously or unconsciously the risk was borne out in that the proposed changes are so modest that they succeed only in meeting the perpetuaI (and justified) complaints of the under-representation of the Liberal Democrats, and the suggestions are so mild that it would have been thought that Labour would be hard put to not implement them at sorne point in the indefinite future. Finally, the changes are so incremental that even the Tory representative was hard pressed to raise a legitimate objection.

The Jenkins Commission was given twelve months to issue its report and recommendations. Their potentially competing terms of reference were:

1) The Commission shall be free to consider and recommend any appropriate system or combination of systems in recommending an alternative to the present system for Parliamentary elections to be put before the people in the Government' s referendum. 2) The Commission shall observe the requirement for broad proportionality, the need for stable Government, an extension of voter choice and the maintenance of a link between MPs and geographical constituencies.82

82 Jenkins Commission, supra note 81 at v.

29 In what might have been a self-fulfilling prophecy, Iain McLean in an article on the Jenkins Commission described the between-the-lines message of the terms ofreference as Prime Minister Tony Blair meaning to say, "[f]ind something which satisfies reformers just enough to count as barely acceptable to them, while comforting conservatives that it is the minimum you could offer."S3

After reviewing their points of reference, the members of the Commission revisited what are perceived to be sorne ofthe traditional strengths of the First Past The Post system. Namely, that it encourages MPs to serve aIl oftheir constituents, that a majority govemment can act quickly to implement legislation, that an unpopular govemment can be punished, that it encourages parties to seek a broad foundation in order to win, and finally that MPs can diverge from party leadership if they have the support of their local base.

In considering these factors, however, it must be remembered that the ability to force through govemment legislation is a double-edged sword if opposed by a majority of citizens as was the Canada-U.S. free trade agreement. In addition, the experiences mentioned in the British context diverge from the Canadian political environment on a number of levels. On a locallevel, the CUITent govemment has shown little tolerance for MPs deviating from party lines and this can be easily enforced through the ability of party leaders to de cline to sign candidate nomination papers at any election. At the nationallevel, the FPTP system can be widely seen to have discouraged, rather than encouraged parties to seek a broad base in order to win. The recent classic example of this is the previously mentioned 1993 federal election where the Conservative Party won 16% of the popular vote, the Bloc Quebecois 13.5% and the then Reform Party 18.7%. Despite winning roughly similar percentages of the popular vote, the Progressive Conservatives won only two seats compared with 54 for the Bloc Quebecois, and 52 for the then Reform Party. The Conservatives were decimated (among other reasons) because much of their support was spread out broadly across the country while the Bloc

83 1. McLean, "The Jenkins Commission and the Implications of Electoral Reform for the UK Constitution" (1999) 34:2 Govemment and Opposition 143 at 153.

30 and Reform vote were heavily concentrated in regional strongholds permitting them to gain disproportionate power. 84

Beyond these national differences in experiences, the Jenkins Commission members also note that the perceived stability of govemments elected under the First Past The Post system is belied by the reality that social and political turmoil can often result from the obtaining ofmajority political power with only a minority support ofvoters.85

In addition, the myth that single member constituencies using FPTP elections is somehow a hallmark of the British Parliamentary system is debunked in that the system was uncommon until 1885, and only became the unique system of election in 1950. Until this time constituencies had been represented by 2-3 members, often from different parties.86 While the historical ebb and flow of support for a more proportional election system in England is noted, it is accompanied by the wry observation that the respective parties' "desire to improve their electoral system has tended to vary in inverse proportion to their ability to do anything about it.,,87

In speaking ofparties' desires to "do anything about it", it is at this point that the Commission' s emphasis on fixing the harm caused to the Liberal Democrats, but not other 'third parties' as a result of FPTP becomes more pro minent. Pointing out that the FPTP system is "peculiarly bad" at translating third party votes into representation, it then acknowledges the success open to parties with narrow geographical bases such as Plaid Cymru and the Scottish Nationalist Party.88 Unfortunately, this consideration ignores the fact that other parties with broad support such as the Greens are equally deserving of parliamentary representation proportional to their popular support.

84 H. Milner, "The Case for Proportional Representation in Canada" in H. Milner, supra note 17,37 at 38. 85 Jenkins Commission, supra note 81, chapter 2, paras. 16,17. 86 A.Reynolds, "Electoral System Reform in the United Kingdom" in H. Milner, ed., supra note 17, 171 at 171. [hereinafter "Electoral Reform in the UK"] 87 Jenkins Commission, supra note 81 at chapter 3, para. 23. 88 Ibid. at chapter 3, para. 30.

31 Lost Souls

Among the classics of Russian literature is a 19th century novel by Nikolai Gogol entitled Dead Sou/s. The work chronicles the moraUy equivocal actions of Pavel Ivanovich Chichikov, the central character as he travels the countryside in search of areas where large numbers of peasants have recently died so that he might buy these 'dead souls' from their landowners who would then be freed from having to pay taxes on them until their removal from the roUs at the next census. Chichikov is seeking to amass the appearance of a large estate by virtue of the substantial numbers of peasants he appears to own, and then to leverage these 'dead souls' in order to obtain wealth and power. 89

In a striking paraUel, the Jenkins Commission in outlining the failings ofthe FPTP system describes the effect of FPTP in narrowing dominant party focus onto the fractional number of potential swing voters in swing seats that will ultimately decide an election. The Commission points to the 1997 British general election as an example of this saying that the Labour Party calculatingly devoted the majority of its resources to 100 of the 659 seats.

They concentrated their resources on what they had identified as the vulnerable hundred with aU the clinical precision of the German general staff going for weak points in their 1870 or 1940 advances. Outside the chosen arena voters were deprived (or spared from) the visits of party leaders, saw few canvassers, and were generaUy treated (by both sides) as either irrevocably damned or sufficiently saved as to qualify for being taken for granted.90

Sorne commentators have acknowledged the open criticism of this situation noting the argument that, " ... many safe Conservative and Labour seats are effectively 'rotten boroughs'. ,,91 Swing voters have become the equivalent of Gogol' s 'dead souls' as the dominant political parties ignore all others in their desire to leverage these votes into

89 N. Gogol, Dead Souls, trans. A. MacAndrew (Toronto: Penguin Books, 1961). 90 Jenkins Commission, supra note 81 at chapter 3, para. 33. 91 "Electoral Reform in the UK", supra note 86 at 175.

32 power (and wealth), a situation that by its very nature cannot be healthy for the whole of the body politic.

From the macro to the micro in dealing with FPTP's legacy of distortions, the Jenkins Commission next addresses the issue of the increasing number ofindividual constituency MPs in Britain who are elected with under 50% of support of actual voters in their ridings, let alone eligible voters. Whereas in the 1950s the Commission indicates that this occurred in roughly 13.5% ofridings, it is noted that in two elections held in the 1990s, the number of MPs being elected with under 50% of voter support has now surpassed 44%.92 Britain as well has experienced the potential that exists within the FPTP system for a party with the majority of the popular vote to actually 'lose' the election as happened in Britain in 1929, 1951, and 1974.93

In addition to these inherent difficulties, the dismal record of representation for women and visible minorities in the British parliament has also been noted. In his discussion of the history of electoral reform in the UK, Reynolds points out that, " ... until 1997, fewer than 10 per cent of British MPs were women ... " and that, "[m]ost parliaments preceding the 1987 election were all white ... ".94

The evidence above combined with the Commission's acknowledgement ofthe apparent greater representation of women and racial minorities in PR voting systems strongly supports the need for sorne form of Proportional Representation voting system.

92 Jenkins Commission, supra note 81 at chapter 3 para. 37. 93 Hansard Society, Report ofthe Hansard Society Commission on Electoral Reform 1976 (London: Hansard Society, 1998) at 9. [hereinafter Hansard Society] 94 "Electoral Reform in the UK", supra note 86 at 175.

33 The Bugbear of Stable Government

The real or imagined spectre of coalition govemments, or even more co-operative govemments under a Proportional Representation electoral system has often given rise to fears such as those enunciated in the expression about dogs and cats living together constituting anarchy.

In that anarchist thought has stressed the potential for a more co-operative social order, the Jenkins Commission goes beyond the crude misnomer of anarchy as mayhem and points out that British political history is in fact no stranger to the notion of' dogs and cats living together'. As discussed in David Butler's work, Coalitions in British Politics, Benjamin Disraeli's comment in 1852 that "[t]his too, I know, that England does not love Coalitions,,95 was not to be literally borne out by voting results in the century and a half of British politics that followed. Instead, from 1900 to 1977 when the book was written, Britain would see a situation where, " ... govemments relying on a majority drawn only from a single party have held office for less than halfthe twentieth century.,,96

Updating this analysis, the Jenkins Commission notes that during the past 150 years in the United Kingdom, the divisions of power have required formaI coalition govemments for 43 years, informaI coalitions where the ruling party rélied on the tacit support of another party or parties for 34 years, and situations during another 9 years where the ruling party held power by such a tenuous majority that the situation would not meet the definition of 'stable,.97

As the members rightly indicate, "[h]istory within a British context does not therefore suggest that single-party govemment ... is a necessary pre-requisite for effective action.,,98 The Commission then went on to mention the success in Irish elections of the Single Transferable Vote method since 1992, the greater comparative stability of

95 B. Disraeli, as quoted in R. Blake, "1783-1902" in D. Butler, ed., Coalitions in British Politics (London: MacMillan Press, 1978) at 1. 96 D. Butler, "Conclusion" in Butler, ed., ibid., 112 at 112. 97 Jenkins Commission, supra note 81 at chapter 4, paras. 44-48. 98 Ibid. at chapter 4, para. 49.

34 govemment in Germany since 1949 despite extensive periods of coalition govemment, and finally dismisses the difficulties encountered in Israel's system ofvoting as being largely the results of the country's use of a nationallist system coupled with an extremely low threshold resulting in mini-parties having the ability to acquire excessive power.99

The successful circumstances found in Germany and New Zealand with a similar system, the experiences of the Republic of South Africa, and the challenges encountered in Italy will be discussed in subsequent portions ofthis paper.

The Liberal Democrat Common Denominator

Chapter 5 of the Commission's report openly reveals the extent to which Commission members seemed to have fettered their perceived discretion from the outset with the inevitable result that those who participated in the Commission's hearings anticipating that the doors to democratic reform were open more than a crack would ultimately be deceived.

Following the 1974 British election, the Hansard Society's 1976 Commission on Electoral Reform discussed the declining percentage of the vote shared by either Labour or the Conservatives through the 1960s. Commenting on this growing sense of voter dissatisfaction, the Hansard Society remarked that, " ... there must clearly be something to be said for a system which allows the voter a third or a fourth choice with a reasonable chance that his vote will be ofvalue."IOO The Jenkins Commission picks up where the Hansard Society left offtwenty years previously. After pointing out that from 1974 onwards, between 20-26% of British voters have voted for parties other than Labour or the Conservatives, the Commission conc1udes that those arguing in favour of maintaining the existing system of voting unchanged are in effect saying to this portion of the electorate that ifthey're not going to vote for one ofthese two parties, then they will

99 Ibid. at chapter 4, paras. 44-62. 100 Hansard Society, supra note 93 at 10.

35 simply be ignored. lOI The Commission then proceeds to consider the relative merits of potential voting systems based on the alternative vote, supplementary vote, second ballot mn-off style vote, and a system of weighted voting for MPs based upon their popular support.

Under Alternative Voting (also known as Preference Voting, or Instant Run-offVoting) voters number the candidates in order of their preference. Numbering can be either compulsory requiring a voter to rank aIl candidates for the ballot to be valid, or optional where voters can express their ranked preference for as many candidates as they wish. Votes are then counted to determine if any one candidate has greater than 50% support. If not, if compulsory ranking of all candidates is used, then the candidate with the fewest first preferences is eliminated and his/her votes are transferred to other candidates in accordance with the second choices indicated on the eliminated candidate's ballots. This process continues until one candidate obtains over 50% of the vote. If optional preference voting is used, the same process applies, but ballots of voters whose candidates are eliminated without having indicated a possible subsequent choice are considered to have 'expired' and thus a candidate need only receive over 50% of the valid ballots remaining at the end of each round. 102 Supplementary Voting is similar to this, but voters mark only their first and second choices.

In evaluating the establi$hment of an Alternative Voting system alone, the Commission felt that while it provided for majority acquiescence in any given riding with minimal change, it possessed the disadvantages of not addressing the problem of proportionality and could in fact cause greater disproportionality in sorne circumstances. In addition, there was the possibility of unpredictable results and a general sense that such a mechanism would systematically disadvantage the Conservative Party due to the doser perceived ties between the Liberal-Democrats and the Labour Party. 103 Similarly, a Supplementary Voting process where voters would have only a first and second choice

101 Jenkins Commission, supra note 81 at chapter 5, para. 78. 102 For further details on Optional Preference Voting, see: www.ecq.qld.goY .au/data/portal/00000005/content/4405600 1036045112415.pdf. 103 Jenkins Commission, supra note 81 at chapter 5, para. 85.

36 was perceived to possess most of the disadvantages of the Alternative Voting System and to be even less desirable in areas where there were more than three mid-strong level parties such as where the Scottish Nationalist Party or Plaid Cymru were involved. I04

Depending on its structure, Second Ballot, or run-off style voting was seen as CUITent in the sense that it was often used in electing leaders of political parties, but was potentially unwieldy in its application to national elections and also not ensuring majority support in any system where the final ballot posed more than two candidates. lOS Second Ballot systems involve a first round of voting followed by a second ballot where only the top two, or sometimes only those candidates having obtained a minimum threshold are listed. In terms of the risks posed by multiple candidates in a Second Ballot system, recent events in France have demonstrated the potential dangers of extremist candidates in a divided field where support is apportioned between a wide aITay of parties on the left, and a very small number of parties on the right. To his credit, former Jenkins Commission member David Lipsey pointed out in a recent article that just because there are problems with another type of election system doesn't mean that the existing dysfunctional system should be preserved. He wrote,

... [I]t is certainly true that the French electoral system contributed to Le Pen's success. Vou would be hard pushed to design a system which so successfully encourages the prote st vote. Voters had to choose the first two past the post in a huge field, secure in the knowledge that it was the second ballot, a fortnight later, that would determine the result.

The far-right vote was not unprecedented. What was unprecedented was the degree to which the left vote splintered. That is the real reason for the left and center left in Britain. How would we have felt if our electoral system forced us to vote for Margaret Thatcher to keep the British National party out?I06

104 Ibid. at chapter 5, para. 86. 105 Ibid. at chapter 5, paras. 87-88. 106 D. Lipsey, "Is this the End for Electoral Reforrri?" The Guardian (26 April 2002) at www.guardian.co.uk/comment/story/0,3604,690833,00.html as downloaded 15 June 2002.

37 Following this, the Commission considered a structure by which MPs might carry different voting strengths based upon voter support was rejected out ofhand based upon perceived impracticalities, not the least ofwhich was the potential difficulty that would be encountered were an MP to switch parties, something of which there has been a plethora of in Canadian federal politics over the past few years. I07

Unfortunately, having examined the methods ofvoting reform, the Commission then proceeded to place velvet fetters on the exercise of their discretion. The Commission Report states:

The Commission therefore believes that it can only discharge its duty of providing the electorate with a valid alternative choice to FPTP and come nearest to meeting its four criteria by accepting sorne modification of the one constituency/one member patter. Otherwise it could make no contribution to fulfilling requirement (i), that of 'broad proportionality' and not enough to requirement (iii), that for 'an extension of voter choice'. However, in view ofrequirement (iv), 'the maintenance of a link between MPs and geographical constituencies' , it will endeavour to make this modification as limited as is reasonably effective. lOS

. Although this may weIl serve the interests ofthe Commission members, it represents an undue fettering of their discretion in that nothing within their mandate required or could be reasonably inferred to require that change was to be the minimum (or maximum) possible, but rather they were to make their recommendations in light of aIl of the goals and best evidence considered together. I09 Instead, as previously menti one d, the result is a series of recommendations that meets the desires of the Liberal Democrats, is most likely to be tolerable to the Labour Party, and relatively unlikely to arouse strenuous objections from the Conservatives. What it does not do is fulfill the potential promise for truly

107 Canada, Parliament, "Member of the House ofCommons Who Have Crossed the Floor or Switched Parties" from: www.parLgc.ca/information/about/people/hollse/HofCChange.asp?lang=E as downloaded on 10 April 2003. 108 Jenkins Commission, supra note 81 at chapter 5, para. 91. 109 Ibid., supra note 81 at Terms of Reference and Membership.

38 democratic reform that was possible for the Commission. The door was opened a crack to allow the Liberal Democrats in and then promptly slammed shut again on aIl others.

That the Commissioners had established mental boundaries for themselves in advance was confirmed by Commissioner David Lipsey in subsequent commentary in the British magazine The Economist. Attempting to justify the Commission's recommendations as an example of realpolitik, Lipsey said:

Not wanting our report to join the ranks ofprevious reports on the subject gathering dust on library shelves, we did establish the parameters ofMr. Blair's and Mr. Ashdown's [leaders of the Labour, and Liberal Democrat parties] thinking as weIl as that of the Conservative Party.1I0

The exclusion of the interests of others outside the existing dominant parties is further demonstrated in the tone of the discussion regarding the Commission's views on the pros and cons of the Single Transferable Vote system in chapter 6 of the Report. One of the benefits of such a system according to the Commission would that it would avoid, " ... the likelihood of fostering a proliferation of small spI inter parties, and does this without the need for setting any arbitrary threshold."lll That a Commission charged with considering international experience and making appropriate recommendation for an English model would ignore their ability to do so in a reasoned manner speaks more to the Commission Members' priorities than it does to their capabilities and written mandate.

A more rational form of delving into an area where an overabundance of voter choice might have negative consequences is provided in the Commission's look at what an adoption of an Irish-style Single Transferable Vote election system in Britain might entail. In a Single Transferable Vote system, multi-member ridings are used along with preference voting. A minimum quota of first preferences to be elected is then established. Any candidate passing this quota is elected, and any surplus votes beyond the needed quota are redistributed in accordance with second preferences indicated.

1 \0 D. Lipsey, "How we madè up our minds" The Economist, v. 349 (31 October 2003) 60 at 60. III Jenkins Commission, supra note 81 at chapter 6, para. 92.

39 Where no candidate has exceeded the quota, the candidate with the fewest first preferences is eliminated and their votes are distributed to other candidates by second preference. This process continues until all positions are filled.

The Commission was of the opinion that barring a large-scale increase in the number of MPs, attempting to create such a system would result in the need for excessively large ridings whether in geographic or population terms as a result of Britain's much greater population. 112 The Commission stated that while its mandate included the extension of voter choice, this would be an illusory benefit if that increased choice resulted in the necessity for a voting mechanism that risked being ultimately incomprehensible to the average voter. The Commission considered that voting between different candidates from within the same party on the basis of sorne form of list system may contribute to voter exasperation when many would prefer simply to endorse a given party.ll3 The Commission also attempted to think through the potential for a combination of the use of STV in large urban centers and Alternative Voting in more rural ridings. It finally felt the possibility to be politically unpalatable, however, in that while this would have the advantages of lessening Liberal Democrat exclusion and opening the door to Conservative representation in Labour dominated urban areas, there would be no quid­ pro-quo amelioration of Labour Party fortunes in more rural ridings under AV. 114

In addition to all of these reasons, the Commission members felt that the creation of an STV system would be too great a departure both from what had existed in the past and voting reforms currently underway such as in the English elections for European Parliament. As well, there was a sense that it would cause a deterioration in the geographic link between citizens and representatives, one of the points to be taken into consideration under the Commission's mandate.lls In the end, the Commission determined that STV, whether alone or in combination with an Alternative Voting

112 Ibid. at para 94. 113 Ibid.at para. 95. 114 Ibid.at para. 105. 115 Ibid.at para. 107.

40 System in an urban/rural divide did not represent the "best alternative" to the First Past The Post system of voting for England. 116

After examining the potential application of an STV system, the Commission then proceeded to consider the merits of a mixe d, or Additional Member System (AMS) such as that used in Germany where half the seats are Single Member Districts, and the other halfPR top-up seats. When this possibility of an equal percentage of single member constituency and top-up seats for England was examined and rejected by the Hansard Society in 1976, they countered by suggesting a lesser version embodying 480 individual

FPTP seats and a top-up pool of 160 or 25%.1 J 7 The Jenkins Commission, however, evidently felt this was being far too generous by half and proceeded to concoct a system that transformed a political duopoly into a limited three-party oligopoly if only in an attempt to as suage the third party up-and-comer. The name the Commission developed for their 'change ifnecessary, but not necessarily a change' method ofvoting was Alternative Voting with Top-Up Members. Such a name though hardly does adequate justice to the level of imbalance between the recommended dominant AV portion of 579 seats at 88% of the total and the 80 Che sire Cat top-up members who at 12% are reduced to nothing more than a faint smile. J18 Perhaps because the issue has been considered for so long without real movement, sorne in the English electoral reform community were prepared to commend even such a mode st improvement as this compared to the present state of affairs. 119

To its descriptive credit, the Commission does a fairly good job of outlining the advantages of a mixed system where there are both constituency representatives and also representatives elected from top up zones and that the balance between the geographic and proportionality elements can be influenced by whether the top up members are elected on a national, regional, or more locallevel. 120

116 Ibid.atpara. 107. 117 Hansard Society, supra note 93 at 39. 118 Jenkins Commission, supra note 81 at chapter 7, para. 132. 119 Charter 88, "Independent Commission on the Voting System Av-plus - Chrater88 Response" (24 November 1998) as downloaded from www.charter88.org.uk/press/9810jenkins.htmlon 24 February 2002. 120 Jenkins Commission, supra note 81 at chapter 7, para. 109.

41 Subsequent to this, the Commission lays out their vision of a reformed voting process wherein citizens would, "have the opportunity to cast two votes, the first for his [sic] choice of constituency MP, the second for an additional or Top-up member who would be elected for the specific and primary purpose of correcting the disproportionality left by constituency outcomes ... ,,121 In terms ofwhat order top up candidates would be se1ected to become MPs, the Commission indicated their preference for an 'open-list' where voters could choose either to simply endorse the order in which top-up candidates had been put forward by their parties, or could in ste ad specify personal preferences within a party' s list oftop up candidates. 122 The Commission then noted that it was their opinion that the top up seats should be assigned as follows:

1. After the total number of second votes cast for each party have been counted, these numbers are then divided for each party by the number of constituencies gained in the Top-up area by that party plus one (adding one avoids the impossibility of dividing by zero and ensures that the party with the highest ratio of votes to seats receives the Top-up seat).

11. A Top-up member is then allocated to the party with the highest adjusted number of votes.

111. Where there remains a further Top-up member to be allocated this process is then repeated by taking into account any Top-up members already gained by each party. Parties should not be eligible for Top-up seats unless they have contested at least 50% ofthe constituencies in the Top-up areas. 123

121 Ibid. at para. 110. 122 Ibid. 123 Ibid.

42 The rough mathematical equivalent would be written as:

1. (V2/P) / (seats + 1) 11. RN = top up seat 111. If top up seats > 0, then repeat steps 1 and 2 until no top up seats remammg

nd where: V2 = 2 votes P = party seats = geographic seats in the first round and geographic seats + any top up seats in subsequent rounds RN = highest number

In reviewing the possibility of a mixed system, the Commission members discounted any concems about MPs being viewed as having different standing based on whether they were elected from a geographic locale or top up list. It was pointed out that substantive differences in the manner of electing MPs to the same parliament have existed since the 19th century in the form of rural or urban seats, the English tradition of university seats, and MPs who were perceived as having aspired to office as a form of nation building 124 versus those that saw constituency service as their raison d'être.

The goal ofthe Commission to bequeath 'democracy, but not too much democracy' is evident in the unseemly haste to dispatch any notion that the German style mixed system might be appropriate for England. The ability of the German system to produce electoral results that mirror voter intent by virtue of the equal ratio between constituency and top­ up seats is seen as creating the divisiveness that was dismissed by the Commission just beforehand between MPs elected in geographic versus top up seats. 125

Although the Commission's previous conclusion had been that coalition govemments have a long domestic tradition in England, and that there was little evidence of substantive harm in foreign examples,126 the Commission nonetheless again sought to undermine its own conclusions by saying that perhaps the largest disadvantage of a

124 Ibid. at para. 115. 125 Ibid. at para. 116. 126 See: notes 9 and 10.

43 German-style 50% top up system would be that, " .. .it would make coalitions if not inevitable very much the norm.,,127 In defence oftheir recommendations against a system that would more accurately reflect voter intention, the Commission members decry the political math in Germany that has created a long period where the Free Democratie Party with an average of 9% of the vote has been a junior partner in varying coalition governments.

The weakjustification of the Commission's on-again disdain for coalition government where a tenth of the citizens are actually represented does nothing to bolster their non­ sequitur claims that this state of affairs is an equal injustice to the under-representation of the Social Democratie Party/Liberal Alliance in the English election of 1983 where they received only 3.5% of the seats despite obtaining 25.4% ofthe popular vote. 128 The Commission's clarion calI thus becomes watered down to 'less injustice for sorne' rather than 'justice for all'. Perhaps British musician Billy Bragg described the situation most aptly in his 1990 updated lyrics to the traditional song The Internationale when he sings, "Freedom is merely privilege extended/ Unless enjoyed by one and all.,,129

Sadly, given the potential ofthe Jenkins Commission to consider and reeommend substantive democratic reforms, what has happened instead is that the Jenkins Commission has engaged merely in a proeess of revisiting the work of the Hansard Society's Commission on Electoral Reform report from 1976. The two cornrnission's tables of content are virtually identical, their considerations and analysis parallel to their respective times, and in the end the final recommendations are very close to one another save for the fact that the Jenkins Commission makes the addition of Alternative Voting for the single member seats, adds a separate party vote for the top-up seats, and then proceeds to eut in halfthe top-up seats suggested by the Hansard Society.

127 Jenkins Commission, supra note 81 at chapter 7, para. 117. 128 Ibid. at para. 123. 129 B. Bragg, The Internationale (from the album The Internationale: Utility Records, 1990).

44 Despite the weakness oftheir overall recommendations, the Jenkins Commission manages to make positive suggestions in turning its mind to whether the individual constituency representatives should continue to be elected by First Past The Post or by a newly developed Alternative Voting system.

After noting that almost half of the members of the British Parliament were elected with under 50% of the votes in their constituencies, the Commission majority argues that the use of an AV system should mean less wasted votes, and contribute to candidates seeking the broadest possible appeal in order to win secondary votes rather than merely attacking their rivaIs. 130 Although still objected to by the Conservative Party member, the Commission puts forward that the perceived downfall to the Conservatives of an AV system al one will be ameliorated by virtue of the top up seats. 131

In considering the role of top-up parliamentarians, the Commission indicated that such MPs should have equal status with those elected from constituency seats and should not be obliged to stand as candidates in a constituency in order to have their name placed on the list oftop-up seat candidates put forward by their party.

Lastly, with regard to any procedure for revising the new electoral system once introduced, the Commission suggested that such a review should take place possibly after the completion of two general elections (presumably meaning after 8-10 years). If an independent Electoral Commission were established pursuant to another of the Commission's recommendations, it was felt thiü such a body would be admirably placed to conduct the review. The only caveat that was added was that ifthe Electoral Commission recommended a dramatic increase or decrease in the ratio of top up members, or a return to the First Past The Post system, this should be subject to another referendum before taking effect. 132

130 Jenkins Commission, supra note 81 at chapter 7, paras. 125-127. See also T. Flanagan, "The Alternative Vote: An Electoral System for Canada" in H. Milner, Making Every Vote Count, supra note 17 at 85-90. 131 Jenkins Commission, supra note 81 at chapter 7, para. 129. 132 Ibid. at paras. 169-170.

45 The rationale for requiring another referendum before reversing what was accomplished in the first referendum has a fair degree of credibility. Given the difficulty in substantially reducing the Jenkins Commission's recommendation from what is already an extremely limited number of top-up seats, the skeptic might be tempted to conc1ude that this was the Commission's parting shot at any effort to further develop their conservative proposed reforms into anything resembling the more substantively democratic German model.

Overall reaction to the Jenkins Commission recommendations was lukewarm from the Labour party hierarchy who established the Commission in the first place and who moved very quickly to resile from their promise to hold a referendum on replacing the FPTP voting system before the end of their term in 2001. As could be expected, the Conservative Party decried the report,133 the Liberal Democrats gave cautious approval,134 and the Green Party reluctantly indicated support for the reforms as a "first step" towards actual proportion al representation. 135 In an interview given prior to the election in2001, however, even Roy Jenkins acknowledged that the Labour Party leadership had effectively shelved his report describing the report as, " ... one of many things the govemment had kicked into the long grass recently.,,136 This being the case, it may represent the strongest endorsement of all of the truth of former British Labour Party leader John Smith's adroit observation that "voting systems are too important to be left to MPS.,,137

133 "Cautious reaction on voting reform" BBC News (29 October 1998) from: http://news.bbc.co.uk/2/hi/uk news/politics/208611.stm as downloaded on 10 January 2002. 134 Liberal Democrat Party, Policy Briefing 37, "Fair Votes" (February 2001) from: www.libdems.org.uk/documents/policies/Policy Briefings/3 7ElectoralReform.pdf as downloaded on 10 April 2003. 135 Green Party, "Cautious welcome for Jenkins" (29 October 1998) from: http://www.greenparty.org.uk/news/1998/10/jenkins.htm as downloaded on 3 March 2003. 136 "Jenkins Urges Voting Reform" BBC News (26 June 2001) as downloaded from: http://ncws.bbc.co.uk/2/hi/uk news/politicsI1408351.stm on 8 January 2002. 137 J. Smith, as quoted in M. Linton, MP, "Options for the Referendum on the Voting System" in B. Crick, ed., Citizens: Towards a Citizenship Culture (Oxford: Blackwell Publishers, 2001) 10 at 11.

46 Despite the apparent early death of the Jenkins Commission's recommendations, the study has much to be commended in its analysis of the advantages of Alternative Voting in general in ensuring single member MPs gain the support of over 50% of their constituents. A form of Alternative Voting, combined with a Mixed Member System containing a fair ratio oftop-up seats would go a long way towards resolving a number of the recent electoral debac1es seen both at home and abroad and will be considered in greater detail in looking at possible recommendations for Canada.

47 CHAPTER3

LESSONS FROM ABROAD

Is New Zealand Worthy of Our Flattery?

Given the similar colonial and cultural histories, it is instructive to look at what happened in New Zealand's transformation from a First Past The Post to Mixed Member Proportional Representation election system, and what can be leamed from their expenences.

Modem broadly-based interest in electoral reform in New Zealand emerged after electoral results in 1981 and 1984 that diverged dramatically from voting results. 138 As a result, the govemment established a Royal Commission on Electoral Reform in 1985.

In a speech in Ottawa in 2001, former New Zealand Prime Minister James Boiger described the 1986 Commission findings of disparities in voting power that are similar, or less than those from the Canadian federal elections of 1993, 1997, and 2000. 139 For example, the NZ Commission noted a disparity in votes per seat ratio of over 12 to 1 for the Social Credit Party to the National Party seats in the 1981 NZ eiection140 while the ratio was almost 32 to 1 between the Conservatives and the Bloc Québécois in the 1993 Canadian federal election. 141 Similarly, the NZ Commission pointed out disparities of 4 or 5 to 1 between Social Credit and National or Labour votes per seat in the 1984 NZ election142 mirroring the roughly 4 to 1 ratio between the Tories and the Bloc or LiberaIs in the 1997 and 2000 elections. 143 In its final analysis, " ... the Commission found that

138 J. Bolger, "New Zealand Adopts PR: A Prime Minister's View" (July-August 2001) 22:06 Policy Options Politiques 25 at 26. [hereinafter Bolger] 139 Ibid. at 26. 140 New Zealand, Electoral Commission, Report ofthe Royal Commission on the Electoral System: Towards a Better Democracy (Wellington: Electoral Commission, 1986) at 14. [hereinafter NZ Electoral Commission] 141 Russow, supra note 25 at paras 30-32. 142 NZ Electoral Commission, supra note 140 at 14. 143 Russow, supra note 25 at 18-19 (paras 30-32).

48 New Zealand's voting system had 'serious deficiencies",144 including serious under­ representation ofwomen and Maori. 14S After comparing the merits ofboth the Irish-style Single Transferable Vote system, and the German Mixed Member Proportional system:

[t]he Commission proposed that New Zealand adopt a system of proportional representation similar to that used in Germany; the Mixed Member Proportional System, or MMP. Electors have two votes, one for a political party, and one for a local candidate elected by FPTP in single-member districts. 146

In what can be described as a 'go-slow' approach to the prospect of electoral reform, the National Party govemment elected in 1990 decided to hold 2 referendums on the issue. The first referendum would determine if there was a popular demand for voting change, and if so, what would be the most preferred option to be put before the voters to choose between it and the traditional First Past The Post system in the second referendum. 147

After the Commission brought forward its recommendations, " ... the govemment appointed and funded an independent ministerial panel chaired by the Chief Ombudsman to carry out a neutral public information campaign conceming the referendum ... ,,148

When the first referendum was held in 1992, of the 55% ofregistered New Zealand voters who cast their ballots, an overwhelming 85% looked for the system to change. 149 V oting at the same time on what system should be put up against the existing FPTP system in the second referendum, 70% chose the Commission's recommended MMP system. ISO

144 Bolger, supra note 138 at 26. 145 NZ Electoral Commission, supra note 140 at 16-19. 146 N. Roberts, "New Zealand: A Long-Established Westminster Democracy Switches to PR" in A. Reynolds & B. Reilly, eds. The International IDEA Handbook ofElectoral System Design (Stockholm: Institute for Democracy and Electoral Assistance, 1997) 129 at 130. 147 P. Harris, "New Zealand Adopts PR: A Research Director's View" (July-August 2001) 22:06 Policy Options Politiques 31 at 33. 148 Ibid. 149 Ibid. 150 Ibid.

49 In a binding plebiscite held in November of 1993, New Zealand citizens chose to transform their electoral system from First Past The Post to Mixed Member Proportional by a relatively narrow margin of 54% to 46%.151 Turnout for the 2nd referendum increased dramatically to over 85% of eligible voters, as a result of it being held at the same time as a general election. 152

Since the changeover, there have been inevitable trials and tribulations involved in adapting to the nature of the new electoral system. These included the departure of over 10% of sitting MPs for other parties, or to form new parties in the lead up to the 1996 proportional representation election, and was followed by a two month delay after the 1996 election before the parties were finally able to conc1ude terms for the formation of a coa1 ltIon· . government. 153

Canadians, for our part, learned from experience that party disintegration is very much a possibility under our First Past The Post system as well after witnessing the division of the Federal Conservative Party into Reform, the Bloc Québécois, and Tory remnants following the crushing defeat of the Mulroney-era government. This pre-existing fact should belay any concerns that might be raised that the advent of Proportional Representation could lead to a substantial exodus ofMPs into alternative or emerging parties.

In terms of the New Zealand Parliament's ability to reflect the New Zealand population, following the 1996 PR election, the Institute for Democracy and Electoral Assistance noted that the six elected parties shared power in accordance with their mandate from the

151 Ibid., at 34. 152 Ibid. 153 Roberts, supra note 146 at 131.

50 voters, and that at the time:

[t]here are now 15 Maori in the House of Representatives, and Maori are represented in the NZ Parliament in rough proportion to their numbers in the population as a whole. The same is true ofPacific Islanders, and the country's first PR election also saw the election of the country's first Asian MP. In addition, the overall proportion of women in Parliament rose from 21 % in 1993 to 29% in 1996. 154

If imitation is truly the sincerest forrn of flattery, then Canada could do well to flatter our New Zealand cousins in designing Canada's new election system given such measurable benefits in creating a parliament that more accurately reflects the people they represent.

South Africa

In 1991 as the advent of democratic reforrn in South Africa became more inevitable, the South African Law Commission issued a report on differing constitutional models that might be adopted by the Republic. 155 The Commission canvassed a wide array of international models and considered their potential utility within the emerging South African political milieu.

The possibility of preserving the First Past The Post system of election on its own was rejected as unacceptable in light of the broad diversity of the population. Given their status as a small minority within the population, white South Africans constituted a majority in only 5 voting districts. 156 The challenge that arose, however, was potential distortion that could be caused by the popularity of the coalition between the African National Congress (ANC), the Congress of South African Trade Unions (COSATU), and the South African Communist Party (SACP) in comparison with the other parties. Under a First Past the Post System, " ... with 50% to 60% of the popular vote, [the coalition]

154 Ibid. 155 South African Law Commission, Constitutional Models (Pretoria: SALC, October 1991). 156 A. Reynolds, "Electoral System Design and Conflict Management in Africa" in A. Reynolds & B. Reilly, eds. The International IDEA Handbook ofElectoral System Design (Stockholm: Institute for Democracy and Electoral Assistance, 1997) 67 at 69. [hereinafter Reynolds]

51 expected they could easily win 70% to 80% of the parliamentary seats.,,157 In order to avoid perpetuating social and political discord though, a system of Proportional Representation election was developed as suggested by the Law Commission.

Although the Commission recommended against the retention of the FPTP system alone, it did indicate that its use in conjunction with PR seats as in the German MMP system offered a possibility for its partial retenti on in order to maintain geographic links. 158

In the end, the Commission came down with a strong recommendation that:

Provision should be made for sorne or other form of proportional representation at centrallevel, second level (either provincial, regional or federal state) and third level (municipalities).159

The Commission's recommendation would eventuaHy be mirrored in s. 46(1)(d) of the South African Constitution that provides that the National Assembly's members shaH be chosen in accordance with an electoral system that, " ... results, in general, in proportion al representation.,,160

When discussing what form voting should take if multi-member constituencies were created, the Law Commission had favoured the use of the Single Transferable Vote as opposed to a party list system. In the end, though, a li st PR system was ultimately adopte d, " ... with halfthe National Assembly (200 members) being chosen from nine provinciallists and the other halfbeing elected from a single nationallist. 161

157 Ibid. 158 South African Law Commission, supra note 155 at para. 2.477(ii). 159 Ibid., at para 2.477(i). 160 s. 46(1)( d) of the Constitution of the Republic of South Africa. 161 Reynolds, supra note 156 at 67.

52 In light of the experiences in New Zealand, an interesting aspect of the list PR system deve10ped in South Africa was the inclusion of an anti-defection clause that read:

A person loses membership of a legislature to which the schedule applies if that person ceases to be a member of the party which nominated that person as a member of the legislature. 162

Though challenged before the South African Constitutional Court, the Court found that the provision did not offend any of the protections found in the new Constitution of 1996. After noting that similar anti-defection clauses are found in the Namibian and lndian election systems, the Court went on to state that fidelity to the party under which they were e1ected by citizens enhanced accountability, and would prevent the goveming party from poaching members of smaller parties and thus manufacturing an artificial majority.163

Another reason that the Law Commission had indicated a preference for an STV system was that it might allow voters to more accurately direct their support according to their own potentially diverse preferences,164 and better protect the interests of individuals and minority group members. Despite the Commission's concems, however, diversity of representation and protection of minority interests were present in the National Assembly that emerged following the 1994 election although there was a numeric over­ representation of the white and lndian populations.

162 NT seh 6 s. 6(3) read with NT seh 6 annexure A s. 13 as eited in Re: Certification of the Constitution of the Republic ofSouth Africa, [1996] S.A.J. No. 19. 163 Re: Certification ofthe Constitution ofthe Republic ofSouth Africa, 1996 [1996] S.A.J. No. 19 at paras 180-187. 164 South Afriean Law Commission, supra note 155 at para 2.478.

53 After the 1994 election:

[t]he resulting National Assembly was 52% black ... 32% white ... 8% Indian, and 7% coloured. This compared to an electorate that was estimated to be 73% black, 15% white, 9% coloured, and 3% Indian. Women made up 25% of the total parliamentary membership. There was a widespread belief in South Africa that if FPTP had been used there would have been far fewer women, Indians and whites, with more black and male MPS. 165

Lastly, with an eye to making room for voices from the broad political diversity within the community, the Commission sought to minimize any systemic barriers to obtaining political representation. The Commission members outlined their belief that:

... provision should be made in the Constitution for the registration of political parties with a low threshold requirement for registration purposes. There should be no further restrictions in respect of, for instance, threshold requirements for representation in parliament. 166

In relation to the Law Commission suggestion that there be no threshold requirement for party representation in parliament, although early drafts of the new electorallaw to be used in 1994 inc1uded a 5% national tlireshold, this was eventually dropped as a concession to the smaller parties. 167

What emerges from the South African experience is another example of a conscious decision to adopt an MMP system of representation based on the careful study of the South African Law Commission, and the review of the South African Constitutional Court to ensure its legitimacy under the democratic reform standards newly enshrined in their Constitution.

165 Reynolds, supra note 156 at 70. 166 South African Law Commission, supra note 155 at para. 2.391. 167 Reynolds, supra note 156 at 67.

54 Haly - There Were Seamonsters ...

If New Zealand and South Africa might be held out as examples of countries that have undergone relatively successful major voting transformations, the two stereotypical examples that are thrown out of the potentially disastrous consequences of a Canadian change to Proportional Representation are inevitably Italy and Israel.

What this ignores, of course, is that if one looks at the world's 36 "established democracies", meaning those with a population of greater than 250,000 that have held continuing free elections over the past 20 years, Italy and Israel make up only 2 of the 21 states that use a Proportional Representation voting system, and that these 21 states make up almost 60% of these democratic states. 168 Even the most cynical adversaries of a move to a voting system that more accurately provides Canadians with what they voted for would be hard-pressed to argue that virtually every other country in Europe and Scandinavia have fallen off the Earth for having ventured into the now much-charted waters of proportional representation.

For those still wary of sea-monsters, however, it may be constructive to examine Italy as evidence that people are capable of leaming and adapting their electoral system to me et their needs.

Even given the extremely high rate of changes in govemment present in Italy in the five decades following World War II, Denis Pilon points out that there were elements of core stability in that Italy's Christian Democratie Party, " ... dominated post-War govemment, comprising the major partner of every coalition and holding the premiership uninterrupted from 1946 to 1980.,,169

168 "The World ofElectoral Systems" in A. Reynolds & B. Reilly, eds. The International IDEA Handbook ofElectoral System Design (Stockholm: Institute for Democracy and Electoral Assistance, 1997) 17 at 21. 169 D. Pilon, Canada 's Democratie Deficit: Is Proportional Representation the Answer? (Toronto: CSJ Foundation for Research and Education, 2001) at 9.

55 Despite evidence of sorne apparent method to the particular ltalian electoral madness, judicial inquiries into political corruption that included the heads of the Christian Democrat and Socialist parties, " ... provoked a collapse in credibility of the traditional parties in the eyes of public opinion."!70 This crisis ofpublic opinion was expressed in a public referendum in 1993 that demanded substantive changes to the existing voting system.

These changes involved a move from a purely proportional system to a Mixed Member system ofvoting for both the Chamber and the Senate that involved approximately 75% of seats elected under First Past The Post, and 25% of seats being elected under Proportional Representation.

The Chamber ofDeputies has 630 members ofwhich 475 ofthese seats were allocated into 26 multi-member constituencies composed of single member districts. The remaining 155 seats were designated for PR list seats aUocated at the multi-member constituency level. ltalian voters, therefore, have two votes to cast, one for their preferred local candidate and one for their preferred PR list.!7!

For reasons of simplicity and economy, the separate voting system used for the ltalian Senate will not be considered here except to note that the relatively small numbers of PR seats and their distribution over a large number of constituencies creates a system similar to that proposed under the British Jenkins model. Although there is no formallegislated threshold, the practical barri ers for small parties to obtain Senate seats are virtually insurmountable without resorting to coalition formation. 172

Division of the Chamber PR seats occurs by assigning each seat according to the largest remainder system among the various parties or coalitions. The PR seats awarded are then, " ... allocated to each party to its lists in the different [multi-member] constituencies,

170 S. Bartolini, "The Political Consequences of the Italian Mixed Electoral System (1994-2001)" (Paper presented to the Conference on Elections and Democracy, 1-2 February 2002) [unpublished]. 171 Ibid. at 5. 172 Ibid. at 6.

56 on the basis of a 'constituency electoral quota' .,,173 Two conditions involved in this, however, are the legislated requirement that a party or coalition have received a minimum of 4% of the national vote, and a mechanism called the scorporo designed to modestly augment the ability of smaller parties to win seats. 174 Under the scorporo system used for Chamber elections, for every single member district seat they have won in a given multi­ member constituency, parties or coalitions are required to add up aIl of the votes received by the second place finishers in those ridings. This total number of votes is then subtracted from the party or coalition's constituency total for the purpose of assigning the bonus proportional representation top up seats. 175

The result of the ltalian electoral reformation of 1993 was the emergence of one large centre-Ieft (including the Greens), and one large centre-right coalition with both groupings having undergone a number of tribulations and permutations in the intervening period. 176 OveraIl, the impact on voters of the changes is described by Bartolini as being that voters are increasingly likely to vote for only one of the two major coalitions in single member seat districts 177 but that individual inter-party mobility between various coalition partners remains strong. 178

Having examined the changes to the ltalian electoral system in 1993, what can Canadians take away in terms of impact and effect? The first thing is that even within the most unstable results of pure Proportional Representation there can remain threads of continuity sufficient to ensure the avoidance of political gridlock. Secondly, given that government change continues to occur even following the transformation of75% of the seats back to FPTP voting, the fluidity of ltalian governance is likely attributable to factors beyond simply the choice of electoral system.

173 Ibid. at 6. 174 Ibid. at 5-6. 175 Ibid. 176 R. Biorcio, "The Italian Greens' Participation in the Centre-Left Govemment" (Paper presented to the European Consortium for Political Research Conference on Greens in Power, 6-11 April 2001) [unpublished]. 177 Bartolini, supra note 170 at 15. 178 Ibid. at 24.

57 Thirdly, ifpure Proportional Representation is unable to function in a small, and relatively homogenous population such as that ofItaly, this may reflect poorly on its likelihood for success in a country as diverse and geographically vast as Canada. Given the breadth of territory and political interests present in Canada, this is perhaps all the more reason for providing a mixture of constituency based and Proportional Representation seats.

Lastly, and perhaps most importantly, is the lesson that the adoption of a particular form of proportional election system does not bind the hands of Canadian citizens and would remain open to evolution. If continuous improvement is a new virtue in management theory, why should stagnation have become the touchstone for our voting system?

Germany - In The Beginning ...

Whereas the Weimar Republic had used a system of pure proportional representation, the modem German system of Mixed Member Proportional Representation (MMP) voting emerged as a result of post-World War II negotiations between the political interests in then West Germany.179 A system that carne out of the stark example ofwhat can occur in a democratic vacuum has since demonstrated itself to be an example of stability, and weIl worth consideration as a model for Canadian reforms.

The German govemment has provided a clear explanation for foreigners ofhow the voting system that is divided between local constituency and proportional representation seats works on the website of the German Embassy in England:

Each voter has two votes, the first vote (Erststimme) is given directly to one of the candidates in their respective constituency. The successful candidate is elected on a plurality basis. One half (328) of aIl seats in the Bundestag is [sic] thus filled by representatives directly chosen. The second vote (Zweitstimme),

179 M. Krennerich, "Germany: The Original Mixed Member Proportional System" in A. Reynolds & B. Reilly, eds. The International IDEA Handbook ofElectoral System Design (Stockholm: Institute for Democracy and Electoral Assistance, 1997) 76 at 76.

58 however, can only be given to the state list of candidates (Landesliste) drawn up by the parties in the 16 federal states (Bundeslaender). The remaining 328 seats in the Bundestag are then distributed among the parties in proportion to the number of second votes cast for their respective lists ... in accordance with the so-called [Hare-] Niemeyer method of calculation. 18o

The German Embassy website also provides a thorough description of the Hare­ Niemeyer counting formula for the proportional representation seats:

Under an amendment to the Federal Election Act of8 March 1985, the d'Hondt electoral system was replaced by the Hare-Niemeyer system. Under the latter, the total numberofseats in the Bundestag is multiplied by the number of votes case for each party and the resulting number is divided by the total number of votes cast for all the parties elected to the Bundestag; seats are then allocated to each party on the basis of the resulting whole number. Any remaining seats are then allocated in the order of the highest fractions. The remaining number of seats is then filled by each party from its state list according to the numerical order of candidates on that list (disregarding any candidates who have been elected as constituency representatives).181

In order to be able to obtain the proportional representation top-up seats, parties must have" ; .. polled at least five percent of the total number of second votes cast, or have won a seat in three constituencies ... ",I82 Candidates running for parties in the individual constituency seats are chosen by the individual constituency associations as in Canada with the average constituency having a population ofapproximately 227,000. This figure would be roughly comparable to the population of Single-Member Districts (SMD) in the larger provinces of Canada if ridings were increased in size to accommodate half of the seats in the House of Commons as PR top-up seats. In a parallel fashion to the nomination for party representatives in the SMD ridings, candidates for the state lists are

180 Elections and Political Parties in Germany from www.german-embassy.org.uk/electionsandpoliticalpartie.htmlas downloaded 5 June 2003. 181 Voting System in Germany from www.german-embassy.org.uk/voting system in gcnnany.html as downloaded 5 June 2003. 182 Germany's Mixed Member System from www.fairvote.org/library/statutes/germany mm.htm as downloaded 29 May 2003.

59 selected by the parties at the individual state levels. 183 In tenns ofhow the Gennan political system has done in nominating and electing women, in the 2002 federal election, women constituted approximately 28% of the candidates, and roughly 31 % ofthose elected. 184

The use of the Mixed Member Proportional system has led to a greater need for co­ operation between potential coalition parties to ensure the electoral needs of aIl are met. For example, the Institute for Democracy and Electoral Assistance notes that:

Since candidates of smaller parties have little chance of winning a single-member district, their supporters frequently give their first vote to a constituency candidate from the larger coalition party. Similarly, supporters ofbigger parties may "lend" their second vote to a minor party within the coalition, in order to ensure that it will pass the legal threshold. Thus, vote-splitting is strategically used by voters to support the coalition partner of "their" party, or at least, to indicate their coalition preferences. 185

The reality that the MMP system has continued largely unchanged in Gennany since 1949 is testament to the fact that it is possible to achieve a much greater level of democratic equality without necessarily tisking stability in the process.

183 Elections and Political Parties in Germany, supra note 180. 184 Ibid. 185 Krennerich, supra note 177 at 77.

60 CHAPTER4

WHAT IS TO BE nONE?

Having considered the problems embedded within Canada's existing electoral structure, it became useful to look outside of Canada for the experiences of others. This is the case whether looking to the attempts to reforrn the English Parliamentary system, or to the challenges and successes faced by other countries that have made the transition to proportional representation either more recently, or with the bene fit of long hindsight through which to view their experiences.

As the limitations of the Canadian electoral model have bec orne increasingly self­ apparent, however, it bears examining what efforts have been undertaken at home to begin rectifying the situation. At the provinciallevel, Quebec, Prince Edward Island, and British Columbia have commenced individual reviews of their voting systems with varying results to date. Federally, the Law Commission of Canada has also begun efforts to engage Canadians on the issue.

In the end, the question remains about what is to be done? Sorne suggestions will be presented at the end of this chapter that might go sorne distance to meeting the legal and political needs of modemizing and democratizing the way by which Canadians elect our govemments.

Whither Quebec?

Quebec's encounters with the vagaries of the First Past The Post method ofvoting have inc1uded situations in 1944, 1966, and 1998 where the party having won the majority of the popular vote did not forrn the govemment. Instead, this role was usurped by another party having won only a minority of the popular vote, but who managed despite this to win a majority of the seats.

61 The most recent experience with inverse election results in 1998 undoubtedly contributed to the push for a re-examination of the election system, and on 19 December 200 1, the standing Committee on Institutions ofthe Quebec National Assembly began the formaI process of looking into democratic reform of the Quebec voting system. The Committee's mandate is:

To evaluate Quebec's CUITent voting system, to study various avenues for voting system reform, and to measure their impact on representation, particularly in the outlying regions, as well as on the role and operation of parliamentary institutions, govemment formation and stability, and Quebec's political 186 system in general.

In their calI for public submissions, the Committee characterized the role ofMembers of the National Assembly as being threefold:

1) as intermediaries between govemment and citizens 2) as legislators involved in the passage of new laws, and, 3) as a form of check and balance in ensuring responsible govemment action 187

It is unfortunate that the Committee's initial effort to encourage public consultation then went on to colour to sorne extent the process by presenting a false dichotomy claiming that the First Past The Post system is:

... designed to elect a stable, effective govemment, while Proportional Representation places a priority on the fairest possible representation ofvoters' choices in the National Assembly. The challenge boils down to one key question: Should priority be given to governance or to the representativity ofparliament (the National Assembly)?188

186 Quebec, National Assembly, Standing Committee on Institutions, "The Reform of the Voting System in Quebec" (October 2002) as downloaded 1 July 2003 from: www.assnat.qc.calcng/Publications/rapports/rapcileng.htm at 3. [hereinafter Standing Committee on Institutions] 187 Ibid. 188 Ibid. at 4.

62 Characterizing the choices facing Quebecers in this fashion simply reinforces false stereotypes of Proportional Representation governments as unstable or ineffective despite even the Jenkins' Commission's findings to the contrary.189

After reviewing perceived strengths and weaknesses of the FPTP system, the Committee discounts the likelihood of the adoption of the French two-round system, or the various preferential systems ofvoting.190 Instead, the Committee indicates that the trend in Quebec appears to be towards sorne form of Proportion al Representation and notes support for this among Quebec' s political parties. 191 Such support is confirmed by an independent review of the platforms of parties spanning from the Quebec politicalleft to right. l92

Possible international Proportional Representation models are briefly discussed before outlining that a reform of the voting system could corne about through either a public referendum on the issue or legislative action in the National Assembly.193 In the interim, the Committee asks citizens to submit their thoughts by responding to seven pages of broad-ranging questions designed to elicit public perception about the existing voting system, what ideas people have about the nature of governmental representation, and 194 what form a new means of election might take.

The work of the Committee represented an ambitious, ifbelated, start on the part of the former Parti Québécois government to re-focusing Quebec's image of democracy. There appears to be strong reason to be hopeful thatthe reform process will continue and lead to the implementation of a new proportional election system in the near future. On 9 July

189 Jenkins Commission, supra note 81 at Chapter 4, para 49. 190 Standing Committee on Institutions, supra note 186 at 6. 191 Ibid. 192 See e.g. the positions of the Parti vert du Québec, l'Union des forces progressistes, le Parti Québécois and le Parti libéral du Québec respectively at : www.partivertguebec.org/article.php3?id article=65 www.ufp.gc.ca/articlc.php3 ?id article= 108 http://partigucbecois.org/temp/progr chapitre l.pdf www.plg.org/tousDocuments/MemoireBELAfinal.pdf 193 Standing Committee on Institutions, supra note 186 at 8. 194 Ibid. at 10-16.

63 2003, Jacques Dupuis, the Quebec Liberal Party's Minister responsible for the Reform of Democratic Institutions indicated that the new proportional voting system would be in place in time for the next provincial elections by 2008, saying, "[t]here is a big enough consensus in our society for us to go ahead. That is the mandate 1 have received from the Premier."l95

Prince Edward Island

Aiso in the process of reconsidering what their version of democracy should look like is Prince Edward Island. To this end, in 2001 PEI's Special Committee on the Election Act of the Legislative Assembly recommended that Elections PEI conduct a study of proportional representation election systems, that the Report should pay particular attention to such systems used in locations having a similar size and population, and that this Report should then be presented to the Legislative Assembly.l96

Elections PEI conducted their study accordingly and presented their Report to the Legislative Assembly in April of 2002. The Report looks briefly at the voting systems used in a number of island countries including Ireland, Malta, Iceland, and then gives a slightly more elaborate description of the adoption by New Zealand oftheir CUITent Mixed-Member Proportional system. l97

It is unfortunate that Elections PEI then faIls into the same trap as the Quebec discussion paper by implying a false dichotomy in their question, "[d]o Islanders value stable majority government more than apurer vote-to-seat translation?"l98 [italics added] Describing one option using motherhood language while presenting the other as an essentiaIly technical choice fails to advance the likelihood of a rational review of potential democratic benefits to change.

195 "Next Quebec Election", supra note 8. 196 Prince Edward Island, Elections PEI, Report on Proportional Representation (April 2002) from: www.gov.pe.ca/photosloriginal/clcc prop rep02.pdf at 1 as downloaded 15 June 2003. 197 Ibid., at 5-9. 198 Ibid., at 10.

64 This is further reinforced when Elections PEI states that the comparative information between the FPTP and PR voting systems, " ... is so endless that it becomes quite overbearing", but that, "we know very weIl how our present system has worked and is working in our Province.,,199

Rising to the challenge nonetheless, the Report puts forward three possible examples of PR voting systems for PEI while stressing their status as examples only, and not recommendations.200 AlI three can best be described as presenting modest, Jenkins Commission style proposaIs that involve 2: 1 ratios of FPTP vs. PR seats resulting in limited proportionality and an artificially high threshold that would deliberately, or 201 inadvertently, lock in the existing dominant political parties.

For example, the first proposaI suggests a seat distribution of20 individual member ri ding seats, and 10 PR top-up seats. Rather than the second vote system used to determine top-up seat aIlotment in Germany and New Zealand, however, the first example proposes that such seats be divided according to the overall percentage ofthe provincial popular vote obtained by each party through their candidates in the single­ 2 member ridings.z° This method of distributing the PR seats, coupled with a minimum threshold of 8% of the provincial popular vote would present a virtually insurmountable barrier to any emerging party seeking to enter the Legislative Assembly for the first time.

The second and third options differ only slightly from one another and present 18-20 FPTP seats combined with 8-9 PR top-up seats. The main difference with the first proposaI is that the FPTP seats would be divided proportionally between 3-4 multi­ member ridings with citizens being able to vote for as many candidates as there are seats in that riding, and that the PR seats would be distributed according to party lists based on a second vote as in New Zealand and Germany.203 Similarly to the first option proposed, the Report's description ofa 7.5% threshold to receive PR top-up seats as "faire st to aIl

199 Ibid. 200 Ibid. 201 Ibid. at Il. 202 Ibid. 203 Ibid. at 11-14.

65 concerned" speaks eloquently as to whose interests the Report' s authors took into consideration.204

Elections PEI closes their report with the invocation that, "[a]ny binding decision for one system over another system should be left to a provincial referendum, preceded by an impartial campaign of public education about the issues involved in the choice.,,205 The advent, or lack thereof, of such further steps will clearly indicate the government of PEI' s willingness to continue down this path of democratic reform.

British Columbia

Recent history has often seen the appointment of an eminent body acting as a government commission to inquire into options for voting system reform. In contrast, British Columbia has chosen to empanel a citizens' assembly to determine what, ifany, alternative should be put before the public in a referendum to be held on 17 May 2005, the fixed date of the next provincial election.206

In addition to the fact that the role of a commission has been replaced with a citizens' assembly, the process differs in other ways as well from the one that took place in New Zealand. There, substantive support for any proposed electoral change was ensured through the requirement of majority votes in two separate referendums, the first on the question of change itself, and the second on choosing between FPTP and another alternative ifrecommended. In BC, the government has included the necessity for more than a simple majority by requiring that any alternative be approved by a minimum of 60% of voters and with such approval confirmed in a minimum of 60% of provincial ridings.207

204 Ibid. at 12. 205 Ibid. at 14. 206 Office of the Premier of British Columbia, Press Release 20030TP0031-000400, "Citizens' Assembly to Strengthen Public Confidence" (28 April 2003). [hereinafter Office of the Premier] 207 Ibid.

66 Voting reform had become an increasingly topical issue in British Columbia during recent years as the province experienced its share of election results where the percentage of seats won in the Legislative Assembly diverged widely from the share of the popular vote won by various parties.208 In the run-up to the last provincial election in 2001, the BC Liberal Party had committed itselfto the establishment ofa citizens' assembly to study the issue of voting reform. After being elected to govemment, the BC LiberaIs in September of 2002 appointed Gordon Gibson, a former BC Liberal Party leader now affiliated with the Fraser Institute, to consult and draft recommendations for the Citizens' Assembly by December of2002.209 His recommendations were to inc1ude the appropriate size of the Citizens' Assembly, how members should be chosen under the govemment's desire for a jury-style selection process, as well as general procedural guidelines for the Assembly's operation.210

The most important recommendations of Gibson's Report on the Constitution ofthe Citizens' Assembly on Electoral Reform inc1uded that with regard to membership of the Assembly, a non-compulsory, jury-style system should be used to select one member from each ri ding for a total of 79 with modifications to the selection pool to ensure diversity in gender and age. 211 While there had been sorne suggestion that the Chair of the Assembly could retain top-up powers in the event that an adequate demographic mix was not reached, this was rejected by the provincial govemment who instead raised membership in the Assembly to two members from each ri ding trusting that this would sufficiently accomplish the same end. Thus, the Assembly will consist of 158 members plus the Chair who will make decisions based on majority vote where necessary?12

208 See e.g. the 2001 BC election results at: www.elections.bc.caJelections/sovOI/polpart.htm. the 1996 BC election results at: www.elections.bc.ca/electiolls/sov96/polpart.htm. and the 1991 BC election results at: www.elections.bc.ca/elections/sov91/sov91-17.html as downloaded 10 May 2003. 209 British Columbia - Ministry of the Attorney General, Press Release 2002AG0089-001026, "Government Begins Work on Citizens' Assembly" (20 September 2002). 210 Ibid. 211 British Columbia, Citizens' Assembly on Electoral Reform - Summary ofRecommendations (undated) from: www.ag.gov.bc.ca/legislation/citizcllsassembly/publications/Summary.pdf as downloaded on 30 June 2003 at "Government Decision" in relation to recommendation Il. [hereinafter Citizens' Assembly - Summary ofRecommendations] 212 Citizens' Assembly - Summary ofRecommendations, supra note 211 at "Government Decision" in relation to recommendation 28.

67 In terms of guidance for these Assembly members, the government adopted terms of reference directing that the Assembly should consider the impact of any proposed changes on the province's overall political system, and the requirement that aIl recommendations be compatible with the Westminster Parliamentary model, and the Constitution of Canada. 213 In addition, the government also stipulated that if the Assembly decided to recommend an alternative voting system, it should have sufficient detail and clarity to enable people to case a Oyes' or 'no' vote on it.214

Gordon Gibson's Report also included a sample timeline with the Chair and Staff commencing work from March to September of2003. This would be followed by selection ofCitizens' Assembly members in October and November. The educational phase for Assembly members would occur in January and March of2003, with the narrowed options sent out to the public prior to the commencement ofpublic hearings in May and June. Deliberation by the Assembly members would take place from September to November with a final report being completed by November of2003. Such a timeline would permit the eventual mailing of a final educational pamphlet to the public in January of2005 in the lead-up to the ultimate referendum to be held 17 May 2005.

Having largely approved the recommendations of Gordon Gibson regarding the selection and structure ofthe Assembly, the government has now appointed Jack Blaney, a former president of Simon Fraser University to act as Chair of the Assembly?15

There will inevitably be questions about the appropriateness of using the jury-style selection ProCeSS to determine what, if any, alternative voting system should be put forward to potentially replace the existing First Past The Post method. Commenting on

213 Ibid. at recommendations 3 and 29. 214 Ibid. in relation to recommendations 31 and 32. 215 Office ofthe Premier, supra note 206.

68 this issue in the Globe and Mail, columnist John Ibbitson wrote:

How could an assembly of clerks, construction workers, dentists, real-estate agents and who knows who el se grapple with and resolve the question of what is the best voting system for a province. The answer is simple: Equally disparate panels decide on the guilt or innocence of those involved in crimes or civil suits, which often involve mastering complex legal principles. Their lack of specialized knowledge or pre-existing bias is a jury's greatest asset. 216

Ibbitson goes on to note the potential for success, and failure, of the Assembly, and closes his article with the wry observation that either way, " ... Lord, it will be fascinating to watch. ,,217

Indeed it will, with British Columbia the furthest advanced in terrns of a concrete process, the success or failure of their experiment will provide important les sons both for other provinces and for Canada as a whole in their steps toward democratic reforrn of the voting system.

Law Commission of Canada ln what might be seen as an effort to assist the federal govemment in getting their voting reforrn baIl rolling, the Law Commission of Canada (LCC) has issued their own discussion paper and has recently concluded a fairly extensive series of public consultations that ended in May of2003.

The discussion paper put out by the LCC in October of 2002 is entitled, Renewing Democracy: Debating Electoral Reform in Canada (Renewing Democracy). Renewing Democracy tirst takes an overview of the modem history of discussions around voting reforrn in Canada and the elements that have spurred on the desire for change such as

216 J. Ibbitson, "Citizens' assembly: Handle with care" The Globe and Mail (9 June 2003) from: www.theglobeandmail.com/servletlArticleN ews/TPPrintlLACI20030609/CO [BBI 9/TPNational/ as downloaded 9 June 2003. 217 Ibid.

69 218 those outlined in the first chapter ofthis work. It then examines sorne differing uses of voting systems in our society and considers examples that differ from FPTP such as the Alternative Vote, Mixed-Member Proportional, and Alternative Vote Plus currently in use or being considered in other countries.219

In its fourth chapter, Renewing Democracy outlines fairness, representation, equality, and accountability as four possible value yardsticks by which to measure electoral systems.220 Fairness is intended to indicate the degree to which election mechanics are free of systemic biases that would affect the outcome, while representation speaks of the ability of the system to faithfully replicate the diversity of political thought and the society itself within the legislature. Equality goes to s. 3 style Charter issues ofvote parity, and finally accountability deals with the ability of voters to ascertain who is responsible for government decision making, and to hold them accountable where necessary.221

Renewing Democracy closes by encouraging Canadians to give thought as to whether the current FPTP voting system adequately meets their democratic values and expectations, and ifnot, what reforms might be necessary to ensure that this becomes a reality.222 The document, the series of public consultations with Canadians, and the eventual recommendations put forward by the Law Commission anticipatedin the Fall of 2004 will have gone a substantial way in providing a foundation upon which further movement towards federal voting system reform can be built.

218 Law Commission of Canada, Renewing Democracy: Debating Electoral Reform in Canada (Ottawa: October 2002) at 5-9. 219 Ibid. at 11-18. 220 Ibid. at 29. 221 Ibid. at 29-37. 222 Ibid. at 39-40.

70 The Current Lay ofthe Land

Examining the situations in Quebec, PEI, and British Columbia, as weIl as the work of the Law Commission of Canada has provided a substantive outline of government action in the area of voting system reform in Canada to date. Such actions set the stage for what is, while the next section will attempt to de scribe what might be in the future.

What Could Be Done?

Based on the information contained in the preceding chapters including the examination of existing case law, and Canadian and international moves to enact democratic voting reform, l believe that any proposed voting system reform for Canada should strive to take into account the following factors:

1) It should be relatively easy for an informed citizen to understand. 2) Citizens should maintain sorne geographic connection to a Member of Parliament from their area. 3) It should take into account the regional history of Canada without encouraging Balkanization. 4) It should be consistent with the Constitution including; a) respecting the rights of citizens to effective representation and the right to play a meaningful role in the electoral process as required under s. 3 of the Charter, and, b) encompassing the equality concerns implicit in s. 3 by fairly permitting the participation of aIl segments of Canadian society as required under s. 15 of the Charter.

For the reasons that will be explained, l believe that a voting system where halfthe members are elected by Alternative Vote in Single-Member Districts, and the other half elected using Proportional Representation top-up seats assigned on a provincial, or, preferably regional basis would best meet the above goals.

In terms of the Alternative Voting system to be used in the Single Member Districts, however, l believe that there should be one substantive clarification to the model proposed by the Jenkins Commission. What the Jenkins Commission failed to discuss,

71 was the question as to whether under the Alternative Voting system proposed, voters would be required to place a number beside aU candidates in order for their vote to be valid, or whether voters would have the freedom to mark only as many candidate preferences as they wished to. This method of Alternative Voting is used in New South Wales, and Queensland in Australia and is referred to as "Optional Preferential Voting".223 The prospect of forcing voters to place a preference ranking beside a candidate whom they may not support or may in fact vehemently oppose would seem to run counter to individual freedom of choice and the desire to encourage responsible voting. As noted by former Australian Prime Minister Gough Whitlam, optional preference voting is, " ... perhaps the only electoral procedure in the world which aUows electors to express their indifference to candidates.,,224 In addition, the Administration and Costs of Elections Project of the United Nations and the Institute for Democracy and Electoral Assistance points out substantive other benefits of optional, over compulsory preferential voting in that:

[0 ]ne c1ear advantage of the optional version is that the problems of spoilt ballots due to numbering errors associated with the full preferential system are largely removed. For this reason, option al preference marking is probably the only form of AV SUIte. d to COll d'ltlOllS . 0 fIl'ow lteracy or llumeracy. 225

These factors weigh heavily in favour of making preference ranking beyond a first choice option al.

Although I also believe that the following further specifications would be beneficial to fulfilling the broader four voting system goals mentioned previously, they are suggestions that go to fine-tuning only and as such will not be dealt with in any great length in this

223 See e.g. Electoral Commission Queensland, "Optional Preferential Voting - fact sheet", from: www.ec.g.gld.gov.au/data/portaI/00000005/content/44056001 036045112415.pdf as downloaded on 10 April 2003. 224 G. Whitlam, as quoted in B. Reilly, "The Alternative Vote in Australia" (6 March 1999) as downloaded from the Administration and Costs of Elections Project from: www.aceprojectorg/main/english/es/esy au/default.htm as downloaded on 30 May 2003. 225 B. Reilly, "The Alternative Vote in Australia" (6 March 1999) from the Administration and Costs of Elections Project at: www.aceproject.org/main/cnglish/es/esy au/default.htm as downloaded on 30 May 2003.

72 paper. Firstly, for the Proportional Representation top-up seats, 1 believe that for simplicity a party-selected closed list should be used enabling voters to simply mark party preference for their second vote. Secondly, faimess in counting and distribution of the top-up seats would best be served by using the Sainte-Lague formula. This method entails dividing the party vote by 1 and the first top-up seat being assigned to the party with the highest average. The count continues with party vote totals being divided by sequential odd numbers (ie. 3, 5, etc.) until aIl seats are fiIled?26 Lastly, if the invitation list to the Parliamentary birthday party is to be opened up on anything more than an illusory basis, any legislated minimum threshold for the obtaining of PR top-up seats should be set as low as reasonably possible and to this end a threshold of 3% would be recommended.

Beyond these more technical concems, however, in considering the broader potential voting systems that would best me et the identified interdependent goals, 1 begin from the premise that the creation of a large number of top-up seats to provide for proportionality in addition to the existing 301 MPs would be poiitically untenable absent the abolishment of the Senate, and even then likely to face dubious public reaction. With that as my starting point, 1 will attempt to work through why it is that a combined AV/MMP system achieves the stated objectives.

1) Is il understandable?

The basic principle that a Single-Member District MP will now be required to obtain a majority ofvotes as opposed to a simple plurality should be readily understandable and appeal to Canadians' rudimentary sense of faimess.

As run-off style voting is currently in use in aIl of the major Canadian political parties for leadership contests, the process itself is likely to have a reasonable degree of familiarity.

226 H. Milner, "Electoral Systems in the Democratie World" in H. Milner, ed., Making Every Vote Count, supra note 17, 189 at 195.

73 Being asked to mark preferences on one ballot from which the next preferences of the lowest candidate will be continually re-assigned until one candidate possesses over 50% support should not substantively alter this basic comprehension simply by virtue ofbeing compressed into a single ballot as opposed to having to complete subsequent ballots.

With regard to the Proportional Representation top-up seats, there is Canadian historical precedent in that a more modest form was suggested as early as 1979 by the Task Force on Canadian Unity.227 As well, the history of Germany's use, and the relatively recent experience of New Zealand in conducting a similar transfer from FPTP to MMP should prove useful in educating Canadians about the workings of an MMP system. At its most basic, the concept of ensuring that parties receive representation roughly equal to their popular support is extremely straight-forward and readily comprehensible. Beyond this, the use of a top-up pool of seats to accomplish this should not create any great difficulty although the exact method of dividing the top-up seats would require greater explanation but given the experiences of Germany and New Zealand should not prove insurmountable.

2) Does it maintain a geographic connection with a representativefrom the voter's area?

Yes. This geographic link would be maintained by having half of the Members of Parliament continue to be elected in Single-Member Districts from specific geographic areas.

3) Does it take into account the regional history of Canada without encouraging Balkanization?

In addition to maintaining a basic geographic connection between the half of MPs elected through Single-Member Districts, it is suggested that the overall pool oftop-up seats would be comprised of one-halfthe seats of the provinces in each of the following four

227 Task Force on Canadian Unity, A Future Together (Ottawa: Supp1y and Services Canada, 1979) at 131 as cited in P. Boyer, Po/itical Rights (Toronto: Butterworths, 1981) at 7.

74 228 designated regions based on those for the Senate from section 22 of the Constitution :

a) the West comprising British Columbia, Alberta, Saskatchewan, and Manitoba (although not part of the Senate division, this could be expanded to become the North West region by including vote counts, but not top-up seats for the Yukon, Northwest, and Nunavut Territories as each territory currently holds only one seat in the House of Commons) b) Ontario c) Quebec d) the Maritimes made up of New Brunswick, Nova Scotia, Newfoundland and Labrador, and Prince Edward Island.

The division of the top-up seats within these regions would be determined on the basis of the percentage ofthe popular vote obtained in that region. The suggestion that top-up seats be divided on a regional basis attempts to reflect the reality that Quebec is unlikely to support a nationally based system while avoiding the otherwise artificially high percentage thresholds to obtain top-up seats that would be created in provinces with relatively few seats such as in the Maritimes. For example, provinces in Atlantic Canada currently have between 4 and Il federal Members of Parliament. As such, the threshold that would be needed to ob tain top-up seats would range from 20% in PEI to 8.3% in Nova Scotia whereas a regionally based top-up system would present a possible minimum threshold as low as 3% calculated using the combined 33 seats in the Maritime provInces.

A regionally based system of determining top-up seats, however, would require the unanimous consent of the provinces229 to alter the so-called Senatorial clause introduced in 1915 and contained in s. 51 A of the Constitution. Section 51 A mandates that, "[n ]otwithstanding anything in this Act a province shaH always be entitled to a number of members in the House of Commons not less than the number of senators representing

228 Constitution Act, 1867 (V.K.), 30 & 31 Vict., c. 3 at s. 22. 229 Procedure for Amending Constitution of Canada, Part V of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (V.K.), 1982, c.ll, s. 41 (b).

75 such province.,,230 Currently, aU of the provinces outside of Atlantic Canada would retain sufficient single-member district seats within their provincial boundaries to be above their allotment of Senate seats if the other half were to be included in the regional top-up seats. Within the Maritimes, however, none ofthe provinces would meet this initial test. Thus, a regional system oftop-up seats would only work if each province recognized the benefits of strengthening their overall regional representation in one sense, and at the same time breaking down regional isolation by achieving fairer political representation for all parties in areas outside their regional strongholds that would previously have been impossible under the FPTP forrn of election. Most parties would also have an incentive to attempt to strengthen their appeal across the country given the realistic potential to win seats outside of their tradition power base. In essence, it would mean the adoption of a forrn of free trade, and fair trade in political ideas across the country.

Ifnot, however, the same system could be adopted unilaterally by Parliament if the top­ up seats were simply assigned on a provincial basis although as indicated this would provide for inherently high top-seat seat thresholds in Atlantic Canada, and theoretical minimum thresholds ranging from approximately 1-7% in the rest of Canada.

3) Is it consistent with the Constitution by: a) comp/ying with the requirements ofs. 3?

The new proposed system would comply in the full sense with the obligations of section 3. In the first sense, by introducing Proportional Representation with a 50% ratio of top­ up seats it would eliminate the kinds of distortions in voting power that were found to be problematic in the Saskatchewan Boundaries case.231 It also attempts to take into account the factors of geography and minority representation mentioned in the Saskatchewan Boundaries case while community history and interests would corne into play in the redesign of individual constituency boundaries. In this regard, and at least as

230 Constitution Act (No. 1), 1915, S.C. 1974-75-76, c. 28. 231 Saskatchewan Boundaries, supra note 4.

76 importantly, it would obviate most of the temptation to engage in electoral boundary gerrymandering given that even where a first vote did not count directly towards the election of a Single-Member District representative, the second party vote would in most cases ultimately contribute to the election of party top-up seats.

Lastly, the proposed system would provide a much more level playing field for supporters of each political party, inc1uding those that have moderate support spread throughout the country without a particular regional stronghold. This would contribute to the elimination of adverse differential treatment between citizens and parties, and thus, " ... support the right of each citizen to play a meaningful role in the electoral process" as outlined by Justice Iacobucci in Figueroa. 232

b) fulfilling the equality aspects ofs. 3 by respecting s. 15?

If the full ambit of the rights under s. 3 is to be upheld, then any new system must also encompass the parallel protection of equality rights. Indeed, respect for minority rights is embodied in s. 15 of the Charter and was enunciated as one of the fundamental constitutional principles in the Quebec Secession Reference233 and yet as discussed in the first chapter, the history ofrepresentation for women and First Nations people in Parliament has been one largely oftheir absence.234 As noted by Thérèse Arsenault, despite the reality that there are a myriad ofbarriers that come into play in accounting for women's absence from elected office, the single most important factor when other variables have been accounted for is the type of electoral system.235

As the general rule has been found to be that countries with Proportional Representation possess parliaments that more accurately reflect the full breadth of the societies that they represent,236 the protection ofminority and analogous equality rights under the proposed

232 Figueroa, supra note 5 at paras. 25 and 50. 233 Secession Reference, supra note 6 at para 49. 234 "Women and Political Participation", supra note 12. 235 "Les sons from New Zealand", supra note 17. 236 Ibid.

77 system can be far more easily justified than within the existing First Past The Post voting method with its demonstrable failings.

Based on aIl of the preceding evidence, 1 believe that the method outlined ofusing Alternative Voting with optional preference marking to elect half of the Members of Parliament in Single-Member Districts, combined with the second half of seats elected using a Proportion al Representation top-up method on a regional basis would best fulfill Canada's varied needs for an egalitarian voting system in the future.

78 CONCLUSION

Having considered the broad and purposive interpretation to be given to Charter rights and the Supreme Court's elaborations on the meanings of the democratic rights embodied in section 3, this paper supports the conclusion that the CUITent vote counting system under the Canada Elections Act is found wanting when weighed in the balance between power and democracy.

If representative democracy includes the principle of a Parliament that is reflective of its citizens, then it is a fundamental weakness within the CUITent electoral process that women and Aboriginal people are noticeable more by their absence than their presence in the face of Parliament.

The question then becomes that if there is a desire within Canada to remedy this situation, where can we look to leam from the examples of others? As discussed, the Jenkins Commission in England provides a cautionary tale of any approach that encompasses change if necessary, but not necessarily change. That said, the Jenkins Commission deserves credit for seeking to ensure at the very least that candidates in individual ridings would be elected with a minimum of 50% support. Instead of England, Canada may do better in our search to look to the experiences of Germany, South Africa, Italy, and New Zealand in using proportional representation systems that more accurately reflect voting results.

Even at home we see that sorne provinces, as weIl as the Law Commission of Canada have begun to take the initiative in moving toward, or at least raising the issue of voting reform. Indeed, there is reason to be hopeful that British Columbia will put the matter to a referendum in 2005 following the work of the Citizens' Assembly, and that Quebec too will have a form of Proportional Representation before the next election in 2008 at the latest.

79 Given the lessons learned both domestically and internationally, touchstones for voting reform in Canada were identified. Measured against these was a potential hybrid model similar to those in Germany and New Zealand, but involving the use of Alternative Voting to elect half the seats, with the remainder designated as Proportional Representation top-up seats chosen on a regional or provincial basis.

In the end, we know that the tools exist by which those who count the votes may give greater meaning to the will of those who cast the votes. Whether those tools will ultimately be put to work, is both a political and justiciable question that remains to be decided.

80 BIBLIOGRAPHY

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85 Prince Edward Island

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86