On electoral reform, the Supreme Court may have the last word

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In these dog days, thoughts keep returning to the question of electoral reform, and whether the 2015 election truly will be the last held under the old system of first-past-the-post.

The answer is: Probably not. But it could be the second last.

ANALYSIS: Electoral reform, it's complicated

As you may know, a parliamentary committee has until Dec. 1 to recommend an alternative to FPTP, which Liberals, New Democrats and Greens consider irredeemably flawed, because it permits parties that receive less than 50 per cent of the vote to form majority governments.

One central question is whether any alternative that the committee recommends should be subject to a referendum, as the Conservatives are demanding. Emmett Macfarlane, a political scientist at the University of Waterloo, laid out the case for a referendum in these pages on Monday.

But another question arises: Would the provinces have to approve any changes to how members of Parliament are elected?

Prof. Macfarlane believes the answer is no. But he agrees that the issue is contentious and electoral-reform legislation may face a legal challenge.

"There is definitely enough ambiguity that the courts would take a challenge seriously," he said in an e-mail exchange Tuesday. Such a challenge could eventually end up before the Supreme Court of Canada, making it impossible to implement any changes to the electoral system in time for the next election.

In fact, the issue is sufficiently complex and contentious that Prime Minister Justin Trudeau may want to send the electoral-reform legislation, once it arrives, straight to the Supreme Court for a ruling, just to be sure.

RELATED: Ottawa overhauls process for selecting Supreme Court justices

That's what Stephen Harper did when his plan to have senators elected for a fixed term was challenged. In that instance, the Court decided that changing the rules for senatorial appointments amounted to constitutional change that required provincial consent.

For Michael Pal, a law professor at the University of Ottawa, that ruling brought into question whether Parliament could unilaterally change how MPs are elected.

"Given the reference's restrictions on Parliament's authority to unilaterally amend the Constitution for matters relating to the House and Senate," he wrote earlier this year, "it is an open question whether electoral reform can proceed without provincial consent."

Emmanuelle Richez disagrees. "A challenge would be unlikely to succeed," the political scientist at the University of Windsor said Tuesday in an interview. Parliament has been tinkering with representation in the House of Commons since Confederation, she observed, most recently by increasing the number of seats in the House so that Alberta, British Columbia and Ontario are more fairly represented. Changing how MPs are elected would amount to the same thing.

Prof. Macfarlane takes the same position in a piece he has written for the Supreme Court Law Review that he kindly allowed me to see in advance. Giving the provinces a say in how MPs are elected "arguably undermines federalism itself," he writes. Electoral reform would not change how the provinces are represented in the House, so their interests are not affected. And limiting Parliament's powers to implement electoral reform "would only cement the degree to which the Canadian Constitution suffers from a paralysis."

Nonetheless, this argument has two sides. As lawyers Yaakov Roth and Jonathan Roth wrote in the Toronto Star in January: "Our constitutional framers dictated certain mechanisms for distributing political power. They did so for good reasons. To allow a one-off parliamentary majority to unilaterally alter these foundational rules of the political game would be fraught. As the chief justice of the United States recently observed: 'Those who govern should be the last people to help decide who should govern.'"

Questions this big are usually decided by judges. We'll have to wait and see what exactly the committee recommends, and what changes to the electoral system cabinet proposes. But whether or not the people have their say through a referendum, the Supreme Court may end up having the last word.