Maxwell Cameron is a professor in the Department of Political Science and the School of Public Policy and Global Affairs at the University of British Columbia.
We live in an era of democratic backsliding and threats of autocratization. The attempted constitutional coup by former president Donald Trump on Jan. 6, 2021, is but one example; another was the effort by the “Freedom Convoy” to disrupt Canada’s constitutional order.
In these parlous times, safeguarding democracy demands a robust defence of the separation of powers – the constitutional arrangement that guarantees the rule of law. The courts in particular must be guardians of the separation of powers.
The Ontario Superior Court will soon hear a Charter challenge against our first-past-the-post (FPTP) electoral system by a pair of civil society organizations, Springtide and Fair Voting BC. As it hears that case, it should carefully consider how the way we vote (that is, how governments are held accountable to voters) affects the separation of powers (the accountability between branches of government).
In parliamentary systems, the separation of powers is upheld not by checks and balances between separately elected branches of government. It is upheld by means of the confidence convention which requires that the executive command the consent of Parliament. Parliament’s supremacy can, however, be made a mere formality by party discipline and the dominance of the prime minister. Over time, power has shifted away from members of Parliament and has become concentrated in the Prime Minister’s Office (PMO).
As a result, Canada today has one of the weakest legislatures among established democracies. FPTP contributes significantly to this weakness. It does so in many ways, but the most important is by enabling and promoting “false majority governments.” These are governments that lack a majority of electoral support, but – thanks to the lack of proportionality in the translation of votes into seats – control a majority of MPs in the House, and therefore do not need to work across party lines or even reflect majority political consensus in the country.
This is something that champions of FPTP have celebrated. So-called strong majority governments are supposed to be able to “get things done.” In fact, minority governments have a solid track record of getting things done and, critically, they do so collaboratively. By contrast, false-majority governments in an era of concentrated executive power weaken the mutual dependence among branches of government that is key to the success of parliamentary democracies around the world.
When the separation of powers is weakened, a single individual – the PM – often makes decisions that should rightly rest with the legislature. Montesquieu called this despotism. A stark (but not isolated) example was Prime Minister Justin Trudeau’s betrayal of his own 2015 promise to change the electoral system. This reversal was neither the will of Parliament nor the special committee tasked with studying electoral reform; it was the personal decision of the PM.
In recent years, Parliament has become less deliberative. Power has shifted to the executive, and from within the cabinet to the PM, thereby eroding ministerial responsibility. MPs have been muzzled and managed by unelected political appointees. Spin and message control by public-relations experts has replaced open debate. Committees have become arenas for partisan games. The operation of government has been bogged down by micromanagement from the top. Criticism has been silenced and calls for investigations resisted.
Eliminating our current FPTP voting system in favour of a more proportional one would have the effect of making co-operation among parties the norm both in the formation of government and in governing between elections. In the process, power would shift back to the legislature and to MPs. This would improve the accountability of government to voters, and restore appropriate oversight responsibilities to parliamentarians.
In assessing the constitutionality of FPTP, the court should therefore consider how our anachronistic electoral system, combined with the historically recent rise in dominance of the PMO, has altered the functioning of the separation of powers in ways that weaken our democracy. The court could signal to government the need to convene an arms-length citizens’ assembly to recommend a new electoral system aimed at restoring a better balance among the branches of government.
There is an age-old question in political theory: Quis custodiet ipsos custodes – who guards the guardians? That is implicit in the case before the court.