By Gary Levy
The last four Parliaments, three minority and one majority, have convinced most Canadian parliamentary scholars that much damage has been done to the constitution. [1] One would think the 2015 election would be a time for parties to put forth ideas to improve what we still refer to as our Westminster model. So far this has not been the case and one wonders if there will be improvement, as opposed to change, after Canadians cast their ballots on October 19. This post look specifically at how issues of electoral reform, House of Commons reform and Senate reform have been treated in the campaign.
Electoral Reform
Three of the four national parties, Liberals, New Democrats (NDP) and Green, have all come out in favour of electoral reform. The NDP, traditionally the third party, has always favoured proportional representation (PR) but now it is the official opposition and according to polls stands a chance of becoming government through the much maligned first past the post system. Unsurprisingly, the party has been quiet on this topic during the campaign. The Greens, of course, are all in favour of PR since they have 5-10% of the popular vote but only elected one Member out of 308 in the last Parliament. The Liberals have usually feigned interest in electoral reform and are ready to study it but have never embraced it while in office. This time they support an all-party committee on a new electoral system featuring either the preferential ballot or a form of proportional representation. None of the leaders have spent any time or energy developing these ideas during the campaign.
One significant electoral reform has been the 78 day campaign compared to the normal 37 days. The reason is the government’s ill-conceived Fixed Date Election Legislation. As soon as the House adjourned in June the campaign was unofficially underway and after watching a month of unregulated campaigning in July the Prime Minister dropped the writ in August to put everyone on a level playing field when it came to election expenses. The fact that the fixed election date legislation has been a complete failure at any of the things it proposed to do seems to be of no concern to any of the opposition parties. No one has promised to repeal it or replace it with a more coherent law.
House of Commons Reform
If elections are an opportunity to gain the public’s attention and educate them about their democratic institutions, the 2015 campaign has been a failure. The high paid consultants who run campaigns have convinced the leaders that Canadians do not care about process issues so they have not talked about them except in the most general terms. There have been a number of televised debates and two of them included a segment on democracy and governance issues. The first one got completely sidetracked by a dispute between Liberals and NDP over the majority required for a vote on separation in Quebec. The same thing happened to a lesser extent in the French debate.
The issue of who gets to form a government if no one has a majority has received some discussion and likely will get more if polls continue to predict a hung parliament. In the 2011 election, Mr. Harper won a majority in part because he argued the alternative would be a coalition of NDP and Liberals probably supported by the separatist Bloc Quebecois. This argument will not work this time because of the virtual disappearance of the Bloc as a political force. The Liberals and NDP have rejected in advance any possibility of propping up the Conservatives and the Liberals have also ruled out a coalition with the NDP. They are open to some kind of co-operation as is the NDP but one wonders if any kind of planning has gone ahead while they fight tooth and nail to emerge as the alternative to Harper and hopefully get a majority of their own.
The CBC’s National News Anchor, Peter Mansbridge, tried to clarify the situation around government formation in interviews with each of the party leaders. He asked them: “is it your belief that whatever party has the most number of seats (on election night) has the right to try to govern at that point?” The answers were from enlightening.
Mr Harper said: “My position has always been if we win the most seats I will expect to form the government and if we don’t, I won’t.” He went on to clarify that he would resign as Prime Minister if he did not get the most seats.
Asked the same question Mr. Trudeau said: “Whoever gets the most seats gets the first shot at trying to command the confidence of the House.” The fact that nobody gets first shot – the incumbent remains Prime Minister until he resigns, was lost on Mr. Trudeau.
The more experienced Mr. Mulcair, who knows better, nevertheless felt obliged to add to the misinformation. He said: “Well under our system of government, that would normally be the case. But there are constitutional conventions that are complex, that are historically applied differently. I think that my adversaries take the approach that you’ve just described and it’s certainly the one that I would take.”
Incredibly, the Leader of the Green Party, usually a source of sound parliamentary and constitutional judgement said: “Should Mr. Harper have a few more seats than the other parties, I will call the Governor General and say, we need time as Opposition party leaders to discuss whether we can offer {an alternative government}.” She claimed to have the Governor General’s phone number in her pocket and would call him on election night if she had a handful of seats.
These answers were mostly political posturing but one does not have to be a full blown conspiracy theorist to imagine various scenarios that could produce a situation where the legitimacy of the government is called into question which is another way of saying “constitutional crisis”. Probably the only concrete result of the interviews was for Governor General to change his phone number.
Senate Reform
Discussion of Senate reform began well before the election but the campaign has done little to clarify the position of the various parties. Since 2006, the Conservatives have favoured reforming the Senate by making it an elected body. But they sought to do this without a constitutional amendment and in 2013 the Supreme Court told them that was not possible. An elected Senate would require consent of 7/10 provinces and abolition would require unanimity. Mr. Harper reacted by saying he would cease appointing Senators and leave it to the provinces to come up with an acceptable reform. Currently one quarter of the seats are vacant and the Conservatives enjoy a large majority.
The longtime position of the NDP has been abolition and Mr. Mulcair has stated that if elected he will take that as a mandate to start work on a constitutional amendment to abolish the Senate. When advised that several provinces oppose this he says he will follow the Harper policy and not appoint any Senators. He takes it one step further and says he will not name have anyone serve as House Leader in the Senate which raises the question of how he can expect to get controversial legislation through the Upper House.
The Liberal position, adopted shortly after Mr. Trudeau, became leader is to reform the appointment process by non-constitutional means, specifically by creation of a non-partisan appointment commission. He has offered no details as to how this would work but unlike the British Appointments Commission it seems the Canadian one would appoint all Senators. Mr. Trudeau also expelled all Liberal Senators from the National Liberal Caucus and promised they would have no positions on his election team.
In the event of a Conservative win it is likely Mr. Harper would go back to appointing Senators or else face a law suit, already started, declaring his non-appointment policy unconstitutional. An NDP win might lead to some version of a Salisbury Convention whereby the Upper House agrees not to obstruct in certain conditions. Or Senate appointments may become part of an agreement with the Liberals whereby the NDP would accept the Commission idea while still working toward the dream of abolition.
It is also possible that a stubborn Prime Minister and a stubborn Senate could lead to stalemate and another election which may be Plan B for the NDP. A faint possibility would be for a strong Governor General, if we had one, to take aside a Prime Minister who was continuing the moratorium on Senate appointments and tell him, in keeping with the Crown’s right to warn, that continued failure to carry out his constitutional duty to appoint Senators would lead to dismissal! Nuclear options are not generally employed in Canada politics.
While the long campaign has been disappointing for those interested in institutional reform the post-campaign period might turn out to be quite exciting. If the result is a constitutional impasse of some kind, all the party leaders will bear responsibility for the way they have skipped over so many of these issues in the campaign.
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Gary Levy is a Fellow with the Bell Chair in Canadian Parliamentary Democracy in the Department of Political Science at Carleton University.
Notes
[1] For further critiques, click here and here.
