Constitutional Conventions

The recent nomination of Justice Rowe and the new approach that the Liberal government has taken to the appointment of members of the Supreme Court of Canada has invoked a lot of discussion around constitutional conventions. In this post we are going to examine the nature and usage of constitutional conventions in Canada with an eye toward their historical development.

Our Constitution: Written and Unwritten

From a legal perspective, the constitution of Canada does not encompass any one or two documents but a host of documents spanning from the Royal Proclamation, 1762 to the Canada Act, 1982 (the latter of which repatriated our constitution from the United Kingdom and established the Charter of Rights and Freedoms). The Constitution Act, 1982 provides for a list of documents to be considered as “constitutional documents” including the Canada Act, 1982 and the Constitution Act, 1867. However, the Supreme Court has maintained that several pre-Confederation acts (include the Quebec Act, 1774) and other acts (provisions of the Elections Canada Act, for example) ought to be considered with similar weight as specifically listed documents in the schedule of the Constitution Act, 1982. It is worth noting that even in the application and understanding of what documents ought to be considered of a constitutional nature and what documents should not includes forces from both the written and unwritten (or blended) parts of our state structure.

The preamble of the Constitution Act, 1867 calls for a parliament similar in nature to that of the United Kingdom. Ironically, writing down such a provision within a document to be considered the new country’s constitution was actually a departure from British parliamentary tradition. In the United Kingdom, the constitution is entirely unwritten and only recently have written documents such as provisions for the devolvement of state powers within the realm been given the weight of the unwritten provisions of the constitution (similar to how we have arranged ourselves in Canada). At any rate, however, the Dominion of Canada was founded on the premise that the state and the government within parliament be executed in similar fashion to that of the Mother Parliament. For this reason, unwritten provisions of our constitutional fabric were adopted from the United Kingdom. Provisions such as the formation of government visa a vise a Prime Minister and cabinet and the inherent privilege of Members of Parliament, including Senators, in order to properly execute their functions as representatives of Canadians. None of these provisions are mentioned in any constitutional documents, and they did and do not have to be because Canada does function in similar nature to that of the United Kingdom and our early leaders understood how the government of the UK functioned (and if they slipped, the Queen’s Privy Council was not very far). This is markedly different from the positive law of the United States or, even more so, that of Germany. In those systems, it would be impossible to enforce unwritten rules because the entire structure of law is based on the premise that the law must be made clear for citizens. Which begs the question, why do we still have unwritten portions of our constitution?

Conventions: Constitutional Mortar

Lawyer Aziz Alani points out that the gov't is avoiding acknowledging the relevance of the convention concerning SCC appointments.
Lawyer Aziz Alani points out that the gov’t is avoiding acknowledging the relevance of the convention concerning SCC appointments.

There are serious advantages to having constitutional conventions and it can even be argued that no state truly functions without at least some unwritten portions of their governing documents. There are significant conventions which dictate the democratic nature of our government, such as the convention of responsible government which is executed when the Governor-General invites the leader with the plurality of seats in the House of Commons to form government and for the executive to be drawn from the ranks of parliamentarians (primarily the House of Commons). There are mundane conventions that keep the government running smoothly and, most importantly, predictably in the interest of Canadians. An easy way to understand the importance of conventions is to think of an agreement that you have made between you and a friend over a repayment of some money. You agree to pay your friend five dollars each week until your twenty dollar owed balanced in paid in full. You write down this agreement clearly and you both sign the document. What you did not include in the document was that weeks consider to start on Monday, you get paid on Thursdays so you expected to provide payment each Thursday and if you did not pay you would have to renegotiate a new agreement or your friend could ask for the full money back immediately. These unwritten understandings between you and your friend are similar to that of conventions within the formation of the state. They have a strong benefit in that they can be changed without having to reopen the original agreement (say, for example your employer starts to pay you on Monday rather than Thursday half way through the payment period). This is important in a national sense, especially in a federation, because grand agreements of the state (i.e. the constitutional documents) are usually agreed upon at a certain time and place and it would represent near-chaos to reopen discussion on amendments at a particular time (this is especially true in Canada given the Meech Lake and Charlottetown accords).

Constitutional conventions, interestingly enough, are not enforceable in the courts (although they will acknowledge their existence and function in our governing system). This is important. A key element of constitutional conventions is that they exist so long as the parties involved believe them to be relevant and applicable. Who these “parties” are can vary but will almost always include the government and the official opposition. Canada would be outraged if the Governor-General refused to invite the duly elected leader of the party with a plurality of seats in the House of Commons to form government. And this would not change the convention regardless of the fact that the Governor-General, by written law, has the right to appoint who-ever they wish to form government, it would incite a constitutional crisis on the merits of the violation of the convention. However, take for example the recent announcement of the Trudeau government to look beyond the regional convention pertaining to the appointment of members of the Supreme Court. This is a convention that the government claims is weak and has no relevance in Canada because it ought to be the most qualified (albeit and apparently functionally bilingual) candidate who should be selected. The convention could very well be changing before us, and this is how they do change, especially when the general public does not raise a stink about the issue being changed (and in this case they actually seem to strongly support the Trudeau government position in the Supreme Court matter).

The Inevitable Unwritten

An appropriate closing is the reflection and observation that it is impossible to truly have a pure written constitution with all functions of the government being entrenched in mandated law. There will always be agreements or what some might call “common sense” and “obvious” functions of the state and government that will go beyond what is written but will not violate it. Additionally, each provision of the constitution calling on a particular state actor to act would require unwritten elements regardless the nature of the conduct of this act. It would certainly be burdensome and inappropriate to list each and every aspect of a certain function of state within the constitution documents.

Photo credit.

Electoral Reform and Electoral Systems

The Library of Parliament has published a wonderful primer on electoral reform in Canada and around the world that scratches the surface of the various options before Canadians. I’ve decided to cut some snippets from the publication to share here with links to the original document so that you may follow-up on your own.

You can access the document here or a PDF copy here.

Plurality or Majority Systems

Description: In plurality or majority electoral systems, the winning candidate is the individual who garners the most votes in an electoral district. Depending on the particular rules of the system, the winner may need to receive a plurality (or more votes than the other candidates) or a majority (over 50% of the votes cast).

First Past the Post (FPTP): Under FPTP, an elector casts a single vote for a candidate to represent the electoral district in which the voter resides. Candidates must gain a plurality of votes to be elected.

Under FPTP, an elector casts a single vote for a candidate to represent the electoral district in which the voter resides.
Under FPTP, an elector casts a single vote for a candidate to represent the electoral district in which the voter resides.

Alternative Vote (AV): Also used to elect a single candidate per electoral district, this system is often called preferential voting. On the ballot, voters rank the candidates running in their electoral district in order of their preference. To be elected, a candidate must receive a majority of the eligible votes cast. Should no candidate garner a majority on the first count, the candidate with the fewest first-preference votes (lowest-ranked) is dropped, and the second-preference votes on the ballots where that candidate ranked first are assigned to the respective remaining candidates. This process continues until one candidate receives the necessary majority.

Two-Round: Also known as the run-off system, the two-round system has elections with not one but two election days, generally weeks apart. The system used for the first round of voting is largely similar to FPTP, except to win, a candidate must take a majority of the votes cast and not simply a plurality. Should no candidate garner a majority after the first round of voting, a second election is held with only the top two candidates from the first election results. The candidate with the higher number of votes in the second round is elected.

Block Vote: In essence, this system is FPTP but with multi-member constituencies. In each electoral district, voters may cast as many votes as there are seats. For example, if three seats are available in an electoral district, the three candidates with the most votes will be awarded seats.

On the ballot, voters rank the candidates running in their electoral district in order of their preference. To be elected, a candidate must receive a majority of the eligible votes cast.
On the ballot, voters rank the candidates running in their electoral district in order of their preference. To be elected, a candidate must receive a majority of the eligible votes cast.

Origins: Plurality or majority systems can be traced back to historical British parliamentary practice. FPTP continues to be employed to elect members to the United Kingdom (U.K.) House of Commons, and is also the system used today in most countries that were once part of the British Empire or have historical connections to England.

Advantages and Disadvantages: Plurality or majority systems are easy to use and understand, favour the formation of stable majority governments, maintain a geographic link between constituents and members, and encourage broad-based parties. Critiques of plurality or majority systems include that the seat allocation is disproportionate to the popular vote, and the system exaggerates regionalism and wastes votes. Further critiques of the two-round system are that it is the most expensive electoral system, and voter turnout may decrease between the first and second rounds.

Current Use: Australia – Lower house (AV), Canada (FPTP), France (Two-Round), U.K. (FPTP) and the United States (FPTP).

Proportional Representation Systems

Description: As the name suggests, proportional representation (PR) systems seek to closely match a political party’s vote share with its seat allocation in the legislature. Unlike in most plurality systems, in PR systems, voters elect more than one representative per constituency or geographic area. PR tends to be varied and flexible, and the method for calculating seat distribution can be quite complex, with some systems requiring that a minimum threshold of vote share be earned in order for any seats to be allocated. Citizens generally vote for several candidates, or a party, and the results determine which individual members will sit in the legislature, as well as the overall distribution of seats belonging to each party.

List PR systems are very flexible and have been adapted by the countries using them.
List PR systems are very flexible and have been adapted by the countries using them.

List Proportional Representation (List PR): There are two main forms of List PR: closed-list and open-list. Both forms use a regional or national list of candidates in each constituency drawn up by each party before election day.

In closed-list PR, the party ranks the names on the list, and citizens vote for a party, not a specific candidate. Once all votes have been counted, each party is awarded seats in proportion to its share of the national vote. Individual seats are then allocated to candidates of each party in the order in which they are ranked on the party list.

In open-list PR, voters choose a preferred candidate (or candidates) from the list of the party for which they wish to vote. This means that voters effectively determine the order in which the candidates on the list will be awarded seats.

List PR systems are very flexible and have been adapted by the countries using them.

Single Transferable Vote (STV): Citizens in multi-member electoral districts rank candidates on the ballot. They may rank as few or as many candidates as they wish.

In this system, as in FPTP and unlike in block vote, each voter selects one candidate only. However, the system differs from FPTP and resembles block vote in that several members are elected per electoral district. The candidates with the highest vote totals are elected.
In this system, as in FPTP and unlike in block vote, each voter selects one candidate only. However, the system differs from FPTP and resembles block vote in that several members are elected per electoral district. The candidates with the highest vote totals are elected.

In most variations of this system, winners are declared by first determining the total number of valid votes cast, and then establishing a minimum number of votes that must be garnered based on the number of seats to be filled (the “vote quota”). Candidates who receive the number of first-preference votes needed to reach the quota are elected.

If there are still seats to be filled, a two-step count occurs. In the first step, any votes in excess of the quota for elected candidates are redistributed to the second choices indicated on the ballots of the elected candidates, using a weighted formula (this is called “excess transfer”). Candidates who then reach the quota are elected.

If no candidates reach the quota in this way, a second step takes place in which the candidate with the fewest first-preference votes (lowest-ranked) is dropped, and the second-preference votes on the ballots where that candidate ranked first are assigned to the respective remaining candidates.

Such extra counts continue until enough candidates reach the quota to fill all available seats.

Some variations do not involve excess transfer, but only the elimination of the lowest-ranked candidate and the reassigning of the second preferences on the ballots for that candidate. Nonetheless, the counting process still fits the definition of a single, transferable vote.

Single Non-Transferable Vote (SNTV): In this system, as in FPTP and unlike in block vote, each voter selects one candidate only. However, the system differs from FPTP and resembles block vote in that several members are elected per electoral district. The candidates with the highest vote totals are elected. For example, in a constituency where 20 candidates are vying for five available seats, the five candidates with the most votes will all be elected.

Compared to FPTP or block vote, SNTV can facilitate the representation of minority parties and independents, because the minimum number of votes needed to be elected decreases as the number of seats in the constituency increases, giving parties that normally receive a lower percentage of votes a better chance of electing a candidate.

Origins: Discussion of proportional representation can be traced back to the late 1700s. Its first public use was in 1840 during an election held in Adelaide, Australia.16 Some observers have suggested that the implementation of PR systems, especially throughout Europe, was a response to unrepresentative electoral results, with others suggesting economic transformations and the growth of social democratic parties were driving forces.

Advantages and Disadvantages: PR systems produce results most closely matching the actual proportion of votes garnered by parties, permit greater representation of smaller parties, provide for greater choice, and can encourage power-sharing within a Parliament. Critiques of PR systems include that they can be difficult to understand, they tend to create coalition governments, the geographic link between constituent and member is less prominent, they increase the possibility of electing parties with extreme views, the ballots can be long and complicated, and the counting of results time consuming.

Current Use: Australia – Upper House (STV), Austria (Modified Closed-List PR), Belgium (Modified Closed-List PR), Denmark (Open-List PR), Finland (Open-List PR), Ireland (STV), Netherlands (Modified Closed-List PR), Norway (Modified Closed-List PR), Russia (Closed-List PR), South Africa (Closed-List PR), Sweden (Modified Closed-List PR) and Switzerland (Open-List PR).

The modified closed-list PR systems listed above essentially give electors some ability to influence which candidates on party lists are elected by stating preferences on the ballot. The countries use different methods and set different thresholds of vote share needed for election.

Mixed Electoral Systems

Description: Mixed electoral systems combine elements of a plurality or majority system with proportional representation. Citizens in a constituency cast two votes: one to directly elect an individual member to serve as their representative, and a second for a party or parties to fill seats in the legislature allocated according to the proportion of the vote share they receive.

Mixed Member Majority (MMM): Citizens in single-member electoral districts cast two votes: one for a candidate to represent their constituency according to the FPTP system, and one for a party. Each party presents a previously established list of candidates, similar to the List PR system. A predetermined portion of the legislature’s seats are filled using the plurality vote, while the remaining seats are filled by the party list vote.

The two votes under MMM are fully independent of one another; the party seats will not compensate for any disproportionate result in the constituency elections.

Mixed Member Proportional (MMP): This system operates in the same way as MMM, except that a citizen’s second vote, which allocates seats to parties according to List PR, is used to attempt to compensate for any disproportionate results in the FPTP constituency part of the election.

There are variations among the various MMP systems in how this allocation is made.
There are variations among the various MMP systems in how this allocation is made.

Additional seats are awarded to qualifying parties18 where the number of constituency seats that they won fails to reflect voter support shown in both components of the election.

There are variations among the various MMP systems in how this allocation is made.

Origins: Mixed electoral systems can be traced back to Germany’s adoption of an MMP system following the Second World War. Observers have noted that the system represents a compromise, or third way, between plurality or majority systems, and proportional representation.

Advantages and Disadvantages: Mixed electoral systems provide for fairly proportional outcomes, maintain the geographic link between constituents and members, provide for greater choice, and allow the opportunity for smaller parties to be represented in Parliament. Critiques of mixed electoral systems include that they may be difficult to use and understand, and they create two classes of members (electoral district versus list).

Current Use: Germany (MMP), Japan (MMM), Mexico (MMP), New Zealand (MMP), Philippines (MMM), Scotland (MMP), South Korea (MMM) and Wales (MMP).

Three Commonly Heard (But Incorrect) Election Phrases

Last night Peter Mansbridge wrapped up one-on-one interviews with each major party leader in the current federal election on CBC. To each leader he put forward a frank question: what do you think of the phrase, ‘the leader with the most seats forms government.’ I am not going to go into detail regarding what each leader said on the topic (for that you should go to this post for great analysis of what the leaders are saying). What the question did trigger, however, was the realization that there are a number of misconceptions about how our parliamentary system works especially regarding how a government is formed post-election. These misconceptions seem to fester more than usual around election time. I’ve written three phrases here that I have heard said a number of times by Canadians when speaking about elections and the formation of government specifically.

Number One. I am going to vote for so-and-so-party-leader.

Unless you live in the ridings of Calgary Southwest, Outremont, Papineau or Saanich–Gulf Islands you are not going to be voting for the leader of any federal party which held seats in the last parliament during this election. For the vast majority of Canadians who will vote on Oct 19, the names listed on their own ballot will be people who we have never seen or heard of on the nightly news (save for the election night coverage). They are candidates who are seeking election within your riding (electoral district) which is based on geography and population. In essence, as mentioned in this post, there are 338 elections taking place during this federal general election. This fact is more obvious in U.K. election night coverage where each riding collection officer announces the winner for each riding separately, which emphasizes the fact that individual elections for candidates take place across the country. This is much different than the U.S. model where the President (Executive) is elected through a national electoral college and separate from members of the legislature. In Canada (and other Westminster parliamentary countries), we elect candidates who are summoned to Ottawa by the Governor-General after the election. That is it. We do not elect our Prime Minister, we do not elect any members of government for that matter. We simply elect the person who we want to have summoned to Ottawa when parliament is opened. Our work in the process is done and our democratic will has been satisfied through a democratic election of our candidate.

Now, the typical response to this goes something like this: I know that I elect the candidate but once elected they are whipped into following what the leader wants so essentially I am voting for the leader. But this is not entirely correct. You have elected a person in parliament who is charged with representing your riding in the House of Commons. While there may be whips and mechanisms for controlling members within parliament, they have the legal right to cast a ballot in their own choosing and no authority can remove that right. However, the topic of the whip in parliament is meant for an entire post (or series of posts) on its own, therefore what is important is just to remember that nothing aside from party created mechanisms prevent your member from breaking ranks.

There is something to be said about creating a de facto proxy vote system in Canada. First, elections are meant to legitimize the presence of an individual in the House of Commons. If we are just electing the leader of a party or the branded party itself, we are throwing out 334ish people who are paid and have a legal right to sit and act in parliament. And, as is pointed out here, when you proxy vote, you have no control over the other 337 results and on top of that you are working within a system which is designed to facilitate the election of 338 ridings into one parliament. I would therefore make no sense to attempt to vote within your own riding for a strategic outcome overall. This is where misconception concerning our electoral system begin to creep in as well (but more on that in future posts).

Number Two. The leader of the party with the most seats in the House of Commons forms government.

The leader of the party with the most seats in the House of Commons does not get to form government, the convention is simply not that simple. Suppose this election results in a hung parliament (where no single party gains the plurality of seats), it would probably surprise you to learn that the incumbent government (i.e. the Harper government) gets the so-called first crack at seeking the confidence of the House of Commons. This is called the incumbency principle and it is important for two reasons. First of all, it permits a continued chain of governance in Canada and secondly it promotes stability. It is a clear mechanism for a hung parliament to display confidence in the government or, if no confidence can be obtained, for the process to form the next government to begin. If the incumbent government cannot obtain the confidence of the House, than the Governor-General may invite another member to form the government provided they can carry the confidence of the House. This can go several ways. The party with the largest number of seats in the House of Commons may be asked to form government, a coalition may be formed between parties in which a leader approaches the Governor-General to form government or the Governor-General drops the writs and a new election is called (very unlikely). It is important to move even further away from the idea that the leader of the party with the most seats in the House of Commons forms government when we talk about coalitions. It would be perfectly democratic for a group of small parties to form a coalition and carry the confidence of the House within a single member. This coalition could be loosely based or it could include a formal agreement. But what is important is that it is (a) democratic and (b) normal within a Westminster system when in a hung parliament situation. Ideally, first-past-the-post is designed to produce clear parliaments, but it is also a system designed for two major parties and not three.

Number Three. This election is about who will be the next Prime Minister of Canada.

As mentioned before, this election is not about who will be the next Prime Minister of Canada. This election is about who will be your representative in the House of Commons and parliament. From this election a parliament will be formed, and from that parliament, a government will be formed but this election is not about who will form government. This might seem like a trite technicality but in fact it is essential to gain the fullest understanding of our political system, specifically including why we have the first-past-the-post system in Canada. Those are topics for other post, but for now just understanding that we are not electing the Prime Minister of Canada and Canadians, during a general election, play no role in the formation of government. We are electing the House of Commons, the democratic and highest organ of parliament.

Conclusion

I think that Canadians as a whole have a lot more to learn about their own government structure and constitutional system. It is a shame, in my personal opinion, when the leaders of the three major federal parties appear to not understand how the systems works. But there is also something which is key to keep in mind when we speak about constitutional conventions. While they are accepted practises regarding constitutionally mandates requirements, they are not enforceable in courts and by definition can change when a new approach is adopted or favours shift to no longer follow the convention. This has happened with numerous constitutional conventions in the past, and it seems that as they die, there are some people left wishing that a certain convention remained or that another existed in its place. A convention can be seen as a constitutional norm, and it is important in my opinion that these conventions exists as they are because they strengthen the institution of parliament by ensuring that it can be fluid enough to remain relevant through-out time. This can, to some degree, work to prevent institutional decay over time, which is important especially in our most sacred political body. All of that to say, if the convention where to change it certainly would not be outside of the realm of the possible, but there could be some follow-on consequences, and that is a topic for another post as well.

https://www.flickr.com/photos/mcdemoura/5756651978/

Dissolution of the Ministry

Both section 5 of the Constitution Act, 1867 and section 4(1) of the Charter of Rights and Freedoms limit the duration of a Parliament to five years (with the exception of times of war or insurrection). These sections translate into a system of democracy whereby elections must happen at least every five years. However, typically elections happen at more regular intervals as the governor general is bound through constitutional convention to dissolve Parliament at the request of the prime minister. The prime minister themselves may resign his or her government at any time or is bound to seek dissolution from the governor general after a no confidence vote in the House of Commons. Furthermore, specific to the current election campaign, Parliament has bound itself to fixed election dates through a 2007 amendment to the Canada Elections Act which made provision for a general election “on the third Monday in October every four years.” (Note: even under the amendments, the convention for the prime minister to seek dissolution in the event of a loss of confidence stands).

The mechanism whereby a Parliament is dissolved is central to responsible government in Canada. The heart of a ministry is the cabinet which provides advice to the Sovereign, controls the public service, and remains collectively responsible to the legislature. Governments in Canada are appointed, not elected, and their membership is drawn from the legislature. This is fundamental in a system of responsible government. This appointment does not last for a set term but stands until the minister dies, resigns or is dismissed. The sections contained within our constitutional documents which provide for a dissolution every five years, binds the prime minister to resign the government and thus exercise one of the three conditions upon which a ministry comes to an end. The appointment cannot be made possible without the individual first being elected as a member of the legislature. Thus, the minister also has an individual responsibility to the House of Commons. It is generally accepted that a minister is responsible for their ministry and is accountable to Parliament for their actions while in power. This personal responsibility generally guides how and when a minister should resign and when and how it should be asked for by the legislature.

The overarching theme of ministerial responsibility is its collective nature. The formation of the ministry rests on the concept of a collection of people having the ability to command the confidence of the legislature. Its continued existence rests on its ability to pass legislation and measures within the House of Commons. And its dissolution comes about through collective resignation. It would be absurd to permit a government to continue to function within a democracy when it is unable to pass a budget measure or advance its mandate. The ministry can only continue to function after a loss of confidence within the House of Commons if it is sustained by the electorate in a general election.

Democracy demands that executive governments be elected by the people. This concept emphasizes the formation of a democratic government which can claim legitimate power within society. Key to this concept is the function of terminating a government in order to permit democratic elections and thus enable the formation of a representative government. Constitutional documents in Canada limit the extreme length of parliamentary terms to five years and through convention provide expectations for governments in the event of a loss of legitimate authority. This is the essence of responsible government. A democratic government must be responsible in its formation, execution and dissolution.