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.

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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).

Leadership Term Limits in Canada

An interesting question was raised by Samara Canada this morning over twitter:

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…without question something worth taking a look at, especially in light of recent rumours that Conservatives are looking to impose term limits on their leaders. Stephen Harper served as Prime Minister of Canada for nearly nine years after winning three elections as leader of the Conservative Party of Canada. However, he is not the longest serving prime minister in Canadian history, that honour rests with William Lyon Mackenzie King who served just over 21 years after winning six elections as leader of the Liberal Party of Canada. Four prime ministers in Canadian history have served mandates that were not consecutive, meaning they stayed on as leader of their party (or in one case, briefly retired) regardless of a general election loss from an incumbency position. Over half of Canadian prime ministers have served over 5 years in office and of those eleven, only one managed in with only a single mandate (the average number of mandate for that top half was two).

This picture of our head of government in Canada is in stark contrast to the United States which, through constitutional amendment, have limited the terms of their Presidents to two four year terms. The exception would be in time of great needs, for example a time of war, which has only occurred once in the history of that country. The argument articulated in the United States justifying term limits rests on an overall check and balance that limits the control of a powerful personality occupying the White House.

But there are also arguments against terms limits which are entirely valid. For example, it is argued that an eight year cycle of leadership results in short-sighted executive government. There is also an argument to be made about an executive formulated on a mandated short term against a legislature that can have members re-elected for an indefinite period of time, and the power imbalance which is created in such a situation.

We can debate the merits of term limits back and forth, but the fact remains that in Canada the office of the Prime Minister is not an official office within the structure of our executive and legislature. In fact, the title of Prime Minister is not used once in any constitutional document in Canada (same for in the United Kingdom). This is significant and there are important reasons why this apparent oversight is in fact intentional. Primarily, the prime minister of Canada is first and foremost a member of the legislature. This is a fundamental tenant of responsible government in Canada; the practice of executive members of the government being drawn from elected members of Parliament. This is in contrast to the government system in the United States where the head of state is separate from the legislature, not infused as in our British parliamentary model. In the US system, the President is directly accountable to the people, in Canada the prime minister is directly accountable to the House of Commons which is composed of members who are directly accountable to the people (which include the sitting PM directly as a member).

In the United States, the president is chosen in an election which is separate from that of the legislature. Each of the two major political parties have established primary systems designed to determine their respective candidate for the presidential election. It is all done separate from the mechanisms that support the election of the legislature. In Canada, the prime minister is chosen based on which party is able to establish and maintain the confidence of the House of Commons. Canadians play no role in choosing the prime minister aside from electing their respective member of Parliament. Our accountability of this system is based on the fact that the person chosen by our head of state (the Queen delegated to the Governor-General) will only come from the elected batch of members in the House of Commons. And the mechanisms of who goes forward from that batch is entirely based on partisan politics. We do not chose, as Canadians, who leads the various parties and thus has a chance of becoming Prime Minister. As members of the respective parties we may have a say, and the mechanism of that voice is determine through internal party constitutions and by-laws. A party could very well select a leader among only elected members of their own caucus (as was done in the United Kingdom for centuries).

In our current political system in Canada, it would be impossible and irresponsible to impose term limits on the prime minister. It would be terribly undemocratic to impose restrictions on who a group of Canadians formed as a political party can elected as their leader and for how long. Political parties themselves are free to impose limits on their leaders, and indeed can indirectly impose limits on the prime minister by having these limits internally. But there simply would be no statutory avenue for the legislature to establish law that would impose a limit on the prime minister without their being a limit within their own party.

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The Problem with Trump-like Campaigns

I am loath to contribute to the pile-on commentary on the subject of Donald Trump, the US presidential campaign and the state of American politics. I am almost certain that most of you will inevitably read the title, file in under the trove of other similar headlines you have read already today on the same subject, and move on, but I also might have something here worth reading. The focus of this piece will not be Donald Trump himself— I think that the jury is out among most progressive peoples concerning the utterly regressive nature of the politics of Mr. Trump— rather I would like to focus on the nature of regressive campaigns, especially seemingly successful ones as we are currently seeing in the United States. Specifically, I want to talk about why regressive campaigns are a threat to the democratic process.

Donald Trump has put forward many classically regressive policies on his road to the US presidency. He has proposed closing the US border entirely to Muslims around the world. He has advocated the building of a wall to prevent the illegal immigration of Mexican and Latin American people into the US. He has called woman terrible names; projecting the stereotypical image of a man who simply hates women. The problem with what he says however, from the standpoint of democracy, is not the outcomes of what he is proposing, but rather the fact he is able to propose them at all. The problem with what he says is that his inherently regressive policies are nothing new to Western society. Every-single one of them has been dealt with adequately in history and has been disposed of as unsuccessful and regressive. The problem with a campaign the likes of Donald Trump is that it forces the entire electoral machine to react and address issues which have already been put to rest.

Liken the US presidential race to a meeting of a generic club or organization. A major decision is on the table, say the election of candidates to run for the head of said club or organization. A debate is happening over who would best fill the roles. Among the group there is a very loud and very annoying member. This member insists on bringing up decisions of the club which have already been made. We have all been in this sort of situation personally no doubt. The coworker who insists the agenda must move their way. An insistence that they are entitled to be heard and forceful intercessions on how things ought to be done. Eventually the meeting concludes and although decisions have been made, there is no fidelity toward an overall plan. This loud member insisting on rehashing old business has impacted the efficiency of the organization. Meet Donald Trump.

When the organization, or in this case, the entire electorate, are forced to revisit old debates that were settled decades ago, they are forced to devote time and political energy that could otherwise be spent on better things. We can take a case example from the debate on US immigration. There is most certainly a problem with illegal immigration in the US, and the support that Trump gets from Americans who are legitimately worried about illegal immigration should not be completely written off. However, that the country should ban an entire group of people or build a wall is a solution that is not even worth debating. And yet here we are. Rather than have an actual debate on the merits of real solutions (albeit not sexy soundbite-ish ones), the entire electorate is forced to listen, react and eventually suppress regressive, go-nowhere solutions. That is a problem.

The American people deserve the highest fidelity in all debates concerning issues which are impacting the most important country in the world. Given the power and influence of the US, we could say that the entire world deserves candidates in a US election that can present real solutions to these problems. The problem with regressive campaigns in the democratic process is that they force us to have to (re)debate half-baked, already-proven-broken and dangerous solutions when we ought to be debating better solutions.

Author’s Note: This editorial is the first of a new series on this blog. Opinion pieces will be posted periodically on broad political topics that impact Canada (not nessarily always Canadian, as this piece is proof). They will be relevant to current events and my hope is to fill the gaps between my regular parliamentary procedure and law longreads.