Introduction
The Ontario Court of Appeal issued a ruling in August 2025 which upheld the constitutionality of single-member electoral districts and lambasted so-called “Fair Vote British Columbia” (which for some reason litigated single-member plurality in Ontario) for having “repackage[ed] failed political arguments as constitutional rights violations.”[1] Justice Huscroft declared unambiguously: “The electoral system is not in conflict with either the right to vote or the right to equality. It does not violate the Charter.”[2]
Justice Huscroft identified from the outset section 313(1) of the Canada Elections Act as the statutory provision which anchors single-member plurality in federal law. But he also should have cited section 51(1) of the Constitution Act, 1867. Here I presumptuously offer a concurring opinion to Justice Huscroft, who certainly came to the correct conclusion, but perhaps not through the most economical, and therefore best, premises. I argue that single-member electoral districts (which would include both the current single-member plurality or single-member majority achieved through instant run-off balloting or two-round voting) cannot be unconstitutional because, at least at the federal order of government, they have formed part of the Constitution of Canada since December 2011, and nothing in the Constitution of Canada can be unconstitutional. This concurring line of reasoning matters because the Supreme Court of Canada could still overturn Justice Huscroft’s reasoning and this ruling by the Ontario Court of Appeal by reinterpreting its doctrine of Democratic Rights under section 3 of the Charter; however, the highest court in the land could never use the Charter to strike down single-member electoral districts if they form part of the Constitution of Canada.
The Constitution Cannot Be Unconstitutional
Section 52 of the Constitution Act, 1982 describes the Constitution of Canada as “the supreme law of Canada” and states that the Constitution of Canada includes the Constitution Act, 1867 and its various amendments, as well as the Constitution Act, 1982. The Charter (Part I and sections 1 to 34 of the Constitution Act, 1982) therefore cannot somehow invalidate the Representation Formula or the Senatorial Clause under sections 51 or 51A of the Constitution Act, 1867 because nothing in the Constitution of Canada can be unconstitutional, and one part of the Constitution of Canada cannot strike down another.[3]
The Preamble Under Purposive Statutory Interpretation
Sullivan on the Construction of Statutes explains that “preambles reveal legislative purpose” and that “with the modern emphasis on purposive analysis in interpretation, preambles generally receive serious attention from the courts.”[4] Furthermore, “[the preamble] is therefore considered an integral part of an Act” because legislative bodies and committees can amend or add preambles to bills throughout the legislative process.[5] The Supreme Court of Canada has recognised that judges should interpret “constitutional documents” in a “broad and purposive manner.”[6] Many statutes and constitutional amendments also state their aims and purposes very clearly, often in the preamble. Sullivan notes that “preambles may also contain direct descriptions of purpose or descriptions of the circumstances giving rise to the enactment – the mischief the legislature intended to cure […].”[7]
The Purpose of the Sixth (and Seventh) Formula(s)
The preamble of the Fair Representation Act, 2011 explains the purpose of the new Representation Formula logically and builds a case to support why Parliament needed to repeal the 279 Formula (1985 to 2011) and replace it with something that better conformed to the principle of representation by population. Conforming to Sullivan’s explanation, the preamble certainly “contains direct descriptions of purpose” and it also clearly articulates “the circumstances giving rise to the enactment” and “the mischief [which Parliament] intended to cure.”
The first three recitals of the preamble implicitly acknowledges section 52 of the Constitution Act, 1867 and section 42(1)(a) of the Constitution Act, 1982; while it does not name either of those provisions directly, it does quote verbatim from the latter and states that “the House of Commons must reflect the principle of [the] proportionate representation of the provinces,” which the 279 Formula by implication failed to protect by deliberately under-representing the fastest-growing provinces across three consecutive decennial electoral readjustments. Consequently, MPs for Ontario, Alberta, and British Columbia represented far more people on average than MPs from the other seven provinces. In contrast to the failed 279 Formula, the Sixth Formula sought to respect the principle of the proportionate representation of the provinces by granting “fair and equitable representation” to the “faster-growing provinces” as well as “effective representation” to “smaller and slower-growing provinces.”
Whereas the composition of the House of Commons must reflect the principle of proportionate representation of the provinces and the democratic representation of the Canadian people;
Whereas the principle of proportionate representation of the provinces must balance the fair and equitable representation of faster-growing provinces and the effective representation of smaller and slower-growing provinces;
Whereas the populations of faster-growing provinces are currently under-represented in the House of Commons and members of the House of Commons for those provinces therefore represent, on average, significantly more populous electoral districts than members for other provinces;[8]
The fourth recital of the preamble defends the population estimates as a superior metric to the decennial census at the level of the provinces as a whole:
Whereas estimates of the population of Canada and of each province using modern statistical methodologies and techniques are accurate in determining those populations;[9]
The fifth recital defined the first federal electoral quotient under this new Representation Formula (111,166) as “the average population of the electoral districts on July 1, 2001.” Since all MPs have represented single-member electoral districts since the Representation Order, 1966 and the House of Commons elected in 1968, “the average population of the electoral districts” means the average number of people per riding and that the entire Representation Formula since 2011 has been expressly designed for single-member electoral districts. This preamble clearly articulates the presumption of single-member districts in a way that the Amalgam Formula of 1974 and 279 Formula of 1985 did not. In fact, neither the Representation Act, 1974 nor the Constitution Act, 1985 (Representation) contained preambles at all.[10] This recital became rule 6(a) under section 51(1):
Whereas the electoral quotient for the re-adjustment that follows the completion of the 2011 decennial census should be 111,166, that number being the average population of the electoral districts on July 1, 2001, which was determined by using the estimate of the population of each province as at that date, multiplied by the average of the rates of population growth of the provinces;[11]
Parliament had never before committed to defining the electoral divisor or quotient in the previous iterations of the Representation Formulas as the number of people per riding. While the two of the three quotients within the Amalgam Formula used the sums of the populations of the small provinces and their overall number of MPs, these served the purpose of over-representing the small and intermediate provinces, not to set a baseline number of people per riding based on the average growthrate across the provinces. The large provinces under the Amalgam Formula derived their MPs based on Quebec’s baseline, which drew inspiration from the Confederation Formula’s baseline of Quebec’s fixed number of 65 MPs. The Second Formula (1946-1952), the Third Formula (1952-1974), and 279 Formula (1985-2011) all used divisors linked to the total number of provincial MPs in the House of Commons.
The sixth recital then argues that the federal electoral quotient in subsequent decennial electoral readjustments should also be calculated by multiplying the previous federal electoral quotient by the average rate of growth of the ten provinces. In contrast, the Confederation and Amalgam Formulas used only Quebec’s growthrate to determine the representation of the other provinces, while the Second, Third, and 279 Formulas did not factor in growthrates at all. This recital became rule 6(b) under section 51(1):
Whereas the electoral quotient for the re-adjustment that follows each subsequent decennial census should be determined by multiplying the electoral quotient used for the previous readjustment by the average of the rates of population growth of the provinces;[12]
Finally, the seventh recital notes that Parliament repealed and replaced the Amalgam Formula with the 279 Formula in 1985 under the Section 44 Amending Procedure and argues that Parliament can therefore change the Representation Formula again under its authority “to amend the Constitution of Canada in relation to the House of Commons so long as the principle of proportionate representation of the provinces is not disturbed.”[13] This recital therefore also implicitly acknowledged the General Amending Procedure under section 42(1)(a) of the Constitution Act, 1867 and that Parliament alone cannot enact a Representation Formula which alters “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada.”
Conclusion: Proportional Representation Must Remain a Political Question
Consequently, if the preamble is an integral part of an Act, and if Parliament enacts a statute under the Section 44 Amending Procedure to repeal and replace or amend the text of the Constitution Act, 1867, then the preamble of the statute which amends the Constitution Act, 1867 also forms part of the Constitution of Canada under section 52 of the Constitution Act, 1982. And even if the preamble of a statute enacted under the Section 44 Amending Procedure somehow did not retain this status as “an integral part of the Act” (and therefore in this case, the Constitution of Canada), the preamble would still outline the meaning of the text in the Constitution Act, 1867 under the principles of purposive statutory interpretation. The best view – by whichever avenue one takes to arrive at this conclusion – is that the federal electoral quotient under section 51(1) of the Constitution Act, 1867 since December 2011 refers to the average estimated population of an electoral district in the year of a decennial census and that the Representation Formula therefore requires single-member electoral districts. It does not refer to the average number of people per MP, which would amount to a higher, more general category. A multi-member electoral district under STV or MMPR would contain populations far higher than the federal electoral quotient and contradict both the purpose and the text of section 51(1).
The Parliament of Canada could probably still enact multi-member proportional representation like single transferable vote (STV), provided that the multi-member electoral districts remain within one province, or even a form of mixed-member proportional representation (MMPR) where the compensatory party-list seats remain tethered to the shares of popular vote within each of the ten provinces individually, under the Section 44 Amending Procedure. This unilateral constitutional amendment would have to change the meaning of the federal electoral quotient with a new proviso under Rule 6 of section 51(1) of the Constitution Act, 1867 and then make the necessary amendments to the Canada Elections Act to provide for new forms of ballots and methods by which the returning officer declares winning candidates.
However, adopting a form of MMPR where the compensatory party-list seats derive from the federal popular vote and therefore cross provincial boundaries would necessarily disturb the principle of the proportionate representation of the provinces in the House of Commons under section 52 of the Constitution Act, 1867 and therefore meet the threshold of section 42(1)(a) of the Constitution Act, 1982. This form of MMPR would rely on a constitutional amendment under the General Procedure which pertains to “the principle of proportionate representation of the provinces in the House of Commons” because using the Canada-wide popular vote as a baseline for assigning compensatory seats to political parties effectively federalises x percentage of the overall number of seats in the House of Commons and takes them away from any one province. These MPs would not represent all people within a geographic constituency but instead only the partisans across the country who voted for them. The Parliament of Canada alone could not validly enact this form of MMPR; instead, only the House of Commons, Senate, and legislative assemblies of at least seven provinces representing at least one-half of the total provincial population could promulgate such a radical amendment to sections 51(1) and 52 of the Constitution Act, 1867. [14] In any event, the decision on whether to adopt some method of proportional representation remains a political question and not a justiciable matter on which the courts can impose their judgement.
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Notes
[1] Fair Vote BC v Canada (Attorney General), 2025 ONCA 581, at para. 9.
[2] Fair Vote BC v Canada (Attorney General), 2025 ONCA 581, at para. 8.
[3] Kent Roach, “Chartering the Electoral Map into the Future,” in Drawing the Map: Equality and Efficacy of the Vote in Canadian Electoral Boundary Reform, edited by David Small, 3-92 (Toronto: Minister of Supply and Services Canada, 1991), 11; Reference re Bill 30, An Act to Amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 SCR 1148, at para. 62.
[4] Ruth Sullivan, Sullivan on the Construction of Statutes, 6th edition (LexisNexis, September 2014), at section 14.27 and page 448.
[5] Sullivan, Sullivan on the Construction of Statutes, at section 14.26 and page 447.
[6] Reference Re: Senate Reform, 2014 SCC 32, at paras. 25-26
[7] Sullivan, Sullivan on the Construction of Statutes, at section 9.46 and page 276.
[8] An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act, S.C. 2011, 60 Elizabeth II, chapter 26, at preamble, at page 1.
[9] An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act, S.C. 2011, 60 Elizabeth II, chapter 26, at preamble, at page 1.
[10] Representation Act S.C., 1974, c. 13; Representation Act S.C., 1986, c.8, at s.3. Section 3 said that Part I would be cited as the Constitution Act, 1985 (Representation).
[11] An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act, S.C. 2011, 60 Elizabeth II, chapter 26, at preamble, at page 1.
[12] An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act, S.C. 2011, 60 Elizabeth II, chapter 26, at preamble, at page 2.
[13] An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act, S.C. 2011, 60 Elizabeth II, chapter 26, at preamble, at page 2.
[14] J.W.J. Bowden, “The Origins of Canada’s Electoral System and the Constitutional Considerations of Electoral Reform,” Journal of Parliamentary and Political Law 14 no. 1 (June 2020): 159-163.
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