Who Updates Section 37 of the Constitution Act, 1867?


Does the executive, through the Department of Justice, write the indirect amendment of section 37 separate from any parliamentary action?

Does the executive, through the Department of Justice, write the indirect amendment of section 37 separate from any parliamentary action?

Whenever I re-read the Constitution Act, 1867 — the statute formerly known as the British North America Act, 1867 –, I always see something interesting which I hadn’t noticed before.

I’m currently drafting a response to Professor Pilon’s strawman summary of my arguments on electoral reform and the fact that the rules contained in section 51 of the Constitution Act, 1867, coupled with sections 14 and 15 of the Electoral Boundaries Readjustment Act (which refer back to the electoral quotient contained in section 51), necessarily mean that we elect MPs under a single-member plurality voting system. Pilon has pointed out, correctly, that this was not always the case. But this is because section 51 has been amended several times since Confederation, and because when Parliament first passed the Electoral Boundaries Readjustment Act in 1964, it thereby repealed section 40 of the British North America Act, including the provision for the dual-member constituency for Halifax. The Electoral Boundary Readjustment Act also precluded the possibility of any other dual- or multi-member constituencies. At any rate, the current rules under section 51, which Parliament passed through a Section 44 constitutional amendment in 2011, most certainly do require single-member constituencies.

In a way, I have to thank Pilon, because I have been able to demonstrate that my core arguments in “Time Has Run Out on Electoral Reform” still hold up, despite all his best efforts, and because if it were not for Pilon’s strawman, I probably would not have re-read the sections of the Constitution Act, 1867 that pertain to the electoral system and would therefore not have discovered the little gem that I’m about to share with you.

Section 37 of the Constitution Act, 1867 presents something of a curiosity. It defines the House of Commons as consisting of 308 seats instead of 338. Upon the election of the 42nd Parliament in 2015, it became out of date in practice, but its reference to 308 MPs had become obsolete in principle as early as December 2011 when the Fair Representation Act entered into force with a new electoral quotient and it became clear that the House of Commons would expand beyond its 308 seats. The Chief Electoral Officer’s most recent Representation Order, promulgated under the authority of the Electoral Boundary Readjustment Act on 27 September 2013, confirmed that the House of Commons would consist of 338 seats after the next general election. This Representation Order entered into force in 2014. The version of the Department of Justice’s consolidated Constitution Acts available online as a PDF dates from 1 January 2013, which only partially explains the anomaly.

The House of Commons shall, subject to the Provisions of this Act, consist of three hundred and eight members of whom one hundred and six shall be elected for Ontario, seventy-five for Quebec, eleven for Nova Scotia, ten for New Brunswick, fourteen for Manitoba, thirty-six for British Columbia, four for Prince Edward Island, twenty-eight for Alberta, fourteen for Saskatchewan, seven for Newfoundland, one for the Yukon Territory, one for the Northwest Territories and one for Nunavut. (20)

The accompanying footnote 20 presents even more of an enigma, since it does not explain precisely how or when or by what measures section 37 “has been altered from time to time.”

(20) The figures given here result from the application of section 51, as enacted by the Constitution Act, 1985 (Representation), S.C. 1986, c. 8, Part I, and amended by the Constitution Act, 1999 (Nunavut), S.C. 1998, c. 15, Part 2, and readjustments made pursuant to the Electoral Boundaries Readjustment Act, R.S.C. 1985, c. E-3. The original section (which was altered from time to time as the result of the addition of new provinces and changes in population) read as follows:
37. The House of Commons shall, subject to the Provisions of this Act, consist of one hundred and eighty-one members, of whom Eighty-two shall be elected for Ontario, Sixty-five for Quebec, Nineteen for Nova Scotia, and Fifteen for New Brunswick.

The footnote says that the “figures given here result from the application of section 51”, but this ambiguous phrasing does not explain how those rules are applied and when Parliament is supposed to update this section. More curiously still, the footnote cites the Constitution Act, 1985 (Representation), which the Fair Representation Act, 2011 repealed and replaced with the new set of rules in section 51. So the Department of Justice consolidated this PDF version of the Constitution Acts as of 1 January 2013, and therefore included the new section 51, which entered into force in 2011, but it did not update this footnote to explain why the current section 37 is out of date and why it refers to a repealed constitutional amendment from 1985 instead of to the new section 51 that it includes later on! The footnote also mentions the Constitution Act, 1999 (Nunavut), but the figure of 308 seats mentioned in section 37 dates from after 1999. In 1999, the House of Commons consisted of 301 seats. The first general federal election in which Canadians elected 308 MPs occurred in 2004. In that case, the House of Commons had gained an additional 7 seats based on the Decennial Census of 2001 and the section 51 formula from 1985.

Parliament last amended the rules under section 51 through the Section 44 Constitutional Amending Formula in December 2011 and An Act to Amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act, and the Canada Elections Act, better known by its short title, the Fair Representation Act. This act, which doubles as a constitutional amendment, altered section 51 of the Constitution Act, 1867 as well as section 14(1) of the Electoral Boundary Readjustment Act, which refers to the electoral quotient contained in section 51 of the Constitution Act. Section 51 of the Constitution Act, 1867 and key provisions of the Electoral Boundary Readjustment Act are therefore inexplicably linked and bound to one another. However, the Fair Representation Act only amended section 51 and did not provide for a means of amending section 37 of the Constitution Act, 1867, which states the total number of seats per province in the House of Commons. The Electoral Boundary Readjustment Act also lacks any provision for updating section 37 of the Constitution Act, 1867. Parliament would therefore presumably have to pass separate legislation, as a Section 44 Constitutional Amendment, in order to update this provision. But another clue suggests that it, rather extraordinarily, would not.

The introductory pages to the Department of Justice’s consolidation of The Constitution Acts, 1867-1982 mentions something called a “non-textual amendment,” some of which were enacted by the Westminster Parliament prior to 1982, and some of which have been enacted by the Parliament of Canada and by provincial legislatures.

Alterations by Parliament of Canada
Provisions subject to alteration by the Parliament of Canada (e.g. section 37) have been included in the text in their altered form, wherever possible, but where this was not feasible (e.g. section 40) the original section has been retained in the text and a footnote reference made to the Act of the Parliament of Canada effecting  the alteration.

The Department of Justice’s consolidation of The Constitution Acts, 1867-1982 from 1 January 2001 (I only have this as a paper copy) contains a slightly different introduction. It classifies alterations to section 37 under the heading “Indirect Amendments” instead of “Non-Textual Amendments”. Incidentally, “Indirect Amendment” seems more accurate than “Non-Textual Amendment,” given that section 37 is, by definition, part of the text of the Constituiton Acts.  This in turn raises a strange possibility: that the Parliament of Canada does not alter section 37 at all; instead, the Department of Justice itself alters section 37 as it releases updated consolidations of the Constitution Acts — which sounds unconstitutional and contradicts the very purpose of a legislative provision. How could the executive re-write a law unilaterally? Nevertheless, this would explain why I cannot find any record of Parliament having altered section 37 directly under the Section 44 constitutional amendment formula. (If I missed something, please do let me know in the comments). This notion would also explain the Department of Justice’s clever use of the passive voice in the aforementioned footnote 20, in the phrase “The original section (which was altered from time to time […]”, as well as the ambiguous construction in the phrase “The figures given here result from the application of section 51,” which, while not in the passive voice, still conceals the source of the alterations. How, precisely, do those numbers “result from” section 51? If anything, they “result from” section 51 of the Constitution Act, 1867, the Electoral Boundaries Readjustment Act, and the Chief Electoral Officer’s Representation Order, which is promulgated by order-in-council purusant to the Electoral Boundaries Readjustment Act.

The closest equivalent to an amendment to section 37 of the Constitution Act, 1867 can be found in the Representation Order of 2013, which the Harper government promulgated by order-in-council pursuant to the authority of section 24 of the Electoral Boundary Readjustment Act.

Section 24 (2) of the Electoral Boundaries Readjustment Act says:

(2) The draft representation order shall (a) specify the number of members of the House of Commons who shall be elected for each of the provinces as calculated by the Chief Electoral Officer under subsection 14(1); and
(b) divide each of the provinces into electoral districts, describe the boundaries of each such district and specify the population and name to be given thereto, in accordance with the recommendations contained in the reports referred to in subsection (1).

The Representation Order from 2013 says:

Prepared and transmitted to the Minister, pursuant to section 24 of the Electoral Boundaries Readjustment Act (chapter E-3 of the Revised Statutes of Canada, 1985), as amended

Seven members of the House of Commons shall be elected for the Province of Newfoundland and Labrador, four for the Province of Prince Edward Island, eleven for the Province of Nova Scotia, ten for the Province of New Brunswick, seventy-eight for the Province of Quebec, one hundred and twenty-one for the Province of Ontario, fourteen for the Province of Manitoba, fourteen for the Province of Saskatchewan, thirty-four for the Province of Alberta and forty-two for the Province of British Columbia.

The Representation Order therefore provides the closest approximation to section 37 of the Constitution Act, 1867. However, it does not list the provinces in the same order of precedence as does section 37, and it also excludes the territories — presumably because their ridings were never “redistributed”, since the entire Yukon Territory, the entire Northwest Territories, and Nunavut as a whole each form individual constituencies whose borders correspond precisely to the territories’ respective borders.

I first noticed something odd about section 37 earlier this week but couldn’t quite put my finger on it. The passive voice and ambiguous wording in footnote 20 piqued my curiosity and confirmed that I was onto something, rather like how Woodward and Bernstein knew for certain that they had stumbled onto something significant with the Watergate break-in when the White House Press Secretary, without prompting, dismissed it as a “third-rate burglary.”  From my decade in Ottawa, I have observed that both lawyers and civil servants love the passive voice because it conceals the subject of the sentence and therefore offers plausible deniability and allows the speaker to absolve himself of responsibility. Those in the Department of Justice who compiled this consolidation of the Constitution Acts are both lawyers and civil servants; they therefore must doubly approve of the passive voice.

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Some Thoughts on Typewriters


typewriter-3typewriter-1

I’m doing my part to make typewriters great again.

Posted in Random Thoughts | 3 Comments

Some Thoughts on Censorship


Tearing down the statue of George III destroyed monarchy as a form of government everywhere, the world over.

Tearing down the statue of George III destroyed monarchy as a form of government everywhere, the world over.

Two years ago, I posted a photo of a coffee mug that bore a text with whose premise I disagree. I found it humourous, but I disagreed with it. I suppose that an activist type might claim to have been “offended” or “triggered” by it. One of my acquaintances reacted in a way that I found odd and surprising: this person suggested that I should have destroyed the mug. First, it was not mine, so destroying someone else’s property at the office probably would not have gone over well. Second, destroying something simply because it symbolizes something with which I disagree would be incredibly puerile, infantile, emotive, and stupid. It would also accomplish nothing. Third, I then came to suspect that this person believed that destroying the object would somehow destroy the idea itself.

I watched an interview with Stephen Fry, and the disjointed thought that first occurred to me in amorphous form finally turned into something more concrete, like how a super-cooled liquid will solidify instantly around a solid object introduced to its environment.

At 6:40, Fry discusses this new trend of removing statues of historical figures whose ideas and beliefs seem repugnant today. Fry noted that some historical figures who, like Cecil Rhodes and Rudyard Kipling, were once beloved but have now “become, in a very 1984-like way, unpersons.”

Fry adds at 8:03: “But to remove his statute strikes me as being stupid. The way to fight colonialism, and the ideas behind it, is not to pull down statues. It is actually to reveal, to say who he is, ‘This is who this man was: look at him.'” In other words, if you disagree with colonialism, then you should explain why in a rational argument instead of tearing down a statue of someone who represents colonialism.

Censorship is based on the primitive and infantile belief that destroying an object which represents an idea (like a book or any other written thing bearing the text of an argument, or a statue or idol or other non-textual visual symbol) somehow thereby also destroys the idea itself. Censorship therefore signifies a triumph of primitive, infantile, emotive volatility over reason and rational argument.

What I’m describing here has been identified by psychologists and evolutionary biologists as a primitive form of cognitive bias, sometimes known as “Appearance Equals Reality.” The object that propagates or represents an idea that one hates becomes the idea that one hates. Therefore, destroying the object will destroy the idea. Since it is a cognitive bias, it is, by definition, irrational and instinctive.

Dan Gardner in his book Risk exposes this cognitive bias through an interesting personal account of his experience of being pick-pocketed in Nigeria. In his self-described agitated state at that moment, he became obsessed with tracking down the thief who stole his wallet — despite the great physical risk to himself with no material gain– mainly because he wanted to take back a photograph of his children that had kept in it. He writes that the following morning, he realized how irrational his fixation was, given that he had other photographs just like it back home. He adds that he had reacted on instinct: the photograph of his children was his children. He reacted the way that he did the night before because he was trying to rescue his children, and not merely take back a photograph of his children.

I would therefore posit that impetus which some activists demonstrate in their desire to ban and censor certain material that either expresses (as in writings) or represents (as in a statue of Cecil Rhodes at Oxford University) ideas with which they disagree or find “triggering” or “offensive” ultimately stems from this primitive cognitive bias of “Appearance Equals Reality.” Subconsciously, they believe that destroying or banning something which propagates or represents an idea will destroy the idea itself and thereby prevent them from having to reckon with or deal with that idea, and prevent others from ever independently coming up with the same or a similar idea in the future. This cognitive bias is sentimental and infantile, because acting out on this instinct allows someone to throw a tantrum and destroy or burn something instead of engaging with the material and devising a reasonable argument on why the ideas contained or implied therein are bad and ought to be rejected.

Censors are, above all, barbarians. Like the Huns and Visigoths who plundered cities in the Roman Empire, they would sack the city of knowledge, set it ablaze, and raze it into the dust instead of contributing their own ideas to refute existing ones.

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Toronto’s City Hall Perfectly Represents Toronto Itself


Never has architecture so perfectly represented attitude

Never has architecture so perfectly represented attitude

A few years ago, I took the train from Ottawa to Toronto. For whatever reason, I became transfixed at this portrait of Toronto’s city hall mounted to the front of the passenger car. I started at it for a minute or so and then suddenly saw why I have become fascinated by it: the very architecture of Toronto’s city hall so perfectly represents Toronto and Torontonians.

This edifice consists of two concave towers built in like a fishbowl relative to one another. But curiously, all of the windows are built on the inner-concave sides so that the two towers look upon each other, while the outer-concave sides of the two towers are covered in a brutalist concrete facade and have no windows at all.

So, what is Toronto’s city hall? This building is open only to itself, whose large windows face only the other tower so that the city hall can marvel upon itself and become enthralled with itself, and it remains completely closed off to the rest of the world, to which it presents a brutalist, expressionless concrete wall — as if the rest of the world were unimportant because Toronto is the center of the universe.

That is why Toronto’s city hall so perfectly represents Toronto and the attitudes of Torontonians. Furthermore, I imagine that anyone who is not from Toronto will find this post funny, while Torontonians themselves would at first instinctively recoil in disgust and then find me obnoxious and petty for having made this observation.

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Posted in Humour & Satire | 4 Comments

Collective Ministerial Responsibility and Censure in Australia


One of my Australian readers commented on the previous post and linked to House of Representatives Practice, the Australian equivalent of O’Brien and Bosc’s tome, and its commentary on the censure of an individual minister.

Prime Minister and other Ministers

From time to time a specific motion of censure of or no confidence in a particular Minister or Ministers may be moved by the Opposition. The first case occurred in 1941, but the motion lapsed for the want of a seconder.[295] Such motions have become comparatively frequent in recent years,[296]often being directed at the Prime Minister. While the standing orders provide that a motion of censure of or no confidence in the Government shall have priority of all other business if it is accepted by a Minister as a censure or no confidence motion, there is no similar provision in respect of a motion of censure of or no confidence in a Minister. Such a motion is therefore, at least in theory, treated in the same way as any other private Member’s motion, including the speech times applicable to an ordinary motion, although after such a notice of motion has been given, standing orders may be suspended to enable the motion to be moved immediately.[297] It is common for Members, instead of lodging notices of such motions, to move to suspend standing orders to enable them to be moved immediately,[298] or for the substantive motion to be moved by leave.[299] A motion of censure of a Minister has been initiated by government action—the Leader of the House moving to suspend so much of standing orders as would prevent a shadow minister being compelled to move a motion of censure of the Minister ‘in place of the innuendo and imputation he is attempting to make by means of questions without notice’.[300]

A vote against the Prime Minister would have serious consequences for the Government. If the House expressed no confidence in the Prime Minister, convention would require that, having lost the support of the majority of the House of Representatives, the Ministry as a whole should resign, or alternatively the Prime Minister may advise a dissolution. The only occasion that a motion of censure of or no confidence in a Prime Minister has been successful was on 11 November 1975, when, following the dismissal of the Whitlam Government, a motion of no confidence in newly commissioned Prime Minister Fraser was agreed to. The terms of the motion also requested the Speaker to advise the Governor-General to call another Member, the former Prime Minister, to form a Government. The sitting was suspended to enable the Speaker to convey the resolution to the Governor-General, but did not resume as the House was dissolved by proclamation of the Governor-General.[301]

No motion of censure of or no confidence in an individual Minister (other than the occasion mentioned in respect of the Prime Minister in 1975) has been successful in the House. The solidarity of the Ministry and the government party or parties will normally ensure that a Minister under attack will survive a censure motion in the House. The effect of carrying such a motion against a Minister may be inconclusive as far as the House is concerned, as any further action would be in the hands of the Prime Minister, but parliamentary pressure has caused the resignation or dismissal of Ministers on a number of occasions.[302]

If a motion of no confidence in, or censure of, a Minister were successful and its grounds were directly related to government policy, the question of the Minister or the Government continuing to hold office would be one for the Prime Minister to decide. If the grounds related to the Minister’s administration of his or her department or fitness otherwise to hold ministerial office, the Government would not necessarily accept full responsibility for the matter, leaving the question of resignation to the particular Minister or to the Prime Minister.

A motion of lack of confidence in a Senate Minister has been moved in the House, and negatived.[303] Motions have been moved expressing no confidence in, or censure of, both the Prime Minister and another Minister.[304]

Interestingly enough, Australian authorities don’t regard such motions as inherently unconstitutional and prima facie breaches of the principle of collective ministerial responsibility. Based on those paragraphs, this is because House of Representatives Practice is taking into account a legitimate censure of an individual minister based on personal misconduct or departmental incompetence, which would also pass constitutional muster in Canada.

Also of interest is that the practice in Australia suggests that a censure of a Prime Minister in particular would amount to a motion of non-confidence in the government as a whole, which is consistent with the principle that the tenure of the Ministry as a whole does indeed depend upon the tenure of the Prime Minister. However, this idea of censuring the prime minister as a stand in for tabling a motion of non-confidence is more similar to the Germany’s “Chancellor Democracy”  than to what one would expect of the British House of Commons or Canadian House of Commons.

This system of kanzlerdemokratie, literally, “chancellor democracy,”[1] alludes to the centrality of the Chancellor relative to the cabinet, whose important flows from Germany’s Basic Law (its codified constitution).[2] After a general election, the President appoints a Chancellor on and in accordance with the Bundestag’s confirmation vote.[3] The Bundestag votes for a Chancellor, not for a party, who could best form a government that could command the confidence of that body. Similarly, the Bundestag can oust a government and propose another through a constructive vote of non-confidence directly at the Chancellor personally, not at the ministry as a whole as in the British and Canadian systems.[4] Ultimately, this flows from the German conception of responsible government and ministerial responsibility. Individual ministerial responsibility, as we understand it in Commonwealth parliamentarism, also exists in Germany, and ministers must take responsibility for the departments and portfolios. As in the Canadian system, the Chancellor assigns ministers their portfolios and can nominate and dismiss them at will. However, collective ministerial responsibility as we understand it in Canada, the United Kingdom, and Australia does not exist in Germany. There the similarities end. Ministers are responsible to the Chancellor for the conduct of their portfolios, not to the Bundestag directly. The Chancellor herself takes responsibility for the ministry as a whole, as per the Basic Law’s provisions on confirmation voting and constructive non-confidence. As Martin and Harrop put it, [The Chancellor] answers to parliament; ministers answer to her.”[5]

Overall, this slight variation in Australia shows the multiplicity of different constitutional conventions, customs, and practices within the Commonwealth Realms. The political institutions of Canada, Australia, and New Zealand are not clones of their progenitors in the United Kingdom; instead, they’re more like the offspring or descendants of their British forebears. They’ve each inherited and emphasised and developed different traits along separate paths. For example, Canada has weak bicameralism, while Australia has developed a powerful bicameralism to the point where its Senate rivals its House of Representatives and contains many “Senate Ministers” in Cabinet, further still to New Zealand, which abolished its Legislative Council in the 1950s and is a unitary state with a unicameral parliament. The idea of a uniform standard of constitutional conventions, norms, customs, and practices across the Commonwealth is as dead as the British Empire and the One and Indivisible Imperial Crown.

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[1] Rod Hague and Martin Harrop, Political Science: A Comparative Introduction, 5th Edition. (New York: Palgrave-MacMillan, 2007), 340.
[2] Ibid.,  341.
[3] Ibid.
[4] Ibid.
[5] Ibid.

 

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