Recent statements of Thomas Mulcair and Nycole Turmel on electoral redistribution are not only wrong, but contradict the Constitution Act, 1867. Yet so far, neither the Harper government itself nor the Parliamentary Press Gallery have called them out.
In the 40th Parliament, the Harper government introduced legislation to allow for the expansion of the House of Commons in order to accommodate the growing populations of Ontario, Alberta, and British Columbia, which are currently under-represented. The Harper government’s proposal legislation Bill C-12, An Act to Amend the Constitution Act (Democratic Representation) would thus amend section 51 of the Constitution Act, 1867 by changing the formula from 1986 by which seats in the House of Commons are distributed and allocated amongst the provinces. Elections Canada provides a succinct summary of the current formula of electoral redistribution from 1986, which as the chart shows, uses the number of seats in the House of Commons from 1976 as the “electoral divisor” in determining all subsequent expansions of the House. In contrast, the Harper government’s legislation would amend the “electoral divisor” of section 51 to the national average of citizens per constituency upon the 40th general election of 108,000. Each province’s number of seats equals the province’s population divided by the electoral divisor. For instance, according to Statistics Canada, the population of Ontario reached 13,210,000 in 2010. By the formula contained in Bill C-12, Ontario would obtain 130 seats, whereas today Ontario only possesses 106. Rule 2 of Bill C-12 would preserve section 51 A of the Constitution Act (or as Elections Canada describes as the “Senate Floor Rule), which ensures that a province shall possess no fewer seats in the House of Commons than it possesses in the Senate. This Rule 2 would also ensure that if a province lost seats as a result of the above formula, its total number of seats in 1986 would become its new guaranteed constitutional minimum.
Interim Leader Nycole Turmel described this legislation as “really divisible” and “not constructive” because “it’s not nation-building.” Typical of Quebec nationalists, Turmel’s view comes from the idea that Confederation represented a compact between two founding nations, English and French. Therefore, by the comment “it’s not nation-building”, Turmel probably has the Nation quebecoise in mind, and this bill surely would not serve to build up that nation. However, the Harper government’s legislation conforms to and augments the Constitution Act, 1867 by better protecting the principle of “proportionate Representation”. The percentage of seats in the House of Commons allocated to Quebec will decrease – but the absolute number of Quebec’s seats, 75, will always remain intact.
Section 52 of the Constitution Act, 1867 has thus far never been amended: “The Number of Members of the House of Commons may be from Time to Time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.” (Try to ignore the capitalization of all nouns that affects English-language writing up to the 19th century based on the German style!) In 1867, the phrase “proportionate Representation” meant representation proportionate to population of each province in the context of a single-member plurality electoral system; it does NOT correspond to the modern usage of “proportional representation” and proportional electoral systems, like New Zealand’s. Clearly, the New Democrats’ suggestion that Quebec receive additional seats that its population does not warrant would “disturb” the principle of proportionate Representation and therefore violate the Constitution Act, 1867. Section 52 necessarily means that a province may only receive additional seats proportionate to its growth in population since the last electoral distribution, and that no province may receive additional seats that its population does not warrant.
Today, the Vancouver Sun reported on Thomas Mulcair’s anti-constitutional remarks in “NDP not ‘pandering’ to Quebec over more Western seats, Mulcair says”. Mulcair raised the stakes in the New Democrats’ competition as to which MP can make the most anti-constitutional argument by citing a decision of the Supreme Court of Canada incorrectly. The case Reference re Prov. Electoral Boundaries (Sask.),  2 S.C.R. 158 dealt with the Government of Saskatchewan’s redistribution of the boundaries of its electoral districts within Saskatchewan based on an act of the Legislative Assembly of Saskatchewan and whether the actions of the boundary commission were in accordance with section 3 of the Charter (democratic rights on voting). This case from 1991 has absolutely nothing to do with the federal redistribution of seats and the allocation of seats to each of the ten provinces as per sections 51 and 52 of the Constitution Act, 1867. In other words, the Electoral Boundaries case is completely irrelevant to the New Democrats’ argument and serves as a perfect example of the “red herring” logical fallacy.
The New Democrats have also suggested over the past few months that the province of Quebec should possess 25% of the seats in the House of Commons, and thus should receive additional seats in the next electoral redistribution and expansion of the House of Commons. There is simply no legal or constitutional basis for this argument. The Charlottetown Accord would have codified the principle in the written constitution that Quebec maintain 25% of the seats in the House of Commons, but the Canadian electorate rejected the Charlottetown Accord in 1992, which ensured that this provision never found its way into the Constitution Acts.
In light of all these blatantly false, anti-constitutional arguments, the New Democratic Party might as well renamed itself Le nouveau bloc québécois anti-constitutionnel.
*I thank my girlfriend, third-year law student Sarah Hagen, who first alerted me to sections 51 and 52 and its ramifications for the New Democrats’ blatantly anti-constitutional positions earlier this summer and thus helped focus my research on this important topic!