Here’s my less hasty take on the New Democrats’ anti-constitutional policies on electoral redistribution. I had forgotten to mention Section 52 of the Constitution Act, 1867! The National Post also published this as a column entitled, “Favouring Quebec in Parliament Is Illegal.”
In the last Parliament, the Harper government introduced legislation to expand the House of Commons by about 30 seats in order to accommodate the growing populations of Alberta, British Columbia, and Ontario – all of which are currently under-represented. The New Democrats opposed giving these three provinces more seats, unless Quebec also receives additional seats. This argument is anti-constitutional. Yet so far, neither the Harper government itself nor the Parliamentary Press Gallery have criticized the New Democrats’ anti-constitutional stance.
Section 52 of the Constitution Act, 1867 sets out the fundamentals of our electoral system: “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.” Proportionate Representation means representation proportionate to population of each province in a single-member plurality (first-past-the-post) electoral system. Section 52 necessarily means that no province may receive additional seats that its population does not warrant. 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 this section of the Constitution Act, 1867.
The Conservatives introduced Bill C-12, An Act to Amend the Constitution Act (Democratic Representation) in the last Parliament. It would amend section 51 of the Constitution Act, 1867 by changing the formula by which seats in the House of Commons are distributed and allocated amongst the provinces after each decennial census. Since this legislation would only change the formula, and not the principle, of representation by population, the Parliament of Canada alone can amend the Constitution Act, 1867 by passing this bill. The use of this new amending formula would set the number of persons per riding at 108,000, and therefore allocate 30 new seats to Alberta, British Columbia, and Ontario, whose ridings generally contain far more people than the national average.
The NDP proposed that Quebec maintain a fixed percentage of the seats in the House of Commons (something like its current 23%), which means that Quebec would automatically gain new seats every time the House of Commons is expanded to take into account population growth in other provinces, irrespective of increases or decreases in Quebec’s population. The New Democrats’ proposal could only be implemented by amending Section 52; however, because an amendment to this section would change “the principle of proportionate representation”, it would require the use of the general amending formula (the Parliament of Canada and 7 provincial legislatures representing at least 50% of the total Canadian population), not simply the Parliament of Canada alone as with Section 51. For their part, the New Democrats have never presented their case as a constitutional amendment – even though they necessarily need to do so. Perhaps the Conservatives haven’t criticized the New Democrats openly because they don’t want to be put in the difficult political position of opposing Quebec.
The Harper government ought to reintroduce this bill in the current 41st Parliament and ensure that the Conservative majority passes it as soon as possible so that the provincial boundary commissions can complete their work in time for the next federal election, likely in 2015. And the media should not continue to let the New Democrats get away with making blatantly anti-constitutional remarks and indeed, criticize them when they do. The New Democrats are now Her Majesty’s Loyal Opposition, and therefore the alternate government, so their policies must be subjected to the light of public scrutiny.