The Canadian Study of Parliament Group held its fall business seminar earlier today, and the second panel discussion featured Professor of Law and former Minister of Intergovernmental Affairs of Quebec, Benoit Pelletier; former Liberal cabinet minister and the second Liberal leader since Edward Blake who never became Prime Minister, Stephane Dion; and Paul Dewar, MP for Ottawa Center and candidate for the leadership of the New Democratic Party.
The panel discussed the talking points of Minister of State for Democratic Reform Tim Uppal with respect to the Harper government’s agenda on democratic reforms of the Senate and House of Commons. Uppal confirmed that the Harper government will indeed soon reintroduce Bill C-12 from the last parliament in its original form.
After the panellists finished talking points, I asked Paul Dewar and, as a Professor of Law, Benoit Pelletier, about the constitutionality of the New Democrats’ and Pelletier’s idea that Quebec receive more seats than its population warrants. I said something to the effect: “James Bowden, University of Ottawa. I’m directing this question primarily at MM Pelletier and Dewar. The Harper government introduced legislation in the last parliament that would amend Section 51 of the Constitution Act, 1867 and the formula by which seats in the House of Commons are allocated. But let’s look at Section 52 as well. It says that ‘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 of course representation by population. Wouldn’t the New Democrats’ current proposal that Quebec receive additional seats that its population does not warrant ‘disturb’ the principle of rep by pop and therefore be unconstitutional?”
Paul Dewar dodged the specific question on section 52; however, he still revealed some interesting information in his response. He replied that the New Democrats are preparing counter-legislation that would recognize Quebec’s cultural distinctiveness as a nation by rewarding the province with a fixed proportion of 24% of the seats in the House of Commons. The idea of awarding Quebec one or two extra seats once might withstand a legal challenge in the courts with respect to section 52, because, as Benoit Pelletier pointed out, Canada has never followed representation by population strictly. However, legislation that would fix a specific proportion of seats in the House of Commons would clearly “disturb” the principle of representation by population that Section 52 enshrines. And Section 42 of the Constitution Act, 1982 (the general amending formula) stipulates that any legislation that alters “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada” must receive the support of at least 7 provincial legislatures representing 50% of the population. But as Stephane Dion pointed out to me, the Regional Veto Act, 1996 that Chretien devised in order to appease Quebec after the referendum has practically rendered the general 7/50 amending formula into the unanimity formula. In other words, our constitution has become virtually impossible to amend – and Paul Dewar`s bill must necessarily be presented as a constitutional amendment.
Benoit Pelletier further argued that because section 51A of the Constitution Act, 1867 codifies the Senate Floor Rule (which states that a province shall not possess fewer seats in the House of Commons than it does in the Senate) and because provinces don’t lose seats, Canada has never followed strict representation by population. This is true — however, Pelletier is ignoring the obvious counter-point: these provisions that explicitly “disturb” the principle of rep by pop are only constitutional because they appear as constitutional amendments. In other words, the New Democrats’ proposal will remain unconstitutional unless it becomes an amendment to Section 52. And in order to become an amendment to Section 52, the federal parliament and at least 7 provincial legislatures representing 50% of the population must pass identical legislation. This will never happen! I can guarantee Pelletier and Dewar that none of the Western provinces will ever allow Quebec to retain 24% of the seats in the House of Commons in perpetuity. The Charlottetown Accord would have codified this principle (with a fixed proportion at 25%), but Canadians rejected it in a national referendum in 1992.
Paul Dewar criticized the Conservatives for taking the electorate for fools. In reality, it is the New Democrats who take us all for fools: they’ve assimilated the mythology of Quebecois nationalism that fixates on Quebec as the humiliated victim of the federation and then sing siren songs of enshrining Quebec’s nationhood into the constitution as if they wouldn`t need to follow an amending formula and obey the Constitution of Canada. I expected that Paul Dewar, as a leadership candidate from Ontario, would have sought to differentiate himself from Brian Topp by taking a principled stance against the Quebec nationalist ethos that has now taken over the New Democratic Party. But I was wrong. The New Democrats` transformation to Le nouveau bloc quebecois is complete.