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Confederation, and because when Parliament first passed the Electoral Boundaries Readjustment Act in 1964, it thereby repealed section 40 of the British North America Act, including the provision for the dual-member constituency for Halifax.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 Upon the election of the 42nd Parliament in 2015, it became out of date in practice, but its reference to 308 MPs had become obsolete in principle as early as December 2011 when the Fair Representation Act entered into force with a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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