The House of Commons special committee on electoral reform has started hearings into alternatives to the first-past-the-post system that has been at the core of Canadian democracy since Confederation. No matter which model it ends up proposing, significant changes to how MPs are selected and, accordingly, how our federal government is formed must be referred to the Supreme Court of Canada and a referendum should be held. Any major electoral reform proposal should first be referred to the top court to guarantee that it is within the exclusive jurisdiction of Parliament to adopt. Only this will ensure the legality of proposed changes.
When the former Conservative government wanted to reform how senators were selected, the Liberals were adamant that the court be consulted. In the 2014 reference case, the court ruled that consultative elections for senators triggered the general amending procedure in the Constitution, requiring approval of at least seven provinces representing at least 50 per cent of the population. This scuttled the government’s attempt to unilaterally adopt legislation to that effect.
In a reference decision on electoral reform, the court would determine whether Parliament has the authority to change the rules by which MPs are chosen or whether provincial approval is required, and to what extent. There is some uncertainty as to whether Parliament has such power acting alone, which may vary depending on the electoral model chosen.