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Apr 06, 2010

Who’s Afraid of Rep-by-Pop?

April 6, 2010

The Mowat Centre publishes editorial by it’s director Matthew Mendelsohn on voting rights and the representation by population system.

Last month, the federal government honoured its campaign commitment to address the under-representation in the House of Commons of Canadians living in Ontario, British Columbia and Alberta. By introducing legislation to add new seats for provinces with rapidly growing populations, Canada will come closer to living up to its constitutional commitment to representation by population.

The status quo has become untenable.

The current distribution of seats is contrary to the Canada’s founding principles. Representation by population – the notion that all Canadians are equal and all have equal power in determining who will govern – is entrenched in our constitution and was widely accepted as a core principle at the time of Confederation. Many Canadians are unaware of just how important “rep-by-pop” was as a founding principle in our Constitution.

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It has therefore been all the more troubling that deviations from rep-by-pop have grown steadily over the past three decades. Today, they are larger than they have ever been. Although Canadians rightly tolerate some deviations from the rep-by-pop principle in order to ensure sparsely populated regions or small provinces would have their voices heard, we are now way beyond anything we have seen in Canadian history.

Our recent willingness to violate the principle of voter equality is far out of line with international practice in comparable federations. When compared to countries like Australia, the United States, Switzerland and Germany, deviations in Canada far exceed those tolerated in other democratic federations.

The current distribution of seats may very well be unconstitutional. The last time courts weighed in on these specific questions was in 1987, in a case brought by then mayor of Vancouver Gordon Campbell. At that time, the Supreme Court of British Columbia found that the deviations from rep-by-pop were acceptable because voter equality had to be balanced with other considerations. However, the courts did not find that any and all deviations were acceptable, regardless of size. Clearly, at some point, deviations go beyond what is justifiable and the delicate balance between voter equality and protecting smaller provinces is upset.

Since 1987, deviations from rep-by-pop have increased dramatically. Because there is a very clear commitment in the Canadian constitution to rep-by-pop amongst the provinces, it is very possible that courts would find the current distribution of seats to be unconstitutional.

The constitutionality of the current practice is even more dubious because Canadians whose votes count for less are more likely to be visible minorities and new Canadians. This was obviously not the intent of Canada’s allocation formula, but it is the result. New Canadians are concentrated in the rapidly growing provinces of BC, Alberta and Ontario, particularly in their major cities. It is these provinces – and their major cities – that are discriminated against in the current allocation. Treating Canadians in these three provinces unfairly therefore means treating visible minorities unfairly. This is an argument that has never been considered by Canadians or by courts.

The introduction earlier this month of new legislation is therefore good news, but we’re still far away from rep-by-pop in Canada – a principle we shall never attain in Canada.

The legislation, if passed, wouldn’t apply until after the next census results arrive in 2011 and independent boundary commissions are struck in each province. The next federal election will therefore be fought using existing – and perhaps unconstitutional – boundaries.

Due to constitutional guarantees for smaller provinces – in particular the provision that says that no province can have fewer seats in the House than it has in the Senate – Canada will never have true rep-by-pop. The proposed legislation doesn’t deliver “rep-by-pop.” It instead returns Canada to a healthy balance between voter equality and protection for Canadians in smaller provinces. It is a classic Canadian compromise between various principles.

Because of the way the Bill is drafted, it is only a temporary fix, effective after the 2011 census. We are likely to see the same problems emerge again over the next decade. The only way to comprehensively address current concerns would be to allow provinces to lose seats if their population declines. This is something that no Canadian government seems prepared to permit.

While the Bill is good news, the legislation still must pass. The Conservatives and Liberals are supporting the Bill, while the Bloc Quebecois is opposed. What is disappointing is that the NDP – a party that often claims to speak for multicultural Canadians clustered around cities like Vancouver and Toronto – has chosen to abandon the interests of these Canadians.

While the NDP continues to embrace its never-ending quixotic search for an electoral breakthrough in Quebec, the Conservatives, on the other hand, have changed their strategy in a meaningful way. They are proclaiming for all to hear that they are comfortable doing battle for votes amongst multicultural, suburban Canadians – voters once considered loyal Liberals. The Conservatives have seen the future and understand that their long-term success depends on them doing better with new Canadians than they have in the past. If the Conservatives are successful, the face of electoral competition in Canada will have changed dramatically.

Author

Matthew Mendelsohn

Release Date

April 6, 2010

ENTIRE ACTUAL ARTICLE PASTED AND HIDDEN HERE.

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