Canada’s former chief electoral officer sparked plenty of online debate this week when he declared that a referendum on changing Canada’s voting system would be impossible under current rules.
Jean-Pierre Kingsley made the comments on Sunday’s edition of The West Block, leaving many people to wonder if the opposition Conservatives failed to actually read the rulebook before calling loudly for a national vote on electoral reform.
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So are the Liberals legally able to call a referendum to ask Canadians about how they want to vote in the next election?
That depends on who you ask, and how they interpret the law.
Kingsley, the head Elections Canada from 1990 to 2007, told Tom Clark on Sunday that there are a strict set of criteria for what kinds of things can be the subject of a national referendum.
“You can only hold a federal referendum in Canada on a constitutional matter,” he said. “And changing the electoral system is not a constitutional matter.”
Kingsley was likely referring to a specific line in the Referendum Act that states a referendum can be called to obtain “the opinion of electors on any question relating to the Constitution of Canada.”
But other experts, including University of Waterloo political science professor Emmett Macfarlane and Leonid Sirota, who blog regularly on matters related to the Canadian Constitution, vehemently disagree with Kingsley.
On Tuesday, Macfarlane told Global News that while the first-past-the-post voting system isn’t mentioned specifically in the text of the Constitution, there are several other provisions that are directly linked to that system, including ones related to the establishment of electoral districts and seat distribution in the House of Commons.
That’s enough to make the leap and declare electoral reform a constitutional matter, he argued.
“You can imagine how certain types of electoral reform could affect any of these (electoral district or seat distribution) provisions,” Macfarlane added.
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The Supreme Court of Canada has also weighed in about what a “constitutional matter” might include in recent years, and it was a broad definition.
“The Constitution extends well beyond just the written Acts of 1867 and 1982,” Macfarlane said. “(It’s) what the court calls the ‘constitutional architecture.'”
Meanwhile, other lawyers and politicians (like Elizabeth May) have been defending Kingsley’s view.
According to Macfarlane, individual views on the legality of a referendum seem to line up with whether a person wants to see a change in the voting system in the first place. People opposed to making changes have tended to believe a referendum is legally possible, he said, while those who favour reform tend to argue it isn’t.
“That’s a terrible way to have a debate, because what it can end up doing is causing more confusion for the average voter about how the system actually works.”
At the end of the day, he added, the whole debate is somewhat pointless. Even if the current rules on referendums don’t allow electoral reform to be taken to a vote, Parliament could enact new legislation that would make it possible.
Right now, that seems unlikely to happen. The Liberals have stated repeatedly that they are consulting with Canadians through other means, and will not commit to a referendum vote.
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