First-past-the-post brought the change that voters were looking for

I write in the aftermath of the May 2 federal election, amid a wide-eyed and surprised electorate. From that surprise I draw some thoughts on voting systems and behaviour, and make some predictions about agenda-setting.

The surprise, of course, is the product of an election that, at its outset, was quite emphatically an election about nothing – one which brought to the surface very few significant policy distinctions among parties and where no scandalous behaviour seized or held public attention. Political leaders and their spokespersons made mistakes, but there was no single vote-polarizing issue evident at the outset, and no single game-changer as the election wore on.

And yet this election-about-nothing drove a meaningful increase in voter turnout, delivered a clear majority mandate to Stephen Harper’s Conservative Party of Canada, dealt a crushing blow to the near-term hopes of the Liberal Party, removed the Bloc Québécois as a political force in Quebec or anywhere else, and firmly installed the New Democratic Party as the official opposition. This unexpectedly clear outcome, this sharp delivery of change to the political landscape, reflects a system that worked. Our archaic first-past-the-post election machinery produced the sort of change that many voters seemed to want and expect.

This rehearsal of numbers pitches actual results against those that would flow from a purely hypothetical proportional norm, fully recognizing that if our system was in fact proportional then parties and voters might have behaved differently. My message, however, is that the existing first-past-the-post mechanism delivered profound change, when so many observers argued that it could or would not.

To be clear, the regional dimension to Canadian voting, and likewise the distinction between Quebecers and voters elsewhere, is hardly new. Nor is it new that vote splits should matter. The regional results of the actual vote, however, do matter in interpreting the political message. One key point is the newly gained, or regained, confluence of political interests between Ontario and the western provinces. As distinct from a generation ago, the Conservative Party’s voting strength, its majority, derives from seats in the west and Ontario, not the west plus Quebec. And this is a result not of change in the west or Quebec, but of Ontario voters’ at least temporary rejection of the federal Liberal Party’s agenda. Things are different in Quebec, where all the usual parties were rejected but the NDP resonated as a resting place for discouraged voters. Hence Quebecers will now be represented by a party mostly lacking operational infrastructure within the province and, for the near term, the ability to operate in French. An odd state of affairs, but one chosen resoundingly by those same voters.

While claiming success for the first-past-the-post electoral mechanism, owing to its demonstrated ability to capture regional dynamics, I hasten to add that mixed-member or multimember proportional systems, a common mechanism for implementing proportional representation, are capable of capturing some of these elements. But in doing so, they are simply capturing what first-past-the-post already does well. The bottom line for this election is that Canada’s creaky old mechanism delivered change where little might have been expected. And lest the point be missed, the new configuration reflects a regional division that again leaves Quebec with a limited role within government. That will matter on some important agenda items that the Conservative majority may wish to address:

• On corporation income tax relief, the Conservatives’ program clearly has the approval of voters. However, it is one of the few economic areas where the cleavage among parties is abundantly clear, and Quebec’s views will be represented through the NDP’s opposition to the government and to the tax relief agenda. Yet it seems likely that this is one area where the government’s view will dominate easily, and one unlikely to generate significant public unrest in Quebec.
• The Conservative government’s agenda also contains a commitment to a national regulator for securities markets. The issue is before the Supreme Court at the time of writing; if the Court sides with the government, the Conservatives will be emboldened to push forward their plan, which will be supported in Ontario. However, the push for federal paramountcy runs headlong into a traditional area (property) where provinces’ constitutional primacy has historically been recognized. It is an understatement to say that such a push will not be well received in Quebec, and it may achieve some resonance among the public for that reason.
• Agricultural supply management, particularly with respect to dairy and poultry farming, holds back the development of Canada’s food processing segment, raises prices to consumers and presents a barrier to international trade liberalization. The Conservatives have committed themselves to defending the dairy cartel, but this is one area where economics may successfully militate for a change to the political agenda. It is a mercantile issue for Quebec farmers, and they represent a powerful political constituency; proposals for change, however incremental, will attract fiery opposition. That said, if there was a time and opportunity for a government to implement change in this realm, it is now.

Taken together, Canadians’ voting choices have delivered extremely interesting change to the political landscape. This fact, I believe, will defuse the calls for electoral reform that might otherwise arise from unusual vote splits. Whether important policy changes will arise from the current configuration of government is another question, which only the passage of time will answer.

A discussion with Patrick Monahan

Patrick Monahan, LLB (Osgoode), LLM (Harvard), has been a member of Osgoode Hall Law School’s faculty since 1982 and Dean since July 2003. Between 1986 and 1990 he was senior policy adviser to the Attorney General and Premier of Ontario and played a key role in negotiating the 1987 Meech Lake Accord. Professor Monahan was also a driving force behind the Clarity Act that established the Quebec government’s duties in any referendum on secession, and in 2004 argued before the Supreme Court on behalf of a group of senators who intervened in the groundbreaking Chaoulli case that has reframed provinces’ health care responsibilities. He spoke with Toronto policy analyst and Inroads associate editor Finn Poschmann in the summer of 2005.

FINN POSCHMANN: A generation of Canadians has now grown up with a Charter of Rights and Freedoms grafted onto a postmodern Canadian constitution. And today we are amid a flurry of major cases in Canada and the United States that test the relationship among the courts, governments and society. It seems time for a retrospective look at Canada’s experience with a written bill of rights, a Charter that has elevated and solidified the role of the courts. Admittedly, it remains incomplete, as it must until the Province of Quebec agrees to sign. The Charter is also somewhat tentative, in fact an oddity among Western democracies, in having retained a notwithstanding clause (section 33) that permits governments to abrogate recognized Charter rights should they explicitly choose to do so.

PATRICK MONAHAN: I had an excellent view of the patriation process, working as I was as a Supreme Court law clerk at the time of the Patriation Reference.¹ In fact, I was clerking for the late Justice Brian Dickson, and his position was that an accommodation needed to be made. I was certainly sceptical about the Charter – sceptical about the implications of transferring power from the legislatures to the courts. Ultimately though it is a matter of accommodation and tradeoffs; the provinces were rightly jealous of their legal powers and hesitant about yielding more room to courts in shaping the law. Securing an agreement meant striking a balance that reflected those accommodations, and section 33 was part of that balance.

FINN POSCHMANN: The obvious question is: Did Canadians get what we expected? There was much public debate in the runup to April 1982 – the public and the premiers certainly had a set of expectations about the course we were setting on. Did they expect that course to lead, for instance, to events like provincial courts instructing legislatures on who would be permitted to marry?

PATRICK MONAHAN: While that particular question would not have occurred to anyone in 1982, if the issue is, Did legislators understand that this involved a major transfer of power to the courts?, I think the answer to that is yes.

FINN POSCHMANN: Let us try to look at that straightforward answer through a 1981 filter. As I mentioned, there was a huge amount of public debate on the specific content of the Charter. This included close argument over the grounds under which discrimination would be forbidden – the hot-button example of the day was whether a private landlord could be required to rent premises to a homosexual couple even if he or she passionately disapproved. The answer given by provincial premiers was no, sexual orientation would not be listed among protected grounds, and in fact of course it was not. Yet Canadians learned very quickly, after April 1982, about the concept of like grounds, and discovered that the courts had a broad view of the degree to which the list of protected grounds could or should be given expansive reading. More expansive, at least, than most voters surely expected.

PATRICK MONAHAN: All the same, the premiers were concerned about these issues at the time, and the wording they agreed to was broadly written. That was not an accident, and of course the list of covered grounds in section 15 was intended to be read in a nonexhaustive fashion.

FINN POSCHMANN: But did Alberta Premier Peter Lougheed nonetheless expect the result?

PATRICK MONAHAN: Premier Lougheed was certainly aware of voters’ sensibilities, and that is why he pursued the notwithstanding clause. That clause permits governments to override the fundamental rights discussed in Charter sections 2 and 7 through 15, provided they expressly do so in legislation, which in turn requires reenactment after a five-year sunset, if legislatures so wish. However, Lougheed may not have had a proper understanding of the political difficulty of using the section 33 override. What he and other premiers have since found is that the popular opposition to using the notwithstanding clause to abrogate Charter rights is in fact quite formidable.

Moreover, as you suggested, there were public debates on just these issues, and the bill ultimately reflected those and the various governments’ efforts to accommodate the concerns that were raised. We need today to take seriously that we made those tradeoffs, with eyes wide open, in pursuit of a Charter that did the things we wanted it to do. Hence today we should not be surprised that laws are struck down from time to time; we created the Charter explicitly to empower individuals in exercising their basic rights and to give the courts the tools to ensure that Canadians could exercise those rights.

FINN POSCHMANN: True enough, and at the fall 1981 first ministers’ conference Allan Blakeney said the notwithstanding clause would allow “Parliament and legislatures to override a court decision which might affect the basic social institutions of a province or region and this is fully consistent with the sort of argument we have put forward that we need to balance the protection of rights with the existence of our institutions which have served us so will for so many centuries.” Blakeney’s identification of the tradeoff is reasonable as far as it goes. He does not make clear, however, whether he expects societal gains from a constitutionally entrenched Charter. In your view, what have been the gains? How are Canadians better off?

PATRICK MONAHAN: In the long haul, restraint of the executive is where the big gains have been found. An important example is restraint of police practices; without the Charter there would have been little leverage for Canadians seeking to ensure that police forces adhered to Western norms with respect to personal security, privacy or restrictions on search and seizure. Some of the earliest Charter cases were concerned with the manner in which evidence was secured, and Canadians today have a clearer view of their rights in matters such as search and seizure. We would not otherwise have had this clarity.

Another positive development is the discipline the Charter has placed on government decision-making. In other words, the peace, order and good governance directive is a shield for government choices that must be explicitly invoked – governments must explicitly justify restraints on Charter rights, and placing on government of the onus to do so is an important gain. That is what we saw with the Chaoulli decision,² which we should discuss.

FINN POSCHMANN: Before dealing with this recent decision, I would like to take you back to the reason I described Canada’s constitutional arrangement as postmodern. The people who assembled the Charter in the early 1980s regarded many debates about the shape of society and proper modern law as settled. They perceived themselves as part of the triumphant progressive viewpoint; they felt that “we” knew better than the “they” of the past, and could right past wrongs through measures such as affirmative action. Hence Canada’s Charter has 15(2), the section that permits discrimination on otherwise prohibited grounds if such discrimination is intended to achieve currently favoured goals – such as preferential hiring of people of race x or y. Now some of us may believe that stance unwise, even if it has broad approval, and certainly unwise to enshrine constitutionally, with the result that the stance becomes extraordinarily difficult to shift in law.

Contrast this experience with U.S. history, where such pivotal social questions remain open. The relevant example is Bakke, which placed limits on those who would pursue socially approved racial (reverse) discrimination, and subsequent debates over preferences in university admissions in California, Texas and elsewhere. Social pressure successfully reversed a trend toward burgeoning racial preferences and – this is the important thing – there was energetic public debate that resulted in political choices being made (in California for example) that were subsequently sustained by courts. The courts themselves were not agents of social change, in these cases, notwithstanding complaints from U.S. politicians about judicial activism. Coming back to Canada, our constitutional authors saw such core social questions as settled, and the Supreme Court has subsequently seen itself as an agent of change that would implement the progressive vision of the future set in train by the legal elite of the day.

PATRICK MONAHAN: Again, as time goes by, choices do have to be made. The Charter is malleable and you have to remember that it was intentionally made so – and, accordingly, today we have more room for growth and room for changes to public understanding of things that are and are not in Charter.

Consider section 7’s guarantee of life, liberty and security of the person. At the time it was not clear to everyone, including the Justice Minister of the day, what the section added to similar guarantees already contained in the Canadian Bill of Rights (the Diefenbaker Bill), guarantees which were largely limited to procedural rights. Yet by 1988 the Supreme Court had used section 7 to strike down section 251 of the Criminal Code, which had set limits and conditions on access to abortion. There you have an example of the courts giving life and current contextual meaning in a manner not contemplated at the time the Charter was framed.

FINN POSCHMANN: Indeed, the living tree imagery is ubiquitous. But why should the Supreme Court see vested in itself a role in actively nurturing that tree? Why should it be a gardener of social change? The living tree image, a constantly changing world framework, is an inherently progressive image, and there is no mistaking the Court’s belief in progress. Decisions cite Peter Hogg on progressive interpretation of the Charter, and the Chief Justice has been heard to speak as if the only constraint on judicial activism is not wanting to be too far ahead of the broad public in pursuing a progressive vision. Should not the Supreme Court, vital institution that it is, adopt a more sceptical view of progress, seeking instead to cement in place those rights that we collectively are quite certain to be enduring ones? It is, after all, an institution that derives its authority from custom and tradition, whose authority needs to be jealously guarded – for the Court to have the political capital in hand that permits it occasionally to render controversial decisions.

PATRICK MONAHAN: The courts are active at the legal margins, and so they should be in defence of minorities. That is what the Charter is about. Majoritarian or populist views are easily expressed through the political process and ultimately in legislatures. The problem is when those views, or their legal outcomes, begin to infringe on individual rights or what we suspect should legitimately be regarded as Charter rights. If we believe a given right properly belongs on that list, we must rely on the Court ultimately to place it there, exactly because a populist majority might not be so inclined. From the point of view of the popular majority, however, the Court’s actions will be perceived as pushing social boundaries. Again, however, being active at the legal margin is exactly what the Supreme Court must do; courts act against arbitrary actions, in defence of minority rights, exactly because that is their job.

Let me point out, however, that even conservative political scientists like Ted Morton of Alberta use Charter arguments, quite inconsistently in my view. I think you cannot have it both ways – if you want to get your way in court based on Charter arguments, you must accept that the court, if it agrees with you, will assert a position on the margins that is contrary to the one that legislatures, and by extension the population they represent, would otherwise adopt. Were things otherwise, you would not need to assert your case based on the Charter. Hence, in pursuit of Charter rights, we simply must accept, as I said before, that the Supreme Court will from time to time strike down things that elected legislatures have put forward.

FINN POSCHMANN: Yes, and sometimes the Court does wisely defer on important social questions. And the Supreme Court, on the surface anyway, sought to do so in the case of the recent same-sex marriage reference, punting back to the federal Parliament the core question of whether legislation should define marriage as requiring representation from precisely two sexes between two partners. At the same time, lower courts had ruled on Charter grounds, and the Supreme Court so hinted, that the elected government had no such power. And, quoting progressive, “living tree” interpretations of the Charter, the Prime Minister said it was his understanding that the courts would rule such legislation to be unconstitutional, and that he would not thereafter invoke the notwithstanding clause. Through this dance, the courts were able to establish new Charter ground without taking a stand or making a ruling, and the Prime Minister was able to claim that the courts effectively forced his hand. The result was another progressive outcome for which no one was required to accept political responsibility. Is this not an example of the Charter permitting elite political actors to effect a progressive social agenda without first achieving a political mandate for doing so?

PATRICK MONAHAN: Well, the train really left that station with Halpern in 2003, which was successful in establishing in Ontario that the province could not withhold marriage licences from couples solely because they were of the same sex.³ That case ultimately set the course for legal recognition of gay marriage, and if provinces or the federal government did not aggressively defend the rearguard case for the status quo at that time, then the result could hardly be surprising. The governments of the day argued as they saw fit, and no attorney general appealed Halpern. No room for surprise then in 2005 when things proceeded as they did; the Supreme Court had very little to do by the time the case arrived before it.

FINN POSCHMANN: Hence in the case of the gay marriage reference, you see the Court reflecting an evolving understanding of key rights with respect to nondiscrimination. Now, in the Chaoulli case the Supreme Court told Quebec that it must deliver particular health services in a manner sufficiently timely to suit the Court’s pleasure. Here the Court seems to have extended rights talk well into the policy arena. One might say substantive due process has been extended not merely to the writing of law, but to the policy outcome. You must be uncomfortable with that.

PATRICK MONAHAN: I was surprised by the result, delighted and surprised by it because I certainly did not expect it. I am pleased that it has reopened debate about governments’ responsibilities to their citizens when they place restrictions on individuals’ choices. That is the tradeoff or the onus the Charter places on governments. Provincial law has restricted access to private insurance, plainly a restraint on individuals’ ordinary activities, and that restraint needs to be justified under the Charter.

Stanley Hartt and I laid out the section 7 arguments that underpinned the Chaoulli decision in a 2002 paper for the C.D. Howe Institute. In it we explained that when ill Canadians are prevented from using private insurance markets to arrange medically necessary services, at the same time as being denied timely access to public health services, there is a clear violation of section 7’s guarantee of liberty and security of the person. Laws that limit private insurance are intended to protect a public health system so that it, in turn, can deliver needed health services. If it does not do so, if the public system fails to deliver the timely care needed to keep people alive and healthy, the law has failed in its stated purpose, and that is inconsistent with the principles of fundamental justice.

The best part of the Chaoulli result is that provinces cannot fail to respond. Either they find ways to provide appropriate health services, or they must permit individuals to find their own ways of doing so, but governments cannot have it both ways. Governments cannot prohibit one person from using his or her own resources to purchase necessary health services on the grounds that someone else cannot afford to do so, and then fail to provide the needed services to either. That would be an ideological pursuit, serving to treat people as objects rather than as living humans.

FINN POSCHMANN: And yet it seems a worrisome excursion into policy, and potentially an open-ended one. We have seen this in the United States, where high courts have forced states – in a more or less logical extension of the egalitarian reasoning of Brown v. Board of Education⁴– to equalize local school board spending. The result, years later, is courts’ continuing to closely inspect state and school board spending to ensure that they are spending enough and in a fashion that the courts deem necessary. Are we not facing the prospect of Canada’s Supreme Court inspecting provincial budgets and choosing among priorities, in pursuit of our own egalitarian health vision? Certainly I have heard your coauthor Hartt and others speak of Chaoulli as having established the framework for a “health care guarantee.”

PATRICK MONAHAN: The important thing is that there will be different responses among the provinces. The Court is not telling them what to do or forcing particular choices. Chaoulli is instead another example of requiring governments to explicitly justify restrictions on Charter freedoms. The response provinces choose is up to them – some provinces will opt to improve health services and offer a health care guarantee; others will allow or encourage private insurance markets, as some do already. From this perspective, the policy incursion is modest to the point of nonexistence. The Supreme Court in Chaoulli is simply clarifying a section 7 right in the context of provincial restrictions on health financing, with potential gains for Canadians’ freedom – and their health.

FINN POSCHMANN: Thank you for your thoughts.

Continue reading “The Courts Are Doing Their Job” →

by Finn Poschmann and Henry Milner

In the 2001 election that routed the British Columbia NDP government, the Liberals, with slightly over half the popular vote, won fully 77 seats in a 79-seat legislature; the NDP retained a little over a fifth of the vote, but won only two seats; and the Greens, who earned nearly a seventh of the vote, won no seats. It was a classic example of the tendency of our first-past-the-post (FPP) electoral system to overreward the frontrunner. In response to general dissatisfaction with the lopsided outcome, Premier Gordon Campbell invited Gordon Gibson (whose comments on the last federal election can be found on page 70 of this issue) to recommend a process whereby the province could consider alternative electoral systems. He recommended what became the British Columbia Citizens’ Assembly on Electoral Reform. Just as we went to press, it reached a conclusion. Members of the Assembly recommended scrapping FPP in favour of the single transferable vote, or STV (see accompanying box). In the next provincial election, B.C. voters will decide between the assembly’s recommendation and FPP. To change systems requires a supermajority of 60 per cent in favour of STV.

We invited two members of the Inroads editorial board to debate the pros and cons of change.

— The Editors

That darned democratic deficit

by Finn Poschmann

Many countries around the world have turned away from first-past-the-post election systems toward some flavour of proportional representation (PR). Is it time for Canada to take the leap, or is our status quo, the system that has selected Canada’s federal members of Parliament since August 1867, muddling on well enough?

The June 2004 election starts the case for the status quo. Two parties were in the running to form a government: the Conservative challengers received a share of seats in the House of Commons all but indistinguishable from their share of the national popular vote, while the incumbent Liberals, owing to some regional concentration of voters among the minor parties, received a seat share higher than their popular vote. And owing to FPP, the minor parties (the Bloc Québécois and the New Democratic Party) did well enough in their strongholds to hold the balance of power in a minority parliament anchored by the Liberals. A deeply divided electorate selected a deeply divided lower chamber, in which every vote counts and every region will vigorously assert its interests. The result was a minority government that nonetheless has a mandate to govern.

And that is where a discussion of the merits of FPP, versus any particular implementation of PR, must be focused. An electoral system must stand or fall on the basis of its systemic merits or demerits. In choosing an electoral system, the art is to produce results that facilitate governing, while not deviating too far from the distribution of voter preferences. Too large a deviation in too many elections will cost a democratic government first its legitimacy and ultimately its ability to govern.

Of course, many arguments heard for and against electoral reform are driven by tactical imperatives. When Paul Martin ran as an outsider for the leadership of the Liberal Party (despite its having been his lifetime home), his first formal pronouncements spoke of the need for democratic reform because he was aware of the intense regional animosity that had accrued toward the ancien régime. When it came to the general election, however, electoral reform was not front and centre for the Liberals. I find it hard to escape the conclusion that it suited his tactical fortunes to let the issue lie.

Not so for Jack Layton’s NDP, he being able to read polls as well as anyone else. His party’s relatively diffuse support meant that many votes would not turn into seats, and thus for him electoral reform became a call to arms. His call was loud enough that reform made it onto the agenda laid out in the fall 2004 Throne Speech. Layton has followed in the footsteps of the late Lord Jenkins in the United Kingdom, whose Liberal Democratic Party was electorally eviscerated by Tony Blair. Asked to chair a review commission on electoral mechanisms that reported in 1998, Jenkins discovered that with a dose of PR the kingdom would elect — more Lib-Dem MPs, which he clearly saw as a good in itself. Presumably Jack Layton would sympathize.

Focusing on the systemic merits of electoral change instead of these tactical considerations lets us address more important questions. FPP tends to consign to defeat the unsavoury extremes, such as the nasty characters that have graced the Austrian and Italian political stages from time to time. Israel’s experience with a 1 per cent threshold for entering the Knesset has produced numerous unholy parliamentary alliances and revolving cabinet games. Now, pointing to one or another embarrassing parliamentarian will not do as a critique of an electoral system, but it is legitimate to point out that, while dubious members inhabit every community, PR makes it easier for them to get elected.

The most common critique of PR is instability: the repeated collapse of the tenuous coalitions that PR tends to produce creates policy uncertainty and doubts about the long-term capacity of any particular government to govern. There is something to this critique, and Italy’s numerous postwar governments and Israel’s fractious cabinets are the usual examples.

PR’s bigger problem is that it entrenches in power the leadership of the major parties. For most of the half century following World War II, no matter how Italian voters might twist and turn, they found themselves ruled, after a fashion, by a government dominated by the Christian Democrats and the Socialists. Governments fell routinely but the same cast of characters shuffled cabinet chairs and rambled on as before. The end came with the emergence of a regionally dominant, business-friendly party that ran on an anti-corruption campaign. The Northern League exploited a sense of regional exclusion and disgust to muscle a place in government. It was important for Italy’s political and economic growth that its aged and habit-encrusted power brokers be turned out, and it was regionalism that did it. However, PR made it harder, not easier, to turf out the broadly unwanted permanent governing parties.

Another strike against PR is the quality of policy choices that cohabitating governing parties make. This is a dynamic problem: a junior coalition partner that supports the dominant party’s position is readily forgotten and electorally unrewarded. Coalition members may oppose socially preferred policy choices precisely because they are the right thing to do. From the perspective of the junior partner, to support the dominant party’s policy choice may be counterproductive – such support demonstrates the irrelevance of the junior partner. This is a systemic flaw in coalition government, and one encouraged by PR.

Placing a high threshold for obtaining parliamentary representation partially addresses the problem of fringe parties’ corrosive power under PR. But it cannot fix the dynamic ills of decision-making within a coalition or the inevitable impact of power politics and party entrenchment. For instance, political affiliation dominates a large part of cultural life in Israel. Certainly, PR in Canada could not be expected to reduce partisanship or the rewards to aggressive regional political activism.

Electoral systems are part of the web of legal and civil institutions that societies construct to govern themselves. The parts of the web interact and co-evolve, and changing one part may have undesired consequences for another.

Thus, New Zealand’s recent experience with PR has delivered a bizarre lesson in institutional change: what happens when members go rogue and the normal constraints of party power malfunction? After living with PR for one term, New Zealand’s parliamentarians realized they needed a law forbidding themselves from crossing the floor. After all, they reasoned, if the share of the national vote a party wins should in principle fix a party’s number of votes in the chamber, then crossing the floor cannot be allowed. But what to do when one of the list members peers into her heart and discovers herself conscience-bound to vote with other parties?

The answer so far has been to sue. Richard Prebble, the otherwise kind and sensible former leader of the ACT Party of New Zealand, is arguing before the Supreme Court that Donna Awatere Huata’s votes and speeches outside the chamber have demonstrated that she is an unfit member, and that the country’s voters deserve another who will vote as expected. It is an embarrassing spectacle, and no one yet knows the outcome. For elected members, what are the implications for the concept of free speech and voting one’s conscience? I am glad that it is they and not we who are posing that question.

Perhaps Canada’s electoral institutions do need repair – we have our share of political entrenchment, corruption and regional angst. What is missing is evidence that any particular flavour of PR, given its well-known systemic flaws, will provide the needed repair. Each step toward PR suppresses local voices and choices and elevates disparate and inchoate ones, which are of course manipulated by party insiders.

PR advocates argue that FPP denies adequate representation to marginal voices that are geographically dispersed. But a political party ought to walk before it runs. And FPP has not barred new voices: from the Parti Québécois and Saskatchewan Party at the provincial level to Reform at the federal level, FPP has allowed new parties to enter legislatures, and in some cases to govern. The recent emergence of the federal Conservative Party reflected the centre-right’s acknowledgement of FPP’s imperative to change from within, in search of broader public support in more regions. This was surely not a bad thing. Under PR the accommodation would have been unnecessary, and the debates in the House of Commons more extreme.

Elements of PR have been used before in Canada’s provinces and may again, but in recent years other jurisdictions have reduced their reliance on PR. Commissions on electoral reform, in Canada and elsewhere, have killed many acres of trees, yet I see no case, let alone a compelling one, for surrendering the requirement that a party command a majority in some geographically defined constituency – somewhere, anywhere – thereby demonstrating its ability to bring a community onside with its policies.

Until the case for change is made, if you want to win a voice in Parliament, convince your friends and neighbours you deserve one. Then the rest of us might hear you.

We need a fair system

by Henry Milner

Finn begins by telling us that an electoral system must stand or fall on its systemic merits or demerits. I agree. But I disagree that, on that basis, our FPP system stands and PR falls. Finn’s accusations against PR apply mainly to Italy and Israel. The reasons for the failings he notes are either unrelated to PR or relate to some specific feature of PR as practised in these countries.

In Finn’s account, PR stands accused of three sins: (1) allowing the election of the “unsavoury extremes”; (2) entrenching in power the leadership of the major parties; and (3) rendering coalitions unstable since small parties need to distinguish themselves. The assertion that PR tends to produce policy uncertainty and weak government reflects conditions in Finn’s two favourite examples, Italy and Israel. These are two countries with effectively no electoral thresholds for obtaining parliamentary representation. All serious PR advocates in Canada want a meaningful threshold – the report tabled in March 2004 by the Law Commission of Canada calls for an electoral support threshold of 5 per cent.

As for entrenching in power the leadership of the major parties, the example brought forward is again Italy. It is true that Christian Democrats dominated post–World War II Italian governments. But this was due not to the electoral system but to the fact that, since the competing large party – the pro-Soviet Communists – was excluded from any role in government, numerically no meaningful government could be established without the Christian Democrats. Moreover, because Italy allowed secret votes in Parliament – a perverse provision unrelated to the electoral system – coalitions negotiated by party leaders were undermined by anonymous backbenchers. In short, judging PR by Italy is similar to judging FPP by India.

Turning to our own experience, Finn and other critics are prejudging the performance of parties under PR by FPP minority situations – like that in the current Parliament. Under FPP, parties know that minority governments are likely to be short-lived, and act accordingly; under PR, they know that provoking the premature fall of a minority government will not bring majority government, but it could very well bring punishment from the electorate.

Finn concludes that the offsetting benefits of PR are hard to see. Perhaps that is because he is not looking for them. Were he to do so, he might begin with FPP’s inherent unfairness: the fact that votes do not count equally. He implies that fairness is more or less irrelevant. It is true that, in the Canadian context, the NDP will benefit from change, and the Liberals will lose, but most people find something deeply unfair in the fact that NDP voters have been consistently underrepresented in seats. To use an Italian metaphor, the leaning tower of Pisa always leans in the same direction.

Moreover, even when the overall result is not too far from overall proportionality – and the 2004 result was unlike the three previous federal elections in this respect – regional distortions are large. For example, in 2004, the Conservatives and NDP, instead of being shut out in Quebec, would have won six and three seats respectively under the Law Commission’s proposed PR model.

The political effects of these distortions should not be ignored. In close ridings, voters are often forced to act against their real preferences. Under a more proportional system, we could have avoided the dismal spectacle of Paul Martin appealing to New Democrats to vote Liberal not because his party’s program was close to their objectives, but to keep out the dreaded Stephen Harper. To avoid FPP’s effects on a divided right, the Progressive Conservatives and Alliance sacrificed their core principles and entered into a forced marriage. Under PR, they need not have done so.

The real advantage of PR is that, unlike FPP, it makes every vote count – even in areas where a voter’s preferred party is weak. Adopting PR should at least slow down plummeting turnout, a problem not to be ignored: the June election, though one of the most competitive in years, drew a record low turnout. PR also tends to make Parliament more reflective of the population’s ethnic and gender composition.

Finn pokes fun at New Zealand’s difficulties in dealing with MPs elected from a party list who abandon their party. In 1993, New Zealand abandoned FPP and adopted the Mixed Member Proportional form of PR. Admittedly, MPs who cross the floor have posed a problem. Nevertheless, New Zealand parliamentarians, required by law to evaluate the new system a decade after having dispensed with FPP, did not consider returning to the status quo ante.