Keep democrary out of court.

• Author: Leone, Rob
• Position: Letter to the editor

Sir:

Heather MacIvor raises some interesting points in her guest editorial in the autumn edition of the Canadian Parliamentary Review. Her main point is that electoral reform could be achieved by using s. 3 of the Charter to challenge some of the provisions of the Canada Elections Act. Unfortunately, the idea itself is plagued with problems and is based on a misunderstanding of what representation means in Canada.

First and foremost, while MacIvor makes an interesting argument on the constitutionality of Single Member Plurality (SMP) and the legislation that puts that system into practice, she fails to address the foundations of Canadian government established in the Constitution Act, 1867. The spirit of SMP is embodied in the preamble of the constitution which states that Canada's system of government is based on that of Britain. This was reinforced by Justice McLachlin in the Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 reference where she suggests that the electoral system is part of the conventions we inherited from Britain. In addition, s. 40 of the Constitution Act, 1867 contains an indirect reference to the method of election. While the determination of the size and number of electoral districts has been delegated to a commission under the Electoral Boundaries Readjustment Act, 1985, and the Constitution Act, 1985 (Representation) created new rules to be applied in the determination of these boundaries, neither touched the basic premise of one member per electoral district. The essential point here is that the constitution appears to only consider one person per riding as legitimate representation, and the Court is not likely to interpret a conflict between the Charter and any other part of the constitution.

This point is reinforced in prior interpretations of s. 3 of the Charter. In the Provincial Electoral Boundaries case, Justice McLachlin states: "As will be seen, there is little in the history or philosophy of Canadian democracy that suggests that the framers of the Charter in enacting s. 3 had as their ultimate goal the attainment of voter parity. That purpose would have represented a rejection of the existing system of electoral representation in this country. The circumstances leading to the adoption of the Charter negate any intention to reject existing democratic institutions." Justice McLachlin clearly indicates that s. 3 of the Charter cannot be used to reject the present electoral system. In other words...