Constitutional Amendment After the Senate Reference and the Prospects for Electoral Reform

Abstract

The new federal government committed that 2015 would be the last election under the first past the post ("FPTP") system used since 1867. If the federal electoral system does change, it will be a break from the recent politics of reform. Over the last decade, numerous attempts to reform provincial electoral systems have failed. The additional potential hurdle facing the federal government, which was not relevant for the provinces, is the uncertainty relating to the rules on constitutional amendment, particularly in light of the Reference re Senate Reform. The central questions I address in this article are whether federal electoral reform requires recourse to the formal amendment rules in Part V of the Constitution Act, 1982 and, if so, whether provincial consent is required. Canada famously has one of the democratic world's most rigid regimes for constitutional amendment. If electoral reform requires provincial consent, then it is likely dead on arrival. While it is formally possible to amend the Constitution even where federal-provincial agreement is obligatory, it is likely to be constructively unamendable in the absence of a new round of mega-constitutional negotiations.