Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C-20, An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act (short title: Fair Representation Act), was introduced and given first reading in the House of Commons on 27 October 2011. Its sponsor, the Honourable Tim Uppal, Minister of State (Democratic Reform), made the following statement in the House:
The bill would deliver a principled and reasonable update to our seat allocation formula, providing fair representation for Canadians living in Ontario, British Columbia and Alberta. It delivers on our commitment to maintain the seat counts of smaller provinces and ensure that Quebec is proportionately represented.1
The bill amends the Constitution Act, 1867 by readjusting the number of members and the representation of the provinces in the House of Commons. The bill also amends the Electoral Boundaries Readjustment Act to streamline the readjustment process and to ensure that the next readjustment can be completed prior to the next general election.
The government has on three previous occasions introduced bills in the House of Commons seeking to alter the formula by which the House adjusts its seats:
Each bill died on the Order Paper before second reading.
Bill C-20 is designed to address a discrepancy in the manner in which population growth is reflected by growth in the number of elected representatives assigned to each province. The bill seeks to remedy this discrepancy by enacting a new formula for seat readjustments in the House of Commons.
As with the current formula to readjust the number of members seated in the House, Bill C-20 prescribes a formula that readjusts seats after each decennial census and apportions any newly created seats to the province or provinces that experienced population growth from one decennial census to the next. The distinguishing feature of the formula prescribed by Bill C-20 is that it lowers the number by which the population of each province is divided (the “electoral quotient”), employed during the calculation of a province’s seat allotment in the House of Commons.2 Given that smaller divisors produce larger quotients, the use of the formula would result in a greater increase in the number of members in the House of Commons from provinces with growing populations than would result from the current formula.
Compared with the formula currently employed for readjusting the number of seats in the House of Commons, a readjustment using the formula prescribed by Bill C-20 draws nearer to the principle of representation by population. As shown in Table 1, employing this formula and the most recent estimates of the Canadian population, the fastest growing provinces of Alberta, British Columbia and Ontario would receive a share of seats in the House of Commons after the 2011 readjustment that is closer to their share of the total population of the provinces.
| Province | Share of the Population of the Provinces (%) | Share of Seats Held by the Provinces in the House of Commons Under the Bill C-20 Formula (%) | Share of Seats Held by the Provinces in the House of Commons Under the Representation Act, 1985 Formula (%) |
|---|---|---|---|
| Alberta | 10.99 | 10.24 | 9.97 |
| British Columbia | 13.29 | 12.65 | 11.90 |
| Ontario | 38.87 | 36.45 | 34.73 |
| Source: | Table prepared by the authors using data obtained from Statistics Canada, “Population by year, by province and territory,” accessed 3 November 2011. |
Bill C-20 also sets out rules to provide additional seats in cases where a province did not experience an increase in its seat allocation either from the formula set out in the bill or through past constitutional guarantees. In such cases, a province’s seat allocation will be supplemented to bring into line its percentage share of seats in the House of Commons with its percentage share of the national population. In the case of the 2011 seat readjustment, the only province to receive seats under these rules would be Quebec.3
It should be noted that Bill C-20 employs a floating electoral divisor to calculate seat readjustments in the House of Commons. The formula in Bill C-20 for arriving at an electoral divisor used to apportion seats for each province adjusts the divisor upwards in the case of increases in total population and downwards in the case of decreases in total population. This adjustment for population fluctuations serves to maintain a maximum citizens-per-riding ratio that changes little from one seat readjustment to the next.
On 10 October 2011, Bill C-312, An Act to amend the Constitution Act, 1867 (Democratic Representation) (short title: Democratic Representation Act) was introduced in the House of Commons by Member of Parliament Jean Rousseau and it was given first reading. The bill proposes to implement the formula brought forward in Bill C-12 from the 3rd Session, 40th Parliament, while additionally prescribing that the proportion of members from Quebec in the House of Commons be fixed at the same level as it was on 27 November 2006,4 or 24.4%.
The basis for adjusting seats in the House of Commons is found in section 51 of the Constitution Act, 1867, which vests the authority, the manner and the time frame for seat readjustments with the Parliament of Canada.5
With regard to the power of Parliament to amend section 51 of the Constitution Act, 1867, section 52 of the Constitution Act, 1867 states:
The Number of Members of the House of Commons may be from Time to Time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.
Section 44 of the Constitution Act, 1982 also entitles Parliament to amend “the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” This power of Parliament to amend the constitutional formula for assigning the number of members seated in the House of Commons is, however, tempered by sections 41(b) and 42(1)(a) of the Constitution Act, 1982. Section 41(b) requires the approval of all provinces in addition to the consent of the Senate and the House of Commons for amendments to the “senatorial clause.”6 Section 42(1)(a) prescribes that an amendment to the proportionate representation of provinces in the House of Commons must be made using the general amending formula.7
It is not clear the extent to which a readjustment of the seats in the House of Commons must create a disproportionate representation between the provinces before the amendment must be brought forward under section 42(1)(a) of the Constitution Act, 1982. It is worth noting that a court challenge was initiated by the mayor of Vancouver, Gordon Campbell, following the first readjustment of House seats employing the current formula, on the grounds that the distribution of seats under the formula created disproportionate representation among the provinces, and was therefore unconstitutional.8 In a judgment rendered on 30 December 1987, the Chief Justice of the Supreme Court of British Columbia ruled in favour of the government’s argument, namely that Canada’s constitution has historically acted to cushion provinces against the loss of representation due to declining relative population, as opposed to maintaining absolute proportionality of representation. The case was subsequently argued unsuccessfully before the British Columbia Court of Appeal, with the Supreme Court of Canada later refusing to hear the final appeal.
The democratic principle of the Canadian electoral system, as set out in the Canada Elections Act, is embodied by the expression “one elector - one vote.” 9 Realistically, however, the exercise of this principle requires a certain degree of compromise. Since Confederation, several formulas for assigning House of Commons seats to the provinces have been employed, each having attempted to locate a balance between absolute equality of voting power and effective representation.
Differences in relative population sizes between Ontario, Quebec and the Maritime Provinces at the time of Confederation resulted in the adoption of “representation by population,” or voter equality, as the guiding principle of representation in the House of Commons.10 Over time, as the country grew, the population distributed itself unevenly throughout the provinces, creating numerical disparities that required compromises and allowances aimed at reconciling deviations from a strict adherence to voter equality.11
Section 51 of the Constitution Act, 1867 stated that the number of seats assigned to each province in the House of Commons was to be calculated by dividing the province’s population by a fixed number, referred to as the “electoral quota” or “quotient.” 12 This electoral quota was obtained by dividing the population of Quebec by 65, which was the number of seats guaranteed to the province of Quebec by the Constitution Act, 1867. After each decennial census, beginning with the 1871 census, the number of seats in the House was to be readjusted.
A further stipulation in the Constitution Act, 1867 was that no province could lose seats as a result of a readjustment except in instances where a province’s share of the national population had decreased between the last two censuses by at least 5%, or one-twentieth; this provision was thus known as the “one-twentieth clause.” 13
During the years after Confederation, concerns arose that trends in population displacement would eventually result in a significant loss of representation in some provinces.14 To guard against this possibility, the first change to the original representation formula was made in 1915 through the insertion of section 51A - the “senatorial clause” - into the Constitution Act, 1867. This section, still in effect today, specified that a province can under no circumstance have fewer seats in the House of Commons than it does in the Senate.15
In view of rising dissatisfaction among a number of provinces, whereby some people contended that the rules for redistribution created unacceptable distortions in the principle of representation by population,16 the Constitution was amended in 1946 to establish a new formula for readjusting the seat assignments in the House. A fixed total of 255 seats was established; one seat was set aside for Yukon, while the other 254 seats were divided among the provinces on the basis of their share of the total population of Canada, rather than the average population per electoral district in Quebec.17 In addition, the one-twentieth clause was repealed.18
It was soon noted that, under the new formula, because population rates grew unevenly across the provinces, those with the slowest growth rates would experience seat losses in the House. With Nova Scotia, Manitoba and Saskatchewan all slated to lose seats after the 1951 census, the Constitution Act, 1867 was amended by the insertion of a “15 percent clause” to prevent a rapid decline in seats in some provinces.19 The clause stated that no province could lose more than 15% of the number of seats in the House to which it had been entitled at the last readjustment, nor could a province have fewer seats than a province with a smaller population. Nonetheless, in subsequent readjustments, a growing list of provinces continued to lose seats.
The Representation Act, 1974, also known as the “amalgam” formula, was introduced to guarantee, among other things, that no province could lose seats.20 The new formula fixed the number of seats in Quebec at 75, up from 65, and further prescribed an automatic increase by four seats in Quebec at each subsequent readjustment to take population growth into account. The formula also created three categories of provinces: large provinces (population of 2.5 million or more); intermediate provinces (population between 1.5 million and 2.5 million); and small provinces (population under 1.5 million). The large provinces were to be allocated seats in strict proportion to Quebec, while separate and more favourable rules were used to calculate the number of seats for the small and intermediate provinces.21
The amalgam formula was applied once, establishing 282 seats in the House of Commons in 1976, but was not applied again, given that calculations revealed that the formula would yield, in subsequent readjustments, an unwelcome number of seats.
The formula currently used to calculate the distribution of seats in the House of Commons is set out by the Constitution Act, 1985 (Representation), also known as the Representation Act, 1985. The seats assigned to each province are calculated as follows:
The Representation Act, 1985 put in place a further guarantee against a province losing seats as a result of a readjustment by supplementing the “senatorial clause” with the “grandfather clause.” The latter stipulates that a province is guaranteed no fewer seats in the House of Commons than it had in 1976, or during the 33rd Parliament.23 The current number of 308 seats in the House of Commons was arrived at in the readjustment following the 2001 decennial census.
Clause 2 replaces section 51(1) of the Constitution Act, 1867. Included are six rules that outline the calculation for readjusting seat assignments to the provinces in the House of Commons. These are as follows:
Clause 2 also adds section 51(1.1) to the Constitution Act, 1867. It stipulates that an authority designated by Parliament must prepare an estimate for the population of Canada, and of each province, as at 1 July 2001, 1 July 2011, and 1 July in all subsequent years that a decennial census is taken. Clause 4 of the bill names the Chief Statistician as the authority who must prepare the population estimates.
Bill C-20 includes a number of amendments to the Electoral Boundaries Readjustment Act. These amendments act to streamline the process established by the Act to ensure that the 2012 readjustment of electoral boundaries is completed before the next general election, which, under the Canada Elections Act, would normally take place in October 2015.24
The Electoral Boundaries Readjustment Act establishes a series of steps, from the census to the representation order, which result in the readjustment of federal electoral districts. The following is a description of the readjustment process, with the amendments proposed by Bill C-20 highlighted.
Bill C-20 proposes that the calculation of seats be based on estimates, prepared by the Chief Statistician, of the population of Canada, and each province, as at 1 July for each decennial census year (section 14 of the Act, as amended by clause 6). While no deadline is prescribed for the Chief Statistician to prepare these estimates,25 they would presumably be made available before the actual results of the census (section 12.1, enacted by clause 4). Under the existing regime, the process begins when the Chief Statistician prepares a return which delineates Canada’s population as a totality, by province, by electoral district, and by enumeration areas. This return must be prepared and sent to the Chief Electoral Officer and the Minister26 as soon as possible after the completion of the decennial census (section 13(1) of the Act). Upon receiving this return, the Chief Electoral Officer calculates the number of seats in the House of Commons allocated to each province in accordance with the formula found in the Constitution Act, 1867 (section 14 of the Act). These statistics are then sent to each electoral boundaries commission (section 13 of the Act).
The Governor in Council establishes, for each province, an electoral boundaries commission which must consider and report on the readjustment of the electoral boundaries (section 3 of the Act). Each commission is composed of three members: the chairperson, who is appointed by the chief justice of the province, and two members who are appointed by the Speaker of the House of Commons (section 3 of the Act and subsequent sections). The proclamation constituting electoral boundaries commissions must be issued within 60 days after the publication of the census results (section 3 of the Act). Bill C-20 changes this timeline by stating that the establishment of the commissions must occur before the earliest of 60 days after the publication of the census results or six months after the census (section 3 of the Act as amended by clause 3).27
Each commission must prepare “with reasonable dispatch” a proposal for electoral boundaries, which includes the description of the boundaries, and the name given to each of those districts (section 14(2) of the Act). This proposal must be published in the Canada Gazette and in at least one newspaper of general circulation in the province no less than 60 days before public hearings are held on the proposal. Bill C-20 reduces this notice period to 30 days (section 19(2) of the Act, as amended by clause 8(1)).28
The public hearings give an opportunity for interested persons to make representations on the proposals. To do so, one must send a written notice to the commission within the 53 days following the publication of the proposal in the Canada Gazette and the newspaper; under the Act as amended by Bill C-20, notice must be sent within 23 days (section 19(5), as amended by clause 8(2)). This timeline gives at least a week’s notice to the commission before a representation. Bill C-20 authorizes the commission to waive the notice requirement if the commission considers this to be in the public interest (section 19(6), added by clause 8(2)).
Each commission has one year, upon the receipt of the comprehensive return from the Chief Statistician showing the population nationally, by provinces, etc., to complete a report. The Chief Electoral Officer may, if requested, extend this period by six months (section 20 of the Act). Bill C-20 again reduces these timelines: the report will have to be completed within 10 months of the reception of the comprehensive return, and the Chief Electoral Officer will be authorized to extend this period for a maximum of 2 months (section 20, as amended by clause 9).
Upon completion of their proceedings, the electoral boundaries commissions must transmit two certified copies of their report to the Chief Electoral Officer, who must transmit a copy to the Speaker of the House of Commons (sections 20 and 21 of the Act; and sections 20 and 20.1(a) of the Act, as amended by clause 9). Bill C-20 creates an additional legal obligation for the Chief Electoral Officer: he or she must also prepare, with the cooperation of the Department of Natural Resources, a series of maps at the local and provincial levels showing the proposed boundaries of the electoral districts (new section 20.1).
The Speaker of the House of Commons must table the reports of the electoral boundaries commissions, each of which is referred to the committee responsible for electoral matters, currently the Standing Committee on Procedure and House Affairs (section 21 of the Act; clause 10 amends section 21 in a consequential and unsubstantial manner). Objections to the reports must be signed by at least 10 members of the House of Commons, and filed with the Committee within 30 days. The Committee has an additional 30 days to consider any objection and to make a report to the Speaker, who must then refer the matter back to the appropriate electoral boundaries commission. The matter and the objection must be reconsidered and disposed of by the commission within 30 days, after which the final report is transmitted to both the Chief Electoral Officer and the Speaker of the House of Commons (sections 22 and 23 of the Act).
The Chief Electoral Officer prepares and transmits to the Minister a draft representation order upon receiving the final report of a commission. The draft order includes the name and a description of the boundaries for each electoral district (section 24). The Governor in Council must then proclaim the new representation order, which would come into force following the first dissolution of Parliament that occurs at least one year after the proclamation (section 25). Bill C-20 reduces to seven months the delay for the representation order to be effective (section 25, as amended by clause 11).29
As soon as feasible after the representation order, the Chief Electoral Officer must prepare, with the cooperation of the Department of Natural Resources, a series of maps at the local and provincial levels showing the proposed boundaries of the electoral districts (section 28(1) of the Act). Bill C-20 requires the Chief Electoral Officer to send an electronic version of each map to each registered political party (new section 28(2), as enacted by clause 12).
In addition to the amendments that are aimed at accelerating the readjustment process, Bill C-20 proposes amendments to the Electoral Boundaries Readjustment Act to make its language more contemporary. For example, section 13(3) is amended by clause 5 to remove a reference to an administrative unit of the Department of Natural Resources which no longer exists. The English version of the same section is amended by the same clause to make the Act gender neutral (by adding “or her” after the possessive article “his”) (see also, for similar amendments, clause 7 amending section 17).
Under the terms of the Canada Elections Act, the position of a returning officer becomes vacant if he or she dies, resigns, reaches the end of his or her 10-year term, no longer resides in the electoral district, or the boundaries of the electoral district incur a modification as a result of a readjustment. Provisions exist in the Canada Elections Act for the reappointment, without the requirement to consider other candidates, of a returning officer whose term has expired. Bill C-20 amends the Canada Elections Act to authorize the reappointment, without the requirement to consider other candidates, of a returning officer whose office has become vacant as a result of readjustment of electoral boundaries (section 24(1.4), as amended by clause 13; see also new section 25(3) of the Electoral Boundaries Readjustment Act, enacted by clause 11).
Bill C-20 enacts a number of transitional provisions which are either substantial, in that they may affect a province’s seat allotment in the House of Commons, or technical.
Bill C-20 states that the Chief Statistician is deemed to have prepared the estimates of the population of Canada and each province, as at 1 July 2001 - such estimates are necessary for the application of the new redistribution formula (clause 15).30
Bill C-20 also addresses the question of the deadline for the constitution of the electoral boundaries commissions. As explained above, Bill C-20 provides that the commissions must be established before the earliest of 60 days after the publication of the census results or six months after the census (section 3 of the Act as amended by clause 3). In respect of the 2011 census, this deadline has already passed, given that the census took place in May 2011 and the commissions had therefore to be established no later than 31 October 2011. Clause 16 anticipates this problem by stating that the electoral boundaries commissions that will be established as a result of the 2011 census must be constituted no later than 60 days after the receipt by the Minister of the more comprehensive return referred to in section 13(1) of the Act.
Clauses 18 to 22 provide for transitional measures that are applicable only if Bill C-20 is adopted (and comes into force)31 after the issuance of the more comprehensive report of the Chief Statistician pursuant to section 13(1), but before the proclamation of the representation order (Clause 17). Bill C-20 contemplates two scenarios, depending on whether it is adopted before or after the publication by the Chief Electoral Officer of the results of the calculation of the number of seats for each province:
Clause 23 of the bill prescribes that, for the purposes of interpretation, a reference to the Constitution Acts, 1867 to 1982 include a reference to clauses 2 (amendments to the Constitution Act, 1867), 14, 15, and 17 to 20 (transitional provisions applicable to the readjustment that will result from the 2011 census).
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force.
(729 Kb, 110 pages), 27 October 2011, p. 2589. [ Return to text ] (230 Kb, 63 pages), s. 51(1):
The number of members of the House of Commons and the representation of the provinces therein shall, on the coming into force of this subsection and thereafter on the completion of each decennial census, be readjusted by such authority, in such manner, and from such time as the Parliament of Canada from time to time provides, subject and according to the following rules.See also section 1.3.1, “The Formula at Confederation,” in this legislative summary. [ Return to text ]
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