Electoral ‘reform’ and the legal profession in Canada

Electoral ‘reform’ and the legal profession in Canada
The federal Liberal government’s stated intention to bring about electoral “reform” without a referendum brings to mind Lord Acton’s famous dictum: “Power tends to corrupt and absolute power corrupts absolutely.” Sadly, notwithstanding the legal profession’s historical role in protecting the rights we enjoy in modern Canada, a very large percentage of lawyers are unaware of this intention. They should be.

Preferential voting or ranked balloting

Prime Minister Justin Trudeau has long favoured preferential voting or ranked balloting. Critics have pointed out that this would effectively give Liberals almost perpetual majorities. Voters left of the Liberals would normally regard Liberals as their second choice. Red and even conservative Tories would also regard the Liberals as their second choice. The result under this system is that Liberals could continue to score majority governments with a remarkably low percentage of the votes, as low as slightly more than 30 per cent.

Near-perpetual majority Liberal governments should be alarming to the legal profession, as to the general public, for a number of reasons.

First, the de facto independence of the bar will be put into jeopardy. If one party is perpetually in power, the temptation to curry favour with the “governing party” will be unbearable for many. A runaway precedent of what can happen to the legal profession when one party assumes absolute control is National Socialist Germany. The bar was co-opted by the governing party, and it lost its independence. China is an existing precedent.

Lawyers are expected to be brave and strong when faced against powerful forces that are not right (think of fictional Atticus Finch in To Kill a Mockingbird or the real-life James Donovan of Strangers on a Bridge/Bridge of Spies). Their ability to do so in the future will be impaired with one party in perpetual power.

Secondly, a change in the voting system that perpetually shuts one region (e.g.,  Western Canada) out of federal power will most certainly engender a constitutional crisis, and the most serious dissolution threat to Canada to date.

Proportional representation

Changing first-past-the-post to proportional representation creates further issues. If you admire the Israeli or Italian political systems, and their great instability, this is your system. Other issues include MPs not representing their constituents but their parties. The party bosses dictate who runs and becomes ingrained legally into the electoral process. Small splinter and single-issue parties can dictate agendas for the entire country. National unity issues, constitutional crises, and additional pressure to curry favour with party bosses are heightened under this system.

The people require a referendum

The Liberals are very alive to the fact the population of Canada will not very likely support a change of the current electoral system to either ranked balloting or proportional representation. Liberals have stated they do not want a referendum. Minister of Democratic Institutions Maryam Monsef has contemptuously said she doesn’t want a referendum to “prejudice” her parliamentary committee’s work.

The Liberal government is aware that referendums to change our type of voting system have been recently lost in the United Kingdom, Ontario, and British Columbia. A series editorials in The Globe and Mail have eloquently stated the necessity of a referendum. As columnist Gordon Gibson pointed out, “electoral reform” should not be managed by the job seekers but by the citizens.

We should not drink or serve the Kool-Aid

We need to understand this is way beyond normal partisan politics; something much more fundamental to our democracy. Until the Liberals abandon electoral “reform” without holding a referendum, lawyers should not use their influence to enable the Liberals. They should not donate funds or attend fundraisers, and they should tell the party why they are doing this.

They should forcefully state to party functionaries and members of Parliament that the party is making a fundamental mistake.

Lawyers should also hold a moratorium on organizing fundraisers. Partners who organize fundraisers should be questioned by their peers: “Why are you doing this?”  This is both a rhetorical question and one with potentially critical ramifications for our country, democracy, and profession.

Trudeau expressed admiration for China’s “basic dictatorship” in the past. His comment then could be regarded as simply silly. Given the Liberal government’s intention to make fundamental changes to our democracy without a referendum, his comments might be better regarded as indicia of a despot.

Stacey Reginald Ball is author of the treatise Canadian Employment Law, and principal of Ball PC in Toronto.

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