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Electoral ‘reform’ and the legal profession in Canada

|Written By Stacey Reginald Ball
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 " target="_blank"]Canadian Employment Law, and principal of Ball PC in Toronto.

  • Canadian

    Francoise S.
    First past the post is no mere electoral detail that a parliamentary majority can hastily do away with - it is a fundamental tenet of our Westminster system. The proponents of the PR fad have not addressed some essential questions: won't PR favourize electoral lists full of central party functionaries at the expense of local figures? Will there by a requirement for party lists to have internal geographic diversity and representation? The imposition of PR represents a significant departure from the spirit of our Canadian institutions. Of course it should be subject to a referendum. Commentators can ridicule Mr. Ball's astute suggestion that PR will largely contribute and reinforce a one-party State, but PR will in fact do exactly that. It will hasten the return of brokerage rather than principled political parties. Regardless, the decision to overturn 149 years of Canadian History and institutions can and should only be made by the Canadian people.
  • Mr.

    Gary Dale
    Francois S. engages in fear mongering by presenting possibilities that not only don't occur in use but which in fact would doom any party that tried them to irrelevance. Even worse, our current system does exactly what he claims we need to avoid - parties dropping hacks into safe seats. When you have no choice but to vote for the candidate the party nominates in your riding in order to support the party of your choice.

    He also ignores that very real problem that 70% of all votes cast have no impact on who gets elected. Under even a poor implementation of PR, 70% of the votes count.
  • Mr.

    Gary Dale
    For a lawyer,Ball seems to have little respect for facts or evidence.This is shown in his cavalier assertion that "the people require a referendum". In fact few nations have ever used referendums to change their voting system. Canadian provinces have changed their voting systems at least a half-dozen times without them.

    He also seems to disregard the rights of non-Conservative voters in Alberta and Conservative voters in Toronto who are routinely denied representation by our current system.

    Given that 85% of OECD nations use some form of proportional representation and given that Canada has had more elections since Israel's first than either Israel or Italy, you'd think he'd be more circumspect in his criticism of proportional representation.

    Why anyone would want our current system, which alternates between dictatorial phony majorities and unstable minorities is impossible to explain unless one assumes they simply dislike any change.
  • Canadian

    Francoise S.
    That 85% of OECD countries use PR is not an argument that Canada should blindly follow. Our history and our institutions are closely connected and should be celebrated. We are proud of our British-inspired Westminster system. Mr. Dale does not address the very real possibility that PR will lead to endless Liberal rule. Even non-Liberals should be concerned about the return of brokerage politics, and lack of choice for Canadian voters. Perhaps he could also address that PR will lead to perpetual minorities. With PR, legislative progress could only be achieved backroom inter-party deals, in which case it becomes extremely difficult for Canadian voters to hold one party or one majority responsible. PR is a step backwards for our country. Thank you Stacey Ball for standing up for Canadian Institutions and for being skeptical about this adolescent PR fad.
  • Mr.

    Gary Dale
    Make up your mind, Francoise. Does PR lead to perpetual Liberal rule or does it lead to perpetual minorities?

    In fact the answer can be seen in the vast numbers of nations that use PR> It leads to stable coalition governments that actually represent the majority of voters.

    It's our current system that needs to be questioned, alternating as it does between dictatorial phony majorities and unstable minorities. The only nations that have had more elections over the last 66 years (since Israel held its first) than Canada are those with fixed election terms of 2 or 3 years

    I've got nothing against elections except when they almost never reflect the will of the voters. Unlike Francoise S. and Mr. Ball, I want my bills to be passed by MPs representing the majority of voters, not just the largest plurality.
  • Referendum

    Revikka B
    What I understand from Mr. Ball's article is that there needs to be a referendum. I think this is a real issue that the legal profession should indeed discuss openly.
  • Chairman of Canadian Freedom of Speech Award

    Jacqueline Jiang
    "Power tends to corrupt and absolute power tends to corrupt absolutely." - Mr. Ball pointed out the danger of absolute power for Canadians. Unfortunately, every politics power tends to self-serving for any "reform". Mr. Ball brought up the very important discussion as to how the "reform" should be done. His suggestion reflected his wisdom and his principle of justice in his profession. Wish there're more legal professionals like him in this country.
  • Mr.

    Gary Dale
    What is wrong with respecting Canadian voters? Under our current system, 70% of votes have no impact on who gets elected and half the voters aren't represented by anyone they voted for. Proportional representation gives people effective votes and ensures that almost all voters get their first choice of representative.
  • Personal Comment

    Steven F
    I think Mr. Ball should be applauded for bringing the issue to our attention. His article is food for thought. And the examples he gave are just that, examples. Dialogue about this issue is a good thing, not a bad one.
  • Mr.

    Gary Dale
    I too think dialogue is a good thing. However it should deal with facts, evidence and reason. Mr. Ball's article falls well short of that.
  • Mr.

    Chris Gilmore
    There are reasonable and evidence based arguments to make against electoral reform, alas these were entirely absent from this ill-conceived article. "National Socialist Germany," "Italy," Israel," are you serious?

    Where to even start? You do realise that most OECD countries use proportional voting systems, in terms of history and political culture Canada has nothing in common with Italy or Israel, our minority parliaments are notoriously unstable, and countries similar to Canada (New Zealand, Germany, Norway, Sweden, Ireland) enjoy greater parliamentary stability than we do?

    Why is it that so many critics of electoral reform are so uninformed? Regarding the so-called "ranked ballot system," ranked ballots are a feature of many different systems. Instant Runoff Voting would not necessarily lead to perpetual Liberal governments, and a PR system with ranked ballots, STV, wouldn't benefit the Liberals at all..

    This article is just sad.
  • Expected better

    Stephen McCulloch
    Cherry picked examples, poor reasoning, misinformation; I have higher expectations from the legal profession.
  • Lawyer

    Adam S
    Respectfully disagree.

    Referendums are fertile ground for low information voting. Electoral reform is extremely complex. I would note that the citizens coalition model in Ontario and BC both came to the conclusion that electoral reform was preferable (they were allowed to choose status quo). The referendum killed their recommendation.

    The arguments here have been leveled against proportional representation since the days of Herman Finer (1924!)

    There are different variants of the system that result in actual or defacto "electoral thresholds" which keep Parliament from fracturing.

    I think the fear of electoral reform without a referendum scares those on the right. Not for some fear of a lack of "electoral legitimacy", but a thinly veiled reaction to the potential loss of the system that has perpetuated their false majorities. That party has been benefiting from the electoral distortion caused by FPTP for years.
  • Is that what Atticus Finch would have done?

    tono bungay
    I will not fault the author for wanting a referendum, no one could object to citizens having their say, but the arguments used to get there are abhorrent.

    Do we need to choose an electoral system based on the presumption that lawyers have corrupt tendencies from which they must be protected? Do we need to invoke the precedent of Nazis with a democratically elected government? Should lawyers use their influence to force a change to the vote of MPs, using monetary donations? Is that not itself an admission that lawyers have influence on elected officials beyond their numbers, and that this influence can be wielded for their benefit?
  • President/CEO

    Saul Bottcher
    This column is alarmist nonsense.

    Ball would have us believe that adopting a modern voting system -- of the type used in 85% of OECD countries -- will somehow result in either a constitutional crisis or the rise of the Canadian Nazi Party.

    Ball cherry-picks the world's worst examples of PR systems in an attempt to make his point. Italy and Israel would have problems regardless of which voting systems they used, so this proves little.

    Why does Ball ignore New Zealand, Germany, Sweden, Denmark, and other peaceful, stable, and prosperous countries that use PR?

    One might almost be tempted to think Ball has an agenda.

    Ball then concludes his column by calling for a witch-hunt against members of the legal profession who dare exercise their right to raise funds for the party of their choice.

    Ironically, this is precisely the type of social pressure which is used as a tool to ensure conformity in a dictatorship.
  • Canadian

    Leif Harmen
    The fact that Stacy Reginald Ball lies about proportional representation, and more outrageously, pulls out the tired old Italy and Israel arguments, makes clear to all that he is no friend of true democracy. Canada has had more elections than Italy since the second world war, ie. we are less stable. Israel, started with the best of intentions, now - it suffers under an dehumanizing theocratic apartheid system in which over half its people are banned from voting by accident of their birth. Universal suffrage is a prerequisite to PR, so Israel does not use PR. PR just means we get the governments we vote for. Any form of disproportional misrepresentation such as first past the post or disproportional ranked balloting is un undemocratic affront to our human right to self representation as a people. We the people of Canada must demand nothing short of proportional representation, and be very wary of our enemies who promote disproportional misrepresentation. They would have us owned.