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A number of commentators have recently tried to argue that Justin Trudeau’s plans to use his legislative majority to change Canada’s voting system would be unconstitutional. They argue that the use of our traditional single member plurality (SMP) system is “implied” or “presumed” in various parts of the constitution, and that the 2014 Senate reference case decided by the Supreme Court would include the voting system as part of our “constitutional architecture” because any change would unduly affect provincial interests. These views are badly informed and poorly argued, seemingly unaware of Canada’s electoral history and its influences. Most crucially, they ignore sections 40 and 41 of the Constitution Act 1867, which clearly empower the federal parliament to alter its own election rules.

Let us be clear, the voting system itself is not a part of the constitution

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Those who argue that our present SMP system should be presumed constitutional lean on the line from the original BNA Act of 1867, that the new Confederation would have a “Constitution similar in Principle to that of the United Kingdom.” This is the approach floated recently by former law clerks Yaakov Roth and Jonathan E. Roth. From there they simply argue that as the U.K. used SMP, we must do so as well, as part of a constitutional inheritance. But you can’t inherit something that didn’t exist. In 1867, U.K. elections used mostly multi-member ridings. Not until 1885 did they move decisively to adopt single-member districts. Nor was plurality the only voting method used then or since. From 1867 to 1885, a number of ridings were elected using the semi-proportional limited vote, and later the proportional single transferable vote would be used to return members from Northern Ireland and the universities.