ELECTORAL SYSTEMS: Our electoral systems are a success to the degree that they meet this goal and
a failure to the degree that they do not. The detailed constitutional arrangements and voting systems which
convert the vote into a determination of which individuals and political parties are elected to positions of
Single Member Plurality: One candidate per constituency. Each geographical district has a representative.
Size matters to assure rep by pop, eg., 308 seats and roughly 100,000 people per electoral district. Plurality
of ballots. Strengths- Simple: easy to understand and Stable: tends to produce strong majority
governments. Encourages compromise rather than fragmentation. Weaknesses- Disproportionate
representation of “winner-take-all” system. Invites gerrymandering (when govt in power redraws the
borders of the constituency). Regionalism and sectionalism, both in voting and in party behaviour. Strategic
voting (vote based on your own agenda). “Wasted votes (vote for the party you know will lose).” It is
disproportional since a party can win less than 50 percent of votes yet still win all seats.
Alternatives? Single Member Majority: The run-off (Australia and France) Used at party conventions to
assure a level of party unity. Must have a majority. Favours those who make coalitions. Encourages
Proportionate Electoral Systems: Multi member constituency. Constituencies vary from 4-5 p/c to one
constituency for the country. Representation is proportional to the vote that major interests receive in a
How They’re Chosen, The List System: The elector votes for parties not individuals.
The parties have lists, and the percentage of people that win is proportional to the percentage of votes the
party received. Parties must have a certain number of votes to win a seat (e.g. 5%). Criticism: Parties have
too much control over who gets in
Mixed-Member-Proportional System (Germany): List and SMP systems used together. Voters cast two
ballots: territorial constituency and national list of candidates.
2nd ballot determines total number of seats each party holds in the Bundestag. Combines PR with territorial
representatives. Comment: keeps territorial representative while offsetting problems with SMP.
In Favour of Proportional Representation: Every vote counts. Ensures minority representation. People’s
particular interests are more likely to be heard. No gerrymandering.
Opposed to PR: PR leads to Balkanizaton. PR is divisive and undermines compromise. No majority means
government instability. PR strengthens machines by centralizing them
Mathematically confusing for voter. Weaken intimate contact with constituency. List chosen by party
Freedom: Freedom is having the intellectual, institutional and material means necessary to rationally
evaluate our choices about the good and to manifest them socially and politically.
Recognition: To have a sense of being rational autonomous beings and not playthings of outside forces is
to be recognized as such by other autonomous beings. Also, it is important that we have a sense that we are
able to affect things.
Two Party System: What’s wrong with it? The parties struggle for the middle and only serve the current
economic system and the inequalities and environmental damage it creates.
MultiParty System: What’s wrong with it? Majorities are rare, coalitions are created, thus diluting any
clear agenda such as class interest or environmentalism.
Elections: Examples of public recognition. Determine the composition of the representative assembly.
Change rulers without resorting to bloodshed. Basis of democratic legitimacy, government by consent.
Responsive; a judgment of the record of those in office. Link between rulers and ruled
Need three conditions: periodic, choice, political freedom. Quasi-sacred reaffirmation of people’s
commitment to constitutional procedures.
Could it be the ingredient that destroys our rights and freedoms? Lack of rights for fags.
Part of the Constitution Act, 1982. S. 32 (1) that it applies, or binds, the federal parliament and the
legislatures of the provinces. Prevents tyranny of the majority
Document to unite all Canadians Life before the Charter: Parliamentary supremacy. Political participation
through parliament. Flexibility of the unwritten constitution. Principles: Fundamental freedoms (sec. 2): freedom of speech, religion, association, etc. Democratic rights
(sec.3-5). Mobility rights (sec. 6). Legal rights (sec. 7-14): liberty, search and seizure, cruel and unusual
punishment, etc. Equality rights (sec. 15): no discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
Pros of Parliamentary Supremacy:
• Participatory politics meant engaging with the system - cooperating and compromising with a
party and a legislature to work out problems for the common good
• Flexibility meant the country could adapt quickly with the times once politicians felt the electorate
was ready (note second amendment of US Constitution)
Cons of Parliamentary Supremacy: Parliament may be too powerful. Could potentially persecute
minorities. Consider the persecution of communists in Quebec under the Union Nationale government of
Maurice Duplessis (Padlock Law, 1937)
Assurances: Rule of law is procedural, not substantial. Call for rights: entitlements that citizens can claim
against the state and other individuals. Part of “the Right” - at first a higher moral law - becomes a legal
term. Prevent parliament from making unjust laws.
Part of the modern liberal revolution..
Judicial Review Replaces Parliamentary Supremacy: Courts have power to strike down legislation
deemed unconstitutional (on rights grounds rather than just jurisdictional). The Compromise: a
Canadaesque mixed system: General restriction in s. 1: rights of the Charter are subjected “only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
(internment, War Measures Act?).
The Not Withstanding Clause: S. 33: a law that infringes upon the Charter may still apply if such a law
specifies that it is enacted nonwithstanding (regardless of) the provisions of the Charter. Applies only to
fundamental freedoms, legal rights, and equality rights. Five year limit; must be renewed. Problems:
Litigious rather than participatory politics. Individual trumps community. Judges as legislators: activism v.
restraint. Appointments to Supreme Court become more partisan.
Life before the Charter: Common law. Federal jurisdiction instead of rights claims
In Switzman v. Elbling, 1957,‘Padlock Law’ struck down for being ultra vires, not freedom of speech or
Bill of Rights, 1960: Statute; not entrenched. Ineffective. Exception: Drybones and s.94 of Indian Act.
The Oaks Test: (R. v. Oaks, 1986). Narcotic Control Act reverse onus clause; possession for purposes of
trafficking. Violates s.11, presumption of innocence
Not justifiable as a reasonable limit under s.1. Test for reasonable limits. Balance between individuals and
society. Test: Sufficient importance to warrant encroachment
Proportionality re. government objective.
Example of Violation: R. v. Morgentaler, 1988. Criminal Code provision criminalizing abortion violates
s.7. Not a question of liberty, “security of the person.” Procedural: “manifest unfairness.” Does the Charter
pose a threat to federalism? Uniformity rather than regionalism. Opposed by the government and the
National Assembly of Quebec.
FEDERALISM: Found in roughly twenty countries in the world, including the five largest: Russia,
Canada, the United States, Brazil, and Australia. Why does it matter?
Determines how power is distributed. It is a method of checking the abuse of power
Unites communities within a state with recognition rather than coercion. Enables diverse communities to
stand united and pool their resources for a shared purpose. What is it?
The state is divided between a national government and a regional or sub-national governments. The
powers of government are constitutionally allocated between these two levels of government. Each level of
government possesses some autonomy from the other, meaning either that neither can destroy the other,
that each has the final say in some area(s) of jurisdiction, or both.
The roots of federalism: From unitary system where all sovereignty rested with Parliament, through a
confederation to the first federal state.
Documents of Confederation (Federalism)- Confederacy - states remain sovereign
Primary purpose was national defence. 1783 - Revolutionary Army disbanded.
Congress had no power to tax. States were making trade agreements with foreign countries. Daniel Shay’s
Rebellion, 1786. Confederation: The regional or sub-national governments are supreme, and the national authority is
entirely their creation and servant. Intention in the US, but not the outcome
Stated in Canada, but never true.
Advantages of Federalism: Big countries need different levels of government. Product of a union of
smaller territories that have wished to retain some autonomy.
Reasons to Unite: Fear of common enemy (or potential enemy). Economic reasons.
Though sustained by subsequent sense of political nationality.
Origins of Federalism in Canada: Four provinces. Fathers of Confederation sought unitary government.
Quebec and Maritimes opposed. Quebec for linguistic and cultural protection. Maritimes for identity and
patronage. Other: keep regional issues outside federal politics.
Division of Powers: Constitutionally entrenched. Jurisdictions: powers to make laws in certain fields,
administer laws, raise taxes. Fixed set of jurisdictions? Regional and National. This is not always evident.
National jurisdiction: Defence, Foreign trade, Treatise with foreign powers, Currency, Postal service.
Less Evident: Labour relations, Environment, Highway construction and maintenance, education.
Centralization vs Decentralization: “Depends on what the framers want” If decentralized, regions will
have greater powers. Enumerate those you wish to secure for the government you wish to restrict. Residual
clause: all other powers go to the other level of government. US sought decentralized system: Enumerated
federal government and residuals for states. In the long run it has become more centralized than Canada.
Canada sought centralized federalism: Needed strong national government. Commercial interests, esp.
railroad (better credit). Military defence. Expansion into region between Ontario and B.C. How?
Enumerated provincial powers. POGG in section 91 has a residual dimension. Problematic because
combined with enumerated. POGG versus “Property and Civil Rights” of the provinces.
Canada’s Centralized Powers: Authority over trade and commerce, shipping, fisheries, interprovincial
transportation, currency and banking, postal service, see section 91. Taxation: received three-quarters of
revenues. Powers to disallow laws passed by provincial legislatures (quasi-federal?), sections 55, 56, and
90. Concurrent Legislation: Both levels of government occupy a field of jurisdiction. E.g., agriculture and
immigration in Canada.
Paramountcy: Where there is a conflict and the constitution specifies that the federal law prevails
Judicial Interpretation: Intra vires or ultra vires? Who has jurisdiction? Courts are an alternative to
deliberate constitutional amendments. Supreme Court can transform the federal bargain. What is the
measure? What determines how we allow the federal bargain to evolve? The intention of the founders?
The Measure: The effects changes have on the ability of the two levels of government to be responsive to
the problems of their common citizenry.
PARLIAMENTARY SYSTEM: Responsible government, Parliament, Judiciary, and the Senate.
Constitution Act, 1867Canada is to have “a Constitution similar in Principle to that of the United
Responsible Government: Emergence. Conventions. “Cabinet Gove