I mentioned, in my discussion of my doubts regarding the constitutionality of consultative elections for Senate nominees under the “Peace, Order and Good Government” (POGG) power of s. 91 of the Constitution Act, 1867, that I also had doubts about authority of the provinces to set up such elections. As in that post, my thoughts here are tentative and, perhaps, a little crazy. I would very much welcome corrections.
The problem is similar in the case of federally- and provincially-organized consultative elections: it is by no means obvious what constitutional provision authorizes the relevant legislature to take such action. Indeed the problem is worse for provincial legislatures, because there is not even a remotely plausible candidate provision, like the POGG power for Parliament. The trouble with this claim is also similar, however. It seems to go very far, and to call into question the constitutionality of practices long assumed by political actors and probably by the Supreme Court to be perfectly permissible.
The authority of provincial legislatures to enact laws, including the laws that set up consultative elections, such as Alberta’s Senatorial Selection Act, RSA 2000, c S-5, comes mostly from s. 92 of the Constitution Act, 1867. (Other constitutional provisions grant further legislative authority to the provinces, but they are mostly not relevant here. The only significant one ― for my present purposes ― is s. 45 of the Constitution Act, 1982, which authorizes a province to amend its own constitution, except the office of the lieutenant-governor.) But consultative elections do not seem to me to come anywhere close to any “class of subjects” listed in s. 92. “The Establishment and Tenure of Provincial Offices” (subs. 92(4))? But Senators are federal, not provincial officers. “Property and Civil Rights” (subs. 92(13))? But that refers to private law. “Matters of a merely local or private Nature in the Province” (subs. 92(16))? But the Senate is not a local or private matter, nor a strictly provincial one. For the same reason the power to amend the constitution of the province cannot be the answer ― the Senate is, to some extent, part of the federal constitution, and to some extent of the constitution of Canada as a whole, but not of the provinces.
So provincial legislatures seem to me to lack the competence to set up consultative elections. And, by the way, even if I am wrong and Parliament has the power to do so under s. 91 of the Constitution Act, 1867, it cannot delegate this power to provincial legislatures, such inter-delegation being unconstitutional according to the Supreme Court’s decision in Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31. As Chief Justice Rinfret pointed out,
The constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislate exclusively on the subject matters referred to it by section 92.
But, as with my argument about the limit of the POGG power in this area, the problem is how far my claims go. If I am right that legislation whereby a legislature “consults” the people is subject to the federal/provincial division of powers so that it is only constitutional if and insofar as the subject of consultation is within the competence of the legislature in question, then certain practices which have so far been unquestioningly accepted and historically significant appear unconstitutional. In the case of the provinces, I am thinking in particular about Québec’s two referenda on separation from Canada. Separation, as the Supreme Court confirmed in the Secession Reference, is not a purely provincial matter. It requires the amendment of the constitution of Canada as a whole. The conclusion of the Secession Reference is that a province cannot unilaterally secede. What, then, in the constitution, gives its legislature the power to consult the voters on the matter? By my logic, the answer is “nothing.” Yet of course the Supreme Court’s decision not only assumes the permissibility of a referendum ― its holding that “a decision of a clear majority of the population of Quebec on a clear question to pursue secession” (par. 93, emphasis mine) triggers a duty on the part of the rest of Canada to negotiate secession seems to require one. Is my logic faulty, then? That would be a sensible guess, of course, though it does not tell me (or anyone) where the fault lies, and I would be very curious to hear that.
Alternatively though, there might be some distinctions between the case of a referendum on secession and that of consultative elections, or maybe even referenda on other constitution issues. Perhaps the principle of democracy, which is the main source of the duty to negotiate, is in itself sufficient to ground a province’s right to hold a referendum on secession, without any additional and specific grant of legislative power. However, one can at least argue that the principles of constitutionalism and the Rule of Law, which suggest that legislative power cannot be exercised except as provided by the constitution, weigh more heavily with respect to other, less momentous questions, on which consultation with the electorate regardless of constitutional fetters is less crucial.
As I said above, these are tentative thoughts, and I would welcome contradiction and correction.
Double Aspect 