Christine Van Geyn: Don't look to the courts to stop MPs from crossing the floor

The punishment available to voters is at the ballot box.

By: Christine Van Geyn

Mark Carney’s majority government is now a few weeks old, but the controversy this new status has brought continues.

The Liberals are using their new majority to push through changes to parliamentary committees, bringing accusations from the opposition Conservatives, and other critics, that the moves, like the majority status itself, are illegitimate and maybe even unconstitutional.

Since the Carney government achieved majority status on April 13 with three byelection wins that followed several MPs crossing the floor from opposition benches to sit with the Liberals, social media — and my inbox at the Canadian Constitution Foundation — have been inundated with posts from angry and frustrated Canadians demanding a constitutional challenge to floor crossing. They argue that they never voted for a Liberal majority, and, in the case of former Tory Marilyn Gladu, the last of the floor-crossers, Sarnia-area voters didn’t vote for a Liberal.

But political problems are not best addressed by the courts, and in this case, there is nothing in our constitution that can or should prohibit floor crossing. If voters do not like it, the solution is at the ballot box.

Canada has a constitution similar in principle to that of the United Kingdom, where floor crossing is a normal part of the Westminster system (even if controversial politically). Members of Parliament are elected as individuals. They are free to express their will. This traces back to classic parliamentary theory from Edmund Burke that “Your representative owes you, not his industry only, but his judgement”: an MP is expected to exercise independent thought. They are not objects expected to subjugate themselves to their party.

What about the Charter right to vote? Section 3 of the Charter reads: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” Could this be used to prohibit floor crossing? Almost certainly not.

Courts have interpreted section 3 to include a broader idea of “meaningful participation” in the electoral process. But even this broader approach is not broad enough to prohibit floor crossing. There are two recent cases that are relevant: Working Families and Fair Voting BC.

In Working Families, a third-party political advertiser and advocacy organization in Ontario, backed primarily by labour unions, challenged Ontario’s pre-election third party spending limits. They argued that these spending limits violate the section 3 Charter right to “meaningful participation” because the law distorts the information environment voters need to participate meaningfully in an election. The case was interesting because it was framed as a section 3 right rather than as a right under section 2(b) of the Charter, which protects political expression.

The case made it all the way to the Supreme Court, where a narrow 5-4 majority struck down the law as a violation of Ontarians’ section 3 right to cast an informed vote. The majority endorsed the principle that a spending limit will infringe section 3 where it allows a political actor or third party to have a disproportionate voice in the political discourse, thus depriving voters of a broad range of views and perspectives on social and political issues.

This is a broad view of the right to vote under section 3 that triggered two dissents, both of which found section 3 was not violated.

But even if we want to take the majority’s expansive reasoning from Working Families, it will not prohibit floor crossings. Under Working Families, the strongest imaginable argument would be that voters cast ballots in an informational and partisan context, and post-election defections negate or frustrate the meaningfulness of that choice. But that runs into a basic problem: Working Families was about state action that impaired the voter’s ability to cast an informed vote during the electoral process. A floor crossing does not retroactively deprive voters of information, silence viewpoints, or prevent them from participating meaningfully in the election that already occurred. At most, it changes the later parliamentary consequences of that election. That is a very different theory.

Layer on top of this the recent decision from the Ontario Court of Appeal in Fair Voting BC. That case was a legal challenge to Canada’s first-past-the-post electoral system. A group of activists argued that the first-past-the-post system violates section 3 because it fails to provide “effective representation” and meaningful participation, especially given the mismatch between vote share and seat share. The theory was that if you vote for a losing candidate, they say your vote is “wasted” and doesn’t count.

The Court of Appeal rejected that argument and held that the federal electoral system does not violate section 3. The Charter is neutral as to the electoral model, and accepted arguments by the Canadian Constitution Foundation that the model we’ve had since confederation didn’t suddenly become unconstitutional.

Applying the Fair Voting BC approach to the question of whether floor crossing violates the Charter right to vote results in no finding of unconstitutionality. Section 3 does not guarantee that your preferred candidate or party will obtain, retain, or share in governing power. If section 3 does not guarantee that seat share tracks vote share across the system, it is even harder to argue that it guarantees an individual voter that the MP elected in their riding must remain in the same caucus for the life of the Parliament.

These cases show that section 3 is about a right to participate in elections, not a right to freeze parliamentary politics after elections. Under the case law and under our broader constitutional architecture, a legal challenge to floor crossings under s 3 would fail — and it should fail. As much as people are disgusted by floor crossing, we don’t want to turn to the courts to solve everything we don’t like, especially when those things are inherently the realm of politics.

Floor crossing could be dealt with through legislation or party policy. Legislation could be introduced that triggers a byelection when there is a floor crossing. And political parties, as private associations, could create rules prohibiting it, for example, a rule that says no MP elected under another party’s banner may join this party’s caucus during the same Parliament.

The frustration Canadians feel about floor crossing is real and understandable, but it is not a constitutional problem. If Canadians want to change the practice of floor crossing, the solution lies in the democratic sphere: electing more trustworthy individuals, advocating for change in legislation or party rules, or simply, in the end, through the next election.

Christine Van Geyn is a Canadian lawyer and the interim executive director of the Canadian Constitution Foundation.

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