Feds would need majority provincial OK to guarantee Quebec share of Commons seats

OTTAWA — Constitutional experts say the federal government has a bit of wiggle room to maintain Quebec's 78 seats in the House of Commons -- or even add one or two -- but it can't guarantee the province's influence in the chamber won't wane over time without a constitutional amendment approved by at least seven provinces.

Quebec Premier Francois Legault and the Bloc Quebecois are both demanding that Prime Minister Justin Trudeau step in to ensure that Quebec does not lose one seat as the country's electoral map is redrawn to reflect population shifts.

And they've gone further, contending that the House's recognition of Quebec as a nation in Canada demands that the province have a constant share of the seats in the Commons in perpetuity, even though its share of the country's population is declining.

"I think the nation of Quebec deserves a certain level of representation in the House of Commons, regardless of the evolution of the number of inhabitants in each province," Legault said last month.

Under the current constitutionally entrenched formula for allotting seats, chief electoral officer Stephane Perrault has calculated that the number of seats in the Commons should increase by four to 342 -- including three more for Alberta, one more for Ontario and one more for British Columbia, the three fastest growing provinces.

Because Quebec's population has grown more slowly, at least in part because Legault's government has slashed immigration, the complicated formula dictates that it should lose one of its 78 seats. This would be the first time since 1966 that a province stands to lose a seat under the redistribution of ridings, which is constitutionally required every 10 years after each decennial census.

Perrault has no discretion in how he applies the formula. For him, it's strictly a mathematical exercise.

But the government of the day does have some discretion, and has used it in the past to adjust the formula from time to time.

The last time the formula was adjusted was in 2011, under Stephen Harper's Conservative government. At that time, the government added 27 more seats for the three fastest growing provinces, which had been significantly under-represented.

And it allotted three more to Quebec, to keep the province's share of seats at 23 per cent, roughly equivalent to its share of the population.

Such relatively minor tinkering with the formula requires a constitutional amendment, though it's one that can be done unilaterally through legislation passed by Parliament, without seeking the approval of any provinces.

But there are other constitutional requirements regarding the allocation of seats that the federal government can't change on its own. Most importantly, it can't depart from the principle of representation by population in the Commons without an amendment approved by at least seven provinces representing 50 per cent of the population (known in constitutional parlance as the 7-50 amending formula).

Proportional representation has never been strictly applied because of other constitutional provisions guaranteeing a province will never have fewer seats in the House than it has in the unelected Senate and that no province will ever have fewer Commons seats than it had in 1986.

Those provisions have led to distortions such as tiny Prince Edward Island still having four seats in the Commons, even though that has resulted in some individual ridings in Ontario serving populations larger than the entire island province.

Those distortions give the federal government "a very small margin of manoeuvre" to tweak the seat allotment formula without sticking precisely to proportional representation, says University of Ottawa constitutional law professor Benoit Pelletier, a former Quebec cabinet minister.

"It could give Quebec one seat or two seats or even three seats more than it would have normally but you cannot go much further without ... a (7-50) constitutional amendment," he said in an interview.

For that matter, Pelletier said repeatedly tinkering with the formula to give Quebec a seat or two more than its population warrants after each census could lead over time to a constitutional challenge that the federal government has incrementally violated the principle of proportional representation.

"I don't know where is the line because it has never been decided by, for example, the Supreme Court of Canada ... but there is a limit as to what you can do," he said.

University of Waterloo political scientist Emmett Macfarlane, who specializes in constitutional law, agreed that the seat allocation formula can be adjusted unilaterally by Parliament "but it has to stay within a reasonable margin for ensuring proportionality."

Figuring out what's within a reasonable margin is "really tricky," Macfarlane added. But both he and Pelletier agreed that guaranteeing Quebec a specific share of seats in the Commons, regardless of its share of the population, would clearly go beyond what Parliament can do on its own.

"That's a 7-50 amendment," said Pelletier.

"Once you start violating representation by population and you are actually enacting policy or constitutional change to protect one province over the interests of the others ... I think that's when constitutional amendment becomes required and it would be more than just Parliament unilaterally doing it," said Macfarlane.

Pelletier noted that the 1992 Charlottetown constitutional accord included a guarantee that Quebec would have 25 per cent of the Commons seats in perpetuity. But that was a concession made by other provinces in return for Quebec agreeing to things they wanted, including an equal number of seats for each province in the Senate.

The accord was ultimately shot down in a national referendum, including by a majority of Quebec voters.

Pelletier said he's "frankly surprised" that Legault is demanding a guaranteed share of Commons seats for Quebec when he has to know that would mean negotiating a constitutional amendment with other provinces who would bring their own demands to the table.

"You cannot think seriously that you're going to get 25 per cent or maybe a little bit less of the MPs without making concessions to the other federative partners," he said.

Given the reluctance of political leaders to reopen the constitutional can of worms, Pelletier suspects the Trudeau government will introduce legislation to adjust the formula in a way that would keep Quebec's current allotment of 78 seats.

To avoid straying too far from the proportional representation principle, Macfarlane said maintaining Quebec's 78 seats may require giving the three fast-growing provinces even more seats than currently contemplated.

That way, "Quebec is still outpaced as a proportion (of seats in the Commons) but the province doesn't face the indignity of having a seat taken away," he said.

So far, the Trudeau government has had little to say about the matter. Trudeau has said the government is "looking carefully" at redistribution and that he has clearly "heard concerns from a number of people, including Quebecers" about the current formula for allotting seats.

This report by The Canadian Press was first published Nov. 5, 2021.