Reconciling Shared Rule: Liberal Theory, Electoral-Districting Law and “National Group” Representation in Canada

Abstract

AbstractCanada, like all representative democracies, apportions representation to individuals; also, like all federal states, it accords polity-based representation to federal subunits. But Canada is additionally a consociational state, comprising three constitutionally recognized “national groups”: anglophones, francophones and Indigenous peoples. These groups share power and bear rights beyond the bounds of the federal system. In recent decades, Indigenous peoples and francophones have appealed for representation as “national groups,” leading to constitutional challenges. Courts have either failed to address the constitutionality of “national group” representation or have rejected it as irreconcilable with individual voting rights. I suggest the former is unnecessary and the latter procedurally illogical. Drawing on the liberal principles of individualism, egalitarianism and universalism, I develop a framework contextualizing such representation within liberal theory. I then deploy this framework to analyze recent Canadian case law. I show that appeals for “national group” representation should be approached not through the lens of individual rights, but rather through the “constitutionally prior” lens of universalism.