4. Expanding Direct Citizen Participation – (February 15, 2017)

This is part of my article entitled “Reform or Revolt: The Challenge to Canadian Democracy“.

Sound practices and institutions are vital, but in order to make our government responsive and responsible Canadians must mobilize to translate principles and ideas into positive, concrete action and influence on those who govern. Traditionally mobilization has occurred primarily through community-based groups, local councils, labour unions, and civil liberties organizations. In finding innovative ways to mobilize, we have to recognize the new challenges of our era of extreme social networking with instant communications and access to limitless information. Social media are great for mobilizing meetings and marches, but cannot and never will substitute for the hard work of building a clear consensus around complex issues. We have seen how the fragmentation of social media can be exploited too easily to produce a perfect storm that amplifies polarization and encourages the spread of hate speech, rumours, and misinformation (aka fake news).

In the future there may be several ways to improve our representative democracy, such as with California-style citizens’ initiatives in the form of petitions that can influence the legislative agenda.  Under Governor Jerry Brown, California has taken positive steps to ensure that citizens’ initiatives are more workable and more effective at facilitating consensus as a non-partisan mediating institution.  In 2014, the state passed a law drafted by thirty groups, from labour unions to civil liberties organizations. An initiative that collects at least 25% of the signatures required to qualify as a ballot measure can go directly to legislative hearings.  The legislature and the governor can then negotiate with the sponsors and “fix unintended consequences or collateral impact”. If an agreement can be reached, then the ballot measure can be amended or legislation can be introduced without the need for a separate public vote.

In 2013, the Canadian House of Commons did vote to partially adopt a United Kingdom procedure to accept e-petitions. Regrettably, the MPs rejected the mechanism that would allow these petitions to trigger debates in the House of Commons. This initiative should certainly be revisited.

We could also focus on specific targets and manageable issues such as electoral reform and the opportunity for one avenue of direct democracy – a consultative referendum. Consultations allow for significant expression of public feeling or opinion on an issue without boxing in the government on the exact answer to a complex policy question.

The electoral reform process, until recently underway in Canada, lends itself particularly well to a consultative referendum.  Our prime minister, however, has made it categorically clear that he considers referenda generally as “bad things to happen”.  He added that popular votes “give people a chance to lash out at institutions — and they might”. This was an unnecessarily uncompromising response. Certainly, recent examples of ill-thought-out and badly executed referenda have raised concerns, from Greece to Colombia to Brexit. This does not preclude the careful use of consultative referenda. Rather, with careful framing of the referendum question and much better organization of the referendum process, consultative referenda are important democratic tools.

To understand the distrust of referenda among many in the Canadian political establishment, it is useful to explore the events surrounding the national referendum held in 1992 to seek approval of the Charlottetown Accord.  This was a consultative referendum to determine public opinion on a set of constitutional amendments. The political leaders who authored and supported the controversial Meech Lake Accord in 1987, only to see citizens mobilize to defeat it and its successor, the Charlottetown Accord, consistently argued that we the citizens just did not understand how good the changes were. For them, it was a mistake to have lost control over the outcome and let citizens vote on the initiative in a national referendum. The lesson they drew, and the prime minister now apparently still draws, is that referenda must be avoided at all costs.

They are wrong. In 1992, a national referendum was exactly what was needed to defuse and put an end to a fierce debate over extensive and controversial constitutional amendments initially presented as the Meech Lake Accord by Prime Minister Brian Mulroney and the leaders of the provinces and territories.  In the end, the Charlottetown referendum was absolutely essential not as a way for citizens to mindlessly kick out at institutions, but to allow them to mobilize effectively to protect our institutions against overreaching executive action.

Both the Meech Lake and Charlottetown accords were enormously complicated documents containing changes to virtually every part of the Constitution – division of powers, federal spending power, mechanisms of executive federalism (first ministers’ conferences), Aboriginal self-government (at first thoughtlessly left out of the Meech Lake Accord), Senate reform, and special status for Quebec (the “distinct society”).  Both documents, however, despite the illusion of public debate, had been presented to Canadians by the parliamentary leadership of all three major national political parties as faits accomplis – take-it-or-leave-it propositions. This effectively eliminated Parliament as a channel for the intense public concern about the direction the Accord would permanently take our country in.  Canadians fought back and found every outlet possible to protest – from municipal council resolutions, to civil society groups, to individual presentations before the numerous parliamentary and legislative committee meetings that were held over the span of both the accords.

It was an exciting time of citizen mobilization.  And it was where I cut my political teeth, helping to build a multi-partisan coalition of opponents that endured through the five-year period prior to the Charlottetown referendum in October 1992.

During this time the prime minister of the day and other proponents of both accords were so convinced of the merits of the original closed-door deal that they consistently resorted to extensive intimidation and fearmongering.  For example, opponents were condemned as “dissidents” and enemies of the state and Canadians were told that a vote against the deal would mean the end of Canada. Yet Canadians easily understood that the constitutional changes in the accords would fundamentally weaken and irrevocably alter the nature of Canada, in particular gravely impairing the capacity of the federal government to act on behalf of all Canadians and undermining the Charter of Rights and Freedoms. This is summarized in the pamphlet I co-authored in 1992 with Robert Howse entitled “No Deal”.

In the end, Prime Minister Mulroney did the right thing in calling a consultative referendum, but the referendum legislation, which is still on the books, was flawed and rudimentary. For example, debate on the question was limited, the legislation was rushed, and there were no financial controls on spending. Any Yes or No committee could spend $.564 per elector, which meant that the deep-pocketed federal-government-sponsored Yes committee outspent the No opponents by hundreds of thousands of dollars to one. Fortunately, the referendum had been effectively five years in the making.  The Charlottetown Accord simply added further detail and complexity to the much-criticized Meech Lake Accord that had been soundly defeated in June 1990 by a new Newfoundland government and a lone Indigenous representative in the Manitoba legislature – Elijah Harper.  So the electorate were reasonably well-informed by the time of the 1992 vote and the huge imbalance in financial resources between the Yes and No sides (and all the glossy booklets printed and distributed by the federal government) had little influence on voters.

In order for the federal and provincial governments to proceed to entrench the Charlottetown Accord in the Constitution, it was generally accepted that the referendum question required at the very least the support of the majority of voters in seven provinces having 50 % of the national population (if not in all the provinces). This was consistent with the applicable constitutional amendment provisions in the Constitution Act, 1982.  The question on the ballot was: “Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992”?  When the Accord was clearly rejected in most provinces and by a majority of Canadians who turned out in very high numbers to vote, Mulroney withdrew the initiative.

The real lesson of the 1992 national referendum for us today is the importance both of citizen mobilization and of permitting direct consultation with the people of Canada on significant issues such as constitutional and related reforms. This is especially critical when the executive branch overreaches and erroneously believes there is a consensus for a controversial initiative, as was the case in the 1987-1992 period. Representative democracy failed, and direct democracy provided a corrective check.

Another lesson from 1992 is that the decline of the established political parties as checks on ever-strengthening executive rule was already underway. Many of us hoped that the disconnect between leaders and their respective party bases was a one-off event.  But we were wrong.

There are of course significant lessons to be learned most recently from the Brexit referendum in Britain.  The British prime minister recklessly called a referendum to fend off purely partisan pressures. The question was deceptively simple: “Should the United Kingdom remain a member of the European Union or leave the European Union?” Yet the UK government failed miserably to specify clearly what consequence would flow from the requisite majority – a minimal 50%-plus-1 – voting either Yes or No.  For example, it was critical to have had a clear debate in advance on whether the Yes vote categorically bound the government to politically or legally go ahead with Brexit. In retrospect, many agree that the government should have established the referendum as consultation on the general direction the public would like to go, and then committed itself to weighing the result in the balance, along with consideration of other political and constitutional values such as minority rights, federalism, and the demographic or regional distribution of the voting, in deciding what it would ultimately do.

The failure to think carefully about the framing of the referendum question and the organization of the referendum process led directly to the Brexit debacle. The exploiters of the popular backlash against the dysfunction within the EU structure and operations in Brussels were successfully able to play on people’s fears and tip the scales against the EU.

Brexit, together with the Greek and Colombia peace deal referenda, are now widely cited by skeptics as reasons to avoid referenda. But most of the problems that arose in each case could have been resolved by better framing of the referendum question and better organization of the referendum process, as well as restricting it to consultation only.

Here are some points to guide the use of consultative referenda:

  • First and foremost, referenda are not partisan tools to be manipulated by the government.  Indeed, the opposite is true: they are appropriate when a government needs to consult the public to assist the executive and legislative branches in formulating policy and action on a particularly difficult or controversial issue.
  • Referenda should not be rushed. The public needs time to be well-informed.
  • Careful thought must go into the drafting of the option(s) or the question(s), and the type of majority vote required for an option or question to be approved or rejected, such as requiring more than 50% in each province and territory, or requiring a certain minimum voter turnout.
  • There must be strict controls on spending.
  • The referendum topic should be confined to a single manageable subject. As the Charlottetown Accord definitively demonstrated, it is confusing to undertake multiple constitutional reforms at the same time and in the same document.  Linking different reforms can deprive people of a chance to decide each on its own merits. If discussions proceed simultaneously on different subjects, there should be a separate referendum question on each.