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 opportunities for one particular avenue of direct democracy – a consultative referendum. Properly designed, consultative referenda are entirely appropriate for gauging public opinion in a constructive way, even if they involve complex issues.

The electoral reform process, until recently underway in Canada, lent itself particularly well to a consultative referendum, as recommended by the report of the House of Commons. Unfortunately, the prime minister, speaking for his government, stated categorically that referenda generally were “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, and was the prelude to the abrupt cancellation of the electoral reform initiative.

To understand the source of the distrust of referenda among many in the Canadian political establishment, including evidently the prime minister, it is useful to explore the events surrounding the Canadian referendum held in 1992 to seek approval of the Charlottetown Accord.

The Charlottetown Referendum was a consultative national referendum to determine public opinion on a set of far-reaching constitutional amendments.

As an active participant in the constitutional debates stretching from 1987 to 1992, I believe the national referendum was exactly what was needed to defuse and bring closure to a fierce debate over extensive and controversial constitutional amendments. These amendments were initially presented as the Meech Lake Accord in 1987 by prime minister Brian Mulroney and the ten provincial premiers.

The proposed amendments were controversial because they seriously undermined the role of the federal government and eroded the Charter of Rights and Freedoms’ vision of equal citizenship and a Canada-wide civil identity. For too many Canadians, the decentralizing concessions demanded by the Quebec government (supported, unsurprisingly, by all the other premiers) were too high a price to pay for a largely symbolic vote of approval for the 1982 Constitution in the Quebec National Assembly. (The 1982 Constitution is the fundamental law of the land everywhere in Canada, including Quebec, notwithstanding the regrettable fact that the then sovereigntist premier of Quebec, René Lévesque, refused to sign the final document. Seventy-two of 75 Quebec MPs in Parliament voted in favour of the changes and, since 1982, Quebecers have not hesitated to rely on the Constitution and our Charter of Rights and Freedoms, in the courts and elsewhere.)

The political leaders of all the major political parties closed ranks to support the executive agreement reached by the heads of federal and provincial governments. The Meech Lake Accord was presented to Canadians as a take-it-or-leave-it proposition. While legislative committees were established in all the jurisdictions to examine the Accord, most signatory governments had little trouble obtaining legislative majorities to pass the necessary ratification resolutions through their respective legislatures – despite the growing public concern.

The Quebec government led the way by approving the Accord on June 23, 1987 and triggering the three-year time frame set out in the Constitution for obtaining all the requisite ratifications (in this case, from all provincial legislatures, the House of Commons and the Senate). In so doing, they were following the anachronistic amending formula introduced as part of the Constitution Act, 1982 that only requires approval of federal and provincial legislatures, and excludes the possibility of directly consulting citizens.

Fortunately for the many Canadians opposed to the Accord, public debate intensified. Canadians protested through every outlet possible, both inside and outside the legislatures. In response, the proponents of the Accord increasingly resorted to fear-mongering, labelling opponents “dissidents” and “anti-Quebec” who wanted to weaken Canada. It was an exciting time of citizen mobilization.  I was involved in helping to build a multi-partisan coalition of opponents that endured through the three-year life of the Meech Lake Accord and beyond, to the Charlottetown referendum vote in October 1992. Our goal was always to criticize constructively and, wherever possible, present alternatives such as recognizing Quebec’s distinctiveness in the constitutional preamble so that the Charter would not be undermined.

In Parliament, the Senate stalled its ratification process and held lengthy committee hearings that were invaluable in providing an outlet for the growing opposition. (The Senate’s eventual rejection of the Accord was overridden by the House of Commons). Over the course of the ensuing three years, three new provincial premiers were elected who did not accept the Accords as is.  New Brunswick ultimately passed a futile companion accord to deal with some of the criticisms.  But the premier of Newfoundland and Labrador rescinded the initial approval of the legislature and cancelled a subsequent ratification vote. And the premier of Manitoba, heading a minority government, was all too happy to let the lone indigenous MLA, Elijah Harper, delay the vote beyond the expiry date of June 23, 1990.

After the failure of the Meech Lake Accord ratification process, rather than move on as many of his advisors suggested, Mulroney decided to try again. By August 1992, the new initiative led by Joe Clark had produced the Charlottetown Accord which appeared this time to garner not only the support of all premiers once again, but of the Aboriginal leadership as well. Mulroney then called a consultative national referendum to seek what he hoped would be such unambiguous support for the changes across Canada that expeditious ratifications by all the legislatures would follow easily.

Like the Meech Lake Accord, however, the Charlottetown Accord was an enormously complicated document 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”).  This is summarized in the pamphlet I co-authored in 1992 with Robert Howse entitled “No Deal”.

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 percent of the national population, if not provincial unanimity. 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”?

The referendum legislation of 1992, which is still on the books, was flawed and rudimentary. For example, 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 debate had been effectively five years in the making. The electorate were reasonably well-informed by the time of the vote and the huge imbalance in financial resources between the Yes and No sides had little impact on voters.

On October 26, 1992, the Accord was unambiguously rejected in Quebec and by a majority of voters in most other provinces (as well as First Nations) who turned out in very high numbers to vote.  Mulroney wisely withdrew the initiative.

Mulroney did the right thing in calling a consultative referendum. Enduring another lengthy legislative ratification process for the Charlottetown Accord was not an option. The referendum was the most expeditious and democratic mechanism available, and it proved effective in enabling citizens to mobilize on both sides in a condensed time frame.

Regrettably, since the Charlottetown Referendum, a knee-jerk distrust of referenda has emerged among those in the Canadian political establishment who supported the Accords and were bruised by the ‘unsatisfactory’ outcome. They blame the referendum as too simplistic a mechanism that prevented Canadians from understanding the complexity and value of the Charlottetown Accord.

With respect, this is wrong. Canadians had a very good understanding of the Charlottetown Accord and seriously debated both the general impact, as well as its detailed legal provisions. Consultative referenda are entirely appropriate for gauging public opinion in a constructive way, even if they involve complex issues, and are an important tool for strengthening our representative democracy and enhancing citizen participation.

Of course we must learn from several recent ill-thought-out and badly executed referenda. For example,  significant lessons can be learned from the Brexit referendum.  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 consequences would flow from the requisite majority – a minimal 50 percent plus one – voting either Yes or No.

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, devolution, and the demographic or regional distribution of the voting, in deciding what it would do ultimately.

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 able to play on people’s fears successfully and tip the scales against the EU.

Brexit, together with the Greek and Columbia peace deal referenda, are now 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.  And it is important that the government or governments have some flexibility in the response to the referendum result.

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

  • First and foremost, we need an independent referendum commission to establish and administer the rules fairly. 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 referendum commission must determine the length of the official campaign, having considered how thoroughly the issue has been subjected to public debate already. The public needs time to be well-informed.
  • The independent commission should be responsible for the final draft of the question or questions. As the Charlottetown Accord definitively demonstrated, it is confusing to undertake multiple constitutional reforms at the same time and in the same document. Linking too many different reforms can deprive people of a chance to decide each on its own merits.
  • Careful thought must go into the size of majority vote required for an option or question to be approved or rejected. Serious consideration should be given to incorporating a compulsory voting requirement since low voter turnout can be problematic.
  • The referendum commission must establish strict controls on spending by the Yes and No sides. It is arguable that a certain amount of public funding should be allocated for administration by the independent referendum commission according to objective criteria.