Legislative Assembly of Ontario

REFERENDA

CONTENTS

Wednesday 12 February 1997

Referenda

STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY

Chair / Président: Mr Ted Arnott (Wellington PC)

Vice-Chair / Vice-Président: Mr John Hastings (Etobicoke-Rexdale PC)

*Mr TedArnott (Wellington PC)

Mr DaveBoushy (Sarnia PC)

*Mr TonyClement (Brampton South / -Sud PC)

*Mr AlvinCurling (Scarborough North / -Nord L)

*Mr CarlDefaria (Mississauga East / -Est PC)

*Mr BillGrimmett (Muskoka-Georgian Bay / Muskoka-Baie-Georgienne PC)

Mr JohnHastings (Etobicoke-Rexdale PC)

*Mr RonJohnson (Brantford PC)

*Mrs MargaretMarland (Mississauga South / -Sud PC)

*Mr Gilles E. Morin (Carleton East / -Est L)

*Mrs SandraPupatello (Windsor-Sandwich L)

Mr TonySilipo (Dovercourt ND)

Mr R. GaryStewart (Peterborough PC)

*Mr BudWildman (Algoma ND)

*In attendance /présents

Substitutions present /Membres remplaçants présents:

Mrs BrendaElliott (Guelph PC) for Mr Grimmett

Mr DerwynShea (High Park-Swansea PC) for Mr Boushy

Also taking part /Autres participants et participantes:

Mr GillesBisson (Cochrane South / -Sud ND)

Clerk pro tem/ Greffier par intérim: Mr Doug Arnott

Staff / Personnel: Mr Philip Kaye, research officer, Legislative Research Service

The committee met at 1554 in room 228.

REFERENDA

The Chair (Mr Ted Arnott): I call this meeting of the standing committee on the Legislative Assembly to order. We are continuing our discussion on the issue of referendums.

Last week a number of issues came up that the Chairman suggested Philip look at to see if there was further clarification, and Philip wants to inform the committee of the results of his research on issues raised relative to points 8, 3, 7 and 6, I believe. Philip, could you give us your advice?

Mr Philip Kaye: There were four general issues as such that were raised last week where I was asked to do some further research. One of those issues comes out of item 8 in the motion before the committee, where I've been looking at the issue of constitutional limitations on the legal effect of referenda. For instance: To what extent can the Legislature be bound by the results of a referendum? Also, what kind of legal effect do binding referenda have in other provinces?

In November I prepared a memorandum for the committee entitled Constitutional Cases re Citizen Initiatives, which has been redistributed this afternoon. That memorandum partially addresses the questions I've just posed.

For instance, on page 2 of the memorandum I make reference to the fact that over 70 years ago the constitutionality of two provincial models of the citizen initiative was tested in the courts. In 1919 and three years later, in 1922, the judicial committee of the Privy Council in England ruled on the validity of Manitoba's Initiative and Referendum Act and Alberta's Direct Legislation Act.

To briefly summarize the legislation in question and the decisions of the Privy Council, under the Manitoba legislation a proposed law that was initiated by electors and approved in a referendum automatically became law as though it were an act of the assembly. Enactment of such a law, then, did not require any action on the part of the Legislative Assembly of Manitoba or the giving of royal assent by the Lieutenant Governor.

The Privy Council found the Manitoba act to be invalid. In particular, it said that the bypassing of the office of the Lieutenant Governor constituted an amendment of the Constitution of Manitoba that went beyond provincial powers under the British North America Act.

The Privy Council did not consider it necessary to comment on whether the bypassing of the Legislative Assembly also made the act invalid, but the court which dealt with this matter before the Privy Council, the Manitoba Court of Appeal, did say the Constitution vested primary law-making powers for a province in a Legislature which involved some type of representative assembly. Thus, the Manitoba Court of Appeal had concluded that laws could not be enacted by direct vote of the people instead of by the Legislature itself.

Mrs Sandra Pupatello (Windsor-Sandwich): What page are you reading from?

Mr Kaye: The decision of the Privy Council is outlined starting on page 3. At the bottom of page 3, you'll notice that I mention, "The Privy Council deliberately refrained from ruling on whether the bypassing of the Legislative Assembly was valid," but the lower court had commented on that.

The other legislation that went to the Privy Council involving citizen initiatives was the Direct Legislation Act of Alberta, which is summarized starting on page 4.

Alberta's initiative procedure differed from Manitoba's in several respects. Most significantly, it did not say that a proposed act approved in a referendum automatically became law. Under Alberta's legislation there was no bypassing of the Legislative Assembly. Instead, the Alberta act imposed a duty on the Legislature to pass the act without substantive amendments and then such an act would come into force upon receiving royal assent.

The relevant provision is at the top of page 5 of the memorandum, where I write: "Unlike the Manitoba legislation, if voters approved the proposed act, it did not automatically become law. Instead," quoting from the legislation, "`the said proposed act shall be enacted by the Legislature at its next session without amendment...and...shall come into force upon receiving royal assent'."

Alberta passed a liquor act under this initiative procedure. In a case involving an offence under this act, the Privy Council held that the act was not invalid because it had been enacted in this way. It stated that a law was validly made by a provincial Legislature when it had been passed in accordance with the regular procedure of the House and had received royal assent. Thus, a law that went through this process after an initiative vote was still an act, even though it had been the statutory duty of the Legislature to pass it.

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This decision of the Privy Council is the subject of a fair bit of debate, which is highlighted in the memorandum beginning at the bottom of page 5. In Constitutional Law of Canada, Peter Hogg comments on this statutory duty on the part of the Alberta Legislature to pass measures approved by referendum under this Direct Legislation Act. He writes, in reference to the Alberta legislation, quoting from the bottom of page 5:

"Once it is accepted that the Legislature's role is formal only, simply to place a rubber stamp on the result of the referendum, then the reasoning which appealed to the Privy Council and Manitoba Court of Appeal in the Initiative and Referendum reference seems applicable again; that is to say, the office of Lieutenant Governor is again impaired, and primary legislative power is again granted away from the Legislature."

Hogg has written of another difficulty in the Privy Council decision in Nat Bell Liquors. He says that it violates a basic rule of parliamentary sovereignty; that is, that a legislative body cannot bind itself as to the substance, as opposed to the manner and form, of its future enactments.

Another perspective on this decision of the Privy Council is given by Patrick Boyer in Direct Democracy in Canada, who in reference to the judgement says: "It was the Legislature itself which had passed the act by which it agreed to share or limit the scope of its lawmaking powers." Boyer comments that the Direct Legislation Act "did not empower the electors to enact or nullify laws. It simply gave voters, in a somewhat filtered form, both a negative and a positive voice."

This Alberta legislation remained in force until 1958, and as mentioned in footnote 26 at the bottom of page 6, it was repealed as the result of a citizen who made inquiries into the possibility of using it. That inquiry was referred by the government to the Deputy Attorney General, quoting Patrick Boyer, "who gave a cautious legal opinion that the act was ultra vires based on the Manitoba decision." According to Boyer, "That opinion unfortunately persuaded the government."

Apart from the constitutional limitations discussed in these two decisions of the Privy Council, there is a limitation found in the Constitution Act of 1867; it's also in Ontario's Legislative Assembly Act. It says that the assembly cannot pass a bill for the appropriation of any part of the consolidated revenue fund or the imposition of any tax without a recommendation from the Lieutenant Governor.

With respect to binding referenda in Canada, discretionary referenda are binding in British Columbia and Saskatchewan. In both provinces, the government must take steps considered necessary or advisable to implement the results of the referendum, such as introducing or changing programs or policies, or introducing a bill during the first session after the results of the referendum are known.

With respect to initiative votes in British Columbia, the government must introduce a bill at the earliest practicable opportunity. If the bill deals with the appropriation of any part of the consolidated revenue fund or the imposition of a tax, the government must first request the Lieutenant Governor to recommend the bill.

Those are the key constitutional features, I would say, in terms of the issue of the implementation of the results of a referendum vote. There are not very many court decisions, as I said. There are just these two decisions of the Privy Council in terms of initiative legislation and there's much debate over whether these two decisions are consistent and whether the second decision represents good law today.

Another issue that was raised last week pertained to citizen-initiated referenda which would take place on a regional basis --

Mr Bud Wildman (Algoma): Sorry, could I ask the Chair that if there are any questions on this particular matter, we deal with them now before we go on to the other parts of Philip's report? Is that all right?

The Chair: Sure, if there's the consent of the committee, that's fine. Mr Wildman, did you have a question related to that point?

Mr Wildman: Yes, I do have some questions. I don't mean to get into a debate now.

The Chair: If there's a specific question you'd like to ask, go ahead.

Mr Wildman: I was going to raise the last point that you mentioned. Since under our Constitution and rules a private member of the Legislature cannot initiate a private member's bill which appropriates or spends funds -- that is a matter for the treasury bench only; the government is the only one that can do that -- it would seem to me reasonable and consistent with what you've said that there could not be a piece of legislation that made a referendum which required the expenditure of funds binding on the government. It would seem to me that would be held to be against the Constitution of Ontario and of Canada, would it not?

Mr Tony Clement (Brampton South): I disagree with that interpretation.

Mr Kaye: In British Columbia they explicitly allow for citizen initiatives that would provide for the appropriation of part of the consolidated revenue fund or a tax, provided the government first requests the Lieutenant Governor to recommend the bill.

Mr Wildman: See, that's my question. In British Columbia, for example, could the government decide not to proceed, that is, not to ask the Lieutenant Governor to recommend the bill?

Mr Kaye: The legislation is phrased in mandatory terms in British Columbia.

Mr Clement: They have to introduce it for first reading but they don't have to pass it.

Mr Wildman: Oh, I see. All right.

Mr Kaye: They must request the Lieutenant Governor to make the recommendation and then introduce the bill for first reading. But the requirement on the government in BC, whether it's a so-called money bill or not, is to introduce the bill for first reading, and then the legislation is silent at that point.

Mr Wildman: Then the political process kicks in in terms of the public then being able to press the government to proceed or not to proceed.

Mr Clement: I have some wording to clean up section 8 of the motion a little bit in furtherance of what Mr Kaye has produced and in furtherance of some of the research I did.

The Chair: Okay, and when we get to that we would perhaps deal with it at that time.

Mrs Pupatello: Philip, based on what you've found in preparation for today, the legal counsel for this committee isn't here today, but I'm curious to know if legal counsel to the committee would have an opinion on what you found.

Mr Clement: I'm sorry, I missed that. Could you just repeat it?

Mrs Pupatello: Would the legal counsel for the committee have an opinion of what was found through Mr Kaye's research, in terms of whether binding is really binding, I guess?

The Chair: The committee does have the opportunity from time to time to request legal advice. The clerk advises me that normally the legal counsel are here when legislation is being dealt with by a committee, but otherwise they're not physically present.

Mrs Pupatello: I'm just curious. In this case you probably haven't vetted this through legal counsel of the committee, just in terms of having their opinion on it.

Mr Clement: In all honesty, if I can fill Mrs Pupatello in, because I don't think she was here for much of the September part of our discussion of this, we did have counsel for the Attorney General who made a full presentation to this committee, partially on constitutional issues. Indeed, much of the earlier submissions from Mr Boyer and Mr Hogg and others dealt with some of the constitutional issues. I guess what I'm saying to Mrs Pupatello is that this committee did hear evidence and opinion on the various constitutional aspects of referendum legislation. I can assure her of that.

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Mrs Pupatello: That's not my question. My question is, what would be the opinion of legal counsel to this committee in terms of the binding or non-binding nature of referenda? What would the counsel to this committee tell us?

The Chair: We could perhaps request that information, but I don't think Philip has really given a legal opinion on this matter. He's just compiled information.

Mrs Pupatello: I realize that and that's my point: May we get the legal opinion of counsel to this committee on that?

Mr Wildman: We could request legislative counsel to provide an opinion or something, I suppose.

Mrs Pupatello: I realize they've been here to hear the opinions that were put forth earlier in another session.

The Chair: Could we perhaps check into it and see what the proper procedure is and get back to you at that point? If we can deal with that, hopefully this afternoon, that would be helpful.

Mrs Margaret Marland (Mississauga South): If you're thinking about legal counsel, I recall that it was this committee that had legal counsel on two other occasions dealing with matters pertaining to members. There's quite a protocol to this committee selecting legal counsel. In other words, all three caucuses put in a name and there is a discussion on who that person is who is selected.

Mr Wildman: On that point: Margaret's correct, but in that case we were talking about actually hiring legal counsel. I don't know whether we have any budget in this committee for that.

The Chair: Not at present.

Mr Gilles E. Morin (Carleton East): If we do hire counsel, we have to make sure it's someone who is very well versed in the question of referenda.

Also, just to confirm what the member for Mississauga South said, I remember being on the standing committee of the Ombudsman. We had a permanent counsel, if you recall, Margaret. His name just escapes me, but he was hired by the committee. He went on for years, close to six or seven years, on the committee. But the question of getting money to hire someone I don't think should be a problem, especially if we want to get some information which is going to be useful to make decisions ourselves.

Mr Clement: This has been an interesting discussion but there is no legislation before this committee. We did hear advice from eminent lawyers who are paid for by the taxpayers and who are employed by the Attorney General, as well as volunteers who happen to be members of the legal profession who came before this committee to depose on these particular issues. We have a lot of evidence of a legal nature, certainly enough that has posed the right questions and opined on the answers to those questions that this committee can make some preliminary recommendations by virtue of a final report. When legislation does come through this committee again, in the form of legislation, then it is perfectly apt to have legal counsel present, but not before.

Mrs Pupatello: Let me be clear: When members have an opportunity for private members' bills or private members' resolutions etc, we are able to take advantage of legal counsel through the Speaker or the Clerk's office to vet what it is we'd like to have eventually put in the form of a bill or a resolution so that they can look at something that is appropriate in terms of wording. We can also go to them for legal counsel in terms of their opinion as to the nature of it.

What I'm requesting from the Chair is that given the information that Philip Kaye has presented to us today, which was research that offered more than one opinion, what I would like is the opinion of the legal counsel to this committee as to what was presented today in terms of the binding or non-binding nature of referenda in Ontario. I understand that others have come to the committee and given --

The Chair: It's the private member's bill idea. They go to legislative counsel for advice, doing the research as to what statutes have to be changed perhaps, and also drafting assistance so that it's legally worded. It's quite another thing to ask for a legal opinion. I don't think legislative counsel, as a rule, provide legal opinions. It puts them in a very awkward position relative to any issue that might be of a political nature that's before the Legislature.

Mr Wildman: They will tell a private member, though, if the proposal that the private member is putting forward might be deemed ultra vires.

Mr Ron Johnson (Brantford): That's legislation.

Mrs Pupatello: What I would like, Chair, if I may, is to request the legal counsel of this committee, which is dealing with the drafting of a report that will take the form of legislation eventually -- that's the intent; that's been made eminently clear by Mr Clement -- to view the work of the legislative researcher. I would like their opinion then, based on clearly more than one opinion that was offered by the researcher -- that's the job of the researcher, to offer us what he was able to find -- as to the binding or non-binding nature of referenda in Ontario.

I'm specifically interested in the issue of binding or non-binding, because I understand that Mr Clement, speaking on behalf of the government last week, has made various comments to the press, members of the media, as to his interpretation of binding or non-binding and, quite frankly, Chair, speaking on your behalf as well, for work that has yet to be completed by the committee.

In his comments, he was not consistent in terms of what he views as binding or non-binding by government or by the legislators.

Mr Clement: Those are two different bodies. The government and the Legislature are not the same.

Mrs Pupatello: Regardless, because I am personally aware of contradictory comments regarding the issue of binding or non-binding, it's going to be a very key focus of what this committee intends to eventually bring forward as proposed legislation to be discussed in the House. Correct? It is absolutely a key issue and that's why I've got to insist on legal counsel to this committee. I would like their opinion. I have to assume that we're entitled to it; that's why legal counsel is assigned to each committee, because each committee often needs legal opinions. Based on legislative research done by Mr Kaye, I would like that.

The Chair: I have a number of other people who would like to speak to this point: Mr Curling, Mrs Marland and then Mr Clement.

Mr Alvin Curling (Scarborough North): I think the point Mr Morin made in regard to the Ombudsman is a pertinent one, that while the Ombudsman committee was in operation there was permanent legal counsel on the committee, so matters that came up would maybe have been given a legal opinion. My understanding of Mrs Pupatello's point is that the researcher brought about a couple of findings and presented them to us. It would be quite time-saving if legal counsel could be here to assess that and give us that direction. By the time we come to legislation, I think it would be much easier for that to be sieved out and proceeded with.

Mr Clement mentioned that we have had these legal counsel before us. My understanding was that these legal counsel who came were all witnesses. They were just giving their perspective on things at the time, not assessing or evaluating some of the research that's been done.

It's very important, Mr Chairman, that you listen; I know you're busy. We're trying to make a case here, as was said by my colleague, that the presence of legal counsel would be very helpful, especially now. By the time the legislation has been written -- it would be much easier, an easier flow, for the legislation to be drafted.

Just recapping, all the legal counsel who came before us were witnesses making presentations. They were not in any way assessing research material presented to us.

Mrs Marland: The person who can probably best answer Mrs Pupatello's question is Mr Arnott, the other Mr Arnott; it just occurred to me that we have two Mr Arnotts sitting up there. I think Sandra has to have explained to her the role of legal counsel as they pertain to committee and the role of our researchers as they pertain to committee work. It is coincidental that some of our researchers indeed are lawyers. I'm not going to ask Philip whether he's a lawyer because that's not the point. He has done some research, and this is how committees function all the time.

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Now, if we have an opinion from a legal counsel, that's all it is: an opinion. We have three lawyers sitting here. I guess there aren't any lawyers there. I'm not a lawyer, Mr Shea isn't a lawyer. There is a reason for the old joke that you get 10 lawyers in a room and you'll have 10 different opinions. There's no value to the committee of having an opinion from a legal counsel unless -- are we going to get six opinions and choose four?

What we're dealing with is trying to write a report on the best information available to us. We will not know how the research Mr Kaye has developed for us would stand in a challenge versus what legislation our government comes forward with until it's challenged. We're going to write a report and then the government is going to draft legislation and then we're going to go through all this again. What will be very interesting is that after the government has passed the legislation, it may still be challenged through the court, so we may still have a legal challenge where the final, ultimate legal opinion will be given.

Doug, could you explain about how legal counsel works as it pertains to committee work?

The Chair: Thank you very much, Mrs Marland. That was very helpful.

Mr Curling: Who needs that?

Mrs Marland: I think you need it. You're asking the questions.

Clerk Pro Tem (Mr Doug Arnott): The role of legislative counsel is to provide advice to committees, as I understand it, when committees are considering legislation referred to them by the House. This committee, as I understand it, does not now have legislative counsel assigned to it during its consideration of the order of the House to consider the matter of referenda.

Mrs Marland: And we're not considering a bill.

The Chair: We're not considering a bill at this time, that's correct, and we have no legislative counsel assigned to us at the present time. Mr Clement, then Mr Wildman and then Mrs Pupatello, if you still wish to --

Mr Clement: I'm hoping to help out Mrs Pupatello and Mr Curling by sharing with them a motion I would like to move at the appropriate time, as deemed appropriate by the Chair, to add a sentence to section 8 of my motion which would make it clear what "binding" means. We always knew that "binding" could not bind the Lieutenant Governor in Council, based on that bill as well as other decisions; "binding" in terms of binding the entire Ontario Legislature would be problematic as well. The phrase I would like to add to section 8 --

Mr Curling: On a point of order: I thought you were going to complete the presentation.

Mr Clement: Yes, and I'm going to move this at the appropriate time, Mr Curling.

Mr Wildman: He's just informing us.

Mr Clement: I thought I'd like to inform you. Based on the discussion we had last week, Mr Silipo was very helpful in that discussion in focusing the issue, as well as Mr Gerretsen. After having re-researched some of the presentations that had been before this committee -- Mr Boyer's presentation I reviewed, as well as Mr White's presentation, as well as the taxpayers' federation presentation. I was able to also review the BC legislation.

Correspondingly, what I propose in the future to add to section 8 would read, "In either case, a referendum-inspired bill would be considered a government bill and would be pursued by the government at the earliest reasonable opportunity."

This is more or less in collaboration with Mr Silipo. Mr Wildman, we had this discussion of trying to find the best language, not in a legal form, because this isn't legislation, but with the intent to bind the referendum result.

I think Mr Silipo and I came to the same conclusion, that although you cannot bind a Lieutenant Governor or the Legislature, necessarily, you can bind the government. In our Constitution, that is a different body. In fact, what you're doing is binding the executive council and its caucus.

That is what I intend to move, Mr Chair, and I hope that helps Mrs Pupatello and her colleagues.

The Chair: Mr Wildman, do you still wish to comment?

Mr Wildman: Yes, very briefly. Just as an aside, I would comment that while I agree with the member for Mississauga South's position vis-à-vis lawyers and legal opinions, I think it is fair to say -- and far be it from me to defend the legal profession -- that some legal opinions are more equal than others. A learned professor of law, for instance, who is expert in this particular field, is respected in a way that perhaps a litigant lawyer might not be in some of these matters. If we were seeking an opinion, there are people we could canvass who could give us their views that would be helpful.

Having said that, I think the description by Mr Clement of the proposed amendment that he will put at a later time is helpful. At that point we will get into the discussion of what "pursue" might mean and what the import of that word is, but I think that does try to deal with the constitutional question.

The Chair: Mrs Pupatello, do you still wish to speak further?

Mrs Pupatello: I don't find Mr Clement's comments helpful. The point I was raising was my becoming aware of discussions Mr Clement has had on your behalf, Chair, as to the status of the committee and where the issue of referenda is going and its time frame. Mr Clement, speaking on behalf of committee members, suggested a time frame that you are not aware of, as we spoke of prior to the beginning of the meeting. He has issued, apparently, a particular time line for our work to be completed here, none of which is appreciated by me or the Liberal members of the committee. Now, having spoken with you prior to the meeting, you too are not aware of any time by which our work is to be done.

The most significant issue regarding the issuance and the collection of a referendum is the binding nature, whether it is or is not binding. It's such a relevant issue that when communities, municipalities, towns, cities right across Ontario, that currently are in a position to hold referenda -- plebiscites, whatever you're going to call them. They currently have that power so it's certainly not new to hold them. What is new is whether there is a binding nature to it. On the occasions Mr Clement has been asked these specific questions, he has given contradictory reports as to whether referenda, depending on the issue and depending on the place, would be binding or not binding on government members.

This causes me a great deal of concern because at this early stage where the committee has not finished its discussion on points forwarded -- when these 12 points were brought forward to committee, you'll remember the scramble to have them typed in time. You'll remember the horrific writing we had to suffer through because we couldn't read Mr Clement's handwriting because it was done in such a rush. You'll remember that we had to wait while it got typed. Even when we got photocopies of this horrendous handwriting -- he's not going to take this personally --

Mrs Marland: You're saying it twice.

Mrs Pupatello: Margaret, you not having been here, I would only share with you that I have a copy still. It was terrible handwriting. I think he chose the wrong profession. In any event --

Mr Morin: On a point of order, Mr Chair: Hansard is not like television; it doesn't show the facial expression. I must say, when I read the last Hansard it sounded as if I were scolding Mr Clement. It's not a fact. His writing wasn't good and I meant it with a smile. Mrs Pupatello, I hope Hansard understands it's being said with a smile.

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Mrs Pupatello: I hope Hansard records a great big grin.

The point I'm making is simply that the 12 points, since they were submitted in handwriting that was not legible -- the debate has completely focused on those 12 points, which I'm suggesting were written in haste. There are a number of things that Mr Clement himself acknowledges he would change if he'd had the time.

It still all comes down to one overriding issue: the binding or non-binding area of referenda when they're used. If they're not binding, we're not going to sit here at committee and discuss referenda. If they're not binding, we're not going to make any introduction of legislation to the House. If they're not binding, we're not going to spend hours researching what happens in other civilizations, in other jurisdictions and states and provinces. Clearly, the intent by Mr Clement is to introduce the notion of them being binding.

Having said that -- and I don't think that's arguable. I think that's acknowledged by all of us. Your intent is that legislation will come out of this committee to be binding.

The Chair: No.

Mrs Pupatello: It must be. I know you're shaking your head and saying no.

The Chair: There's no legislation before the committee. It's a report.

Mrs Pupatello: The intent of the report --

The Chair: Excuse me, Mrs Pupatello. We're working on a motion that is to lead to a report that's going to be referred to the House and then it's up to the government to decide. I have a couple of other points I want to make.

Mrs Pupatello: Are you on my point of order? Just so we know the status here.

The Chair: Is it a point of order? No, I don't think so. It's actually questions and comments related to what Philip presented earlier on.

The role of the Chair is to try to move the business of the committee forward, to call meetings and to try to bring people together. Mr Clement, who is, as I understand it, the point person for the government -- if he has media questions, I assume he deals with them in the way he thinks is appropriate, answers questions, explains what the position of the government is. I don't see that there's any problem there. He explains the position of the government. I don't see that he's infringed upon the rights of the committee in any way.

Mrs Pupatello: In making statements to media about the timetable of the government and its intentions for where things go at this committee, it's highly relevant to what you as Chair have to expect to follow through in a certain time frame. That's exactly why I asked you those questions.

The Chair: No, the Chair is independent. I sit as a member of the governing party, but in my capacity as Chair I'm independent of the government. I endeavour to be impartial on issues before the committee.

The government, I assume, has a time frame it's working towards on every issue it's considering doing something with. I think it would be prudent to have objectives, but I'm not aware of them, and quite frankly, I don't see it as being a big issue.

Mrs Pupatello: Going back to my real issue, regarding the binding and non-binding feature of referenda, that really is the crux of the matter in this discussion. Clearly, the intent of the government in bringing this forward as a topic to committee is the eventual drafting of legislation for binding referenda. Mr Clement is nodding his head; he acknowledges this.

Mr Clement: If you're asking me what my intention is, that's my intention.

The Chair: No, there's a report that comes from the committee that recommends a course of action, assuming we can get to that point. Then the government takes the report and, assuming it wishes to proceed in some way, proceeds. They may or may not accept the recommendations of the committee.

Mrs Marland: There is another way of looking at this. The government could bring in legislation any time it wanted.

The Chair: Mrs Marland?

Mrs Pupatello: The point is that this is simply --

The Chair: Mrs Marland has the floor.

Mrs Pupatello: I beg your pardon?

The Chair: Mrs Marland has the floor. I recognized her.

Mrs Pupatello: I wasn't finished. You interrupted me.

The Chair: Mrs Marland has the floor. I'll recognize you after Mrs Marland.

Mrs Marland: I just can't understand what we're going though here. If the government's intent was so suspicious or underhanded or whatever it is that Mrs Pupatello is getting at, we wouldn't be here trying to write a report. What we're doing here is trying to write a joint all-party report on the subject of referenda which would be applicable in this province and this Legislature.

The other way we could have done it is just have our bill drafted from the viewpoint only of the government party, and that isn't what's happening. What I find so unfortunate, and I said this last time -- Mrs Pupatello wasn't here last week but the week before -- is that she turns this into an incredibly partisan debate. That isn't how that --

Interjection.

Mrs Marland: No, I wish, Sandra, sincerely, that you would speak to some of the people who have been around for a while who would tell you what the purpose of the Legislative Assembly committee is and what the genesis is for how we deal with any subject, whether it's how members function or services or anything. It just isn't a partisan committee.

Whatever Mr Clement says in his government role, you don't see him being partisan in here and, frankly, the NDP members haven't been partisan in here either. Everybody's trying to move something forward, and if you don't wish to be part of that, then you're introducing a completely new facet to how the Legislative Assembly committee functions. I think it's very unfortunate. Mr Wildman's just stepped out, but he's been here 21 years and I know he's never seen this committee used this way. Mr Morin and Mr Curling and I have been here 12, and I haven't seen this committee used this way.

I really wish we could move forward and just try to get some work done. You're right, I've only been on this committee three weeks, but what are we on? How many clauses have we passed? We haven't been able to make any progress. Now, if there's a difficulty on the whole subject of referenda, then the official opposition should get out what its difficulty is, put it on the record and let it stand as its opinion. But let's get on with some of the work.

The Chair: I couldn't agree more.

Mrs Pupatello: Did you say you couldn't agree more?

The Chair: I couldn't agree more. It is the job of the Chair --

Mr Curling: To agree with the government.

The Chair: No.

Mrs Pupatello: To be non-partisan; I think that's what you said.

The Chair: It's the job of the Chair to endeavour to move forward the business before a committee.

Mrs Pupatello: Don't backpedal now, Ted.

I won't even acknowledge the comments made by the member for Mississauga South because I don't find them relevant to this discussion.

Mrs Marland: See what I mean?

Mrs Pupatello: What I am saying very clearly is that the whole intent of this committee is to discuss the binding or non-binding nature of referenda. If the member for Mississauga South finds some offence in my being here, then perhaps I will come next Wednesday with all of the information and research that I personally have done in the area of referenda so she would understand why I personally have a great deal of difficulty with the way in which the discussions are going on this issue.

The Liberal Party has said from the outset that, in our opinion, referenda would be used in very certain, set forums and that they would not be abused. Since we have had that significant discussion on our part, what we have said is that you're not agreeing with some very basic principles we have. We're certainly prepared to go forward. We have since gone forward. We have gone forward to the point of discussing the binding or non-binding nature of referenda.

What I would suggest to the member for Mississauga South is that she go back and read the Hansard notes from previous committees. I will personally give you time at next Wednesday's committee to go through yet again all of the information that I was able to pass on to the members who were here during that time on what has been the problem with referenda as they have been used in current jurisdictions in the southern states and other provinces in Canada.

In bringing that kind of information forward, we have to ensure, as good, responsible representatives of the ridings we come from, that we do not make those same mistakes here in Ontario. Let me say to the member for Mississauga South that if you think I am taking this issue lightly, you are dead wrong. This, in my view, is one of the most significant pieces of legislation that could ever eventually come forward out of this Conservative government.

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I personally feel that if legislation comes forward that deals with binding referenda in Ontario, it will have a dramatic effect. Some may view that dramatic effect positively. I personally feel the dramatic effect would be quite negative on significant areas of government policy, on public policy, on significant areas like health, education, fire safety. My personal view of referendum and its use in any governmental jurisdiction is that it is one of the most significant issues that we could possibly deal with, because its effect is so widespread.

If committee members of the government side think I am joking, let me tell you I am not joking. I have done enough reading on this subject, not just since the election of June 1995. I have actively followed this issue for some time, beginning in at least the late 1970s. If the member for Mississauga South feels that I feel there's some kind of hidden agenda, let me tell you, member for Mississauga South, you're right. I personally believe there is very much a hidden agenda in this charade that we are currently going through in discussion at committee regarding referenda. I personally believe there is a whole other agenda. It is yet to be made clear as to why Mr Clement, acting, as you've said, Chair, on behalf of the government, is bringing this discussion forward. In my view, it is a sham.

In my view, the discussions we're having about whether a referendum would be binding or non-binding are very significant. When I, as an official member of the committee who sat on this issue of referenda long before the member for Mississauga South decided to come and sit on the committee as well, ask the question that legal counsel, who are typically attached to committees, would offer advice, as the clerk has suggested that is their role, it is totally in place. It is not out of order.

Since the role of legislative research is to do the investigation and to find out what states and cases have existed in the past, that is exactly the piece of information we were brought today by Mr Kaye. We were given one side and we were given the other, because what they found is that there is more than one way to look at this. There are lots of ways to skin a cat. In some instances historically, they have been viewed as legal. In other instances where it's been done, it's then been ruled out of order. Depending on what level within the Legislature, it's appropriate, it's not appropriate.

For me to sit and ask about the binding nature of referenda to our legal counsel to this committee that is dealing so exclusively with referenda is totally in order. Since I personally feel as a member of this committee that it is a major issue on how quickly we go through this, how each point -- and let me remind you, Mr Chair, that the first time we saw the 12 points put forward by Mr Clement, they were not done because there was some grand, well-thought-out plan; they were scribbled together in the corner. While they felt I was blathering on about something that happened in 1976, they were scrambling to write them in pencil on the corner of that desk. That has since become the focus of four weeks of discussion on referenda. The member for Mississauga South should know what the history is on these 12 points that we are now spending hours discussing.

It is far more relevant to me if this discussion -- in my view, the impact of it is huge in terms of government, good public policy. It is due far more accord than that. I would like to see and know the kind of research and thinking and thoughtful process that go into producing a 12-point plan that will become the basis for a report on the eventual discussion of referenda legislation, should the government choose to move forward with it. I know exactly what the history of these 12 points is. So when we have taken Mr Kaye's time to do legislative research to dig up all the various cases historically in Canada -- we could send Mr Kaye away for 12 months and he wouldn't find all of the history and historical cases that currently exist on referenda. Don't look so worried, Mr Kaye; I'm not going to ask for that. But there is so much there, his job is to come and bring it all to us.

For me to ask now what the opinions of our legal counsel would be dealing with this issue, which is major, is totally in order. I am not prepared to take Mr Clement's view on this; I know what his point of view is. I've read about it in the newspapers. Frankly, I know what all the government's view on this is because he speaks on behalf of all of you. I'm very prepared to hear legal counsel, who should not be partisan, an understanding from them that that is exactly what all this is about, that that is the opinion of our legal counsel, that it would be binding, wouldn't be binding; based on the information that was processed here today, what that counsel would be.

Mr Clement: On a point of order, Mr Chairman: Can I ask you to rule on the request of Mrs Pupatello so that we can get that behind us and proceed?

The Chair: Rule if it's in order or out of order?

Mr Clement: Rule whether the request for legislative counsel to answer a series of questions relating to --

The Chair: I already pointed out that because we are not dealing with a piece of legislation, have not been referred a piece of legislation, we have not been assigned legislative counsel, although there is a branch at the Legislative Assembly called the legislative counsel, lawyers who work for the Legislature and from time to time provide political advice on matters relating to private members' bills, drafting of legislation and so forth. I suggested that we could try to find an answer this afternoon to see if it would be proper, or indeed appropriate, for a legal opinion, but we've kind of beat that issue to death.

Mr Clement: I accept your opinion and I'm willing now to go on to the next item on your agenda.

The Chair: I have two other members who had indicated an interest to speak.

Mr Gilles Bisson (Cochrane South): I take it, Chair, we're on point number 3.

The Chair: We're not even that far, unfortunately. We're in the process of hearing from Philip Kaye, who wanted to give some information related to some questions.

Mr Bisson: In regard to this particular report? I'm not going to take too much time, but just for the purpose of the member for Brampton South, if committees from time to time do call legislative counsel before them, it's not a question of being in order or not in order; it's whatever the committee decides.

Okay, I'll hear Mr Kaye and I'll ask the question after. I had something specific to number 3, but I'll come back to it.

The Chair: Okay. We'll move forward.

Mr Kaye: Another issue that was raised last week involved citizen-initiated regional referenda with regional petition requirements, "regional" falling below "province-wide" but above "municipal-wide." As I mentioned last week, legislation authorizing citizen initiatives on provincial matters has been enacted in Saskatchewan under the Referendum and Plebiscite Act and in British Columbia under the Recall and Initiative Act.

Neither statute provides for regional votes with regional petition requirements. Saskatchewan's legislation provides for initiatives which are plebiscites only, that is, they are non-binding. Since Saskatchewan's legislation was passed in 1991, there have never been any efforts to invoke the petition process, whether the issue would be regional or not.

BC's legislation came into effect in 1995. The initiative results, as I mentioned, are binding on the government in the sense that it must introduce a bill for first reading. Although no initiative vote has ever taken place in British Columbia, the process has been invoked four times. None of the issues has been regional, the issues being: legislating a balanced budget and retirement of the provincial debt; eliminating members' pensions; separating school taxes from property assessments; and a prohibition against the hunting of bears.

I was also asked if there have ever been any provincial referenda with a regional impact. A list of all the provincial referenda which have been held is found in a paper prepared for the committee by David Pond of the legislative research service entitled Revised Overview of Provincial Referenda.

As the paper indicates, none of the provincial votes appears to have had a regional focus. There was a regional vote in Quebec in October 1987 involving 14 northern villages. The assistance of the chief electoral officer of Quebec had been requested and a resolution of the National Assembly authorized the chief electoral officer to assist the Inuit of northern Quebec in conducting the referendum, but there was no legislative framework as such. The question in that referendum involved the composition and funding of a working group which would be created to prepare a constitution for a regional assembly.

Another issue which was raised last week involved the requirement in the motion that measures proposed in a referendum comply with the Constitution, including the Charter of Rights. Accepting this requirement, the question was asked, how have jurisdictions in Canada made provision for constitutional referenda?

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In British Columbia, applications for an initiative petition must include a draft bill for introduction into the assembly. Since constitutional amendments are made by the passage of constitutional resolutions, not by the passage of bills, it seems that constitutional amendments cannot be the subject of an initiative in British Columbia. Also, in British Columbia initiative proposals must pertain to any matter within the jurisdiction of the Legislature. In that case it might be argued that if the initiative dealt with a constitutional amendment changing the jurisdiction of a provincial Legislature, for that reason also it could not be the subject of an initiative in British Columbia.

Mrs Pupatello: Excuse me for a moment. Could you give me an example of that case you just described, so I can follow that better?

Mr Kaye: An example of the BC?

Mrs Pupatello: Yes, where if the content was one which changed what the jurisdiction was --

Mr Kaye: The division of powers between the provinces and the federal level is in sections 91 and 92 of the Constitution Act. If a citizen wanted to change what subjects the province could deal with, then that would have to be done, in the end, by a constitutional resolution, not by a bill.

Mr Bisson: Could I ask a question?

The Chair: Are you finished with that point yet? Mr Bisson, go ahead.

Mr Bisson: Very briefly, the long and the short of it is that you couldn't hold a referendum question on something that would be deemed to be against the Constitution, right? For example, if the citizens of the province of Ontario wanted a provincial referendum on issues of housing, it's a question of who is responsible, the federal government or the provincial government. There's nothing that you can do in a referendum. A referendum wouldn't have to be called, right, if I understand it correctly?

Mr Kaye: Unless the referendum legislation explicitly stated that citizens could try to initiative a constitutional amendment.

Mr Bisson: Maybe I've got to back up the question. You couldn't initiate a referendum -- there's no such provision in our Constitution, the way I understand it -- to amend the Constitution other than by the format we have with the first ministers, the amending formula, or through other provisions. So you couldn't do it by referendum.

Mr Kaye: No, you'd have to do it by the passage of a constitutional resolution.

Mr Bisson: So the long and the short of the story is that you couldn't hold it. Even if the province here wanted to introduce referendum legislation, there is nothing in the world that would allow that legislation to give power to citizens to change something that is protected in the Constitution.

Mr Clement: Right. It has to be within the jurisdiction of Ontario.

Mr Bisson: That's what I'm saying. But even if it's within the jurisdiction of Ontario, I as a citizen couldn't ask for the province to do something in the end that would take away from my constitutional rights; for example, French-language school boards.

Mr Clement: That's right.

Mr Bisson: I just wanted to make sure I understood what you were saying there.

Mr Kaye: Regarding discretionary referenda, discretionary constitutional referenda may be specifically authorized; for example, there is federal legislation doing so and also in Alberta. Alberta also provides for mandatory constitutional referenda, as does British Columbia. It can be argued that, by definition, if constitutional referenda are specifically authorized, then they can provide for amendments to the Constitution.

Constitutional referenda have also taken place relying on general language in referendum legislation. An example here is Quebec. The Quebec Referendum Act refers to a referendum on a question approved by the National Assembly or a bill adopted by the National Assembly.

The final issue raised last week where research was asked to do further investigation involved the concept of a referendum council, consisting of justices, which would rule whether the referendum question was in compliance with the Charter of Rights and the Human Rights Code. This council would also approve the final question in the referendum. A concern was expressed about a legal opinion given by the court system, ie, this referendum council or commission, when that system might have to deal with the issue in the future.

I looked at the referendum legislation in the other provinces and the only province which provides for a referendum council or commission is Quebec. The referendum council established by the Quebec Referendum Act consists of three judges. Under the act, it has exclusive jurisdiction to hear any judicial proceeding relating to a referendum and to the application of the Referendum Act.

Mr Bisson: I'll let you finish, but after that I want to ask you a question.

Mr Kaye: Okay. The legislations says its decisions are final and without appeal. However, an appeal does lie to the Court of Appeal of Quebec on a question of law from a decision of the referendum council regarding recounts or the contesting of the validity of a referendum. As I mentioned, in Quebec the question for the referendum is approved by the National Assembly.

Those are the issues that were --

The Chair: Mr Bisson, you had a question?

Mr Bisson: Specifically, for the last part of the Quebec model, that doesn't mean to say that the final court of appeal, when it comes to what constitutes a question on a referendum, would be that body. Certainly, if I think my rights are being aggrieved and things are being done opposite to what is protected under the Constitution, I'd still be able to go to another court, right? I'm just curious on that particular point.

Mr Kaye: It would be a question of what you were seeking pertaining to the application of the Referendum Act.

Mr Bisson: Yes. But let's say that if I as a citizen of Quebec feel those actions, whatever they are, are against my constitutional right, wouldn't I then have the right to go to a court and have that heard in the court in order to overturn? How do you protect somebody's rights under the Constitution under that model? That's what I'm wondering.

Mr Curling: The referendum would take it away.

Mr Bisson: The referendum, in effect, could take away what would be a constitutional right, if I understand correctly what they have done in Quebec. Am I reading that wrong?

Mr Kaye: I'm not that familiar with the operation of this referendum council.

Mr Bisson: What does a council do, exactly?

Mr Kaye: The legislation says very little about its powers. There is this general provision. Let me quote from it. The referendum council is established in section 2. It is composed of three judges of the Court of Quebec and then in section 3 it says: "The referendum council shall have exclusive jurisdiction to hear any judicial proceeding relating to a referendum and to the application of this act. Its decisions are final and without appeal. However, an appeal lies to the Court of Appeal on a question of law from a decision rendered by the council by virtue of sections 41 or 42." Those sections deal with recounts or someone who's contesting the validity of the referendum.

Mr Bisson: The reason I raise it, one of the things I wanted to speak to, was point 6. I wouldn't want to be in a situation with referendum law where you've got some sort of a body that's appointed by the government, and I don't mean to be combative towards the government, but let's say in the case of Quebec, who picks the judges? Right? It's the government that picks the judges.

Mr Clement: Federal government.

Mr Bisson: No. But the point I'm getting at is that either way --

Mrs Pupatello: -- appointed to that commission is the --

Mr Bisson: I see, appointed to that commission are provincial judges. Am I correct?

Mr Clement: No, they would be federally appointed judges.

Mrs Pupatello: Federal judges.

Mr Clement: Judges to the Supreme Court of Ontario are appointed by the federal government.

Mr Bisson: In the case of the Quebec model, are those provincially appointed judges or federally appointed judges?

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Mr Kaye: I believe they would be federally appointed. It just says "of the Court of Quebec." If it said "Superior Court," then they would definitely be federally appointed.

Mr Bisson: That's why I'm wondering. What I thought I heard was that they were from the Court of Quebec.

The Chair: Appointed by the feds.

Mr Bisson: Appointed by the federal?

Mrs Pupatello: Can I interject with a question?

Mr Bisson: Let me just finish the point I'm getting at. The only caution I would raise is that I would not want to be in a position where as a citizen I don't have the right to appeal something I feel is happening in regard to my rights under the Constitution. Even though they're federally appointed judges on that particular commission, governments appoint judges. They can bring their own bias to a particular thing, and what you almost need to have is the ability to go to a court outside of the process to make sure that indeed your rights are being protected under the Constitution. I just raise that as a concern.

The Chair: Mrs Pupatello, you had a question.

Mrs Pupatello: The appointment of the judges to that commission in Quebec: The judges are appointed federally but the appointment of those judges to the commission would be done provincially. Is that correct? The intent of Mr Clement for the commission here in dealing with referenda is certainly not to have the federal government appoint these individuals, whoever they might be, to a commission. That would be a provincial appointment. So I'm suggesting that example is what is currently happening in Quebec as well.

Mr Kaye: That the judges are federally appointed but they're actually provincially appointed to the council?

Mrs Pupatello: Is that the case? That's my question. Are you saying yes?

The Chair: I'm assuming that's the case. I don't know that to be the case.

Mr Kaye: Section 2, when it provides for the establishment of the council, says a council is established, it is composed of three judges of the Court of Quebec, one of whom is the chairman designated by the Chief Judge of that court. It doesn't say in section 2 how they're appointed.

Mrs Pupatello: I wonder if we can find that out.

The Chair: Perhaps we could find that out for the next meeting. That's possible.

Mrs Pupatello: Also, the contents that you have on the Quebec commission, can we get a copy of that?

Mr Kaye: The Quebec legislation?

Mrs Pupatello: Yes.

Mr Kaye: Sure.

The Chair: Mr Curling's next.

Mr Curling: Quickly, when you come to section 6, just to put you on notice, Mr Clement, who is so familiar with most of this, and Mr Kaye, I would still have some questions about whether that somehow will take away some of my constitutional rights. I know that this commission will make that decision, but there is some kind of fine line in itself. I won't bother to pursue the question now. It's some concern I have, and if that could be addressed when you come to number 6, to say how that will be dealt with, because what I'm hearing now is that in the Quebec model there is no appeal, the decision is final.

Mr Clement I haven't suggested that. If you want my personal opinion, I think it should be --

Mr Curling: No, I didn't say you suggested that. I said, when we come to that, those are some of the questions I have and then you can inform me more about --

Mr Clement: I think I'm with you on that. I think it should be appealable. I agree.

The Chair: Mr Curling, just to advise you, at last week's meeting the committee went through their discussion on point numbers 1, 2, 4, 5 and 6 and we thought the committee had concluded with number 6, if I'm not mistaken.

Mr Curling: Again, it's my ignorance. I wasn't here, but I still have some questions in that regard. They can be raised later on through that, and I think Mr Clement understands what I'm talking about.

The Chair: All right. Philip, you're finished now?

Mr Kaye: Yes.

The Chair: I would like to move now to discussion on point number 3, which is a point that was set aside, as I understand it, last week. I'll read it again, just to start off the discussion:

"Citizen initiatives shall be initiated, whereby citizens may mandate a referenda to be held, within reasonable time or in conjunction with a municipal or provincial election, upon receipt by the Legislature of the signatures of not less than 10% of the citizens of Ontario, such petition having been submitted within 180 days of its initiation."

Discussion? Would you like to lead it off, Mr Clement?

Mr Clement: It's a matter of record in Hansard what my comments were, as well as the comments of my colleagues at that time. I believe this item was held over because Mr Silipo had an amendment he wished to pursue that had been tabled at that time. I believe the position of my caucus colleagues was articulated at that time, and I will not repeat that. As you know, Mr Chair, this side spoke out against Mr Silipo's amendment. I think that is still the position of my caucus colleagues, and we are waiting for the vote.

Mr Bisson: For my benefit -- I wasn't here yesterday; it's unfortunate that I'm not a regular member of the committee. For what reason would you not agree to the introduction of the ability to conduct the referendum on a regional basis?

The Chair: Would you care to briefly summarize the government's position?

Mr Clement: I shall endeavour to do so, Mr Chair. I believe I made a couple of points during the discussion of this motion, first that I had difficulty -- just as I would have difficulty in the present chamber of the Ontario Legislature if, for instance, a matter pertained to the 416 area code but was provincial legislation and only the 416 members of the Legislative Assembly would be able to vote on that. I would have similar difficulty if only a particular region, on provincial legislation, would vote and not the rest of the province.

There are frequently cases, Mr Bisson, where something might apply to a particular region but it is of provincial consequence. Many of the things that happen in your community affect me in my riding and many of the things that happen in Toronto affect me in my riding. There's a lot that connects us and weaves us together, being the fabric of Ontario.

From our perspective, we felt that if the matter is before the Ontario Legislature, it is an Ontario referendum. If the matter is of the exclusive jurisdiction of the municipalities, it is quite appropriate that it be held within that municipality.

Mr Bisson: I'm afraid I don't agree with you. A number of issues affect us in different regions of this province that are creatures of provincial legislation. If you're going to go the route of referendums, I think you need to make sure the referendums work for the people affected.

I don't want to get into a debate on the Metro city, but I think it's a good example. The provincial government wants to go down a particular route, making the city one big city here in Toronto. Although the legislation is created by the province, people in Timmins or people in Kenora or people in Sarnia or wherever it might be are probably less concerned about that issue than the people of the city of Toronto.

I would hope that if you do bring your legislation forward, if you're going to go the way of referendum, you allow some mechanism for the people within an affected area to deal with what is primarily provincial legislation. I understand what you're trying to argue, that we're all in the same province and, one way or another, we're all affected. I guess "to different degrees" is the answer I would give.

I'm especially concerned about what it means to places such as northern Ontario, where the population is a lot smaller. You have far less than a million people in northern Ontario. As compared to the rest of the population of Ontario, that puts us in a fairly difficult situation, to say: "We, the people of northern Ontario or northeastern Ontario, want to petition the government to have a referendum on a particular issue that affects us."

Although I'm not a big fan of referendums, I agree on the basis that we need to modernize our democracy in some ways; that's something that I think is long overdue. I would hope we do things other than just referendums, such as the reform of Parliament itself. But if you're going to go that way, it seems to me that you have to have some provision to allow people in the regions to have their say when it comes to particular issues that affect them.

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Mrs Marland: Mr Chair, am I next? Thank you. I've been sitting here trying to decide whether to register on the record my concern. I've decided I will. I want to register my dismay at the outburst of Mrs Pupatello and her personal attack and comments directed to me. I can't imagine, when a debate is taking place, that anyone would be so totally out of control. The Hansard will show what comments were directed at me, and personally.

There is a standing order that does not permit a member to impugn the role of another member. The suggestion that I should go back and read Hansard about her research into the subject, suggesting that anyone else on this committee, including myself, has not done any research or has not had the ability to do the extensive research she has done is frankly quite amazing, and I personally found it very insulting.

I will not say anything further, although there are other things I would like to say, but I will not get down into that level of discussion. I am very upset about that particular shouting and yelling, which I have never, ever experienced before on any committee.

The Chair: Thank you, Mrs Marland. I have Mrs Pupatello next, then Mr Curling and then Mr Bisson.

Mrs Pupatello: May I express for the record that while I may have a tendency to raise my voice in terms of being expressive, that by no way constitutes shouting and yelling but is probably more a function of my genetic makeup than anything else.

The member for Mississauga South shouldn't take my remarks personally. However, I would remind her that had she gone through and read the Hansard from committees of the past on this issue, she would clearly know the serious intent with which we intend to discuss and debate referenda in Ontario. By no means would we think this frivolous.

I personally won't accept the suggestion that my inquisition in terms of legal counsel on the area of binding or non-binding is not relevant. It is the most relevant thing. It's unfortunate if she doesn't follow my argument on the significance of the binding or non-binding nature. I can't help her with that in terms of following it. I know the Chair does follow my intent with that. I'm going to wait and probably speak after committee about the whole issue of whether legal counsel will be available to us, because I think that is significant.

I want to speak to item 3 in terms of 10% of the citizens of Ontario. I ask the government members specifically about the arrival at the 10% level. I'd like to have here the rationale for how they ever arrived at the 10% level. The member from Timmins also mentioned --

Mr Bisson: Cochrane South.

Mrs Pupatello: Sorry. Having been to your constituency in Timmins, you see why I do that.

Even though the member for Cochrane South mentioned the regional aspect of it, I'd like a fuller discussion and rationale on the 10%. One of the most obvious points about that discussion, or at least the expected answer, is that with the population centred in the GTA of a certain number of millions and its percentage in contrast to the rest of Ontario, the dangers are very obvious and apparent. But I would like to have a much fuller explanation.

Mr Clement: I'd be happy to respond to Mrs Pupatello's question. I would refer her to Revised Summary of Recommendations prepared by Mr Kaye; my copy is dated November 1996, which is some months ago now. I would refer her specifically to pages 9 through 11, which summarize the deputations that were before this committee. Some of the deputations before this committee recommended a 3% threshold, some opined that a 15% threshold is necessary, but a great number of them recommended a 10% threshold.

Those were the ACFO, AEFO, Mr Radiff, the Canadian Taxpayers Federation -- I'm going on here -- the Brampton Taxpayers Coalition. Mr Mitchell commented on British Columbia, which is at 10%, although I concede it is much more onerous because it is riding by riding. There were a number of deputations that recommended lower than 10%, a number that were higher than 10%, but my reading of the deputations was that the consensus seemed to be 10%. That was also the consensus of the NDP caucus and the Progressive Conservative caucus.

Mrs Pupatello: A question?

The Chair: A quick follow-up question.

Mrs Pupatello: I'm looking for Mr Clement's explanation, not a summary of the presentations before the committee. I'm asking the member for the rational explanation in terms of why he chose to write number 3 as such, at the level of 10%. I'd like to hear his explanation of why 10%, how you get around those issues of such a commanding lead in terms of numbers in an area like Toronto versus the balance of the population in Ontario. If you have two million people in Toronto, you're hitting more than 10% just with that population.

Mr Clement: But not all those people are voters, first of all.

Mrs Pupatello: In the GTA, say, two million might be the voters. I don't want to hear what they said. What I want to hear is, from what they said and what you were presented with, what points did you pull out in order to arrive at your 10%?

Mr Clement: I would say that we, as the government side, are always trying to find a reasonable approach, and consequently it occurred to us that a threshold of 10% adequately and reasonably represents a threshold which is not so low as to encourage those who wish to pursue frivolous petitions but not so high as to make the whole idea of referendums so onerous that they would never occur. Based on the literature of the experts who have studied this field, based on the deputations before this committee and based on the consensus of the NDP caucus and the PC caucus, 10% represents a reasonable threshold which is neither too onerous nor too easy.

Mrs Pupatello: Could you comment on the regional issue again, then, as it relates to the 10%. How do you avoid it becoming specifically divisive or divisible along a regional line?

Mr Clement: I guess some people view Ontario as regions, and there are regional disparities and regional differences that we like to celebrate, but we are all also Ontarians. The view of our caucus was that we should not try to divide our province into regions, that we are all Ontarians with equal rights and obligations, and to seek to divide into thresholds for the regions would not be conducive to the way we run our democracy. The way we run our democracy is that we are all equal Ontario citizens.

Mrs Pupatello: Can I continue on this line of questioning?

The Chair: Two of your colleagues would like to ask questions, if you want to concede.

Mrs Pupatello: Sure.

Mr Curling: I want to pursue my colleague's question. You say you don't want to divide Ontario into regions. We are regions in different ways. It's nice to draw lines and boundaries, but when we get deeper into it we find that we have to draw boundaries.

Let's look at things like the building code. If we ever conduct ourselves with one type of a building code across the province with the same standard, in some places it would be impossible to build with the costs. There are many issues where you could not just look at it and say that one type of a referendum will govern all Ontario. That's why we have to be sensitive.

Referendums most of the time come down to be regional; most of this stuff will be regional. You cannot govern in the north the same way you govern in the south, or govern in the city as you govern in the rural areas. Even your government has admitted that. Even as you draw up the megacity, you're saying the megacity is different; that the six or seven different governments we have here -- not different governments, but regions -- can be just one, but you would not do it all over Ontario. My concern is about that part of it. One has to be very sensitive about some of the questions we raise, that it will put some people outside the directions the referendum will go.

I want to go back just to emphasize what Mrs Pupatello had stated about the 10%. I find it rather excessive, in a way, that 10% of the voting population, as you said, will constitute the legitimacy of a referendum. In Manitoba, as you know, they had an 8%-to-5% type of situation. If we look at the record of even voting some time, we can see the kind of turnout we have and the difficulty in organizing it. If we have a referendum, looking at the situation in the north, just the proximity and the movement of getting all these petitions and all these other things organized is a pretty high percentage that one calls for.

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I think if you come forward with a percentage, you really have to justify it. Just saying, "We didn't want it too easy, we didn't want it too hard," who is the "we" saying that 10% is not easy or hard? You have to be sensitive to the regions and even to the questions you're asking and who will respond to them. I have great concerns about those two things too, the regionality of it all and the percentage of people who will vote.

Mr Bisson: I don't want to belittle this particular point but I want to come back to it because I think it's important.

The government wants to give the impression to people of Ontario that it wants to allow for more participation in our democracy, and I think that's fine. I think we as New Democrats don't argue; we believe that democracy is not only words but also actions, and we need to give citizens the tools by which to make this happen. As I said earlier, this is not my preference of how you make that happen. I'd much rather see far bigger changes and parliamentary reform before going to a referendum. I would see a referendum as a second step towards doing the kinds of changes.

If you're going to do this I've got to come back to this particular point: Let's say in northern Ontario we have a huge issue around the government, as we speak, privatizing water and sewer treatment plants across Ontario. That's probably not a good example, actually, when I really think about it. Let me get back to transportation. Let's say there's an issue with regard to transportation in northeastern Ontario that northerners are really upset about and want something done. Under this particular legislation it would be fairly difficult for northerners to be able to exercise their right to get a referendum to try to address that particular issue, because within 180 days we'd have to go out and sign 10% of the voting population of the province, which I'm told by Charles is 6.2 million people. So do some quick math on that -- 6.2 million or 6.6 million?

Mr Clement: It is 6.6.

Mr Bisson: Okay. Charles, you were wrong. It's even harder. It means that within 180 days I've got to organize my committee, and from the first person signing that petition I have to get 660,000 people to sign the petition. First of all I can't do it in Timmins; that's the point I'm getting at here. I've got to get 660,000 people to sign that petition within 180 days of the first person who signs and I have to assure myself that the 660,000 are actually voters within Ontario. I'm not going to get into that. You recognize the problem there is in associating, is this person a voter, are they of voting age, is it a resident, is it a non-resident? It would be almost impossible, in the case of northern Ontario, to be able to do that.

I say to the government that if you're going to go this way, if you're going to say, "We want to give the voters, the people of Ontario, not only the feeling that they live in a democracy but give them some tools so they can actually participate in that democracy," it seems to me that this particular suggestion under point 3 is very limiting. If I were living in Metropolitan Toronto, I'd probably have an easier time of trying to get a referendum question on than I would if I were living in northern Ontario is the point I'm trying to get at.

I hope the government would revisit and rethink the amendment the member for Dovercourt brought forward. The reason we're asking to have some amendments around the regional issue is for exactly that particular issue: Depending on where you live in the province, the way this is put together, I think you're going to get treated a little bit differently when it comes to the results of who can get a referendum and who cannot.

The Chair: Did you have further questions?

Mrs Pupatello: Yes.

The Chair: I still have Mr Wildman next and then I'll recognize you, Mrs Pupatello.

Mr Wildman: I apologize for not having heard the rest of this debate. I had to attend a subcommittee meeting of the social development committee around Bill 104.

Mr Bisson: Is the committee coming to Timmins?

Mr Wildman: No.

Mrs Pupatello: Is it going to Windsor?

Mr Wildman: Yes.

Mrs Pupatello: Do you know what date?

Mr Wildman: No. I'd be happy to report on that subcommittee to you.

I hope the government members would consider very seriously this amendment. It's put forward in good faith. It's a serious amendment. It seems to me there are local regional issues that are not of interest across Ontario but are of very significant importance to people living in a particular area of the province. It would seem to me that where such an issue is relevant to a particular area, then this amendment would apply.

You could think of many. I think of one that I understand is being initiated in British Columbia right now under their rules, which are far more stringent than this, on bear hunting. I understand the problem involved, because some people would say that really is a BC interior issue, that it really doesn't apply in Vancouver or Victoria. On the other hand, there would probably be many people who enjoy the outdoors and who are environmentalists or outdoors people or naturalists who would say: "No, people in Vancouver should have a say in this kind of referendum. It shouldn't just be people who live in the BC interior, in the mountains, where you might encounter more bears than in downtown Vancouver."

I think there are specific issues -- actually, I was going to say the BC stock exchange is probably bullish, not bearish. At any rate, I think it is important that we give the opportunity for local areas to deal with issues that are of specific importance. We already do municipally, and this has been long established, as has been testimony before this committee on a number of occasions with regard to questions like fluoridation and whether there will be licensed establishments that can serve liquor in a particular community. We have many precedents for allowing for local referenda in those situations. Those are not usually initiated in the same way we're talking here.

I hope people on the committee would consider this seriously, the 10%. Sure, the number is arbitrary. It follows the 10% that is proposed in the government discussion paper or at least in the points listed here. There were different numbers listed. But I hope this can be considered seriously.

The Chair: Next I have Mrs Pupatello and after that Mr Johnson.

Mrs Pupatello: I wanted to give Mr Clement a very good example of a disastrous effect of using referenda on an issue in Ontario, given the levels that you're proposing. For example, historically the issue of Temagami. Temagami is a river, but Temagami forest is probably one of the very good examples we can use in how something like a 10% population centred around the Toronto area or the GTA would have a significant impact on other parts and other regions in Ontario, where the population in the north would have a significant amount to say on that issue but would never have the population to prevent or get a majority voting no or a majority voting yes, depending on what the question was.

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Governments have fallen and been built over the issue of the forests in the north. All of the environmentalists, as one of our members of the committee will know, many thousands are centred around the GTA and they have a lot to say about forests in the north. People who live in the north, who make their bread and earn a living for their families, have a lot to say and have a significant amount to lose or gain by what the people in Toronto have to say about their forests.

I probably don't have to explain to many of the members here what kind of divisive issue is the saving or not of forests in the north. I'll tell you that based on this, a citizen-initiated referendum on cutting trees in the north will probably always fail if the question relates around, "Don't cut the trees." The answer will always be, "Yes, don't cut the trees." If the question is, "Yes or no, should we save the forest?" "Yes, save the forest." The majority of the population of those who are going to be most concerned over that issue will be based in southern Ontario.

Those in the north -- and I'm going to guess for the people in the north; Mr Bisson will probably comment further -- certainly weigh how critical the environment is to their northern economic development, but the people in the north have to understand they need a balance in terms of what policy there will be: How many trees can they cut? How much of a living can they make? What kind of reseeding must occur? What kind of laying bare the acres for a certain number of years, or fallow, or whatever you want to call it, to make it relevant for further reforestation of the north?

Are you allowed to build a road through the forest? Should you not build a road in the forest? If you build a road, what else is going to come to the north? Should Bob Rae chain himself around a tree trunk again or not?

Did it fail a former government over this issue? Absolutely. Had this legislation been in place, the environmentalists, who seem to be certainly based in Toronto, could easily have swayed the change. Should the people who are environmentalists in the Toronto area only totally make the decision on behalf of government whose job it is to see that justice is done for those who need to save the environment, for those who need to have an economic development plan for the north? This is the perfect example of why the 10% will never work. You must have something ingrained in this that allows for the regional disparity.

Mr Clement is now on record having the position about voting and the representation that a vote should have. I would suggest to Mr Clement that he remember the debate in the House around Bill 81, which was the redistribution bill or the insulting Fewer Politicians Act. I was always surprised why Ms Marland, who gets insulted on a very regular basis, wasn't offended by the entitled Bill 81, which was the fewer politicians, which should be of great offence to every politician who takes their job seriously.

At that time, during the debate of Bill 81, I personally had the opportunity to debate the minister, who at the time was -- what was Johnson minister of at the time?

Mr Curling: Management Board.

Mrs Pupatello: Management Board. He was following through; he was the one who was carrying that bill. We had a great discussion around representational voting. What Ontarians have recognized for years, and the NDP caucus knows full well, is that you could actually elect a majority government based on 37% of the popular vote. I would say that the BC New Democratic Party has figured that out in their latest provincial election, where Harcourt won with less. What was his percentage? Clearly Ontario and BC have never had one man, one vote, and they haven't done that for a very particular reason.

Mr Wildman: There hasn't been a government in Ontario that won with more than 50% since 1945.

Mrs Pupatello: Exactly. And the reason those governments are allowed to be elected with less than 50% plus 1 is because we don't have one man, one vote. You could actually have the case where a party has more votes individually but fails to form a government because we don't have one man, one vote. That leads to Mr Bisson's comment. We have representational numbers here that some ridings have constituents of a greater size and others do not. Mr Palladini, I believe, has the largest, some 120,000 people in his riding, compared to one of the northern ridings which may only have 10,000, yet the vote counts for more if you're from the north.

Ontario's history has led us to the development of votes being weighted depending on your geographic region. That's the whole point. When Minister Johnson brought forward Bill 81, he acknowledged that by changing the number of ridings, hence changing the number of representatives, one per riding, who would come to Queen's Park, he was changing that geographic representation. He said it was moving closer to one man, one vote. But it is never going to be one man, one vote. Until each riding has exactly the same number of citizens as the others, we're never going to have one man, one vote.

We don't have one man, one vote for a very good reason: because it's not fair. Conservative governments have acknowledged this; Liberal and NDP governments have acknowledged issues like northern forests. You cannot be driven simply by population, and governments have made significantly unpopular decisions on issues like environment in which people in the north are gravely affected or people in the south maybe aren't as affected. People who are elected to make those decisions make them based on what the right thing is to do. Don't make decisions based on who carries the most weight.

In pointing out this basic, most general flaw in the philosophy that is driving this -- in my view number 3 is certainly one of them -- I don't know if we can proceed until we correct the flaw. There is a basic flaw in philosophy that, as Mr Clement has admitted earlier on in discussion, is that equality in numbers, and that's how he's rationalized leaving it at 10%. If that were true, then Ontario would have one man, one vote, which we do not and which his government has argued we should not have in Ontario.

Mr Ron Johnson: I am just going to be very brief. Although I agree with some of what Mrs Pupatello said -- she indicated the regional nature, and I understand that -- at the same time she indicated, using Temagami as an example, that Temagami itself will have an impact right across Ontario. Her own words said that it would have a significant impact on the people across the rest of the province.

I would argue that even though Temagami may be a regional issue, the interest of that regional issue has province-wide implications and the results of a referendum would have province-wide implications. The problem with Mrs Pupatello's argument is its fundamental basis that the rest of the province wouldn't fully understand the issue. I reject that. I think that in a regional issue such as Temagami, as an example, there would be enough interest in Temagami generated, say, in Metro or in Brantford, which I represent, and people would understand and learn the issues and make appropriate decisions, whether it be in a referendum or not.

I think the premise on which she makes her argument, that it's a regional issue and only those who live in the area will understand the impact or the issues, I think is false. I think the people of Metro could have some very strong feelings about Temagami if there was a drive to summon up 600,000 signatures for a referendum and it has province-wide implications.

Before we need to look at regional referendums, I struggle to find an issue of provincial jurisdiction that is regional in nature that won't either have province-wide implications or set a province-wide precedent. If it has province-wide --

Mr Wildman: In that case all of us should be able to vote on the megacity.

Mr Ron Johnson: You're in the Legislature and you're going to get to vote on the megacity. You're the representation.

Mr Wildman: No, but I'm talking in terms of referendum.

Mr Ron Johnson: The bottom line here is that if you've got an issue that is -- and I can't come up with one that doesn't have either, like I say, province-wide implications or that doesn't set a province-wide precedent in other communities. For example, in Brantford there was an issue over privatization of Hydro going under the municipality. If that were allowed to proceed --

Interjection.

Mr Ron Johnson: Not really. If it were allowed to proceed right away, even though it's a local issue under provincial jurisdiction, it would set a precedent right across the entire province for all municipalities. I think that it would therefore --

Mr Wildman: Even if the other municipalities have referendums.

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Mr Ron Johnson: Sure, but it would therefore be fair to suggest that if referendums under provincial jurisdiction are initiated by a region, I don't know that you're going to find a particular case where those referendums wouldn't have province-wide implications and that therefore the province as a whole should be involved in the referendum process. I think it takes it out of the regional issue.

Mr Bisson: I come back to the point that here we are trying to find some recommendations for the government about how we allow people to participate in the democracy by way of referendum. I think we have a good example here of how our parliamentary system itself needs to be reformed, because what you've got is government members who defend their particular line -- and I was there. I don't demean it; I understand it. The government members defend their own particular line, which is that they want referendum legislation that's fairly tough to enact because they recognize as a government that referendums could be a problem to a government.

On the opposition side, you have I think two arguments. The New Democrats agree partly with the government about trying to find a way to upgrade our democracy so that it works better, and the Liberals are taking a different line in opposition to it. It seems to me that part of what we really need to do, if we want to make democracy work, is to change how Parliament works. I think that's one of the biggest problems we see here.

Specifically to the point of the 10% that we're discussing in this particular section, let me just say this. I don't want to belittle it but I really have a hard time trying to figure out an issue where something that would be affected in northern Ontario, something of importance to northerners, that we would be able to win by way of referendum with the rest of the population of Ontario. The reality is that most people in southern Ontario couldn't give a darn. It's not because they don't like us; it's just because they don't know. Most of them have not been there, they don't understand what the issues are and they have other issues on their minds that are more important.

I look at myself as a northerner. Let's say this legislation is in place, this particular clause is in place, and we say we want a referendum on a particular issue that affects something that's specific to northern Ontario. We don't have 10% of the population in northern Ontario, so by its very nature we're behind the eight ball. If we ever want to get a question on the ballot, we don't only have to get 100% of the voting population of northern Ontario to agree with us, we have to go outside the jurisdiction of northern Ontario to try to get other people in the province to understand and buy into the question we're trying to place on the referendum. By its very nature, that's difficult.

I think the government needs to recognize that if you're going to go the way of referendums and you don't want referendums being used just sort of willy-nilly, raise the threshold but at least allow regional referendums to happen. If you're worried that you don't want referendums happening every day of the week and all kinds of people signing petitions, raise the percentage above the 10% and say you need 20% or 25% or you need a shorter time span or whatever safeguards you want to put into them. But you have to allow people in different regions of the province to deal with their issues in a way that's equal to others so that we're all treated equally.

On the flip side of that, the member for Windsor-Sandwich had raised the issue of Temagami. I think a better example is the whole issue of the garbage in downtown Toronto and Metropolitan Toronto. If there were a provincial referendum to be held to allow garbage to go to northern Ontario, my guess is that in the region of Toronto, which is some 2.5 million people, three million people, it would probably pass. You can get 10% of 660,000 out of the population of the GTA pretty quickly compared to northern Ontario.

By its very nature you would end up in a situation where people in the GTA would be able to enact a referendum a heck of a lot easier than people in the north, and we in the north would be adversely affected because there's no way we could raise any kind of opposition to that with the mere 8% or 9% of the population that we have in northern Ontario. You need to look at the regional issue a little more clearly.

We spoke a bit earlier of how we need to make sure that if we go the route of referendums, people's constitutional rights are protected and people's rights under the Human Rights Code are protected. That's the first thing.

The second thing you need is to make sure, within the preamble of the law, that people are protected in regard to their general rights that may not be protected directly in the Constitution, so that we don't have referendums doing things like forcing Metropolitan Toronto garbage to go to northeastern Ontario, to a community called Kirkland Lake or Timmins or wherever it might be. You'd have to spell that out in some way within the preamble of the law.

The last thing is that you need to have some way of dealing with the regional issue. I'd be prepared to accept some sort of amendment by the government that would say we'll raise the threshold, we'll make it more difficult to enact a referendum in order to give people the ability on a regional level to deal with the referendum question.

Mr Wildman: I think my friend from Cochrane South raises a very good issue. I understand the position taken by you, Ron, about Temagami being of province-wide interest. But as Gilles just indicated, in a province-wide referendum like that that has significant ramifications for northern Ontario, the north will almost always get swamped. That is very worrisome.

The example he raises about Metropolitan Toronto's garbage is a very good one. I think it would be very valid for the people of Kirkland Lake and the surrounding area to have a referendum about whether they wish to receive Metropolitan Toronto's garbage. To argue that has ramifications for Metro so therefore Metropolitan Toronto should be able to vote on that as well, I think is most unfair and would inevitably mean that the people of Kirkland Lake would be swamped in such a referendum. Most people in Toronto would say, "Yeah, that's a great idea."

You might argue, for instance, that the preservation of farm land in southwestern Ontario is not just an issue of importance to the farmers of Niagara and the other farmers in southwestern Ontario but that it's of significant importance for everybody in Ontario. I think that's a legitimate argument, but I think that people in those areas would argue they should have a little more say about what happens to the lands in their regions than the people in Kenora.

Mr Bisson: Or Moosonee.

Mr Wildman: Yes.

I'll give you another example. This may be a little more extreme, but I don't think it's unfair. Under the Constitution of Canada and the laws as they've been interpreted by the courts, the aboriginal people on the James Bay coast have the right to hunt geese. Nobody else has the right to hunt geese outside of a very restricted season. There are many hunters in the province, non-native hunters, who think this is very unfair. It's not that they want to be able to hunt geese outside of a restricted season; they don't want the natives to be able to. So they might initiate such a referendum.

I think that question then might be caught by the discussions you've had under the Charter of Rights and Freedoms and how that might be interpreted. But if it weren't caught that way, then you have a very small population, scattered population, along the James Bay coast, with -- what? -- seven or eight communities, and you might have a tremendous campaign not just among hunters in southern Ontario, but naturalists, environmentalists and so on, who would say that in order to preserve the geese numbers, we should limit this right of a very small group of people living almost a subsistence way of life on the James Bay coast.

That's just not fair, in my view. I think we have to be very careful in characterizing issues as always being of provincial interest when in fact they have significant ramifications for a particular region or community.

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The Chair: I have Mr Johnson on the list as wanting to speak next.

Mr Ron Johnson: I'm going to be brief. What we're back to is the regional issue, and I would ask you to give me an example, because I don't know that you can come up with one.

Mr Bisson: Garbage.

Mr Curling: Building code.

Mr Ron Johnson: In my understanding, and I stand to be corrected, there might not have been a referendum but the local government of the day in Kirkland Lake made some sort of decision as to whether they wanted to take that garbage or not.

Mr Wildman: Then you can't argue on the one hand in favour of a referendum and on the other hand against.

Mr Ron Johnson: I understand that, but it's as much a local issue as it is a provincial one. That's my point. But I ask you to give me an example of a regional issue that has provincial jurisdiction, in the north, for example, that doesn't either have provincial-wide implications or set provincial-wide precedent, because if it does set provincial-wide precedent or have provincial-wide implications, then the province as a whole should be involved in any referendum process. I understand what you're saying; I just happen to disagree because I don't think there is a local issue that will fall within the parameters that you define as being -- as I define, I guess -- out of the precedent-setting parameters for the province.

Mr Wildman: Land use in Niagara then should be decided by a province-wide vote?

Mr Ron Johnson: It would depend on whether it was municipal --

Mr Wildman: In order to preserve the fruit lands.

Mr Ron Johnson: Local municipalities can hold referendums if they want, to get input.

Mr Wildman: But the point is --

Mr Ron Johnson: It's a local issue. You're talking about provincial legislation.

The Chair: Excuse me. Mr Johnson, you have the floor.

Mr Wildman: There's provincial legislation to protect fruit lands.

Mr Bisson: Who's next here?

The Chair: Next I have Mr Curling and then Mr Bisson.

Mr Curling: Mr Johnson, let me just respond to that in another way, because I think Mr Wildman and Mr Bisson made some excellent points. Let me use the building code, for instance. When the government wants to change the building code, there's always an argument about what kind of standards we should have. Because of my experience as a Minister of Housing, I realize how complex that is.

Many of the builders in the south would like to reduce the building code for some requirements on how to build, especially for insulation and what have you. They would like it to be less stringent because the fact is that the cost would go down. If we only listen to the southern people -- in the north the building code cannot be the same as in the south. The fact is that some people's interests are just because of costs and they could make a profit. If there was such a referendum that came about to say we should drop some of the standards, I think the south would just clobber the north on this; not sensitive enough to know what's happening in the north.

The fact is that governments, which must protect minorities, must have a responsibility to almost say, "No, this cannot go on like this." In other words, one million persons, which would make roughly the 10% of what is required to have a referendum, could easily be gotten in a third of the population of greater Toronto. If they want to stop that, to vote no against that, they would have to get the entire north and beg maybe Windsor or somebody, "Please come along with us." They could never win. Therefore, the regional factor, the climatic conditions and the geography of Ontario must be taken into consideration in that respect, so region plays a big role.

The concentration of population is another thing too. You know the concentration of population is completely, as was mentioned before, outside of the north and in the south. When they would say that the Liberals are just taking a further position on referendum, it is those sensitive issues that must be addressed in complete detail in protecting those minorities that are now being clobbered by this kind of referendum deal where it bears only the self-interest of a few where the clusters of people are.

It's a very dangerous thing, a very sort of shortcut way in getting -- I call it undermining the democratic process of the minority. I would be very cautious. There are many illustrations and examples that could be brought forward to show you how dangerous this could be if it is not handled in a proper way.

The Chair: Mr Bisson, one last comment.

Mr Bisson: You were asking for an example and I think the example of garbage is a good one. If people in the GTA decided that they wanted to have a referendum by which to dispose of their garbage in northeastern Ontario, they could win the referendum quite easily. There are two sides to this. You have to allow people access to the referendum by way of the region, but you also have to have some mechanism to protect people from the referendum in this particular case so that --

Mr Ron Johnson: The referendum can't go against the current law. A Metro referendum to put garbage in Kirkland Lake --

The Chair: Excuse me, Mr Johnson. Mr Bisson has the floor.

Mr Bisson: The example is that the provincial law that was on the books under our government said, "You shall not ship garbage." Under this particular referendum legislation, if it were in place, people in the GTA could ask for a referendum, sign up 10% of the electors and put on a referendum question in a provincial election a decision to ship garbage to Kirkland Lake, let's say, as an example. My guess is that referendum would probably pass because it's a lot easier for the people in the GTA to -- my sense is --

Mr Wildman: If it's helpful, we're not talking about a Metro referendum; we're talking about a province-wide referendum, because that's what you're talking about.

Mr Bisson: Yes.

Mr Wildman: This happens to be in the federal jurisdiction but it's an example I can think of. The federal government right now is talking about finding a site in the Canadian Shield to have underground storage of nuclear waste. It would seem to me that obviously that is of importance to the whole of Canada, it's important to all of Ontario, but it is particularly important to the local community where they might happen to decide to bury it.

The only point I want to make, in just finishing what I was saying, is that on the one hand in this particular case, if the law was to say you don't ship garbage and you have to deal with it within your area and people ask for a referendum to change that, you'd have to have some kind of protection for the people where the garbage is coming to. There are two sides to the regional thing. You need to give people the access to the referendum and you also have to give people protection from the referendum. There are two sides to it.

The Chair: I have no members who've indicated further interest in speaking to this motion that has been put by Mr Silipo.

Mr Curling: I have another example that I am personally involved with, the radioactive soil which had temporary movement to Chalk River. I'm sure many people who have had radioactive soil and things like that, materials, moving up to Chalk River would quickly vote for that to be moved up. The fact is that the southern people would be glad to get all of that stuff up to the north. Therefore, I want to say to you that it is extremely important that we must -- maybe I'm repeating myself -- protect those minorities in those regions.

The Chair: Are the members ready now to vote on Mr Silipo's motion? I'll move to the vote.

Mr Silipo has moved an amendment to point number 3, to insert after "Ontario" and before "such" "where the issue applies province-wide, or of not less than 10% of the citizens of the relevant region of the province where the issue applies only to that region of the province."

Is it the pleasure of the committee that the motion carry? All in favour of the motion, please raise your hand. Those opposed. The motion is defeated.

It's now 6 o'clock and I will adjourn the committee until next week. We'll resume this discussion next week, February 19. The committee is adjourned.

The committee adjourned at 1759.