OFFICE OF THE CHIEF ELECTION OFFICER
MINISTRY OF THE ATTORNEY GENERAL
CONTENTS
Monday 9 September 1996
Referenda
Office of the Chief Election Officer
Mr Warren Bailie
Ministry of the Attorney General
Mr Michel Hélie
Mr Patrick Boyer
Ontario Taxpayers Federation
Mr Paul Pagnuelo
Reform Party of Canada
Mr Scott Reid
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 RickBartolucci (Sudbury L)
Mr DaveBoushy (Sarnia PC)
Mr David S. Cooke (Windsor-Riverside ND)
*Mr CarlDeFaria (Mississauga East / -Est PC)
*Mr TomFroese (St Catharines-Brock PC)
*Mr BillGrimmett (Muskoka-Georgian Bay / Muskoka-Baie-Georgienne PC)
*Mr JohnHastings (Etobicoke-Rexdale PC)
*Mr RonJohnson (Brantford PC)
Mr FrankMiclash (Kenora L)
*Mr Gilles E. Morin (Carleton East / -Est L)
Mr John R. O'Toole (Durham East / -Est PC)
*Mr TonySilipo (Dovercourt ND)
Mr R. Gary Stewart (Peterborough PC)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Ms IsabelBasset (St Andrew-St Patrick PC) for Mr Boushy
Mr MarcelBeaubien (Lambton PC) for Mr Stewart
Mr TonyClement (Brampton South / -Sud PC) for Mr O'Toole
Mr GerryPhillips (Scarborough-Agincourt L) for Mr Miclash (morning)
Mr BudWildman (Algoma ND) for Mr Cooke
Clerk / Greffière: Ms Lisa Freedman
Staff / Personnel: Mr Philip Kaye, research officer, Legislative Research Service
The committee met at 1005 in room 151.
REFERENDA SUBCOMMITTEE REPORT
The Chair (Mr Ted Arnott): Good morning. I'm calling this meeting of the standing committee on the Legislative Assembly to order. We are sitting for the next four days to look at the issue of referendums. This committee has been referred a paper by the government to determine what role, if any, the government can play to encourage the establishment of referendums to better serve the public interest and know the public opinion on various issues.
I have a couple of things I'd like to inform the committee of before we get started. When these four days of committee hearings are completed, we intend to work, as a committee, towards making a report which we will table with the House.
Some of the witnesses who will be making presentations to this committee over the next four days will not be physically with us in the room but will be giving us their testimony through videoconferencing and teleconferencing. For the videoconference, unfortunately, we don't have the facilities in this room to do that sort of thing and we'll have to move. We haven't got confirmation of exactly which committee room we'll be using for that as of yet, but certainly we'll let you know as soon as that is confirmed.
There is a letter with all committee members from the clerk of the justice committee which makes reference to their suggestion that this committee, in part of its broader responsibilities, look at how teleconferencing can be incorporated into all the committee processes. That's something we'll certainly be able to do better now that we're going to be participating directly with that method of communication.
We have a subcommittee report that has not yet been accepted by the full committee. I wonder if anyone would like to move the acceptance of the subcommittee report.
Mr Tony Clement (Brampton South): I'll move that.
The Chair: Any discussion?
Mr Bud Wildman (Algoma): Yes, I have some discussion. I'm just new on the committee, so I'm sorry if I was not able to have input into the subcommittee report previously.
I would suggest for the benefit of all members of the Legislature and certainly all members of the committee that very early in our deliberations we have a research paper presented which explains exactly what the legislation is in each jurisdiction in Canada. In the discussion paper, it makes reference to the fact that Ontario is one of two provinces that does not have legislation. I very much doubt that all of the legislation in all of the provinces that have legislation is the same. I would like to know the exact regulations, that is, on what kinds of issues referenda can be initiated in other provinces, what are the criteria for approving such an initiation and what are the logistics and the regulations around referenda in each jurisdiction?
The discussion paper certainly doesn't make that clear but does make reference to the fact that Ontarians are somehow being denied democratic rights by the fact that they are only one of two jurisdictions in this country that don't have referendum legislation. Let's find out what the others are before we make such nominative statements.
Mr Gerry Phillips (Scarborough-Agincourt): I'd just like to express my concern that there's not an opportunity, at least as it appears on this first day of hearings, for the government to explain what its intent is in this paper. I think it's customary that the government be the first witness. They say, "Here is what we intend in this paper, here is the intent of the paper," and all of the committee members have a chance to understand what's behind it.
For example, in the paper, one of the key reasons this is coming forward is that there are "well-financed and politically able" special-interest groups that have been able "to have their narrow interests translated into public policy." I'd like a chance for the government to let us know who those narrow groups are --
Mr Wildman: I was wondering if that was an attack on David Somerville.
Mr Phillips: -- what policy was put in by those narrow interest groups and what's driving it.
Secondly, I know that when he was in opposition, the Premier signed a pledge that any increase in the existing tax rate or a new tax rate would be subject to approval by the voters of Ontario in a binding referendum. Is that what the government's intent is? If you are saying, "Listen, it is a given that this legislation will end up with a binding referendum on new taxes," then tell us that. Don't put us through an exercise where we go through theoretically getting public input only to find that your minds are already made up and you are going to implement that.
I'm saying that I would have hoped the government, whoever is sponsoring this piece of legislation, would have been our first witness and we would have had a chance to discuss the intent, where the government wants to go with this draft paper. I guess, Mr Chair, in the absence of that happening this morning, I'm going to look for your direction on when the government will schedule itself to explain this paper.
I gather this is a paper sponsored by the Premier. This is the Premier's paper.
The Chair: It was referred to us by the Ministry of the Attorney General, I believe.
Mr Phillips: Then it's not the Premier's; it's the Attorney General's bill? Then I would move that we request the Attorney General to appear before the committee to give us an opportunity to have an explanation of the intent of the paper and for us to have a chance to discuss it with him.
Mr Tony Silipo (Dovercourt): I will be happy to support that motion. I was going to move something similar, in fact.
As you may know, when we had the first discussion around how to deal with this, it was actually done through a series of phone calls, given that it was difficult to get everyone together. The way in which this paper was initially presented was that it was very much a non-partisan, non-political paper and therefore didn't really have a direction set out by the government, in which case one might understand the need for us to proceed without having anyone from the government here.
Following that, I found it rather interesting, first of all, to see the way in which the paper was released. Secondly, upon looking at the content of it, it becomes very clear that this is a very partisan paper. I don't know how many times the Premier of the province is quoted in there. That in and of itself isn't an issue, except that it does create very much a particular slant as to why this is even here before us. When that happens, it's incumbent upon the government to have the decency to bring before this committee, if not the Premier, at least a minister or even a parliamentary assistant if they don't want to bring a minister, who is going to be able to start off the proceedings by saying, "This is what the paper is about; this is why we're doing it; this is what our intent is."
I think we've all been through this kind of routine enough times to know that this government certainly does not come at any major issue without a very clear intent behind it. If their intent is to proceed to put together legislation to support, for example, issues around the raising of taxes, then they ought to tell us that. They ought to tell us that up front, and then the people of the province and the opposition parties can deal with that issue. We can respond to that. If it's indeed an open-ended question, then they ought to have the decency to say that as well, but not to camouflage it with a whole series of quotes and paraquotes and paraphrases from the Premier which clearly indicate that there is here, at least to a large extent it seems to me, a mind that's already made up. But they won't tell us exactly what they're intending to do.
There is a great irony involved in all of this in that one of the pretences we see set out in this paper is that this is the way it's going to open up democracy to the people of the province. As my colleague Mr Wildman said, the paper makes a lot of the fact that Ontario is one of two jurisdictions that does not have a referendum law. Leaving aside the fact that that in and of itself does not preclude there being referenda held, it's rather interesting that this same government that, through Bill 26 in particular, took away many of people's basic rights in this province now seems to be suggesting that the time has come for it to give back democracy to the people of the province.
I'm sorry, Mr Chair, it's a little hard for us to swallow. It's a little difficult for us to take, given the activities and given the track record of this government over the last year. I just think it's a bit of a shame that the government doesn't even have the decency to start these proceedings by having a minister responsible, if not the Premier, come before us and tell us exactly what they intend to do with this issue.
The Chair: Thank you very much, Mr Silipo. Mr Clement?
Mr Clement: Are we speaking to the motion then, Mr Chair?
The Chair: I had requested a motion to accept the subcommittee report.
Mr Clement: And that's the motion that's on the floor?
The Chair: No one has moved that motion yet.
Mr Wildman: But clearly Mr Phillips moved a motion.
The Chair: I didn't hear him move a motion. Did you indicate specifically --
Mr Phillips: Yes, I did, that the committee request the Attorney General to appear before the committee.
The Chair: So we accept that as an amendment to the subcommittee report?
Mr Phillips: I do.
Mr Wildman: Chair?
The Chair: No. I have recognized Mr Clement.
Mr Clement: I think I have the floor at this point. Thank you, though. I thank the honourable members for their suggestions. Let me deal with the primary issue that was raised by Mr Wildman first with respect to research, which would be a good idea. I would perhaps ask Mr Wildman, though, to wait until we have heard from some of our guests this morning and this afternoon in particular where a number of those issues probably will be canvassed by those deputants. But I'm not posing any opposition to further research should that be deemed to be necessary by two or fewer members of this committee.
With respect to the status of the discussion paper, I believe it was Mr Silipo and Mr Phillips who asked the question where the government was headed on this. I believe that question is answered in the first paragraph of the document, which says, "The Ontario government is firmly committed to using the referendum as a tool of increased accountability and improved public participation in the decision-making process."
You will find that, gentlemen, on page 2 of the discussion paper. I think it would be safe to say, to answer this question immediately, that there will be legislation on this particular issue at some point in the future, once we have had an opportunity through this process to get the views of Ontarians and some other experts in the field on the table to see how best to accomplish this.
Are there pitfalls that we should know about? What should be the thresholds? What should be the manner of deciding the question? How many people have to turn up before it's a valid referendum? All these issues, I think, we as parliamentarians have a duty to consider by listening to experts and others knowledgeable in the field or others who just simply have opinions on these particular issues.
I believe, though, it is too early to demand that the Attorney General speak on behalf of what is a non-existent bill. There is no bill before this committee at this point. There is simply a discussion paper and I, for one, would like to use the maximum amount of time available to this committee to hear from deputations, from citizenry and others from outside the province who have expertise in the field, rather than to engage in the debate over what is non-existent legislation at this particular time.
When we come back, as the Attorney General or the government of Ontario, with legislation, I think there will be ample opportunity to discuss as parliamentarians with the Attorney General or other sponsor of the bill the contents of the bill and the government rationale. But right now we want to hear from other people and I would propose that the sooner we do that, the better.
The Chair: Is there any further discussion on Mr Phillips's amendment?
Mr Phillips: That comment is fully unacceptable to us. The paper outlines the premise on which you're bringing this forward, and you make a number of statements in it that I think the committee should have an explanation of how they were arrived at. You say in here, "Well-financed and politically able, many of these groups have been able to have their narrow interests translated into public policy." That's what's driving you. I'd like to know who those people are and how you reached that conclusion.
This paper demands a government explanation of what you mean by it, and that should be the starting point. I think the public is owed that. The public is owed an explanation from the government of how you arrived at this conclusion, the background of it, and then we can get into a discussion with our expert witnesses. But surely you owe that much to the public.
There's no bill, but you say the bill will be drafted on the basis of this discussion paper. so let's have a discussion of the discussion paper. If you don't believe you owe that to the public, then we're in more trouble than this paper suggests.
Mr Wildman: I appreciate Mr Clement's comments and the fact that he's made it clear, which I think was pretty clear anyway from the paper, that the Premier is determined to move forward with legislation.
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But I support Mr Phillips's comments. There are a number of statements made in this discussion paper that beg a number of questions. He has referred to one, the statement that well-financed interest groups have been able to get their narrow interests translated into public policy. I think that begs a question: Give us some examples of the interest groups, of their narrow interests and what areas of public policy are implementing those narrow interests.
What this paper is basically saying is that the Legislature of Ontario, this government and previous governments, have initiated policy on the basis of lobbying, policies which serve the narrow interests of certain groups. That's quite a statement in a democracy. In a way, it even questions the democracy in this province. To just make a bald statement like that without any explanation is unacceptable in this Legislature. We must have a discussion of this paper and the rationale that led to making such statements in it.
Also, I think we do need the research laid out, at least in sort of a résumé, of the legislation in other provinces because of the statement in the paper that Ontarians are being denied their democratic rights that residents of other jurisdictions have because we don't have this kind of legislation, recognizing, as Mr Silipo said, that there's no legislation that prohibits the calling of referenda in this province.
I want to hear from the public, from any interested parties, and I would not suggest that any of them have narrow interests. I'm sure they're all here for the public good and I want to hear from them, but I want to be able to question them and their comments on the basis of some facts, not on the basis of conjecture put out in the draft paper with no examples and no proper justification for some rather unusual, to say the least, statements.
I hope the members of the committee, in the interest of having a full and serious discussion of this very important issue and proposal, would want to get some information upon which they can base their questioning of the witnesses before we begin. In order to do that we need a government representative to explain the intent, to explain the statements in the discussion paper and we need the research to explain what the situation is in other jurisdictions.
Mr Rick Bartolucci (Sudbury): I guess Mr Clement's comments beg a couple of questions that I would like answers to. Whose document is this? Is this a government document, is this a Premier's document or is this an Attorney General's document? Who is responsible for this document? The second question would be, why isn't that person here, which is customary, to introduce the document?
Thirdly, are the comments in here and the opinions, because I think they're rather subjective opinions, reflective of that individual or the government in general or particular people on the committee? If in fact there is to be some legitimacy attached to this whole process over the course of the next four days, the defender of the document, the instituter of the document, the motivator behind the document should be that first person, and I'm wondering why he or she isn't.
Mr Chair, I'd like the answers to those questions before I vote.
The Chair: Thank you very much. Would you care to respond, Mr Clement?
Mr Clement: I'd be happy to respond, to answer to the best of my ability the members' questions. It is a document that was produced by the Premier's office, has been approved by the Premier. He is the head of the government so it is both the Premier's document and it is the government's document. It is a discussion paper. It has opinions in it. It has beliefs in it. It has the opinions of the Premier, which I'm sure he will be challenged to justify in the Legislature, as all premiers have to justify the policies and the opinions of the government of Ontario. There's nothing unusual in that.
We're getting sidetracked into this, you know, who are the special interests? I've heard each and every one of the honourable members opposite say in the Legislature in the last year that I've sat in the Legislature that special interests have taken over the government. I would even challenge them to identify the special interests and I guess we could spend half the day arguing about whose special interests are special interests.
Mr Phillips: I challenge you to find where I've said that.
Mr Wildman: Yes. Get a quote out of Hansard where I've said that.
Mr Clement: I will amend my comments to say certainly members of each of the parties represented opposite have said on one day or another that we have been captured by special interests. There seems to be a discussion in Ontario about special interests and their role in governance that the honourable members' parties opposite have raised over the last year. That's the only year that I can speak to. It seems to deserve perhaps a commentary and perhaps improvement. If we can improve the democratic process, perhaps this discussion paper is the start. I hope that answers the concerns raised by the members opposite so we can proceed.
The Chair: I would like to proceed on a vote on Mr Phillips's amendment that a member of the government, I believe, be invited to explain this. Is that essentially --
Mr Phillips: Actually the motion said, because Mr Clement said this is the Attorney General's bill, that the Attorney General --
Mr Clement: There's no bill, Gerry.
Mr Phillips: The discussion paper that we are here to discuss. I will say to the public, the government seems to me afraid to bring forward somebody who wants to defend this discussion paper.
The Chair: All in favour of Mr Phillips's motion? Opposed? The motion is defeated.
Mr Clement: Are we on to the main motion?
The Chair: Are there any other amendments to the subcommittee report?
Mr Silipo: Mr Chair, I don't want to push this for too long, but there was an issue raised about the usefulness of having research do some work and present to the committee. I think it would be useful as a committee that that issue be resolved and be clear so we would get it. I assume there wouldn't be disagreement among committee members about the usefulness of getting research. In fact, we did talk about this informally as well and I assumed that we would be having fairly early on some overview given to us.
The Chair: Certainly, Mr Silipo, and while that discussion was taking place, I was speaking with our research officer here and he's indicated that that information can be made available to the committee this week for sure.
Mr Wildman: Will it be early in the week or late in the week?
The Chair: I asked him for whatever information as early as possible could be provided, Mr Wildman. Thank you very much.
Mr Wildman: I wasn't being facetious when I said that. The reason I asked is that I'd like to have the information so that when I get someone, for instance, as distinguished as Mr Boyer before the committee, I'd like to be able to ask him questions about the legislation in other jurisdictions.
There's a report that we have before us from this morning's Globe and Mail which describes in some detail the legislation in British Columbia, which, from my reading of that article, indicates that it is probably very difficult to use that legislation in British Columbia. There may be good reasons for making it difficult or reasons for making it less difficult, and I'd like to have that kind of information so I could make the best use of the witnesses who appear before the committee.
The Chair: As I said, we will undertake to get you that information as soon as is practically possible.
Are there any other amendments to the subcommittee report? We'll now move to a vote on acceptance of the subcommittee report, which was initially Mr Clement's motion. All in favour of that motion? Opposed? The motion is carried.
Mr Wildman: Could I ask one question just before you proceed?
The Chair: Okay, Mr Wildman, if it's brief.
Mr Wildman: I note from the list we have from the clerk that there are a lot of time slots to be confirmed, particularly as we get later in the week. On the last day, particularly, they're almost all to be confirmed.
The Chair: Just to explain for a moment. Of course, it's the subcommittee's instructions that the clerk works on to fill the appointments for this committee, and Ms Freedman will discuss it with you at this time.
Mr Wildman: I'm sorry, I didn't have the latest one.
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OFFICE OF THE CHIEF ELECTION OFFICER
The Chair: I'd like to call forward our first witness today. It is Mr Warren Bailie, who is the chief election officer at Elections Ontario. Welcome, Mr Bailie, to the Legislative Assembly committee.
Mr Warren Bailie: Thank you.
The Chair: We look forward to your presentation. Could all of you introduce yourselves for the purposes of Hansard before you begin.
Mr Bailie: With me is the assistant chief election officer, acting, Lorie Wells; and Wilfrid Peters QC, who is the legal adviser to the chief election officer, from the Attorney General's office.
Mr Chairman, members of the committee, I have a great deal of research on this subject anticipating that at some point we might be asked to supply some information or data. My staff has studied the referendum legislation in the other provinces in anticipation that a compendium of referendum legislation in other jurisdictions would be helpful, and this kind of information, of course, will be made available.
I've been asked to respond to the paper on referendum, and I'd like to respond in this way. I have some comments that I would think helpful to any committee considering whether we're going to have referendum legislation or not, and I'll proceed with that and be happy to answer questions following that, if that's agreeable.
I think the first thing the committee would want to do to advise the government is that the consultative process of referendums could take three different forms. One is where it is a referendum by definition, and it's a matter that having been voted on, and if positively voted on, would be a reference to the government or to the House to take action.
Then there's another type of referendum question that comes up in other jurisdictions, a deliberative referendum, such as commonly happens in Switzerland, France and the USA, where the government is required to follow the directions they receive from the vote.
Another type of referendum that we don't hear much about, and I guess it happens just occasionally, is the arbitration referendum. An arbitration referendum is held when there is a disagreement between the public authority, such as the government and Parliament, and the Legislature. The electors are then asked to resolve it.
The instrument of direct democracy is a decision that you people, of course, have to make, and all I would want to do is share with you my concerns and thoughts on procedure.
I think the most important point I'd like to leave with you is the timing of the vote. If it's a province-wide referendum, the only difficulty we would have is that it occur at the time of a general election. It would make it more difficult, but there's the obviously huge saving that would accrue from having it at the same time as a provincial vote. So timing is important.
If there's to be referendum legislation that is supervised by the Office of the Chief Election Officer but takes place in municipal situations, then it's fairly important that timing be brought into the legislation stating that it must be at the time of a municipal election, if that's your final decision; and if not, that there be a space between electoral matters such as a municipal election and a referendum vote so they don't come so close together that there is the possibility of confusion.
Another very important point on timing is the ballot wording. I know from discussing this matter with my colleagues in the other jurisdictions that this has presented some difficulties, that a referendum was beginning and the final wording wasn't settled. It's been pointed out to me that this is a considerable problem because nothing more than such a practical matter as the size of the ballot is important so that the jurisdiction or the office running the vote would have a knowledge of what size the ballot could be so quotations could be received and ballot paper prepared before the writ is issued.
The ballot itself is a contentious issue in some jurisdictions. You want to be careful that the legislation dealt with the matter of the form of the ballot. My colleagues in the other jurisdictions have cautioned me on several occasions that this has been of concern to them, that it be stated in the legislation rather than left to the discretion of the chief election officer.
The list that will be used in the election: We are already proposing for consideration changes to the Election Act, so we feel that for a referendum, if there is to be one, we should have a complete and separate referendum act that would state how the lists would be generated and such other matters as a manager of the No vote and a manager of the Yes vote so we'll know, in a technical sense, who is going to appoint the scrutineers, who has the authority to appoint scrutineers.
All these matters are not difficult to handle, but they're things that it's important to be aware of over and above the wording of the referendum.
The information: It's very important, from our point of view, that questions that will surely come up following the issuing of the wording of the ballot shouldn't be handled by Elections Ontario. We would recommend that there be an information office, and if there is a very difficult question it might be decided there should be two information offices. So if a member of the public phones up and starts to ask questions about, "What does this question really mean?" those kinds of questions, they really shouldn't be answered by technicians such as the people at my office. I would strongly recommend that there be an information office set up by the government to answer these questions in a fairly neutral manner.
The whole subject of poll officials comes up. Who would have the right to nominate the enumerators, if there were to be an enumeration, and who would have the right to nominate the poll officials and the scrutineers? That should be clearly dealt with and established in the legislation.
Another subject comes up: recounts. We all have heard from a recent referendum that there will be this problem of close votes and requests for recounts. It seems to my staff, after studying the matter very closely, that there should be some very clear legislation on recounts that is quite different from the recounts and the wording on the recount that we have in the Election Act. After all, in any electoral district someone might apply for a recount because the vote is close in that jurisdiction, but overall the vote across the province, where we have a province-wide question, a province-wide vote, isn't anywhere near close. We just couldn't use the present legislation or even an adaptation of it. It would have to be completely different.
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We'd have to establish where the referendum committees would apply and to whom they would apply and the grounds that they would need to ask for a general recount and such questions as, should the recount be automatic if the overall difference between the vote or the plurality is very close? Then we get down to many different questions: Should the chief election officer conduct the first recount to reduce the potential cost or to ensure efficiency?
There are a number of questions like this. We don't have a particular position on whether there should be a referendum. However, we feel that if there is to be one, we'd certainly welcome the opportunity to deliver to you, as it were, our concerns.
I don't have these comments down in black and white so I can hand it to you. We've studied the matter very carefully. We've been studying it and restudying it. Every day new issues arise and we're waiting to see what the final bill is going to look like. We'd certainly be prepared to offer our comments on it. I'd be happy to try to answer any questions, Mr Chairman.
Mr Phillips: I appreciate your being here. Just so I have some idea of the cost involved in a referendum -- I know your advice is to have the referendum at the time of a provincial election, which may or may not work; I can imagine that there would be, if this goes ahead, other times -- I guess two questions: One is, what is the cost roughly of a referendum; and secondly, is there anything at all that we should know about a provincial referendum being conducted by municipal officials at a municipal election?
Mr Bailie: Let me deal with the last part of your question first. For several years before coming into the office and for several years following coming into the office, we did have provincially supervised local or municipal referendums, liquor plebiscites, and it just happens more by coincidence than anything that I was involved in those liquor plebiscites. Our office supervised them so that the ballots would be uniform. In other words, the municipality would be running a vote, but number one, it had to apply to our office so we would know whether the three years had passed since the last requested referendum. Also, they would submit the proclamation they were going to put up to our office to approve it, make sure it was in the approved form. Once the ballots were printed, they would come back from the clerk of the municipality so that the Office of the Chief Election Officer could examine them and make sure they were in the prescribed from, the prescribed wording. If we're talking about a municipal one, there is certainly need for legislation like that.
A province-wide referendum, if it were conducted outside a general election or another electoral event, would cost approximately $40 million, if an enumeration were involved. If the proposals that we're studying now are used, that a form of register of electors be used, and we are able to save some money and reduce duplication and use the latest technology, we're talking something in the neighbourhood of about $28 million.
If it were combined with a general election, we haven't really got a handle on that, but we're talking about an amount, combining the two, of something in the neighbourhood of $55 million to $60 million, if they were combined. One of the strong pieces of advice I get from my colleagues in the other jurisdictions is that you have to be careful presuming that the poll officials can handle both votes at the same time. The counting goes late into the night and they aren't working at peak efficiency and so forth. I would anticipate, if my opinion were sought, that there would be additional poll officials there, if they were combined, so we would have additional costs, and we're talking about figures in that. I haven't researched that point very carefully, because as you pointed out, this is a new subject and we're not sure which direction we're going to go.
Mr Wildman: Thank you for being here and presenting those comments. When you said that it might cost $28 million using a different approach, you're talking about a permanent list? Is that what you're talking about?
Mr Bailie: The term we would use is "continuous roll," what people usually refer to as a permanent list.
Mr Wildman: That of course would affect the cost of elections in Ontario too?
Mr Bailie: Exactly.
Mr Wildman: I have a couple of questions with regard to the other jurisdictions. I note that there is some background material that has been provided just this morning to me -- I don't know when other members received it -- and I appreciate that. I referred earlier to an article that was in this morning's newspaper regarding the Western Canada Wilderness Committee, which is attempting to initiate a referendum in British Columbia on bear hunting. If your suggestion that for technical and cost reasons it might be an idea to have referendum legislation designed in a way that would ensure that any referendum might take place in conjunction with a provincial election or municipal elections, a referendum such as this could not be initiated -- I guess it could be initiated, but it wouldn't take place -- until the next provincial election or the next municipal election, if your proposal were in place.
Mr Bailie: That's the consideration the Legislature has to make, whether it would have to wait until the next general election or it could take place at any time, as well as.
Mr Wildman: Of course, in balancing the need to ensure that people have the opportunity to have their views canvassed with fairness, and with cost as well, that's a serious consideration as to whether or not a referendum could be initiated at any time; and second, if one has been held, you also mentioned whether there should be legislation prohibiting the same question or a similar question being put within a certain period of time, such as three years, when you mentioned about the wet/dry votes in days of yore. In the information that you have, in the other jurisdictions in Canada as well as British Columbia, how are referenda initiated? Who does it?
Mr Bailie: We have this compendium here. I brought only a few copies; as I say, I don't know just how much material. But in each case there is a procedure. Usually it's a government initiative, but in British Columbia, the case you mentioned, there is provision for the public to have what we call initiative legislation. I could go through this, if you like.
Mr Wildman: If you've got it, and we have information here, I don't think you need to go through each one. What you're saying is that in most of the legislation, unlike British Columbia, it is government-initiated?
Mr Bailie: Yes.
Mr Wildman: So the question would be designed by the government and the wording would be determined by the government in most jurisdictions, such as Quebec with the referenda they've held with regard to the future of the province in Canada?
Mr Bailie: That's my understanding, yes.
Mr Wildman: Obviously, who designs the wording and what the wording is has a great deal to do, often, with the outcome of the vote. I don't expect you want to comment on that.
In this particular article about British Columbia, since it's legislation that allows for the public or members of the public to initiate, there is some discussion about the fact that some people think it is too difficult to use the legislation in British Columbia because in order to have a referendum, they only have 90 days and they have to sign up at least 10% of the voters in each of the ridings in the province in 90 days. Then, if the referendum proceeds, they have to get 50% of the registered voters, not 50% of the people who vote, in order to approve or to win the referendum. This legislation also allows for recall of MLAs in British Columbia and it's even more stringent there. They have 60 days and they have to sign up 40% of the registered voters in the riding of the individual they're attempting to recall.
Is British Columbia the only province that has legislation that allows for individuals or groups in the public to initiate a referendum?
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Mr Bailie: I believe so, but I would have to go over my notes more carefully to answer your question. Perhaps we can supply that answer later.
Mr Wildman: One of the arguments in this article that I'm referring to, which I think all members have, is that in British Columbia it costs -- I think it's $18 million for a province-wide vote. Yes, $18 million. The argument is that it shouldn't be too easy. If you're looking at that kind of expenditure, it shouldn't be something that should be initiated and carried out very often.
I'd like to have some further discussion, Mr Chair, about the differences between British Columbia and other provinces. Many of us may know about Quebec, but I'm not sure all of us have had the chance to go through this background information and see the differences in other parts of the country.
The Chair: Research staff will endeavour to get you more information on that, Mr Wildman, as well.
Mr Clement: Thank you very much for your presentation. I just note for the record, Mr Wildman, it looks like Saskatchewan, according to the chart that we all have, also has an initiation procedure. The petition has to be signed by not less than 15% of the electors in Saskatchewan.
I just wanted to get some clarification, Mr Bailie, on your views about teaming up referendum questions at the time of municipal elections. Are you saying there is a possibility of confusion if the ballots occur at the same time, or are you saying that as long as things are organized properly there wouldn't be confusion?
Mr Bailie: Mr Clement, I share with you only what my colleagues have shared with me, that if I had an opportunity I should say that it's important to have a certain space of time. Naturally, if it was important to have the two votes closer together, then you would have to be very careful to make sure that it was understood that when people voted at the one, they weren't late for the other. We produced some information brochures and I would certainly suggest very strongly that the information to the public be very carefully handled and so forth, as well as an information office.
It doesn't mean that they couldn't be close together, but we'd have to be very careful that the information the public would like would be there, and if there's going to be balloting across the province, that it be a uniform style of ballot. If somebody changes the size of the wording even slightly because there's a large number of words -- you would want, I believe, to have a uniform size of type so that in one municipality someone couldn't make the claim, "I didn't quite understand because the type was so small."
Sometimes initiatives and referendums require a lot of words and it would affect the size of the ballot. You would go for the larger ballot rather than reducing the typeface. Those are the kinds of concerns I would have.
Mr Clement: Do you see it as conceivable that the referendums would occur at the same time; that is to say, since we have a province-wide municipal election with a common date, throughout all the municipalities that I know of anyway, that we could somehow piggyback, I suppose, a provincial question on the municipal voting day? Perhaps it would be a completely separate ballot with its own typeface. It would be printed by Elections Ontario rather than the individual elections offices in Toronto, North Bay, Timiskaming, whatever. Is that conceivable, from your perspective?
Mr Bailie: Oh, yes, very definitely. I just recommend that these matters be given careful consideration, the ones you've mentioned, about type size and so forth.
Mr Clement: Fair enough. Thank you.
The Chair: Mr Bartolucci, you had a question.
Mr Bartolucci: Just following up on a couple of your ideas, Mr Bailie, because I think they need a little bit of clarification, especially at $40 million a shot or $58 million combined. I know your office hasn't established a policy -- you've indicated that earlier in your presentation -- so I'll ask for your personal opinion. What issues deserve referenda, as far as you're concerned, if any?
Mr Wildman: Warren Bailie's appointment.
Mr Bartolucci: That's a fair question, because I'm asking for his opinion.
Mr Bailie: Well, I have been an elected representative for 14 years myself in the municipal area. I had to make decisions on the needs in the board of education in which I was involved, and I had a consultative process, as I'm sure all you gentlemen do, which was keeping in close touch with the electorate. We talked about serious matters like school busing and the distances young people would have to travel. We did consider having a referendum. In the final analysis, that didn't take place.
I think there is a place for public input. Number one, it should be to the representatives they've elected; I'll state that. However, the feeling of the public is very clear to me that they want to have more opportunities for input and that's why, in anticipation that this might happen, we've done these studies. But I don't really have a firm opinion on it, frankly. What I might say is, I've elected you people and I expect you to make that decision.
Mr Phillips: Better have a referendum on why we do this.
Mr Bartolucci: Yes. Then are you personally in favour of mandatory referenda or not?
Mr Bailie: A referendum that would be a mandate to the government to take action?
Mr Bartolucci: Yes.
Mr Bailie: Personally, I'm only in favour of referendums, not really plebiscites, which I feel are mandates. That's just a personal opinion. I'm in favour of referendums because I think every bit of information that you people as representatives can bring to a subject to decide it is good and helpful. But referendums that mandated the government to do something, I'd have some concerns about that, personally.
Mr Bartolucci: Sure, and I'm asking for a personal opinion. You wouldn't be in favour of citizen-motivated initiatives then.
Mr Bailie: As long as they were referendum questions; in other words, they're referring their opinions to the government and the Legislature to decide.
Mr Bartolucci: I'm sure later Mr Boyer will define the difference between a referendum and an initiative clearly, because there is a distinction.
Let's get back to the timing of a referendum, because I think that's important as well. How do we get by the problems associated with having a referendum at the same time as a municipal election? For example, I come from Sudbury and I live in Sudbury. If I owned a cottage in Walden, I am able to vote in both municipalities. How would you ensure that the idea in Ontario of provincially one person, one vote is protected?
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Mr Bailie: We've given some thought to that because it is an important question. I happen to have the right to vote in several municipalities myself, but in a province-wide referendum question it would be important for us to make it clear in our information services that you had one vote in the provincial question and that was it, and then to ensure that careful study of the electoral rolls was such that we could police it.
Mr Bartolucci: But in all honesty, with all due respect for your background, it would be impossible to police. Correct?
Mr Bailie: It certainly wouldn't be easy.
Mr Silipo: Mr Bailie, you had some materials that you were referring to. I don't know, Mr Chair, if those are included in the binder we have. If not, I would just ask if it would be possible for us to get those, because I have a sense from your presentation that they go into a little bit more detail into some of the things you were commenting on at the beginning.
Mr Bailie: Yes. The material we have, of course, would be readily available. This is our first opportunity to make that offer.
Mr Silipo: I, for one, would certainly appreciate getting that.
The other question I had was, in your looking at whether it's just a Canadian experience or indeed that of other parts of the world that have used referenda, are there any instances where there have been referendums on a variety of major -- well, a major or minor issue; that's a subjective term, I suppose -- but on issues that involved more than one question, in other words, a referendum that was divided into various parts?
I think back, for example, to our last experience with the referendum here in Canada, the constitutional accord, and am particularly wondering whether in an instance like that there may have been jurisdictions that divided up the various pieces of that into a series of questions, allowing or asking people to vote on different pieces as they so chose.
Mr Bailie: Yes. I guess the best example is, in 1991 Saskatchewan had three questions on the ballot. That's why legislation would have to carefully address the concern you're expressing that there be anticipation of a yes/no vote but then a varied result like three different, variable questions and so forth. I have actually had the opportunity through Elections Canada to represent Canada at referendums in other countries. In Africa, in Malawi, for instance, there was a referendum that was a strictly yes-and-no one. They're the easiest. But where you have three or perhaps four questions, even more care has to be taken.
All of these things can be addressed. I just caution you that a lot of thought has to be given to the way the legislation is worded, and that's why I recommend a complete Referendum Act rather than an adjustment of the Election Act.
Mr Silipo: Is it your sense from what you know of the Canadian and/or international experience that it follows pretty much a standard practice that whenever you have a referendum, there has to be established -- you used the words "Yes and No committees," I believe -- but in effect an apparatus that allows for information to be given to the public on behalf of both sides of the question that's being put? Does that follow as pretty much a standard approach that's taken whenever there are referenda, or is that more the exception?
Mr Bailie: No, I don't think it is the standard approach and that's why I bring it to this forum. It's important, from my observations, that there be a clear understanding that there would be a Yes committee and a No committee and in the case of variables, there would have to be consideration for a committee for each question.
No, I don't think it's standard, but I think that our legislation would be wise to include that type of wording.
Mr Silipo: One last question I would have of you: My interest is around the issue of whether at the end of the day there should be a law that governs referenda, as opposed to the issue of whether we should have referenda or not. I, for one, certainly believe that there are times when it's very appropriate for there to be a referendum. I'm not as certain about the need for a law that governs that, because I'm not sure how you can appropriately foresee a number of the dynamics, but what I hear you saying is that if the government is at all contemplating getting into the use of referenda on a more regular basis, it would be useful for there to be a law. I don't want to put words in your mouth, but that's what I'm picking up from what you're saying. Is that a fair conclusion?
Mr Bailie: Yes. I anticipate that there will be referenda. They're becoming more popular in the minds of the public; that seems clear. The incidence of referenda is increasing in Canada. We would want to be prepared so that we have the technical rules very clear in our minds, so that whenever the Legislature decides to have a referendum, we would know exactly how to proceed.
Mr Marcel Beaubien (Lambton): Mr Bailie, good morning. You mentioned, in your presentation, ballot wording, that it is a very critical part of the whole process. You also alluded to the fact that the constituents, the voters, should have more opportunity for input. I certainly agree with this. What gives me great concern is, since the answer on the referendum is usually a qualified yes or no, how would you draft a question? I don't really know how to pose the question, because that's a difficult one. Some people, some legal departments can stickhandle with the English language whereby they will direct the voters in a certain direction, as opposed to a clear, concise question on the ballot. How would you address that particular dilemma?
Mr Bailie: It's a difficult question, but the answer is easy: The wording of the question of course would have to be handled by the government and approved by the Legislature. We just point out to you that it is a very important matter; you can see that. I don't know whether you're talking about that question about, "Have you stopped beating your wife, yes or no?" Obviously, it has to be carefully worded in the two official languages. We just want to make sure that the legislation would preserve the time to see that this care, which you obviously have a sense for, is in place in the legislation.
Mr Beaubien: I am sure, if we look at the experience that occurred with the referenda that occurred in Quebec in the past number of years, that the question was drafted by the government and probably approved by the Legislative Assembly. But did it really reflect the question that people were concerned about, or the concerns that people had with the issue itself? I agree that the government probably has to draft the question, but there have to be some checks and balances in there to make sure we address the point. I don't really know what the answer is; I don't know if anybody's got an answer. That gives me great concern, because the answer will be yes or no.
Mr Bailie: Or in the case of a variable, half yes, half no and so forth. All I can say is that I think it's good that you do realize the importance of the drafting of the wording and that it be clear and so forth. My opinion is that this is an important matter and you people must address it, and that's about all I can say on that. I'm sorry, I'm not really dodging the answer.
Mr John Hastings (Etobicoke-Rexdale): Thank you, Mr Bailie, for appearing before us this morning. You were referencing earlier that Elections Ontario was involved in the framing of the question on wet or dry outlets, I guess, in municipal elections so that it would be a standardized question for all those municipalities holding such a referendum in a municipal election. Can you tell us whether Elections Ontario also framed the question or ensured the clarity of the question in the fluoridation issue of the 1940s and 1950s, or were those questions all independently phrased by the city clerk or town clerk, be it as it may?
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Mr Bailie: One of the difficulties we have -- we've done a lot of research on this matter. I don't know if you're aware, but I'm the first full-time chief election officer. Up until I was elected by the Legislature, the chief election officer was a part-time official who was also the Clerk of the Legislature. So we don't have to support us a lot of information that was carefully kept and catalogued. But in case what I said about the liquor plebiscites was misunderstood, the wording was very carefully established in the legislation. The Office of the Chief Election Officer was to examine to make sure that wording was followed faithfully on the ballot and in the appropriate type size, but we didn't have anything to do with the wording. It was established in the legislation and it was very clear that our job was to make sure that no one changed it either accidentally or for any reason.
Mr Hastings: But on fluoridation?
Mr Bailie: Fluoridation: I've already looked, but all we have on the subject is that we know the vote took place. I'm sorry, our research on that is not good because our records are almost non-existent.
Mr Hastings: On the issue of costs of referenda, when you talk about anywhere from $28 million to $55 million, depending, I guess, on the number of people hired, on the polling, on when referenda are conducted -- in conjunction with either a municipal or a provincial election -- are you trying to anticipate or factor in the pricing of information technology in that scenario, or are you just excluding that entirely and looking at the cost of conducting a referendum, either province-wide or in conjunction with municipal elections, in the more traditional manual sense of how you already carry it out?
Mr Bailie: I think that's another good question, and the way I would answer is that just as in a general election our office gets information out to the public on how the system works, we would do that and we would expect at the same time that the initiator of the referendum would make sure that the intent behind the referendum and the pros and cons of it would be out as well. In that figure there would certainly be information services similar to what we already provide in a general election, but there would have to be more than that done by the Legislature or the government.
Mr Hastings: Do you anticipate then that the cost could be significantly higher if you were implementing a new information technology?
Mr Bailie: At the present time, we're already looking into it. In that figure that I'm giving you is information services that we would be prepared to not only supply but enhance, and it would be all in that quote.
Mr Hastings: When you say "services," does that also include software and hardware? Are you talking about it in a computer context or in the more traditional way it's now carried out?
Mr Bailie: The information technology that I'm talking about -- I'm assisted by my assistant here -- would be computer technology. We already have that; we've been developing it over the last two or three elections. We would be able to supply discs, as we do now in some cases.
Mr Hastings: Would that also be assuming that you see in that scenario a permanent voters' list?
Mr Bailie: We have been looking at the establishment of a continuous roll of electors, ie, a permanent voters' list, and we would be recommending that consideration be given to a continuous roll because of the large savings and the savings in time. One of the things that a continuous roll of electors would allow us to do is have a shorter election period or a shorter referendum period. There are opportunities for savings, reducing duplications, that would be quite substantial.
Mr Phillips: One of the objectives, I gather, of this initiative by the government is to limit the voice of these well-heeled special-interest groups. Do you see a need in this legislation to define the spending of both sides of the issue and do you see a need for public assistance for either side in this issue to make sure it isn't just the well-heeled special-interest groups that hold sway?
Mr Bailie: I certainly see a need for these matters to be very carefully addressed in your discussions because, as you're well aware, in the Quebec referendum, funds were supplied from the government treasury to both the Yes and No committees. There was an attempt to very carefully control contributions and expenses. I think there would be the expectation in the minds of the public that something of that sort might be included in a referendum bill.
In the federal referendum I'm sure you're aware that any number of committees could register. A committee could just be a committee in this electoral district and actually not operate in any other electoral district. It was fairly wide open, but it was a referendum held on very short notice, and perhaps on reflection that legislation would have been different. Which really gets back to the point that I want to leave with you, that a great deal of thought must be given to the legislation before. I would suggest with regard to the legislation used in the Canada-wide referendum that there was not enough thought given to some of the rules, and I think on reflection the same people would have added a few more strictures and regulations.
Mr Phillips: Is the Quebec model one we should look at?
Mr Bailie: It's very strict, and maybe more strict than you'd like it to be. I would suggest that there has to be somewhere in between, that people will feel comfortable with the legislation but still feel it covers the concerns that we have and you've expressed and I've expressed. There must be a happy medium, which I'm sure the minds of the Legislature will divine.
Mr Silipo: If we're so allowed to do.
Mr Wildman: Some of the things you've raised have raised further questions in my mind. I'd like to pursue what was just discussed, but before that I'd like to ask you a question about wording. You talked about the importance of the wording. At the time of the last Quebec referendum, there was a great deal of discussion around the wording of the question. In the last analysis, I think both sides came to the conclusion that it didn't really matter what was the wording. Everybody knew what they were voting about; that is, whether Quebec should leave or stay in Canada. How do you square that view of many political scientists with your concern, which I think is genuinely held, about ensuring the wording is clear and concise and fair?
Mr Bailie: That's probably the most difficult question you have posed, but I feel that's the responsibility of the Legislature. I think it is important, because there were many people who were members of Parliament and so forth suggesting that there was some confusion in the wording, there was some confusion about what the people were voting for, because some people thought they would vote on this and there would be some new special status for Quebec but it would still be all included in the overall Canadian federation. I'm sure you'll agree that there were a lot of people who thought that's what they were voting on. It didn't seem to me from the wording of the question that this was the case.
It reinforces the point, and maybe I shouldn't have even brought it up, because I'm sure you knew you had to take care of it. Just make sure that whenever it happens the wording is decided before the writs are dropped, is what I caution, because some of my colleagues have had the word that they should get ready for the referendum and some of them were still working on the wording. They've cautioned me, "Make sure you don't get in that position if you can possibly avoid it."
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Mr Wildman: I appreciate your comment, because it is true that there was some evidence subsequent to the vote in Quebec that some of the people who had voted Yes still thought they would be sending MPs to Ottawa if the Yes had won. So there may have been some lack of clarity.
To your knowledge -- and I'm going to ask others the same question, so if you can't answer it, fine -- has there been any work by political scientists on whether it's easier to get a Yes or a No in a referendum? In a general sense; I don't mean necessarily related to specific questions.
Mr Bailie: No. In all I've read, I haven't seen anyone deal with that particular subject or I've skipped by it because I'm working on the technical aspects of it. But I'd be interested to hear, and I'm sure your witness for this afternoon will be able to answer that much more readily.
Mr Wildman: All right, thank you. My other question relates to the suggestion that referenda might be held at the same time as provincial elections or municipal elections. That raises two questions. Let's say there were three different groups that wanted to have referenda on three very different issues. If the legislation said that it would have to be held in conjunction with the provincial election, you might in fact be voting on a number of very different questions and be having a number of very different campaigns going on all at the same time. I can understand the complexities of that in relation to the technicalities, but in your view would that be something that would be a good thing?
Mr Bailie: No. I think if a situation occurred where two or three initiatives had come forward and were approved for a vote, to combine two or three completely separate questions at the same time as a general election, where we certainly have questions, for the information services to work, it would be very difficult.
Mr Wildman: The other thing is, if you have it at the same time as an election, just one question, is it not conceivable that politically the referendum campaign will have a significant effect on the provincial general election and vice versa?
Mr Bailie: One of the main reasons that one might suggest you have it at the same time as a general election or at general and municipal election time is that you would get a better turnout. If you had a question on the ballot and the turnout was 29% and it was a very close vote, you'd have to ask yourself, do you really have an opinion? When my colleagues recommend that it's good to have it at the time of a general election, they're saying that you have a better chance of a bigger turnout, so the opinion is more helpful.
Mr Wildman: I think that's probably true. I'm guessing, but it would seem to me that in an election campaign when there was a major question on the ballot, all candidates in the provincial general election would be asked regularly at public meetings by the Yes or the No sides what their views were on the question, so that itself would then become an issue in the election campaign. So it might beg the question, why not just have an election and have people ask their candidates what their views are and then vote on that basis?
The Chair: Are there any other questions for Mr Bailie?
Mr Tom Froese (St Catharines-Brock): Thank you very much for coming and sharing your comments. From the background information I have, I think you have some comments and some opinions on advance polling on a referendum, people voting in different ridings at advance polls. Would you share your ideas on how, mechanically, you think that would work and what some of the pros and cons are with respect to that?
Mr Bailie: It's a good point. We have looked at that, though I would say not in the detail it deserves. We would anticipate that if we had a province-wide register of electors, which we are studying and working on now and will soon be recommending to the Legislature, we would then be in a position to accept the idea of a province-wide advance poll. In other words, if you were out of your electoral district, your name would still be on the master list, so as long as you were anywhere in Ontario, you could vote in any electoral district.
That's partly because of visiting two or three general elections in BC. I don't know if you're aware, but even before they had referendum legislation, if you were outside your electoral district, you'd still go into the poll and vote, and your ballot wends its way finally to be registered in the right electoral district. So it is possible, and there wouldn't be in our view a good reason to not allow a person to vote outside their electoral district, but their vote to be registered, because you have a province-wide question rather than in our general election for candidates, where you're electing a particular person in a particular area. So there's the possibility of that.
There's the possibility of us having legislation that would allow for mail-in ballots. At the present time, as you're aware, we just have a proxy vote. But a lot of the jurisdictions in Canada are moving from the proxy vote to a mail-in ballot. Certainly at a time like this, at the time of a referendum, a mail-in ballot would have more advantages in a province-wide referendum than it would in a general election for candidates.
There are all kinds of things that we're studying in anticipation that our opinion might be sought on these matters.
The Chair: Thank you very much, Mr Bailie, Ms Wells and Mr Peters, for participating in our committee discussions today. Your advice has been very, very helpful and we appreciate the time you've taken to make this presentation.
MINISTRY OF THE ATTORNEY GENERAL
The Chair: Our next presenter is Michel Hélie, who is a counsel in the Attorney General's office, constitutional law branch. Welcome to the standing committee on the Legislative Assembly. We've set aside approximately an hour for your presentation.
Mr Michel Hélie: Thank you, Mr Chairman and committee members. As you know, I'm a counsel in the constitutional law branch of the Ministry of the Attorney General, and I've been asked to provide you with a brief overview of the government document, the consultation paper, entitled Your Ontario, Your Choice: A Preliminary Look at the Referendum Alternative.
The Ontario government is committed to using a referendum process to increase public participation in government decision-making. The government's view is that fundamental questions of public policy should be decided using referenda, and in particular that tax increases and the approval of more casinos in Ontario should be subject to a referenda process. Every province and territory in Canada except for Ontario, Nova Scotia and the Yukon has a referendum process in place. The government is of the view that it's time for Ontario to establish such a process.
The consultation paper was released because the government is committed to having a referenda process, but it is also interested in hearing the public's views on that question, not only on the alternatives that are suggested in the paper but any others that the public may have. The problem identified is that significant changes in public policy may lack legitimacy because the public may disagree with the new direction taken if they have not had an opportunity to be heard and to participate in the decision-making process. This problem is particularly acute where after an election a government pursues a path which is distinctly different from the path espoused in its electoral campaign. Similarly, special-interest groups may achieve, through lobbying efforts of the government, certain changes in government policy that may or may not be shared by the majority of people. The goal is to give the public the opportunity to be heard by elected officials and to give the public control over major public policy decisions.
The solution is to establish some process of public ratification of government decisions. A referendum mechanism is one way of doing that, with the result being that the public are more likely to feel bound by decisions in which they have participated and thereby to feel less disfranchised.
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Throughout my discussion I use the word "referendum" in the singular and "referenda" in the plural in the very ordinary sense of its meaning, which is some kind of process by which the electorate is asked to vote on a question. In political science, there are several terms that have very technical meanings, and I'll just outline what they are, to the best of my knowledge, for that purpose.
The first is the difference between a "plebiscite" and a "referendum," the plebiscite being a vote by the electors on a question which only has moral or political persuasive force; that is, that isn't legally binding and has no legal force unless the Legislature chooses to act in accordance with the plebiscite vote. The referendum, on the other hand, is the same kind of vote, but in this case it has legal force either of its own effect through some process or it in some manner compels the Legislature to act in accordance with the majority decision.
The "initiative" is a process by which the citizenry or the electorate is entitled to petition in order to have a question put to the electorate. Typically, one would expect that the electorate would have to achieve a certain number of names on a petition in order to have the question put to a vote. There has been some discussion of the situation in BC, which was 10% in each riding. I'll get into some of the various examples in other jurisdictions further on.
The last term that I'd like to specify the technical meaning of is "recall," which is the process by which the electorate is entitled to express its displeasure with a sitting MPP and have that person removed prior to the end of that person's term. BC, in Canada, is the only jurisdiction with that, and I'll explain how they do it further in this paper.
There are two constitutional implications that are worth bearing in mind when you consider various referenda proposals here. The first is that the referendum process doesn't give the government any greater authority under the Canadian Constitution than it already has, so to the extent that the Canadian Constitution binds Ontario to legislate in a certain way, the referendum process will also be bound. Examples of that would be that there are certain matters that under the Canadian Constitution are reserved exclusively to the federal government to legislate on -- the Criminal Code is such an example -- the implication being that in a referendum you could not have a vote that would be intended to change any law that would relate only or exclusively to the federal government. Similarly, any law that follows from a referendum process would have to be consistent with the Canadian Charter of Rights and Freedoms in particular, as well as the rest of the Canadian Constitution.
The other constitutional implication to keep in mind is that the Canadian Constitution itself has certain limitations on the kind of referenda process that could be achieved without constitutional amendment. The jurisprudence or the law in this area is quite unsettled, and this means there are a number of different referenda processes or proposals that could be challenged by people as being contrary to the Canadian Constitution. We're of the view that there are very good arguments to defend against most of those challenges. There are a couple of areas where we are not of that view, and I'll indicate those when I discuss the proposals.
In any event, the government is interested in the views of the public on all alternatives, without regard to the legal complications that may underlie them, in order to get a sense of what people want to do prior to determining whether there isn't a way of achieving what it is that people want in a fashion that would be constitutionally valid without a constitutional amendment.
Among the options that are presented in the government's paper are the following:
One would be the standard plebiscite, which would simply be referendum legislation that would permit the government to ask the electorate a specific question or questions and have them vote on it, and the results of that vote would only be morally or politically binding on the government, would not have legal effect.
Another alternative is to prevent the introduction of certain kinds of bills -- for instance, tax increases might be one possibility mentioned in the paper -- without first holding a referendum, although the result would be again only morally or politically binding on the government. What would be binding is that prior to introducing such a bill, the bill that would be described in the legislation, you would have to have the referendum, the vote would have to be held, but the results of the vote would not have legal force on the government or the Legislature.
Similarly, one could use the same approach, but this time make the results of that vote binding on the government or on the Legislature, in order to validly pass that class of bill. Instead of having a general referendum law that would provide for referenda, generally speaking, on any broad range of subjects, it is also possible within the contents of a particular bill before the Legislature to provide that it doesn't come into force, that is, it doesn't become effective, until after a referendum is held and that the vote be a certain way. Similarly, it's possible to provide in a statute that the statute ceases to have any effect upon a referendum voting to that conclusion.
With respect to options dealing with direct initiatives, the archetypical or quintessential direct initiative would permit Ontarians to propose and enact legislation through a referendum vote without any involvement by the Legislative Assembly or the Lieutenant Governor. This would require a constitutional amendment to achieve.
A form of direct initiative which would not raise this complication would be one which would bind the executive of government to take particular action, so long as that action was consistent with other statute law and administrative law. In this I'm referring to the fact that there are areas of discretion exercised by the government, in which currently the government exercises its discretion. Within the confines of the statute that authorized the exercise of that discretion, one could use a referendum process to direct how that discretion ought to be exercised, always underlining, of course, that this new exercise of discretion, consistent with the electoral vote, is also consistent with the actual statute under which they're exercising their discretion and is equally consistent with the body of law that controls the exercise of administrative discretion known as administrative law.
Similarly, referendum legislation could propose that the electorate be permitted to initiate and enact what is known as subordinate legislation, that is, legislation whose four corners would be controlled by a statute that would make precise the limits as to how it could be exercised. This is analogous to the way municipalities legislate. Municipalities pass bylaws which must be consistent with the Municipal Act or other statutes authorizing the municipality to act. The same thing could be done by replacing in a sense the municipality with the electorate.
There are also indirect initiatives, one of which would be a process by which an affirmative referendum would automatically result in the introduction of the proposal, a bill containing the proposal passed by the referendum, into the Legislature but would then leave the Legislature free to act, to debate the bill and to vote for or against it, as the Legislature sees fit.
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Similarly, an affirmative referendum could also require the House to deal with the bill within a particular time frame. Lastly, an affirmative referendum could also provide that the responsible ministry or the government make some response to either the Legislature or to the public as to how it will take into account the referendum results without otherwise binding the government.
Those are among the options that are raised in the paper. As I've indicated, there is referenda legislation in much of Canada at the moment, although we actually haven't had very many referenda in Canada, so our experience is somewhat limited. At the federal level, many, many years ago we had referenda dealing with both conscription and Prohibition and most recently with the Charlottetown accord to amend the Canadian Constitution.
Newfoundland has most recently held a referendum dealing with denominational school rights contained in the Canadian Constitution and the desire to amend the Constitution as it relates to those rights. British Columbia put its own referendum legislation to the people in a referendum. The three questions asked by Saskatchewan were mentioned by the chief electoral officer, and the Northwest Territories has had several referenda dealing with the subdivision of that territory.
Some of the principles found in Canadian referenda law include the following: that they are generally initiated and drafted by cabinet on any matter of public concern; that the procedure of provincial elections is used but not necessarily with restrictions on campaign spending, advertising or public funding, and except in British Columbia and Saskatchewan governments are not legally bound to take action on the referendum results; that is left to political pressure.
Mr Wildman: Special-interest groups.
Mr Hélie: What about them?
Interjection.
Mr Hélie: Anybody, yes, including special-interest groups, would be able to, yes.
Alberta's legislation is not binding except with respect to its constitutional referenda. Alberta has a special provision dealing with referenda asking questions about whether the Constitution ought to be amended, and in that case the government has bound itself to the results. British Columbia and Saskatchewan also allow electorate-initiated referenda with the approval of -- in BC it's 10% of the ridings, as was mentioned by Mr Wildman, and in Saskatchewan it's 15% of the electorate across the board, not per riding. BC's recall legislation doesn't actually call for an additional vote; it's simply done by petition where 40% of the registered electorate petition the removal of a sitting MPP; that 40% petition is collected within 60 days of the beginning of the process, then that person's seat becomes vacant and a new election is held.
Ontario does not provide for a province-wide referendum process at the moment. However, it does provide for municipal referenda provisions, and these were touched on briefly by the chief electoral officer. Municipal councils have the authority to hold plebiscites, that is, non-binding referenda, on any municipal issue. The municipal council or the electorate -- so an initiative here with a 10% petition -- may initiate a binding referendum at the municipal level with respect to either the commencement or the termination of a fluoridation of water program. Similarly, a municipal council or the electorate with 25% of petition may initiate a binding referendum, although in this case it's not a simple majority; it's a special majority of 60% to determine whether the municipality ought to be dry or wet with respect to alcohol sales and public consumption.
The Municipal Act also requires referenda to be held in certain circumstances; that is, that there is no choice. These include when a municipality wants to annex a neighbouring area, where the municipality wishes to dissolve the municipal corporation and when the municipality wants to reverse the electoral constituencies from a voting at large to ward elections.
Among other countries providing for referenda is Australia, whose Constitution requires a referendum in order to amend the Constitution, which provides for no other legislative referenda process nationwide but where there are a number of states, the equivalent of our provinces, which have established referenda or general referenda legislation.
New South Wales has had referenda on a number of subjects, including daylight saving time, the terms of Parliament, judicial independence, liquor sale hours and subdivisions of the state. Queensland has held referenda dealing again with both the parliamentary term and daylight saving time and aboriginal rights. South Australia, which does not have a general referendum law, has had referenda with a specific law for the referenda. The one that we are aware of is one again dealing with daylight saving time.
At one point in the 1980s, New Zealand was considering entrenching a bill of rights. They don't have a written Constitution so there was some question of how to make that bill of rights binding in the future. Considerable discussion was held and the direction they were moving towards was to suggest a choice for amending such a bill of rights, which would be either a special majority of the Parliament, in that case 75%, or a simple majority by referendum. That proposal was ultimately abandoned and so they did not go any further with it.
However, in 1994 New Zealand did legislate a referendum law that would provide for non-constitutional referenda. However, these would only be citizen-initiated, not government-initiated, would require a petition of 10% of the electorate and could touch upon any topic, although there has been some discussion whether that unlimited scope ought to be narrowed somewhat. The only referendum that we're aware of since the 1994 law has been one which was successful in defeating a government's proposal to reduce the number of firefighters that were employed by the state.
Switzerland has constitutional referenda which are mandatory for any change to their Constitution, require significant numbers of people to sign the petition, in their case 100,000, and require a simple majority across the nation plus a majority in each of at least half of their cantons. They also provide for ordinary legislative referenda, that is, apart from constitutional change, which are not government-initiated, therefore must be citizen-initiated and only provide for the nullification of statutes passed by the government within a certain period of time.
The subjects they have dealt with have included: alcohol and tobacco advertising, the adoption of value added taxes, which is like the Canadian GST, MP's salary increases and social insurance.
The United Kingdom doesn't have general referenda legislation, although they have held referenda in the past, the most noteworthy one being Scottish and Welsh devolution. The government had indicated that in order to be accepted the referendum result would have to include not only an overall simple majority of those voting but also an overall majority of 40% of the entire electorate voting in favour of the proposal.
The Welsh one was turned down by a very wide margin, but the Scottish one was actually a very close vote. It was 52 to 48, but since the turnout was only 64% it was nowhere near the 40% of the entire electorate required under the law and so Scottish devolution didn't proceed,
In western Europe most countries provide for legislative referenda and in fact in most of these cases their constitutions provide for them, that is, the Constitution provides for the ordinary referendum process on general matters. These are mostly government-initiated, sometimes initiated by minorities in the Legislature and in the case of Switzerland and Italy can also be initiated by the public.
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There were some questions with respect to Canada in the various jurisdictions. As I counted, they're binding only in BC and Saskatchewan and in Alberta -- binding on the government, that is, not binding on the Legislature. Manitoba has a law that requires a referendum prior to any tax increases under certain tax statutes. However, that provision is not binding. It's binding only in the sense that you must have the referendum in Manitoba prior to seeking to increase those taxes, but once you've had the referendum, the government is free to then proceed as it wishes.
In terms of citizen-initiated ones, it's BC and Saskatchewan only, although in the Saskatchewan one what's interesting is that on the general referendum initiated by the government it binds the government, but in the vote initiated by the public, by the electorate, it is not binding on the government. When I say "not binding," I'm always referring to "not legally binding."
The Yukon, which passed legislation dealing with referenda, has not proclaimed that legislation in force. So at the moment, it's not a law.
Mr Wildman: They're having a sort of referendum right now. It's called an election.
Mr Hélie: That would certainly put aside those questions.
The kinds of considerations to deal with in any referendum law are listed, I think, in quite extensive detail in the questions which follow the paper and what's contained in chapter 7 of the paper. I'll just very briefly touch on them.
One is the scope, what kind of question can be asked, particularly important if it can be driven by the electorate. Secondly, who should initiate? Should the electorate be able to initiate or only the government or anybody in the Legislature? What kind of a threshold if it's citizen-initiated? What size of petition is required to put the process into place? If the threshold is very high, obviously, some kinds of question won't get put. If the threshold is too low, you may have very many, with the attendant costs.
The threshold in American states ranges from a low of 2% to a high of 15%. Referenda are a lot more popular in the United States now than they were previously. Between 1991 and 1992, there were 346 referenda across the United States compared with less than 250 in the previous 40 years. California, which has a 5% petition threshold, has had 127 referenda questions between 1950 and 1992, while Wyoming, which has a threshold of 15%, has only had three referenda questions.
What is the referendum question going to be? We all know that confusing questions make for confusing results. What do you do if there are multiple questions and the answers are apparently conflicting between them? Should the questions be restricted to yes/no questions? Should something less clear be permitted?
Voter awareness: How do you ensure that the electorate is sufficiently aware of the issues in order to vote on these questions?
The outcome: What numbers are required in order to feel bound by the decision, either politically or technically? Is a minimum voter turnout required or, like in the Scottish devolution case, even an affirmative vote by a minimum number of the electorate?
Finally, what kind of referenda operation should you rely on? The chief electoral officer talked about the cost and various ways of reducing the cost and whether there are any of the rules that are applicable to electoral campaigns which ought to also apply to a referenda campaign, including questions of limits on public spending on campaigning and that sort of thing.
Those would end my submissions on the paper, which I've tried to summarize. If you have any questions, I'd be happy to try to answer any of them.
Mr Phillips: Hopefully you're the right one to ask, because you're the only government official, I think, that we're going to hear from.
The government has its taxpayers' federation commitments and it says, "Any increase in existing tax rates or new taxes is subject to approval by the voters of Ontario in a binding referendum." I assume from that that it is the government's intention that any increase in existing taxes or new taxes be subject to a binding referendum.
I guess my question is to you because I gather you've been involved in the drafting of this paper. Was it the intent of the government that this paper was going to implement that proposal? I think in your opening remarks you said it was the intent of the government to have a referendum on -- I forget your words, but something like "significant policy issues." It was early in your remarks that you used those terms. Would things like the sale of Ontario Hydro, the closing of hospitals be regarded by the government as significant policy issues that must be in the legislation?
Mr Hélie: I didn't have any part in drafting the consultation paper, so I don't know what went into its making. Our branch had some involvement when the paper was being drafted with respect to some constitutional issues that had arisen as to how to describe the constitutional risks that were at stake. That's the only involvement our office has had.
I did say that the paper states quite clearly that important questions that are fundamental questions of public policy ought to be subject to referenda. The only two examples I'm aware of are the tax increase example and the expansion of casino gambling. I'm not aware of any others that the government has stated an intention to want to have decided by referendum. As far as the particular examples you've given, again, I have no knowledge of whether the government would consider those worthy of a referendum approach or not.
Mr Phillips: How can we get an answer to that? It's pretty fundamental. If the intent of this paper is -- and I'm paraphrasing -- that there be a referendum on issues of fundamental policy, who can tell us what was intended by that?
Mr Hélie: It depends, I suppose, on how you draft the legislation. If we look at the other Canadian jurisdictions, the typical expression that is used is, "On a question of public concern, a referendum may be held." Those will change. Even though the legislation is stated that way and applicable to all governments, the view as to what kind of proposal ought to be put to a referendum will vary from government to government even with the same legislation in place.
Mr Phillips: I'm sorry, and maybe it's unfortunate you are the only spokesperson from the government, but the government has said that taxes will be part of this legislation. Who can tell us what other major policy initiatives will be part of this legislation?
The second question is, in your opening remarks you said that one thing that drove this was the special interests -- and I'm paraphrasing again -- having undue influence. Can you give us the examples the government used to reach that conclusion?
Mr Hélie: No, I'm afraid I'm unaware of any specific examples in that regard. In terms of who can answer the question as to the government's view of the kinds of questions that ought to be dealt with by referendum, as far as I know, there is no decision within the public service that's been passed on to us that we would understand to be specific examples. Therefore, I would say that at this time it remains in the hands of the elected officials.
Mr Phillips: But it is clear to you that where there's a tax or casinos, this legislation must require a binding referendum?
Mr Hélie: No, that's not clear to me. What's clear to me is that the government has gone on record as saying that it wishes to deal with tax increases and casino gambling as being something subject to referenda. Whether the legislation will ultimately provide for that or whether that's simply how the government of the day will interpret the topic that is legislated, like whether it uses the expression "public concern," I don't know.
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The Chair: By way of help, Mr Phillips, perhaps one of the government members would want to speak to that later on in this discussion to answer your questions.
Mr Bartolucci: You referred to one of the general principles, Michel, regarding referendum laws on the books now in Canada, that being held on any matter of public concern. Who defines that?
Mr Hélie: In the case of government-initiated referenda, the government gets the first crack at defining it and saying: "Here's a question we've put forward. We say it meets the requirements of the legislation." In the case of citizen-initiated ones, obviously it would be the citizens who are putting it together. Citizen-initiated ones usually have to go through somebody like a chief electoral officer who determines whether the process is consistent with the law. So that person would then have a role to play.
In any case, at the end of the day, a person could always challenge in the courts and say: "Look, here's the referendum law. It says it has to be a question of public concern. This is obviously not a question of public concern, therefore the referendum is invalid under that statute." So ultimately in our system it would be the judges who would decide, if push came to shove, on that specific question.
Mr Bartolucci: What you're saying then, Michel, is that there could be a nightmare in a definition of what a referendum should be: if in fact it is or is not a referendum.
Mr Hélie: You mean whether the referendum is validly held under the legislation or not?
Mr Bartolucci: Yes.
Mr Hélie: Again, it's a question of legislative drafting. I said that a number of jurisdictions use the expression "public concern." Some actually have no limitation whatsoever. They just say "any question." Whether courts would have any difficulty interpreting "public concern" is a question probably I would leave for the courts. I wouldn't have thought it would be terribly difficult to convince a court that if 10% of the electorate had signed a petition that something was a public concern, or if the government said something was a public concern, to be able to convince the courts of that, but one never knows with the courts.
Mr Bartolucci: Michel, you grew up in Sudbury.
Mr Hélie: Yes.
Mr Bartolucci: I know, because you grew up in Sudbury, you're aware of the value of a penny, you're aware of the value of a nickel, you're aware of the value of a dime. So certainly you're aware of the value of $40 million. If you're looking at $40 million a pop, what do you think the chances are, professionally now, of a citizen-initiated or citizen-thought-up initiative ever becoming a referendum? What's the likelihood of that?
Mr Hélie: My understanding is that in the United States, it's relatively popular. It does happen. In Canada, we've had very little experience with whether the electorate is sufficiently politicized to engage in that kind of activity. Honestly, I would have no idea whether citizen-driven initiatives would become popular in Canada or not.
Mr Bartolucci: How would you define "mandatory referendum" and how would that fit into any matter of public concern in referendum legislation?
Mr Hélie: Sorry, could you express the question slightly differently?
Mr Bartolucci: Sure. How would you define "mandatory referendum," and how would that definition of "mandatory referendum" fit into the constitutional general principle that any matter of public concern be a part of referendum law?
Mr Hélie: I'm not sure that I'm picking up on the connection you're drawing between the two. Let me start with mandatory referenda. By that, I take it you're talking about what I might call "binding referenda." When I talk about municipalities, I say there are some times they have to have a referendum, so I call that a mandatory referendum, and sometimes they can choose to have a referendum.
A binding referendum would have to be laid out in the legislation. Are you asking the question, how would one bind the state, so to put it, to a referendum?
Mr Bartolucci: Yes.
Mr Hélie: There are many different ways. The options that I describe were certain ones. In constitutional terms, we would talk about legislation that is "binding in manner and form." That's the expression used in the jurisprudence, so that's what we would be doing. We would be drafting legislation that would say that in the future any legislation of this type, before it gets passed, has to be done in a certain way.
For instance, some jurisdictions require that legislation has to be enacted in both languages. That's not always a constitutional requirement; sometimes it's just a procedural requirement. One could make those kinds of restrictions, but a lot of the options that I describe could be seen as binding in that sense.
Mr Bartolucci: This is a lot more complicated than simply having a strong voice or a stronger voice. Correct? What we're doing here is much, much more complicated than simply asking Ontarians to express an opinion. Is that correct?
Mr Hélie: Certainly there are a number of factors that have to be taken into account, have to be thought about very carefully. I've mentioned some; the chief electoral officer went into quite a discussion. All of those have to be thought out very carefully before you propose a referendum.
Mr Wildman: Some of the questions I have I don't think it's fair to put to a public servant, so I'm looking forward to the supporters of the government party here to perhaps allow us to question them, Mr Chair, if that would be in order.
I would ask a couple of questions, though, related to the presentation you made. You did say that any referendum legislation would have to be constitutional, obviously, and would have to take into account the Charter of Rights and Freedoms in particular. Since a referendum is a request for an expression of majority view, how do we ensure the protection of minority rights? This is a central question. How do we ensure that, for instance, aboriginal rights, to use an example, would be protected, and that we would not have a situation where the majority would trample on not just individual rights but the collective rights of a minority?
Mr Hélie: That's the same problem that faces legislatures, governments as a whole. When I talk about the New Zealand example, that was the very problem that they were concerned about and why they were thinking of putting in a bill of rights.
In Canada we've solved at least some of that problem by constitutionally entrenching minority rights in the Canadian Charter of Rights and Freedoms, as well as certain legal rights, as well as aboriginal rights.
Mr Wildman: That's why I asked about collective rights as opposed to individual rights.
Mr Hélie: Well, the Canadian Charter of Rights and Freedoms entrenches certain collective rights. There are minority language education rights, there are language rights that are collective rights, and aboriginal. Those are all collective rights that are enshrined in the charter -- well, some of them are enshrined in the charter and some are enshrined in the Constitution Act, 1982.
Mr Wildman: I don't want to get too technical here. I understand you're attempting to fairly answer my question. I specifically used aboriginal rights for a reason, in that up to now it has been a question, a constitutional and legal question, as to whether or not aboriginal self-government is enshrined. So it is conceivable, hypothetically, that there might be a vote on whether or not the Ontario government should participate in the negotiation and ratification of aboriginal self-government as it relates to Ontario's responsibilities under the constitution. You would have the majority in the province perhaps expressing a view on the "collective right of self-government" of aboriginal people.
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Mr Hélie: The Legislature and the executive, in certain cases, currently already have to make those kinds of decisions, and if they're wrong, the courts can rectify it.
Mr Wildman: That's quite correct, so we are then not resolving a problem in that sense through referendum legislation. We're left in the same boat we're in right now, in that the Legislature or Parliament in Canada could pass self-government legislation -- that is, enabling legislation to allow for aboriginal self-government -- which could conceivably be challenged in the courts and go all the way to the Supreme Court of Canada and the courts would make the final decision. So you're not changing that by bringing in referendum legislation and enabling the public to express a view which could be binding and be different from the situation now where legislatures could pass legislation.
Mr Hélie: That's right. It obtains the view of the public on a particular question, but it doesn't answer the question as to whether the state as a whole -- that is, the public or the government or the executive of the government -- is entitled to do a particular thing or not. In our system of government, that will always be controlled by the Constitution.
Mr Wildman: I have one other matter -- two, actually, which follow from our discussion. I want to say, Mr Chair, that I am very concerned about how we deal with minority rights in this situation. I used the example of aboriginals, but you could use other visible minorities, or whatever.
The other one is on the matter of fundamental questions, and I take what you've said, that you don't know what the government might consider fundamental questions, other than what has been stated by members of the government about tax increases or casinos. But isn't it the case that Ontario Hydro was in fact formed by referendum?
Mr Hélie: I don't know. I'm sure you know --
Mr Wildman: It would be interesting if we could get that information, because my information is that when Sir Adam Beck moved forward with the initiative of bringing together a lot of private companies into the public sector and setting up what has become one of the largest companies in the world and certainly the largest public concern in this province, there was a province-wide referendum.
Mr Hélie: I can certainly find out for you.
Mr Wildman: It might then be an interesting question. Obviously the Conservative government at that time considered it to be a significant policy issue that led it to have a referendum. So if you were going to now reverse that, that indeed would be a significant policy issue and might indeed require another referendum -- if we're going to privatize, in other words.
The other question was, you mentioned tax increases as one of the matters that have been pointed to by members of the government. It might be interesting to ascertain -- and I hope the government members, members of the party that support the government, will be able to explain to us if tax increases are significant enough, as we all believe they are, that cuts in services might also be, and so whether cuts in government services of one type or another might also be matters that should be subject to referenda, and if so, which ones and what size of cuts.
Mr Hastings: A question to our representative from the constitutional law branch of the Attorney General's ministry: In your research of this whole topic and in your assistance in developing the document for our consideration before the committee, can you tell us the number of states or provinces that have limited the types of questions on public policy matters that would be subject to any type of plebiscite or referendum?
Mr Hélie: You mean more specific than something of public concern?
Mr Hastings: Right.
Mr Hélie: I don't know of any.
Mr Hastings: From a citizen-initiated side of this question, are there any limitations that governments have imposed on the types of public policy issues that are subject to referenda?
Mr Hélie: Again, I'm not as familiar as I might be with the American examples, so I could check into that. I mentioned the New Zealand one, which was not limited and on which there was some discussion that maybe it ought to be. But I could get back to the committee with respect to American states.
Mr Hastings: Okay. That would be much appreciated.
Mr Clement: On page 4 of the discussion paper, at the top, it says, "For many years Mike Harris has said that certain questions of public policy -- such as those related to constitutional amendments," and there's a footnote which quotes Mr Harris from both 1990 and 1992, "the expansion of casino gambling in the province, and new provincial taxes -- are so fundamental that they should be decided using referenda."
Does that fairly encapsulate your understanding of what the government position has been to date on referendums?
Mr Hélie: Yes, that's correct.
Mr Clement: Perhaps that answers my friend Mr Phillips's concerns about where the government is coming from on this to date.
Mr Phillips: So that's it?
Mr Silipo: That's it? Is that the policy position?
Mr Clement: We want input. That's where we've been to date, but we want further input.
I wanted to talk a little bit about the issue of complexity which has come up, I suppose, by my friends' comments. This is a complex discussion that we are having, and yet you have been citing examples from Canada, from the United States of America, from Australia and New Zealand and from many countries in Europe that either have had experience with referendums or have had specific legislation in place to deal with referendums. From your knowledge of the area, what are some of the pitfalls that these jurisdictions have faced in terms of referendums gone awry, if you will? Is it so complex that there have been a lot of catastrophes that have occurred, or is it something that these jurisdictions have dealt with fairly reasonably, from your understanding?
Mr Hélie: I must say that I don't know of any significant pitfalls, but I must also add that, as a constitutional lawyer, I haven't really studied what is done on the ground in most jurisdictions very deeply. I've only taken a rather brief look at what the rules of the game are in these jurisdictions, rather than actually looking into any depth as to what the political fallout has been.
Mr Clement: Maybe that's a question we can discuss with other representatives as they come forward to this committee.
Finally, I want to ask a couple of questions as well to follow up from Mr Wildman on protection of minority rights, as he coined it. This led us into a bit of a discussion with Mr Wildman, I believe, regarding the role of the courts in this, that somehow the role of the courts would detract from the will of the people or would confuse the issue. I gather, and I just wanted your confirmation of this, that what you're saying is whatever gets passed has to be within the bounds of the law. Whatever we do as a government or as individuals, we have to operate within the law, and that is the role of the courts, to review whether a particular action by an individual or by a government is within the law. Is that your understanding of the role of the courts in reviewing results of referendums?
Mr Hélie: That's right. The Constitution sets the most fundamental, the basic values of a society as to how government ought to operate and the Constitution specifies -- in a sense, it's like a frame -- what cannot be done outside the frame. It leaves it then to the electoral machinery or the democratic process to make decisions within the frame. So that exists whether we have a referendum or not. In both cases, the Constitution will always impose that frame that says you can't violate what we consider to be fundamental values.
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Mr Clement: I'd like to just follow up on something else Mr Wildman raised. It stems from the discussion about minority rights, because that is obviously a very critical area when we are discussing the use of referendums and perhaps the overuse of referendums in certain circumstances.
It struck me that I certainly remember in past legislatures, but I will confine myself to the current Legislature, that there have been times where all three political parties have been in absolute concurrence on a particular bill. I'm reminded of the changes to MPP remuneration and pension plans as being one particular occurrence.
I'm not trying to be specious on this, but I also recall an editorial in the Toronto Star where they castigated us for doing this. I think their understanding was that MPPs should be paid more. This is obviously the worst example I can use, but it's one that comes to mind. There might have been a point of view that in fact MPPs should have been paid more that was not adequately represented in the Legislature because of the concurrence of all three political parties.
I guess I wanted your reaction to this. Is this another example -- not the MPP compensation, which I don't want to talk about any more, but let's take the general example where all three political parties agree. Because we are all politicians, these are reasons that are political as well as having moral dimensions and public policy dimensions. Is that not another argument in terms of protection of minority rights? Maybe I'm expanding the term a bit, but there are also minority opinions. As well as visible minorities or status of minorities in our province, there are also minority opinions. Could one conclude that citizen-initiated referendums is perhaps a way to protect minority opinions, given the occurrence that occasionally happens where all political parties in the Legislature agree on a particular public policy issue?
Mr Hélie: Yes. If you had a citizen-initiated proposal which required, say, 10% of the electorate to bring something forward, if it were on an issue which the three political parties were agreed ought to go in one direction and there were a group of people who felt otherwise, if they were 10% of the electorate, they could get together and bring it forward that way.
Mr Wildman: But it could probably be defeated by the majority.
Mr Clement: At least they get a shot at it.
Mr Hélie: It depends on whether the three parties adequately represent the wishes of the vast majority of people on that particular issue.
Mr Wildman: A far better example is, all three parties agreed with the Charlottetown accord. There was a referendum held in Ontario, and in Ontario it carried.
Mr Carl DeFaria (Mississauga East): Michel, you mentioned that there are some kinds of binding referenda that would require constitutional amendment. Could you just expand on that? What kind of referenda would require such an amendment?
Mr Hélie: An option whereby the role of the Legislature is bypassed. So an option by which the electorate could, through a petition and then a vote, actually pass legislation that wouldn't have to go through the House at all, where you would not be entitled to vote on it, would be such an example, because under our system of government, the Legislature must have a role.
Mr Wildman: What do you think Edmund Burke would think of that?
Mr Hélie: He would not like it.
Mr DeFaria: What if the question had been voted on at the Legislature before it's put to a referendum?
Mr Hélie: If the Legislature proposes a particular bill and says, "We want this bill to have effect only if the people vote in favour of it at a referendum," then you haven't bypassed the Legislature. So while people might still raise questions and say you've not circumvented entirely but you've added something to the process, in our view, it would be constitutionally valid.
Mr DeFaria: Just one other question. Was there any referenda legislation in any of the provinces in Canada that required constitutional amendment?
Mr Hélie: I haven't studied the other provinces -- well, maybe I can do it right now. They were of the view that they didn't require it, I assume, in passing it. Most don't bind the government, in which case it wouldn't seem to raise much of an issue at all. The few that bind seem to go no further than to bind the government to introduce the legislation. That's what both Saskatchewan and BC do. When they say they're binding the government, they're just telling the executive to introduce legislation. So while arguments can be made that you shouldn't be able to tell any member of the Legislature, including the executive, what to do in the House, probably that would not succeed in a constitutional challenge.
Mr Phillips: In some respects we have to ask the government our questions through you, so I'll ask you the question and maybe the government will choose -- I think a fairly important point is one on page 4 of the paper that says the government has defined the fundamental public policy as constitutional amendments, casino gambling and new provincial taxes. I think the government has committed publicly to legislation that binds it to a referendum on taxes. Therefore, in the end, I guess the legislation is going to have to define fundamental public policy issues. Can you help us at all in what other fundamental public policy issues the government has in mind and how we are going to define the list of fundamental public policy that requires a binding referendum?
Mr Hélie: Obviously the only answer I would give is the one that I gave earlier, which is that each government will probably have a different interpretation of what ought to go to a referendum. Your real question is, what does this government --
Mr Phillips: No. The government has said that the legislation will define -- I think it said that -- not that it will allow a referendum and it will make its own decisions on when a referendum is. It has said, I think, if this taxpayers' pledge means what it says, and it won't be just that, "We'll hold a referendum when we're going to take taxes up." So my question is, what other things are we going to have to put in this list that will require a binding referendum?
Mr Hélie: I will have to leave that to the government members to answer, because I certainly don't know that that is the government's view.
The Chair: Thank you very much, M. Hélie, for your presentation. It's been very helpful to the committee.
The committee stands in recess until 2 o'clock.
The committee recessed from 1228 to 1403.
The Chair: The first item of business is just procedural or housekeeping. The clerk has distributed a revised copy of tomorrow morning's schedule, and committee members will note the change of venue to a different room in the Whitney Block tomorrow afternoon for our videoconferencing. I would ask members to disregard the former schedule they had.
PATRICK BOYER
The Chair: We have with us Mr Patrick Boyer, who is considered to be very knowledgeable about the referendum idea and issue. He's here today representing the University of Toronto law department. Welcome, Mr Boyer. Thank you very much for coming in. We look forward to your presentation.
Mr Patrick Boyer: Thank you very much, Mr Chairman and honourable members of the committee. It's a pleasure to appear before you. I want to thank you for this opportunity.
I don't know what else this committee is going to be charged with over the course of this Legislature, but without even knowing that I can say that this subject matter is unquestionably the most important that you'll be dealing with because what we're addressing here is a concept that relates to the whole political functioning of Ontario, the system of representation, the workings of the Legislature and the ways in which a mature democracy can work.
As I read the paper that has been distributed by or on behalf of the government, it seems very clear that there is an intention within the government to bring forward legislation. I think that's important because Ontario, often thought of as a "have" province, is most certainly a "have-not" province when it comes to the basic infrastructure of direct democracy.
It is a subject that I have a strong personal interest in. Apart from writing three or four books on it, when I was parliamentary secretary at External Affairs I led the Canadian delegation of observers to the referendum in Ukraine on Ukrainian independence. At the national level I worked long and hard to have referendum legislation in place so that the question of constitutional amendments in this country would be a process that would involve the people who had to live under that Constitution with making the verdict about it, rather than having it simply decided without their participation and consent.
At the provincial level I, among other things, was retained by Premier Ghiz of Prince Edward Island at the time of the fixed-link crossing plebiscite in PEI.
There's been a lot of involvement on my part, so you understand why I'm so happy to have a chance to come and, even in an hour or so, speak with you about it.
In case you wonder why I have this interest, it is a genetic condition. My great-grandfather James Boyer, who was clerk of the town of Bracebridge, which is in Mr Grimmett's constituency of Muskoka-Georgian Bay, over a century ago in the 1880s presided over and conducted a referendum within the town on the issue of whether the municipality should expropriate, acquire, bring under the town the local power generating system that was owned by a power mill operator. So long before Ontario Hydro and the election of 1905 -- not a referendum but a general election -- saw this happening at the provincial level, here in the town of Bracebridge we had the example of the first government-owned power system in the country, and it was done on a verdict rendered by the people in a referendum. This enabled the people of Bracebridge to receive electrical power on the basis of power to the people. It's a genetic condition I suffer from.
There are a lot of things I would like to say, Mr Chairman, to you and the members of the committee on a philosophical level about this subject of referendums and their role in a representative democracy, also the political dimensions of this process, and certainly the practical component. I think perhaps the best way to proceed is if I could initially just distribute to you some of the efforts of my past years of research and writing. I have brought, for example, for each member of the committee -- and perhaps the clerk or the clerk's staff could help -- a copy of The People's Mandate. This is just a donation to the committee. Actually, there's a sequel to that book called Direct Democracy in Canada: The History and Future of Referendums. I have to go back to buy some more of those from the publisher. Similarly, I brought in copies of an earlier book that I wrote called Lawmaking by the People. I think that's the only one I have available.
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There was some discussion about statements in the government's document about the mood in the country and is there a need to rescue representative democracy and democracy generally from special-interest groups and the rest of it. At the time of the national leadership race for the party I was participating in at that time, I wrote a book, called Hands-On Democracy, that discusses the context of these initiatives. I have copies of that également en français pour M. Beaubien, M. Morin et mes autres collègues qui parlent français --
Interjection : Et M. Silipo.
M. Boyer : -- intitulé La démocratie pour tous. C'est pour tous les députés.
Interjection: It's like Christmas.
Mr Clement: I think we ought to go to the commissioner at the end of this.
Mr Phillips: It's got to be over $200.
Mr Boyer: I was getting concerned that I only had about an hour or so, so I figured if I gave it to you in this form, then it didn't matter if we weren't together for very long.
Finally, I brought something that I wrote when I was a member of Parliament but I think is perhaps helpful to the committee just to place this issue in the context of the evolution of Canadian political thought. It's called Democratic Conservatism, et en français c'est Vers un conservatisme démocratique. I have copies of both of those, not because I'm here to pamphleteer, but simply because I think some of these questions that were being asked by Mr Wildman, for example -- if, in 1905, the Conservative government had a mandate to "public-ize" or nationalize the large power companies at Niagara Falls, is it an appropriate thing now in the privatization to go back to the people on those same issues, even though that was an election, not a referendum, in 1905?
I think these initiatives we're seeing now can perhaps be better understood emanating from a Progressive Conservative government in the province of Ontario viewed in the context of this book, which traces the evolution of Canadian political conservatism. It's, again, more of a historical appraisal than anything else.
Mr Wildman: Just on a matter of clarification, Mr Chair: When I made reference to referenda regarding Ontario Hydro, it was the stage before your great-grandfather was a party to; that is, municipalities across the province held referenda to bring into the public sector a number of utilities. When that began happening, the Conservative government of Sir Adam Beck became involved in looking at how to deal with it on a province-wide basis. You're right: In 1905, it was an election, not a referendum.
Mr Boyer: I also have just one copy of Démocratie et référendum : la procédure référendaire. This is from a colloquium at the Université de Montréal that I participated in and these are the published versions of that. It includes my presentation in that. But I only have the one copy, so if there's an interest, I could leave that for the clerk.
I do have a copy of my private member's bill from the House of Commons, the Canada Referendum and Plebiscite Act, which will be germane to some of the things that we can touch on. It took me till midnight to find this. When your political career is suddenly terminated, you find that a lot of your documents, in my case 184 boxes, end up sitting in the National Archives of Canada and you can't quite immediately bring to hand everything you'd want to. So a gradual exit from public life has a lot to commend it, and certainly nothing as abrupt as recall.
So with that material, I've put in your hands the results of a lot of my research relating to direct democracy in our country. I know that there are many comparisons made with other jurisdictions, and I'll be happy to do that as well, but I think we have the entire story here within our own country, all the examples. This country does have a strong tradition of involving people in decisions where they're going to have to live with the consequences of them.
Many people state to you that this is inimical with the parliamentary system, with the pattern of Westminster and so on, and yet some of the finest and most acute constitutional thinkers in Great Britain favoured the use of referendums. I speak, for example, of that eminent constitutional jurist A.V. Dicey. Among the other parliamentarians, people like Disraeli were very strong exponents of the need to get a specific mandate for major issues of transformation.
Within our own country, prime ministers such as Sir Wilfrid Laurier, Arthur Meighen, Mackenzie King, Brian Mulroney, Jean Chrétien, have all grappled with and addressed this use of referendums within our system. Particularly Wilfrid Laurier and William Lyon Mackenzie King had the most profound understanding of the appropriate uses of this instrument in resolving difficult issues that bedevilled the nation, in having people share in the process of coming to a public reconciliation over what was at issue.
When you look at our Canadian history, it's a history of Liberal governments and of Conservative governments bringing these measures forward. So when people today say, "This is something you hear coming from the Reform Party," or that it sounds like it's otherwise out of left field or right field, this is not consistent with our political history. This is something that mainstream Canadian political tradition has embraced, and certainly the political culture of Ontario is replete with examples.
The people of Ontario have voted in four province-wide plebiscites, the people of Ontario have voted in three national referendums and, at the municipal level, in thousands and thousands of plebiscite ballot questions and binding referendums. I'll go through with you some of the Ontario legislation that creates this right that Ontarians today enjoy at the municipal level and how it's enshrined and gives rights in some instances for initiatives, certainly, and in other cases for referendum and plebiscite questions.
I'm in a little difficulty to know how to proceed. I thought the fastest, most efficient way might simply be to go to the discussion paper, which concludes with two or three pages of questions, and because time is quite compressed, address those questions and give an answer that I would recommend for your consideration, with or without an explanation. As I do it, perhaps points that you would want to come back to we could then go into in greater detail.
On page 41 of the discussion document: "Should referenda be permitted on a broad and unrestricted range of public policy issues, or should they be restricted to particular issues and topics; or prohibited from covering certain issues or topics, eg, administrative or regulatory matters?" I do not think this device, as Mr Bartolucci said, at the cost of many millions of dollars for each direct voting occurring, would pertain to administrative or regulatory matters. I think the citizens ought to be called upon to share in public direction and decision-making when it is a matter of transcending importance for the province, something that will significantly alter the way Ontario is or is going to proceed.
Certainly, as the Right Honourable Arthur Meighen, a former Prime Minister, wrote in 1937, 98% of the matters coming before the Legislature or the House of Commons are matters that ought to be dealt with day in, day out by the elected representatives who are there, who are accountable, who are to inform themselves of these issues and vote on them. The last thing I'm advocating is that we have three referendums before breakfast every day. I think it's a very specialized device. I see it not in almost mystical terms but as something that is as profoundly important for a democracy as a general election; therefore, it ought not to be trivialized and it should be used on those special occasions when there is an issue of, as I say, transcending provincial importance.
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As to restricting to particular issues or topics, I would say not. I think you would want to see for our province a general enabling statute that would permit direct votes to happen according to agreed-upon rules that are set down neutrally and clearly in advance. It may be something of a self-defeating enterprise to get into the procedure in the abstract of saying, "These are topics we will never have a direct vote on and these are ones that we always must go to the people on." To try and draw a line in 1996 between those two categories doesn't serve the people of this province well, or any government or any Legislature or any people who might come forward with initiatives.
The bill I had in the House of Commons really talked about any public consultation being on a matter of "pre-eminent national significance" or words to that effect. But you get the idea, that it's got to be up there, certainly not at the administrative or regulatory level.
The Canadian Referendum Act at the moment is limited to simply constitutional questions, but of course in Canada, where everyone is an expert on la Constitution ; nous sommes tous des experts et presque toutes les questions sont d'une dimension constitutionnelle, alors, we've seen very wide definitions of what's constitutional in Canada, so maybe some things that in other countries would never get to a national referendum could, under the rubric of being constitutional questions at the national level in this country. But I think it should be otherwise open to whatever the public agenda of the province at a particular time brings forward.
There are issues that are now forefront in your consideration as members of the Ontario Legislature that were not issues that confronted my father when he was a member of this Legislature from 1955 to 1971. Times change and the issues change. If Ontario is to have on the statute books generally enabling legislation, it should be that: It should enable whatever comes along as an issue and not have it frozen as a snapshot in time.
When we refer to having general enabling legislation on the books, this is exactly the same as we have in the Election Act of Ontario. It's there, it sets out all the rules as to who can be candidates and how you qualify, who the voters are, the procedures and so forth. It sits there and it's not used except when it's time to have elections. But when it is time to have elections -- and sometimes they occur more rapidly or unexpectedly than might have been anticipated -- there's no debate or discussion about the procedure; it's already been deliberately thought through, carefully reflected on and enacted.
I think all that's being proposed here, or what I would certainly want to see for our province, is the same kind of thing for direct voting, that in this calm period now you can deliberate on what the key elements should be in a referendum act and what would be fair and how you deal with the question and the threshold numbers for initiating petitions, all of that, so it can be used as and when the historic moment requires it.
We've unfortunately had more of a pattern, in Ontario and at the national level, of waiting until that boiling point was reached with some issue, whether it was conscription for military service in the middle of the war or, at the 11th hour in the 59th minute, dealing with fundamental constitutional change, and we decide: "Oh, by the way, we can't do it. We don't have any legislation in place. We'd better pass some." If you bring a bill like that before the House of Commons or before the Ontario Legislature, as the case may be, it is necessarily infused with all the controversy of that issue.
And these are always controversial issues. You don't go to the people with matters about the size of road signs. You go to the people with issues about the prohibition of alcohol in our society. You go to the people with issues about, shall we make these fundamental changes in our Constitution? Shall we conscript people and put them into uniform and send them overseas to die for Canada in time of war? These are the issues.
And so it behooves us to have in place, as most other provinces do, legislation that's there to call upon when the time arises.
Under this first question on page 41, there's a further part. "Should citizens have the right to petition for a referendum on a particular question, including the recall of their MPP?" With respect, I don't understand for the life of me why the question of recall has been introduced into this discussion paper. It is really pretty much of a red herring in this context. If there were to be proposals relating to recall, I think they would come more appropriately under the Election Act. Recall really has to do about de-electing members of the Legislature; this is when you get the big hook, a specialized, personalized big hook. I mean, I was recalled at the last general election but that was according to generally accepted electoral procedures.
It's not that I'm fundamentally opposed to the concept of recall, but if I think of 25 reforms we could make to the Legislature and to our national Parliament in Ottawa to reinvest it with relevance and to get accountability back in the Legislature and control over spending and the formulation of public opinion and to have legislators rather than lobbyists in the driver's seat on many of these issues -- there's a long list, 20, maybe 30, issues I would put as being far more fundamental before we would get to the question of recall. I think extracting one MPP from the Legislature because he or she has not done something the way you thought in your riding that he or she should and then sending somebody else back in without changing anything else in the Legislature, like the way the party influence goes on votes, the use of the whip and so on, is a bit like saying, "That actress, we'll yank her, but we'll send another actress back in, and we'll leave the same script, we'll leave the same stage set and we won't change anything else."
With respect, I think you can bypass recall as being at all relevant to this issue of involving citizens in decision-making of public policy direction for the province.
The next question: "Who should decide whether a referendum will be held? Should Ontarians be able to place their own initiatives on the ballot?" My answer would be yes. I think there should be provisions included for initiatives by citizens to bring issues on to the agenda.
"Should the government, acting through the cabinet, decide?" Yes, the government should be involved. "Should the Legislature be involved?" Most assuredly.
Let's just pause here for a minute. This is often referred to as direct democracy, and the reasons for that are largely historic, yet the way the Swiss constitutional lawyers refer to this process is actually "semidirect democracy."
Mr Wildman: Because all the citizens pass it.
Mr Boyer: Yes, or the example we heard from the constitutional affairs lawyer from the ministry of justice before noon, this almost hypothetical case -- it's certainly a non-starter -- where there would be something that would be voted on, become law and utterly bypass the Legislature. I guess it's one of the scenarios in the discussion paper. That was either late at night or somebody was smoking heavily when they were writing that. That's not on for what's going to happen in this province.
What is on is what you could call semidirect democracy, where the Legislature is as involved in the process as everybody else. Take, for example, our last national referendum on the Charlottetown accord in October 1992. The legislation under which that took place, all the rules for the voting, the game, who could say what, how much air time was going to be allocated, whether there were spending limits, all those rules were set out by Parliament. We passed legislation in Parliament that set out the framework for it.
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Then, secondly, there was the campaign. Many of us participated in it, as many of you will when there's a provincial direct vote, because you really can't sidestep it, although to an extent this is a time not to be partisan. That was one of the big mistakes in the 1992 national referendum. Then, whatever the outcome is, Parliament or the Legislature has to implement it. If in 1992 Canadians had given the green light to the Charlottetown accord, we would have had to have been busy in Parliament enacting various provisions amending the Constitution. You would've been voting on them here at Queen's Park. You can see, throughout the piece this is a shared endeavour of the elected representatives and the people to facilitate occasional direct voting in a way that allows us all to be participants in the process.
When you get people showing their tonsils as they yell at you about how bad this is for our system of government: "We elected you to make the decisions. Don't bother us with anything" -- I love it when people say that. I say: "You elected your representative to Queen's Park to make your decisions, you've got your minister or your rabbi to look after your soul, you've got your doctor to look after your health, and you don't have to do anything, right?"
It's not a very mature view of democracy in Ontario in the 1990s to say that all a citizen has to do is, once every four or five years, vote on one ballot to elect a representative and then that's it. I think Ontarians are more entitled to participate, and that's what this process is no doubt aimed at accomplishing.
In answer to that second question, it's yes all the way through the piece.
"Should a referendum be mandatory in some circumstances?" Yes, in some circumstances. We have that in the municipal laws within this province now, if there's a certain outcome with respect to fluoridation of the water supply, with respect to voting a municipality dry or wet under the liquor laws, also with respect to other questions about public franchises, some of these things Mr Wildman was referring to in the public domain. Yes, there are cases where the results should be mandatory. I'll show you later how I set up a regime for doing that in my own bill that I had in Parliament.
"Should a referendum be held in conjunction with a provincial or municipal election?" No. When we have general elections, they are an all-out, all-in, totally inclusive enterprise, and everything is being considered. Simultaneously to have a discrete question at the side and say, "We're talking about all these other issues, about the transportation system and the school system and about taxes and about enforcement of conditions in the provincial penitentiaries, but over here this one question about hospitals, that's separate" -- I just don't think you can go into an election and have one or two watertight compartments: one, the big one that's got all the issues in it, and then a separate one. Necessarily they would interflow.
The reason for that is of course the reason the referendum device has been invented at all. It's because every now and then it is important to get focused, specific public attention on one transcending issue. All of you are experts at how election campaigns involve everything: They involve your party's past history, they involve the question of your party's leader, they involve your program for the future, they involve your personal track record in your constituency, and on and on and on. So much gets mixed up into that that it's very difficult sometimes to extract from the outcome a clear mandate to do one thing.
That's why in the book The People's Mandate, I've actually devoted a whole chapter, which you can read at your leisure, called, "Mandate, Mandate -- Who's Got the Mandate?" There's a lot of discussion there about this constitutional fiction we live by that governments elected with a majority have got a mandate to do whatever they want for four or five years. And it is a fiction. We live with it because it's convenient. It actually makes things work to a tolerable degree, as long as it's not pushed too far and as long as a government doesn't come and all of a sudden start to do something it never campaigned on. For example -- well, there's lots of examples. I'd better let that go. We all know of too many examples.
I think there's a real distinction between general elections and the specific voting in referendums. They're different tools. If I should be so lucky as to get the contract to repaint this room some day, there are places where I would use the rollerbrush -- I can see those places -- and then there are other places with little, very detailed work where I'd have to go with a very fine brush.
That's the same with these devices. The general election is the broad roller and it's hard to use it for the one specific issue. You put it in the campaign platform of the party, but it's in there with a lot of other things, and were they really voting for free trade or were they also voting for something about helicopters or were they voting for something about medicare or something about the environment?
When there's that specific thing you have to do, that precise piece of work, you don't use the rollerbrush to paint the fine bits of wood around the window-pane and you don't use the rollerbrush when there's one question that is going to be transcending in our history in the province. That's the opportunity for this unique device of the referendum.
Also in there it says, "In the case of an initiative" initiated by citizens "should there be a requirement to hold a vote within a specified amount of time?" Yes, I think there should. We had examples of that in some Ontario statutes that require certain matters, for example under the Fluoridation Act, to be dealt with on a timely basis once the vote has been concluded.
"Does the experience of other jurisdictions show that campaign spending or advertising affects the outcome of referenda? What lessons can Ontario learn from these? Are rules necessary?" Free speech and spending?
Big topic. It was asked about earlier this morning. I've written a lot -- actually in this book, Money and Message, which deals with elections, advertising, broadcasting and campaigning and about raising and spending money, I looked at the evolution of the spending rules we have in Ontario and nationally. The motivation for that was to say: "In Canada we will not have our political life be a rich person's game. We want to have a fair opportunity for everybody in the public arena, so we'll put some spending limits on it, and we'll also have disclosure of who is giving so that's part of the public record."
In contrast to the United States, we are so far ahead and their system is so mired in a system that is beyond redemption that we can be very happy that we proceeded when we did in the way we did and that we had the political muscle to get these measures through.
For quite some time and when this issue came up when I was in Parliament, I always favoured spending limits. I guess there are stages in life where we have to re-evaluate and rethink, so I'm looking now at the outcome a lot of votes. In fact, the discussion paper does mention that there's not this correlation in Canadian politics between the level of spending and outcome. I mean, look at the last federal election. The Tory party did spend quite a bit of money -- Isabel Bassett might know exactly the amount; nobody else could even see how much; it was an astronomic amount -- and we got out of that two seats. So there's this bizarre correlation. The discussion paper also refers to the 1992 national referendum where spending did not produce results. And we certainly have seen that in nominating conventions within parties and leadership conventions and so on.
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The political science literature, particularly from the United States, that has looked at jurisdictions like Washington and Oregon where they don't have as many referendums as they do in California but it's a constant element, is well balanced in their political culture in those northwest states -- it's really like elections. The correlations are not ones you can make.
Someone was asking this morning, is it easier to get an answer no than an answer yes? On a lot of questions the populations vote for what is going to cost them more, is going to impose more obligation on them, if they've been persuaded that there's a higher public benefit, like seatbelts. In some of these western US states, there were groups saying: "Don't force us to buckle up, because this infringes our fundamental liberty to be Americans. We've got to be able to ride around free and crash through the windshield and all the rest of it." When they voted on that, when these lobbying efforts to get this as a state ballot question came forward, the people voted for it and said: "Yes. It makes sense. We've seen the numbers. They reduce accidents and injuries by 82% across the board and it will reduce the health care charges. So yes, we vote for it."
The correlations both on the issues and the spending are very hard to draw. I would recommend that for the first go-round a new referendum act in Ontario might not include any spending limits.
I also say that fortified by the recent court decisions. In western Canada, the National Citizens' Coalition has consistently challenged these provisions back when it was section 70.1 of the Canada Elections Act with the spending ceilings, and since, usually with success. As long as we have spending limits and as long as we have freedom of speech, there's going to be this line between them.
That's what all this legislation is. It's under the Ontario Election Finances Act. It's all about where that line gets drawn between freedom of expression and the right to put your money where you want. As long as we're doing that, there's going to be controversy. There will be debate about whether that line should be further this way and allow more spending but curtail more freedom of speech, or come this way. You will always have a lot of heat around that issue because it's a fundamental one.
There are two challenges coming out of the last British Columbia provincial election, one involving the National Citizens' Coalition and one the Canadian Taxpayers Federation, who like to challenge these issues on the basis of freedom of expression.
But I think it may be worth the effort -- you see, the effort in the national Referendum Act was a real sham. The government purported to have spending limits but in fact had none, because it said there was this limit of $5,000 a committee but there was no limit to the number of committees that could be set up. So it was a distinction without a difference, and I think that was only because the government was spooked by lawyers in the Department of Justice who always try and second-guess Parliament, always try and second-guess the courts, always try and second-guess the Canadian people in terms of interpreting the Charter of Rights and Freedoms.
So a government that came late in the day to bringing in referendum legislation -- this is the point I was making 20 minutes ago. If you do it when you've got the time to think it through, you're not going to be stampeded or rushed at the last minute. But the Mulroney government didn't want, going into this referendum at the last minute, to be facing a court challenge over here as to whether the legislation was actually valid. Instead of fighting that battle and winning it and having Parliament pronounce on it and say, "Yes, courts, that's the decision of the Parliament of Canada as to where the line is going to be drawn," it fudged the issue and withdrew from the battle.
Again, we could keep talking about that at great length, but there are many more questions on this shopping list.
Mr Phillips: What is our time, by the way, Mr Chair?
The Chair: We set aside two hours for this part of our discussion.
Mr Boyer: Should a win be defined as a majority of all voters who turned out to vote or should some other threshold prevail? Are there any circumstances where a double majority would be required?
I think that in our democratic system we have taken simple majority to be the standard, 50% plus one. Even on matters of the last two referendums in Quebec on something as transforming and fundamental as that, it was 50% plus one.
The only place in Canada where we've seen it currently higher is in Ontario, some of the liquor legislation, at 60%, but the interest there is avoiding the flip-flop, that you can be having a community that's equally divided so it's sort of dry this six months and then wet for the next six months, as quickly as they can bring on votes. That actually happened. When someone writes the comic history of Canada, there are great places, especially in Atlantic Canada where this whole issue was back and forth like that. So the legislators in their wisdom said, "Well, let's just raise it to 60% so that it's going to be a little clearer and we'll hold either wet or dry for a longer period."
As to a double majority, it's possible to do that, but I think that invites a lot of difficulties. It seems from this discussion paper that we're talking about a majority of the province and a majority of a particular community within the province. It may be that the authors of this were envisaging an issue that had a regional or a fairly local salience to it. If that's the case, then the vote could just be held in that region. There may be some issues that affect northern Ontario, say all the districts, when we get out of the counties and into the districts, so north of the French River. You could see a northern Ontario vote on a certain question.
In Quebec, this was done under the Referendum Act of Quebec dealing with the constitutional form of government for the aboriginal peoples on the North Shore. It involved just the northern part.
Another way of dividing this, and this has happened within our province here, is not geographically, that you would take like the Niagara Peninsula on some issue about the tradeoff between farm land and development of that land or other issues like that, but you do it sectorally. For example, under the Farm Products Marketing Act of Ontario, there's a possibility for plebiscites there to be held by producers. We've had them for peach producers, asparagus producers, where province-wide anybody who comes within that definition is entitled to vote. You have not only geographic possibilities but sectoral possibilities.
"How should we ensure compliance with the wishes of people as expressed through the result?" Implement them. Yes, I don't know what else that question's asking.
"What are the constitutional and legal implications of your preferred options for referenda, including initiatives? How should they be addressed and resolved?"
The constitutional implications -- with great respect to whoever were the authors of the discussion paper that's been distributed, I find it to be an extraordinarily thin document when it comes to assessing the constitutional aspect of direct voting in Ontario. There are virtually no constitutional implications. This borders on being another red herring, but of a very different kind.
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As to the statement before that law in this area is unclear in Canada, my reading is that it's extraordinarily clear and it came out of the 1919 decision where the Manitoba Initiative and Referendum Act went all the way to the judicial committee of the Privy Council, the highest court of appeal for Canada at that time. The objection that was taken to that direct legislation act of Manitoba was that on the terms of its operation, once a piece of legislation had been approved by the voters, then the Legislature had to enact it. People who didn't like direct democracy challenged this, and the ground they challenged it on was as narrow and precise as you could ever hope to find. It was that the legislative process requires, after the three readings in the Legislature, the Lieutenant Governor to give royal assent. By requiring that a law be enacted, this was seen to impede the freedom of the Lieutenant Governor exercising the royal prerogative to give or withhold consent -- royal assent, rather -- to the legislation. So on the basis that each province in Confederation is entitled -- not by the sections that are referred to in this discussion paper -- to amend its own constitution, this is something that is entirely within provincial jurisdiction to do.
The only issue that came out of that decision from Manitoba was that the provisions of the act must not infringe upon the ability of the Lieutenant Governor to exercise his or her royal prerogative as a necessary part of the process. Well, honourable members, that is not a hard problem to solve, and had the government of Manitoba really been sincere in its commitment to press on with direct legislation they could have come back to the assembly in Winnipeg with new legislation that would have corrected that one almost, I would say, technical default in their otherwise exemplary scheme. But they didn't.
We have this odd long history of oscillating between hot and cold over whether direct democracy is a good thing, whether the people should really be involved in the process or not. By the time that opportunity came they were blowing cold again and so we never got such legislation. But it is not at all beyond the easy effort of a legislative draftsman working with you to correct that problem.
As far as other constitutional dimensions: In my book, by the way, Political Rights, I talk about the constitution of Ontario and the other provinces and how we have the legislative capacity within Ontario to amend the province's constitution. There's discussion in this paper about going to the House of Commons and getting Parliament involved in it. That is certainly leading you off into an alley that goes nowhere other than a brick wall, and I would recommend that you not go up that alley.
On the constitutional question: Yes, it cannot be about an issue that is entirely in the jurisdiction of Parliament. It would have to be an issue that is within provincial jurisdiction.
Mr Wildman: What about shared?
Mr Boyer: On the shared one, most certainly that would include constitutional questions. I would think it's highly probable that within your term of office in this current Ontario Legislature, we would likely see a province-wide referendum in relation to the situation involving Quebec and Canada. We haven't got to that yet, but there are a lot of major agenda items here. That's why I said at the beginning that whatever else you're doing in this committee, this is a fundamental issue, this question of participation by the people on these issues that will relate to including constitutional change in Quebec in the two- to three-year time frame.
There was also a constitutional question that really Mr Wildman was asking, before the noon break, about minority rights. I think the legal representative from the Attorney General's office gave the correct answer, which is that minority rights in this country are now fully entrenched and protected by the Canadian Charter of Rights and Freedoms. I think that is a complete answer to that. Prior to the charter, I think we would have had a much longer discussion on that point and how you could indeed protect minorities, be they linguistic, be they ethnic, be they regional, but those basic concerns I now think are happily not issues because of the entrenched charter protections for minorities within our country.
The final point about the Constitution, though, and it does pick up on these last two points, is I think it would be very appropriate prior, to any referendum vote, that there be a reference to clarify that it is a constitutional question. I think someone was asking a question this morning about whether we find out before or after the vote if it's constitutional, and I think words to that effect are in the discussion paper. It's a very costly and cumbersome thing if you find out after the vote and after the $40 million and so on that it really wasn't a constitutional question.
The best model by far in this area is in the state of Florida, where there's a provision that requires on a petition that the question would be referred to one of the superior courts in the state of Florida to give an opinion that it is constitutional. That's very early in the petition process. They've got to get maybe 15,000 names to get inside the courtroom door, and then a judicial opinion is rendered as to whether that's a constitutionally valid question, in which case they can then go back out and collect the other million names that they need to get it on the ballot of a state of Florida vote.
In the legislative scheme that I had before Parliament, I had actually proposed a public consultation council made up of three judges who would pass on all legal matters relating to the conduct of the referendum, which could include the initial question of, does this ballot question infringe minority rights or anything else? But I think that's pretty much the extent, very briefly, about the constitutional and legal implications. Of course, there are many more points to raise, but I'll just try to press on here.
The next section deals with initiation. This is what happens shortly after we're all elected to legislatures. I guess it means initiatives. Here we go: "To what extent should the initiative...be introduced into Ontario?" My view is that it should be, that it's an important part of this process, subject to the points some of you already raised earlier this morning.
Next question: "In the case of initiatives, what should be the signature requirements for successful petitions? Is there a risk that too low a threshold will result in too many referenda?" In my bill in Parliament, I talked about a 10% threshold of eligible voters from the previous election being required to sign a petition that would bring on a national referendum through petition. Even that may be a bit high; 8%, 7% could be a threshold. Certainly, what has been referred to in British Columbia, the number, within the three-month period I think is a very short time frame.
Generally speaking, the way you may want to structure this in a bill is to have two components to how these petitioners would be signing. One would be a total number arrived at, usually as a percentage of the voters list: 5% or 10%. The second is that it be not just from Metro Toronto, but that you get, say, from two thirds of the constituencies across the province or something, so that you're getting both a population number that says yes, there are enough people in our province who think this is something we ought to have a public debate about and see what we think and hear both sides and then cast a vote, but also that it truly is of province-wide significance. I don't think it needs to be every last riding, but maybe three quarters of the electoral districts in the province. That would be a way of doing that.
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This concern about too low a threshold: We certainly are not overdosing on direct democracy in Canada, so I don't think we need to worry about having too low a threshold, other than that there should be some means there. But this example in British Columbia, the number of people -- I didn't know about this until you read the article today, but the Western Canada Wilderness Committee is a very fine organization that has done a lot on the west coast for environmental concerns. I've travelled with them in helicopters into areas where there was clear-cutting and so on. The thing about WCWC is that they really believe in fighting these environmental battles within the existing structure. These are not guys and gals who go out and drive spikes into trees so that loggers' chainsaws are going to hit them and all hell will break loose and somebody will be haemorrhaging and die on the way to the hospital. These are people who up to now have gone through the courts. They've got injunctions and they've been brilliant in the way they use the court system and the rule of law to address this environmental issue. Now this is kind of exciting. Here's a new avenue, the use of direct voting.
So if they're the ones who are behind this, it doesn't surprise me. They're looking for legitimate means within the structure of society to work on these issues, and I think as members of this Ontario Legislature it would no doubt be one of your concerns. There are issues out there that are upsetting people, and deeply so. Where are they going to turn? What structures do we put in place for this to be channelled, or do we just wait till bricks come through the windows and do we have the doors of the Legislature knocked down? This is a fundamental thing.
That's why I said, and I repeat it, not just with Quebec and the issues of our national unity and our national integrity but also at a very local level, where do the energies in the community get channelled? This case of the Western Canada Wilderness Committee shows how in British Columbia, which is always highly energized politically, that energy is being constructively channelled. But maybe they're facing big-time problems because the thresholds in the legislation are too high. It sounds like it, if you've got to get all these signatures in three months. That's a very tight rein on a process that ought to be one that's welcoming to serious-minded, civic-minded people to participate in.
The next question is: "Should the government take the responsibility for defining the wording of a referendum question? If so, should the question be reviewed or approved by the Legislature?" My recommendation would be that the legislation set out the pro forma wording. Success has mostly come when the ballot question actually begins, "Do you approve...?" For example, the one in 1942 on conscription began that way. Well, it didn't; it said, "Are you in favour of...?" "Are you in favour of releasing the government from any obligation arising out of any past commitments restricting the methods of raising men for military service, yes or no?"
In the Ontario liquor votes, it set out in the statute -- the wording of all the different possibilities of the questions is there. Obviously the substance of the issue will depend on who is bringing it forward and what they want, but if you begin, "Do you approve of a reallocation of public spending to provide more funds for research into medical illnesses afflicting women in Canadian society, yes or no?" that gives a good formulation, and it's yes or no. In the Ontario ballot format, of course, those would be the circles. Sometimes people say, "Should it be yes or no, or no or yes?" Yes or no: that's the sequence. When the vote is taken in the Legislature, first it's "All those in favour?" then "All opposed?" the yeas and the nays. When you're holding a vote at a public meeting or in here -- I even heard it happen here this morning, a couple of votes -- it's "Those in favour? Those opposed?" In a court of law, the plaintiff or the prosecution leads off with the case they're trying to make, followed by the respondent or the defendant and so on answering it. So there shouldn't be any concern about that. Some people were asking me about that just the other day, but no, it's, "Are you in favour, yes or no?" It doesn't set up any preconditioned response, according to the studies that have been done.
What I have set out in my own bill about it is definitely that the question would be voted on by the Legislature en route to the people, again this semidirect democracy that I spoke of. How does it come to be in the Legislature? Where does the petition go? If you're out signing up people across the province and finally you've got it, where do you take it?
In my private member's bill, I had that going to the Prime Minister, because as we all know, whoever is Prime Minister or Premier really has a large influence in the direction of these matters. On reflection, and if I were redoing it today, I would not have the petition go to the Premier. I would have it go to the Speaker of the Legislative Assembly, because that I think is more in accord with a procedure that's coming not through a government or a party channel, but through this lawmaking procedure, so it comes directly to the Legislature. I think it's a way, ultimately, that enhances a little bit the position of the Legislature in the society. It could then, if there's any discussion about the appropriateness, be referred to this committee prior to voting to authorize it to proceed.
Again, there are a lot of technical things here and I'd rather try and stay at a bit of an overview, because I'm sure we're short of time.
"In the case of initiatives, who should define the question?" It would basically be the people who are bringing the issue on to the agenda. They would define it, but within a framework set down in the legislation, certain criteria. Both case law and common sense dictate that the question has to be neutral, it has to be fair, it cannot contain pejorative wording and it has to really pose a question. If it's a lopsided question where people would almost all answer yes or all answer no, you could say that no decision has been made; people haven't had their feet put to the fire on this tough, hot issue. So it really has to join the issue and not be lopsided, but it must be fair and neutral.
"How do we ensure that ballot questions and results do not offend the Constitution?" I think I've addressed that.
"Should there be a maximum number of referenda within a specified period (say, every two or four years)?" No, I don't think so. I think you put enabling legislation in place and then the to and fro of the political life of a province, the issues that emerge on the agenda, will determine what comes forward. But I would recommend that the legislation stipulate that no more than one ballot question on the same issue can be held during the life of a Legislature, or for a five-year term. There are different ways you can do it.
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But again, there is a significant cost in this. It is an important process; it ought not to be trivialized. Therefore, it makes sense to say, "Yes, you can put any question there, but once people have pronounced on it, that's it." We don't want the Lucien Bouchard phenomenon here, or even René Lévesque, because he said it as well: "Well, we'll just keep holding these till we win one." I think that's a good way of covering that off.
"How should we handle multiple questions that address the same subject matter?" Well, with great care. I think the purpose of the referendum is to bring a choice, indeed force a choice, on an issue. In 1922 in Ottawa, there was a municipal plebiscite on three questions: Do you want to have a council consisting of a mayor and seven councillors; or a mayor and four councillors and 11 aldermen; or retain the present system? Three questions. So everybody went out and they voted for all three, with the result that no decision could be taken. You really have to have the two issues.
There are some questions that maybe on the financial side of things are too intricate to really be boiled down to a single ballot question, but there are a lot of other questions that can be. Ultimately, every decision that you're going to make does come down to a Yes or No. There's a war on, whether it's in the Gulf or our most recent war: Do we stay or go? Is it Yes or No? A trade treaty with the Americans: Are we going to have one? Yes or No? Separating from Canada: Yes or No? They're very complex questions. At the end of the day, though, when you stand in your place in the Legislature, you have got to have boiled down all the nuances, and you're going to stand and be counted with the yeas or with the nays. That's the same, what this process is about.
Multiple questions, unless that is getting at whether there could be two or three different ballot questions on the same issue, I think they should all be rolled into one. We used to have multimember electoral districts in Ontario and elsewhere across the country. They're going to bring them back in in Nunavut, in the new territory in eastern Canada. There will be a male representative and a female representative for every electoral district. Basically, we've gotten away from multimember districts. We used to have two, three, even four members of the Legislature from one constituency. You could see the pros of that; you could also see the cons of it. I think this is kind of the counterpart in the realm of direct democracy. It's better to stick with one question in terms of clarity and accountability.
There's another part to this question: "Should the government or Legislature be able to place a counterinitiative on the ballot alongside a citizens' initiative?" No. The government, if it wanted, could campaign against it, but if it took the citizens to initiate an issue that the government felt strongly enough about that it was then going to go out with a counterballot, then why didn't the government do it in the first place? Why did it take the citizens to provoke this?
Let me give you two examples of where citizens actually came ahead and did something that the governments couldn't do. One is in the state of California, often maligned by people who are opponents of citizen participation, who say, "Oh, they've got far too many referendums going there." They never evaluate properly the ability of that dynamic state and its highly educated people and its political sophistication to sort these questions out, and they do it very well, including addressing the excesses and correcting for that.
One of the things, if you know the state of California, there's this tremendous Pacific Rim park that goes all the way down. It's unique geography on this planet, and it's preserved in the public domain for the benefit of the people. How did that happen? Through a citizens' initiative. It was placed on the ballot in the state of California because citizens took the initiative. Why didn't it come from Sacramento and the government? Well, if you know something about what I said a half-hour ago, or maybe more, about the United States' system of financing elections and this morass that they are in, and if you know anything about real estate developers in the state of California, you'd have a pretty good inkling as to why the government itself wasn't coming with that kind of plan to keep that land that developers would love to have put into big-scale, high-cost development.
The other example is from Italy. The issue of a woman's opportunity to abort an unwanted pregnancy was really not getting any kind of full public debate or public policy resolution within Italy. Given the prominence of the Roman Catholic Church within Italy and the church's very strong position on that issue, it again is not difficult to understand why legislators in Italy weren't coming up with this idea. It was an initiative by citizens, mostly women, in Italy that got a ballot question before Italy on this question dealing with abortion. As a result, the public laws of Italy changed.
There are many other examples, but I give those as two as to why my answer to this question would be a very resounding no.
Next is about the cost of a referendum, can it be lowered, "especially if it were held outside the context of a provincial or municipal election"? The numbers were given by Mr Bailie this morning, so those stand as the numbers for Ontario. This is an important question, about the cost, for many reasons. The pricetag on the 1992 plebiscite in the Northwest Territories, which was about dividing the territories in two and creating Nunavut and the western Arctic, was $893,900. The 1991 direct vote in British Columbia cost $567,455; the one in Saskatchewan, the same year, approximately $175,000. Quebec's 1980 referendum on sovereignty association totalled $18,261,160. The 1983 fixed-link plebiscite in Prince Edward Island cost approximately $200,000.
The chief electoral officer of Canada reports that the 1992 referendum, the one on the Charlottetown accord, cost $142 million. By far the largest component of this cost, about $85.5 million, related to the expense of preparing and revising the voters list. That expenditure alone is a good argument for maintaining a permanent voters list, which would also permit shorter elections.
I could add that the following year our national general election in 1993 was held on the basis of the voters list that had been prepared for the referendum, and it resulted in the cost of that general election being reduced by about $90 million from what it normally would have been. These are big amounts, but there are ways that they can be reduced substantively. We're talking the dollar cost there.
There are also other costs that you want to bear in mind. Let us consider that one of the primary values of a referendum campaign is the process of public education. We're all overwhelmed with information in our society; there's a glut of it pouring on us all day. I know that you, as legislators, are receiving tons of things pouring into your offices, and everybody is. So, many people don't focus on important public issues very often. But if two weeks from Monday you have to go and cast your ballot, "Do you approve, yes or no, this change in the hospital system in Ontario?" or privatizing Ontario Hydro or whatever, all of a sudden you're going to pay attention for that two- or three- or four-week campaign, where you hear both sides being presented and different points of view brought into it.
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There's a tremendous public education process in this that capitalizes on our already well-educated population in this province and this country, utilizes our well-formed media networks that operate with such intensity in Canada and permits people to be very focused and come up with an informed decision when they cast their ballot. That's what this whole process is really all about: informed consent, informed decision-making and the collective wisdom of an informed population. So I think when you're talking about the costs, it's important to put an unquantifiable amount beside public education.
One of the unfortunate things about the Charlottetown accord referendum was that there were eight separate issues in there, each of which could have been the subject of its own referendum: aboriginal self-government, devolution of powers from Ottawa to the provinces, and on and on it went. But even though it was such a smorgasbord of different issues before the people, at the end of that referendum campaign, Canadians knew an awful lot more about the condition of aboriginal peoples in this society and what aboriginal self-government could mean and why it was important. So this public education role of this process is certainly one to be treasured and recognized, even though the opponents of greater citizen participation would never even pay that any attention.
Yes, there are costs to doing this. There are costs to maintaining a Legislature at Queen's Park for the people's elected representatives to come to. There are costs in maintaining the court systems in this province so that we can have the rule of law and judges can preside and deal with dispute resolution. These are the costs of a democracy.
We can look to other countries that deny their people freely elected legislatures, deny their people fair and independent tribunals of justice and certainly deny their people the right to participate through direct voting as part and parcel of being citizens in that state. What are the costs of that? Well, we don't have to look very far.
What is the price we can put beside that in our own country -- it's priceless -- other than to say that many others have died to keep this country free? I think it's not to trivialize that at all to say that the issue before this committee right now is of that order. It's of preserving and enhancing a mature, democratic society, where the people who live here feel they truly have some role in the decision-making that's going to affect them.
Mr Chairman, I'm just going to pause there. I don't think I've gotten through the list of questions, but I think I'm probably getting through the minutes of time that are allocated to me. Could you say where we should be going?
The Chair: We had set aside from 2 to 4 for your presentation, and I know there will be some questions from members. If you have time to continue to engage the committee in this discussion, we'd certainly appreciate it and we appreciate your presentation thus far.
Mr Boyer: There are just four questions remaining, so I'll be very quick with that.
"What is the potential to use some form of electronic voting or mail-in voting as an alternative to traditional polling methods?"
There is potential here. I don't think it would be appropriate perhaps for a province-wide referendum in Ontario, but that's something this committee would want to consider with particular attention, I think.
We have in Canada a company that has really pioneered the use of telephonic voting. It's MT&T -- Maritime Telegraph and Telephone -- in Halifax. I visited their operation in Halifax to review the control system, the way they do it. They have conducted the leadership voting for several parties: the Liberal Party in Alberta, the Conservatives in Saskatchewan, and others.
To date, as far as I'm aware, the only experiment in the use of that voting technology in Ontario was an experiment I conducted at the University of Toronto just two years ago when the issue was student funding. The Honourable Lloyd Axworthy had come forward from Ottawa's point of view announcing significant changes in student funding, funding that, as translated through the province, would affect students. Although we have 98 out of 99 or so MPs from his same party in Ottawa, none of them was speaking to this issue, yet it was something that was certainly galvanizing attention on the campuses. You may recall something of that.
What I did at the University of Toronto, in a couple of the very large first-year political science classes, I had the president of MT&T come on the first day to explain to the students how this worked, how every voter was given a personal identification number and a phone number to call with their vote, yes or no. It was being done as more of a technical experiment to see if it would work. We did have student leaders in arguing the pros and cons in a debate in front of all these students and then they had 36 hours during which they could phone in their vote. All they had to do was have a touch-tone phone. Footnote: That could be a problem big-time in parts of Ontario if you're going to go to this technology for a province-wide vote. They'd put in their PIN and then they'd cast their vote, and this was all tabulated. It worked well. So it can be done. As I say, I've had experience with it.
More applications of that technology are beneficial, in trade unions, for example, that are trying to conduct membership votes to ratify a collective agreement. This is a powerful tool for corporations, in shareholder meetings and so on. It's certainly something you would want to look at.
The next question, under procedure: "Should the provincial Election Act govern voting procedures in a referendum?" Yes. I've been referring to a referendum act of Ontario as a new act that might be passed, but I really would envisage this as being a part of the Election Act of Ontario.
There's been a history in the evolution of our statutory framework for democracy in Canada towards consolidation. There used to be a separate act -- the Franchise Act. There used to be the Voters List Act, and many other statutes. Increasingly these have been consolidated into single statutes, and I think there's a good reason for that.
Across the country now, basically, there are about four statutes that govern. One is, in this case, the Legislative Assembly Act of Ontario, which pertains to the Legislature and your qualifications or disqualifications for being candidates or not being members of the Legislature. So that's the first. The second is the electoral boundaries readjustment regime. It's a little different in Ontario than in many other provinces, which have standing legislation that automatically requires this to happen every 10 years, but that's a separate statute that pertains to representation of the people and the electoral boundaries. The third is of course the Election Act itself -- who can be candidates, who can't be, who can be voters, election officers, and all the procedure. The fourth statute in most areas is the Controverted Election Act.
The tendency increasingly is to combine them. Here in Ontario, the Controverted Election Act has now been folded into the Election Act. I think the next thing that will probably happen is that the Election Finances Act will be folded into the Election Act. I know in Ottawa I always advocated that we have three different statutes dealing with money, power and decision-making. One is the election financing provisions now in the Canada Election Act, another one is the Lobbyists Registration Act and the third is the conflict-of-interest legislation. Each has separate officials, each has different definitions, each provides therefore a great thicket of opportunity for people who want to take advantage of that situation. I think the great national reform will come when we can consolidate those various statutes into one so we have one set of officials, common definitions and a clearer focus on the issues.
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Similarly, in Ontario I think it makes eminent sense to have any provisions that would relate to direct voting by the people through referendums or plebiscites or initiatives to be a separate part but within the Election Act of Ontario, because there are many common procedures and so on. So yes, my answer to that is consolidate.
Second-last question: "Does this act require any modifications beyond those needed to enable a referendum?" Yes, the Election Act of Ontario. That's outside the scope of what we're doing, but I think there are provisions relating to the voters list and election day registration of voters. These are issues that certainly Mr Bailie, the chief election officer of Ontario, has on his agenda as being areas that could be dealt with.
Finally, "What are the best referendum practices employed by other jurisdictions in the world?" The best referendum practice in other jurisdictions is that they use them. We were going through our endless Canadian debates about whether there should be a referendum on the Constitution of this country that went on and on for many months, and in the midst of that, in this narrow little slice of time the president of South Africa said, "We will hold a referendum on apartheid," and they held it. They debated it, they voted and they counted the votes. He then spoke to the people and said: "The system of apartheid in South Africa has ended. This is the people's verdict in this referendum. We now turn a new page in the history of South Africa." Done -- six weeks, about a month and a half of our endless debates in this country of "Should we or shouldn't we?" For all that we talk about ourselves being a democracy and supporting democracy and having observers at other elections and referendums elsewhere, there are some respects in which we have continued to be a very timid democracy. It looks at last like that may no longer be the ink in which the history of our province will be written.
The final part of that question is, "How can Ontario tailor [practices] to serve our own requirements?" I could say you could look at my private member's bill. When I introduced that it was the largest private member's bill ever tabled in the House of Commons, although I think Peter Milliken has since got himself into the Guinness Book of Records after me. The reason I say that is, I based that on six or seven different jurisdictions when I was putting it together, and in the book I've given you I describe what those are and the points I was taking from them.
A lot of the provisions in the Quebec Referendum Act are very good. There have been recent serious problems in the administration of that act and the independence of election officers under that, and there's an inquiry going on into that, but in the form of writing statutes Quebec legislative draftsmen have a very fine talent. This was based on provisions from about six or seven jurisdictions, borrowing the best from here and there, as is our Canadian wont sometimes, but I wouldn't recommend exactly the drafting style of this because I've found that having spent, both as a lawyer and then as a legislator, a lot of my adult life looking at statutes, there is a drafting culture in Ottawa that is reflected in virtually all the bills that are passed by Parliament. They've very clear but there's something unbelievably arcane about the style, and in terms of user-friendly, they aren't. I think that legislation can be clearer and more accessible in many of the Ontario statutes, and absolutely the Quebec statutes are written from a very different legislative drafting culture.
Although I'm saying there's a lot in this bill that I think you might find to advantage if you're considering -- well, you are considering legislation for Ontario -- I would try and make the translation obviously still dans les deux langues officielles de mon pays, mais pas dans la langue des écrivains des statuts à Ottawa.
That is a short way of saying, Mr Chairman, that I've already done a lot of your work for you and I hope that you can benefit from it, because I think it's of fundamental importance for our province and our country.
M. Gilles E. Morin (Carleton-Est) : M. Boyer, je suis très heureux de vous voir ici. Je vous connais depuis déjà 20 ans.
M. Boyer : Oui.
M. Morin : Vous avez toujours été consistant. Vous avez toujours été focused. It's been for you a life challenge, I think, and for all those years you've been consistent and you've been well focused. I congratulate you and I hope that you achieve your goals. Of course a lot of questions are being asked. I just want to refer to an article that appeared in a newspaper. Let me read it you, and I'd like to hear your comments. It talks about referenda.
"For such major and distinctive issues, referenda have their place. But as a regular instrument of government, they are flawed and retrograde, for the following reasons:
"They are simplistic, offering black and white choices, whereas most governmental issues today are complex, involving tricky tradeoffs. Taken in isolation, for example, a tax cut would likely be approved in a referendum. But it is unlikely the voters would also support an offsetting cut in spending on health and education.
"They are inimical to minority rights. The majority at any given time wins, no matter how historically valid the claims of the minority. Imagine a referendum in Ontario, for example, on the question of separate school funding.
"They are subject to manipulation.... But, in fact, as the US experience shows, referenda are highly vulnerable to interest groups, which use heavy advertising and direct-mail campaigns to swing the vote one way or the other.
"Nor is the interest group involvement always transparent. In a referendum on the expansion of casinos in Ontario, for example, it is likely that the `No' side would consist not just of church groups and others who oppose gambling on moral grounds but also of the operators of the existing casinos, who don't want the competition."
I'd like to hear your comments.
M. Boyer : Merci pour la question. Au début vous avez mentionné que je suis depuis longtemps quelqu'un avec un intérêt dans le sujet des référendums.
Au début, M. Morin, quand j'ai écrit le livre Law Making by the People -- c'est un des cinq ou six livres dans une grande thèse sur la Loi électorale du Canada -- dans cette période-là je n'étais pas un avocat pour la démocratie directe. C'était une exposition de la loi.
Après une décennie dans la vie nationale, dans le Parlement du Canada, et après avoir vu certaines expériences dans les élections et d'autres dimensions de notre vie politique, de plus en plus j'étais convaincu que les référendums étaient un élément positif et nécessaire dans notre société, toujours balancé avec les autres éléments, mais pour une maturation nécessaire de la vie démocratique du Canada et de l'Ontario. Alors, c'est une cause célèbre pour moi, mais après une certaine période de réflexion.
You read the article in English, so I'll answer in English. I agree with everything that was being said. What was being said? That referendums are simplistic, they're black and white, they fudge the hard tradeoffs, minority rights will not be well respected, for example separate school funding, I agree, and exactly the same criticisms can be made of the election procedure in this province.
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Elections, simplistic? Maybe some of you have been involved sometimes in taking a complex issue and making it sound just a little simpler so that those seniors or those school students or those workers on the assembly line could hear it the way you wanted them to hear it.
Black and white? Yes. I can think of elections in this province where issues were painted very black and white, in a way that anybody who was thoughtful and really cared about public life knew was too black and white for something that was painted entirely in shades of grey. This criticism from whoever wrote this article that hard tradeoffs would be fudged a little bit in referendums, that people wouldn't really be asked, if you stopped funding the hospitals, what about schools -- it never happened in election campaigns that the hard tradeoffs are fudged? It happens all the time.
What about separate school funding? Let's hear about how Bill Davis came into office with a majority, promising with one word, "no" -- je me souviens -- and left public office with the opposite word, "yes." And I think your editorial said something about manipulation and minority rights. These criticisms that are being levelled at a referendum process ought to be levelled at the political process and the election process. But is the author of that editorial saying, "Let's get rid of elections, let's ban legislators and let's board up Queen's Park"? No.
Where's the logic, where's the fairness, where's the justice, where's the animus in the person who wrote that and said, "These are reasons that we can't have referendums, because of all these bad things"? I think it's a very unfair brush that whoever wrote that is painting this important subject with, and it's typical of the anti-democratic attitude that pervades the élite and the establishment in this country.
Mr Morin: Just a very short question: How do you prevent governments from using referenda as political tools? I'm talking about any government. In other words if they're stuck, if they cannot make a decision within themselves, they appeal to the public and with good campaigns, promotions, they achieve their goal and say, "That's what the public wanted." How do you prevent that?
Mr Boyer: The first measure, to answer, is to say that governments are not operating in a vacuum. They are operating across the House from opposition, under the watchful eye of news media, accountable to electors, so there are restraints within our system, and to the official opposition and a vigilant, free news media I would also add the courts. Recourse can be had to courts on some of these issues, especially now with the charter.
Sometimes I think our Canadian experience shows that it's the opposite, that when governments have finally been forced to go to the people, like in Manitoba on the liquor issue -- they went three times and couldn't contain that issue in the Legislature of Manitoba. It just divided the parties; it divided the cabinet. There was no resolution. The liquor issue in earlier times in Canada was like the abortion issue today. People have views on it that will not be reconciled. Finally they said, "Let's involve all the people; we'll take this outside the four walls of the Legislature and involve all the people," and that's what they tried. Actually, it took three different plebiscites in Manitoba on that issue before finally everybody said: "There's no common ground on prohibition. We've worn ourselves out fighting this thing, we're fatigued. Let's all settle for some kind of compromise." The uses of this device are many and varied and that's one of them.
I think the best check on governments that would abuse this process would come recently, for example, in two of our western provinces, Saskatchewan and British Columbia. A Progressive Conservative government in Saskatchewan went to the people on issues about funding abortion and on a couple of other issues that they felt could excite a popular response in a way that would bring voters out in large numbers, "And by the way, those voters are probably predisposed to vote PC," their thinking went. The voters went out to the polls and roundly defeated them. In British Columbia, the same thing: this death-bed conversion to direct democracy by a government that was bringing in these recall provisions and the other ones that Mr Wildman's been referring to. The people voted for those overwhelmingly and in the process trashed the government.
I have a profound respect for the collective wisdom of informed people, informed citizenry. It comes through time and time again at the ballot box and I would take nine times out of 10 that the verdict there is right. To answer your question, I think those are the checks we already have in place for accountability and preventing abuse by governments of this process.
Mr Silipo: Thank you, Mr Boyer, for your very fascinating presentation. I wanted to ask particularly about one of the first areas you talked about, this question of defining the parameters around which referenda would be used. You talked in the national context about the framework being issues that would be of pre-eminent national significance. I wanted to hear you talk about what advice you would give us more particularly around how in the Ontario context that should be defined. One of the things that troubles me in the paper from the Premier is putting together, under the definition of fundamental public policy issues, things like constitutional amendments, which I would agree are by and large under that definition, and at the same time issues of examples like the expansion of casino gambling or new provincial taxes, which I would not put under the same category. I appreciate that obviously others do; the Premier in this case has.
I would be very interested in your views of how we ought to differentiate or define, or should there not be any definition of what should be the subject matter of either or both government-initiated referenda and citizen-initiated referenda?
Mr Boyer: In my book I list seven or eight criteria drawn from our history and from political theory as to what should be a reason for having a referendum. I think earlier I said that you can't really make up two lists and on this side say, "These are questions we'll always put to the people, and these are ones we never will." Here we're talking about government- and Legislature-initiated votes rather than citizen-initiated, and certainly constitutional amendments, without question, fall in that category of a transcending provincial issue that the people have to be included in. Indeed, without us amending our Constitution in Canada, we have now developed a new convention of the Constitution which says, "There will not be any significant amendment to the Constitution without ratification by the people through a direct vote."
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For some reason, it took our cousins in Australia a lot less time to figure that out. In 1900 they put in their Constitution a requirement that said anybody who proposes an amendment to the Constitution has to get it ratified by popular vote. At last count, I think about 32 constitutional amendments were proposed in Australia during this century, all of which necessarily went to a vote, eight of which passed. Some people have said to me: "That shows you're only going to get eight out of 30-some through. Look at all that effort that goes into trying to get those amendments through." To which my answer is, "Precisely, exactly."
That's the check on the system. Who can presume to come along and say, "By the way, I've figured out a really neat change to our Constitution, and I think it's going to be just fantastic," yet if you can't persuade a majority of your fellow citizens to change this fundamental document under which we all live, why should your hot new idea prevail? If you can't persuade a majority to vote in support of it, you have no right, legally or morally, I would say, to make that change in the Constitution.
There are a lot of reasons Canadians have become very frustrated and alienated from their political system over the past couple of decades, but surely one of them has to have been this incessant, three-decade, ongoing obsession with constitutional change and first ministers and federal-provincial conferences and everybody sitting down to talk about how we're going to solve all our problems in the constitutional context, never involving the people, never, at the end of the day, solving the problems. Are we better off today in terms of Quebec being a happily reconciled partner within Confederation at the end of 30 years of that? No.
So I think this reality check comes from these votes. You might say that a reality check on certain issues of transcending importance is one of the criteria.
I do list the seven or eight of them in this book. If I could find it quickly -- there was a time when I could have put my finger right on it. Anyway, going from memory, the criteria would include that if it was an issue that had not been addressed in the previous election so that no government or party had a mandate to deal with it, but it was a new issue that had come up and was of transcending importance, it would be an argument to go to the people and say: "This is something that's emerged. Let's deal with this."
Another one is if it's a situation where the government has somehow got itself in an intractable mess, everything is bogging down and it actually needs some kind of lever to get out of it. After all, it's the government of the people. You are here for the people. The government's here for the people. This isn't like you get elected and we have a government that goes off into exile for four or five years. So you can turn to the people and say: "Look, we really have a mess here. We're all blamed because we got into but we'll take the real blame. But here's the ballot question. Let's see if we can debate it and answer it and maybe that will help us get out of it." It's a way of helping the government extricate itself.
Certainly for a national government the role of a referendum may be to gain a strong position in its international relations on certain issues, some of the things we'd be dealing with the Americans on. In provincial terms it could be similarly applied to issues that would relate to transfer payments. It could be issues that would relate to changes in the Constitution and the devolution of powers and changes relating to any number of things of a constitutional nature where you would need that.
Arthur Meighen wrote about it as an issue that would change a fundamental positive principle of the country. Again, those are words he didn't say at the time he was opposing Wilfrid Laurier's resolution to have a vote on conscription during the First World War, but he subsequently came to recognize that something as fundamental as those issues really does need to be put to the people.
I suppose you could also add to this category that if a party has campaigned on having a referendum, then that would certainly be in the category. We have in Ontario a government that has committed to province-wide referendums on any tax increase and on any additional casinos. Now, you could take that to read, alternatively, as a commitment that there will be no tax increases and no new casinos. Speaking personally, that would be my hope.
But this isn't the first time, and the more you live with Canadian history, you see that we keep going around and around. The Liberal Party of Canada in its convention in Ottawa in 1895, dealing with the transcending issue that upset everybody -- liquor -- said, "We will hold a dominion plebiscite on the liquor question," and the following year, in the great election of 1896 when Laurier became Prime Minister, the Liberals were elected and that was part of the platform, that there would be a national direct vote on the liquor question. It took them two years. They had to get the legislation passed. There were long debates in Parliament that echoed concerns that are being raised here, and they are set out at some length in this book, Direct Democracy in Canada. It happened, a direct vote, because it was campaigned on as part of the party's platform. That would be an additional basis.
The Chair: Thank you. I have four members who wish to ask questions, so could we keep our questions and our responses brief.
Mr Boyer: The answers are too long.
Mr Wildman: I have a lot of questions I could ask related to your presentation. I appreciate it very much. But central to what you were saying with regard to referenda as opposed to elections to decide important fundamental questions, you pointed out that in elections there are a lot of different issues, a lot of different factors -- leadership of the party, perception of the parties and so on -- that can affect the vote, so you can't really point to a particular issue or a group of issues. You pointed out things like free trade, and I might add the GST, that if we had had referenda specifically on free trade and the GST, we might have a very different situation in Canada today.
I'd like to turn it over. I think you have the same problem with referenda. I would posit that one of the factors, one of many, that led to the defeat of the Charlottetown accord was the unpopularity of the Prime Minister and his government at the time -- just one; there were many other factors; that many people chose to vote not just on the question but also on the participants in the campaign. And I'd say it's the same thing in the Quebec referendum. I would think that many who voted Yes were voting for Lucien Bouchard as much as voting on the specific question, because of his popularity particularly among francophone voters outside of Montreal.
How do you deal with that? Surely there are going to be those factors involved in any referendum campaign as well.
Mr Boyer: Yes. I think one of our problems with referendum campaigns is that we lack experience with them so we don't do it very well. It's like baseball players going out on the field for the first time in spring training or something, a little bit wobbly. We have had our national referendums at half-century intervals -- count them -- 1898, 1942 and 1992. This is not something you're going to get familiar with in how to do very well. The necessary tendency is therefore to treat it like the thing you know best, which is an election campaign, and it's not. It's a different process. It's focused. It's on one issue. There are pros and there are cons.They need to be advanced on both sides so people can, with reasonable calmness -- they're always going to be on controversial issues, so calmness is relative. But it's trying to keep the personalities out of it, because that's what's pre-eminently in a campaign. A campaign is about philosophies and policies and personalities, and referendums should only be about policies.
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The Prime Minister felt very strongly that the success of the Charlottetown accord was vital to the country's future and could not restrain himself from participating very actively in the campaign and giving it some direction and leadership. Behind the Yes side on that was what was called the dream team, all the best organizers nationally from the New Democratic Party, all the best organizers nationally from the Liberal Party, all the best organizers nationally from the Progressive Conservative Party. Who could lose, right?
What were these organizers very adept at doing? Running election campaigns, not running referendum campaigns. Again, this is the moment when the painter is there with the little narrow bristle brush just doing the delicate work around the window-panes and somebody comes in with the roller, and that's part of the problem. Yes, I think the personalities got into it, but they came in --
Mr Wildman: Do you think M. Bouchard was wielding the roller in the Quebec campaign?
Mr Boyer: Yes, he was. And for all that the Reform Party and Preston Manning have advocated direct democracy as being an important tool in our system, I think he takes a full measure of blame for the injection of personalities into that 1992 referendum campaign, because it was he, in his advertisements and in his public speeches, who talked about "the Mulroney deal." It was always "the Mulroney deal." It was never something that was just the referendum on the Charlottetown accord; it was highly personalized by people who wanted to defeat it. It takes two to tango, and unfortunately, we got more political content in that referendum than I think was healthy for it.
Would that people had had the same belief in direct democracy earlier, with the Meech Lake accord and in that long three-year period where we saw that wither and die with its five very clear and specific points. If that had gone directly to the people in a national referendum within the first four to six months after it had been agreed to, I have a strong belief that the Canadian people would have profoundly ratified that and this issue that is confronting the future of our nation today would not even exist.
Mr Wildman: I'd just make the short comment that while I am not necessarily opposed to the idea of referenda -- frankly, I participated in a campaign on one, as many of us did. I recognize that they should be on issues on policy, but people can say that about elections too, for that matter, and I would suspect that personalities are inevitably going to become involved.
Mr Hastings: Thank you, Mr Boyer, for your very detailed presentation. My question relates more to minority rights. Why do you suspect that the media élites that want to criticize any government that looks at implementing any type of referenda legislation use the minority rights criticism or critique in order to prevent or halt discussion on whether referenda could be useful, given that we have constitutional protections already in place for most minority rights in this country? Is it because they have a panicky sense of losing control over the flow of information?
Mr Boyer: That's a very perceptive question. I think the reason they choose the minority rights issue is that it's probably the most salient issue to grab hold of, because Canadians generally are extremely mindful of the issue of minority rights. This is a country of minorities. We always talk about the majority. There's no Canadian majority. Canada is a country of minorities. So it's something that we all live with and are very attentive to. Even when we hear the word, we're almost preconditioned in our response. So yes, if there are, as you say, people in the media élite who are pushing that button because of the heat it will generate, they know why they're doing it.
Then your follow-up question is: Why are they pushing that button in the first place? Well, who is controlling the public agenda? Who decides what public opinion is? We have seen over the past decade business arrangements entered into between major polling firms and major news media, whether it's the Globe and Mail and certain polling firms or whether it's the CBC and certain polling firms, and so on. At various intervals you, in the course of being an elected representative, will see something presented as a new issue that's emerged because some poll has been conducted on it and it's getting a lot of play in the media, maybe a lot more play than it otherwise would, because that news media agency has funded the cost of it.
Talk about pride of authorship. I think there are people here who are proud of their ability to be authors of what's on the public agenda. We're not talking here about the small community newspapers. We're talking about fairly small, and increasingly concentrated in its ownership, media outlets in our country where there is an ability for people to sit around and make editorial board decisions about what issue will be covered or what won't: "Which one are we going to assign two or three investigative reporters to for a couple of months and we'll put so many thousands of dollars into it? Which one can we hire pollsters to go out and do and get some issue going?"
If that's the way it's operating -- and that is the way it's operating. I remember being one time on Pamela Wallin's program where she was interviewing me and Martin Goldfarb over this very issue, about direct democracy. Mr Goldfarb was going to great lengths to say why referendums were a bad thing. He, of course, is someone who knows what the public opinion is because he's in the business of sampling it and manipulating it. As he said, it's an art form to take those raw numbers and "massage" them -- I'm quoting him -- into something that is meaningful to government officials and others.
Well, in another country, in another age, Rasputin held sway with the tsar. Why? Because Rasputin could go and whisper in the tsar's ear, "Tsar, I know what the people are thinking" and he could tell him. It's very powerful and seductive, if you're in that position in this country, to determine the policy agenda.
It gets very unpredictable, very unpredictable, if people themselves are going to have the opportunity to come forward and put some issue on the public agenda.
Mr Hastings: All the more reason for having referenda, then, as an antidote to counteract what's happening with the media élites?
Mr Boyer: Absolutely. And initiative, the right of citizen initiative.
Mr Bartolucci: Thank you for a very excellent presentation. You said earlier that in defining the legislation for a referendum you should build in some criteria which would protect the ultimate decision of the referendum so that it is in fact a true referendum, and you do that through wording. What type of general criteria are you talking about?
Mr Boyer: This is a good way to end, because we now have to talk about what's a referendum and what's a plebescite. Basically, in the law -- this is really pretty simple stuff, so it shouldn't take long. It's the same phenomenon. It's people hearing a debate and then going to the polls to cast their ballots on a question, answering yes or no. If the result of that balloting has to be implemented by the government, whichever government, that is legally binding and that's a referendum. If it's not legally binding, if it's simply asking a ballot question to see what people in an informed way think about it, it's a plebescite.
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So we've got this distinction, but in Canada today it is hopelessly confused. The Referendum Act, so called, of Quebec contains nothing within it that is mandatory about the results being implemented. The Referendum Act of Newfoundland, ditto. The Referendum Act of Canada, dealing with constitutional questions, is only enabling plebescite, ballot questions. When I proposed an amendment on the floor of the House of Commons to that act, to change it to the Canada Plebescite Act, Harvey Andre, the government House leader, got up, said, "Well, this is really a plebescite, it's not binding, but we're calling it a referendum." So black is white. The House leader whips on, everybody votes, and now we call something by its wrong name.
At the end of the day, the terminology is hopelessly confused, and for simplicity it seems we're now increasingly using the word "referendum" to cover the whole approach. Maybe that's not bad. We know what that word means. One is Roman and one is Greek, two words for essentially the same thing. I suppose if we were to say non-binding or binding referendums, that would be one way of clarifying it.
While we're on this, I see this paper refers to "referenda." I don't use that myself. I use the Anglo-Saxon "referendums," partly because in the Latin gerund of referendum there is no plural. "Referenda" necessarily connotes a plurality of things to be referred, a number of questions on the ballot. Besides, in the third supplement to the Oxford Dictionary they have a note explaining all this. Either is appropriate, but I think the Anglo-Saxon usage is easier on the ear. We don't hear about the whips down the hall here having difficulty maintaining their "quora" from day to day. "Is there a quorum?" Are there quorums in the House or quorums in committee? We go to the "arena," or maybe we're going to go to the "arenas." We don't go to the "areni."
I think there's something just a little too precious and a little too affected with some of this other usage. We're seeing it at External Affairs now where officials refer to "fora" instead of "forums." That's why I say, as many others do, "referendum" and "referendums."
But the legally binding nature really needs to be specified.
In my bill I talked about public consultations and the four different kinds: the binding ones initiated by the government; the ballot questions, which are your traditional plebescite; the citizen-initiated one, and constitutional questions. But there's a lot of terminology in this that, if we want to be precise, it's worth doing. In this province it's the chief election officer. In all other jurisdictions across Canada it's the chief electoral officer. So when Mr Bailie would be back again he's the "chief election officer."
The final word on that is "disfranchisement." You see, in this document it talks about "disenfranchisement." Well, as I understand, the franchise is the vote, the right to vote, so either you have it or you don't. If you're being given the right to vote, you're being "enfranchised." If they're taking the right to vote away from you, they're "disfranchising" you. But it's very hard at the same time to be given something and to have it taken away, which is what "disenfranchising" says, yet that word is commonly misused as well.
Mr Chairman, I did find that list of the seven criteria that I was fumbling for previously -- it's on pages 118 and 119 of The People's Mandate -- criteria that can be applied as to when it's appropriate to have a referendum. I have no doubt that there will be times in the fairly near future of our province when it will be considered indeed appropriate for that to happen, and I hope the good work of you and your committee members will see that we have the finest referendum legislation there could be anywhere right here in our province of Ontario. Thank you.
The Chair: Thank you very much, Mr Boyer, for your in-depth and detailed presentation; also the information you've left with us. It's going to be very helpful to the committee in terms of its deliberations. We sincerely appreciate the time you've taken to come in today.
ONTARIO TAXPAYERS FEDERATION
The Chair: Next on our agenda is the Ontario Taxpayers Federation, which is represented here by Mr Paul Pagnuelo. Mr Pagnuelo, will you come forward?
Mr Paul Pagnuelo: A difficult presenter to follow.
The Chair: Thank you for coming today and we look forward to your presentation as well. We've set aside half an hour for you, if I could just make that clear at the start.
Mr Pagnuelo: I'm Paul Pagnuelo, executive director of the Ontario Taxpayers Federation.
The OTF welcomes the opportunity to comment on the government's consultation paper on referendum. I would mention that our national organization, the Canadian Taxpayers Federation, will be presenting a detailed legislative proposal when it appears before you tomorrow. As such, our submission today will deal not with the nuts and bolts of how the referendum process should work but more with the reasons supporting the need for direct democracy and some of the more common arguments which often are made opposing referendums.
Canada's democratic institutions are today experiencing a crisis of confidence. Our parliamentary institutions, which historically have provided stable and responsible government, have failed to keep pace with the growing complexity of contemporary governance and to provide a meaningful role for an increasingly sophisticated electorate.
Evidence of this failure abounds.
Public opinion polls reflect the increasing lack of faith that voters place in politicians and political institutions, a reflection of both the inability of government to meet public expectations and a profound cynicism about the willingness of politicians to tell the truth and represent constituents' interests. Wild swings in voting patterns and the sudden emergency of new parties indicate that traditional partisan allegiances no longer govern voters' loyalties, as the partisan system becomes increasingly irrelevant to peoples' lives. Canadian voters have begun to exhibit an almost deliberate disregard for the views of the political establishment, as evidenced most clearly by the massive public rejection of the Charlottetown accord in 1992.
While this growing public cynicism towards representative government may be understandable, it has a corrosive effect on our public life. If politicians wish to reverse this trend towards the alienation of large segments of the electorate and wish to revive a dynamic sense of civic responsibility for our democratic political institutions, then they must begin to seriously embrace systemic reforms which would empower voters by giving them a direct stake in critical public issues.
The only meaningful way to do so is to adopt a workable system of direct democracy, particularly the right of citizen-initiated referenda.
We strongly endorse the government of Ontario's consideration of the proper role of direct democracy mechanisms in our political system. The OTF believes that the adoption of procedures, such as government- and citizen-initiated referenda, would do more to restore public trust in government than any other systemic reform. Such measures would complement rather than threaten our established parliamentary tradition of deliberative and representative government.
There are several common objections raised by the opponents of greater citizen involvement in decision-making. All of them boil down to a basic distrust of the common sense of common people. I would like to deal with these objections and our response to them.
(1) That direct democracy would destroy our parliamentary tradition of representative and deliberative government.
The adoption of properly framed direct democracy measures, such as initiative, would enhance, not diminish, the need for or the role of elected representatives in government. The experience of every jurisdiction with a system of initiative, including such Canadian jurisdictions as Alberta between 1919-1958, indicates that initiative is used infrequently and does not diminish the deliberative role of legislators and the administrative role of the executive branch of government. Indeed, during the 40-year period that Alberta had a workable initiative law on the books, it was used only once, hardly posing a danger to the traditional role of the Legislature.
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Rather than diminishing the valuable role of our parliamentary institutions, the judicious use of direct democracy would likely enhance the credibility of those serving in the Legislature. By demonstrating a real faith in the wisdom of voters on important and controversial issues, such faith would be reciprocated by voters in the representative judgement of their elected legislators. Trust in a democracy is a two-way street.
(2) That binding, direct initiative would be unconstitutional.
Some argue that binding, direct referenda and initiative would contravene the supremacy of Parliament and would be unconstitutional. This is based on a misunderstanding of the historical and legal record.
The issue was addressed directly by the judicial committee of the Privy Council in a 1922 case which examined the constitutionality of Alberta's Direct Legislation Act. The court upheld the Legislature's right to amend the way in which laws are passed, namely, by holding itself to pass legislation approved by voters in a binding referendum, so long as the ostensible independence of the Lieutenant Governor is recognized. This logic has been clearly endorsed by leading constitutional authorities such as Peter Hogg and Mel Smith.
(3) That referendums may yield unfavourable results for minorities traditionally excluded from the political process.
The argument is made that minority rights are more likely to be diminished by decisions made by a majority of voters in a referendum than decisions made by elected representatives. Opponents see direct democracy as tyranny by the majority, that minority rights, no matter how valid, would be abridged because the majority view always wins.
The fact that the majority always rules is a basic tenet of representative democracy. A party is elected as the government because it wins a majority of seats. The Legislature enacts laws when it secures a majority vote. Are opponents suggesting that the majority view should be discounted in favour of tyranny by the minority?
In a direct democracy vote, the rights of the minority or, for that matter, the rights of any citizen or group of citizens would be governed by the same protection as is any legislation enacted directly by elected representatives. No bill would be valid or allowed if it contravened the Canadian Constitution and its Charter of Rights and Freedoms.
In reviewing the experience of the Swiss and the Americans, there has been no successful referendum in which there was a flagrant act of majority tyranny against minority rights. The difference between elected representatives and popular majorities protecting minority rights is at most marginal.
(4) That the introduction of referendums would lead to an uncontrollable proliferation of public votes.
There seems to be an unfounded perception that referendum legislation will necessarily lead to a vote a day. The fear that referendums would be logistically unmanageable is one based on a lack of understanding about how a good referendum law works.
Most people would probably agree that referendums should be used sparingly, that they should be held on issues that are of greatest importance to citizens and that costs are a major consideration in the number of referendums that should be held. Any well-constructed referendum law deals with these objections in a forthwith manner.
Citizen-initiated referendums are, by their very nature, conducive to the principle that only the most important issues ought to see the light of day. The petitioning process in order to put a question on a referendum ballot requires that enough citizens believe the issue significant enough to require a vote. In the submission of our national organization tomorrow, the Canadian Taxpayers Federation will propose that a threshold of 10% of the ballots cast in the last provincial general election be required to sign a petition before the proposal can then proceed to a referendum. This is a very high threshold for attaining successful petitions.
In the states of Wyoming and Illinois, which have signature requirements of 10% of eligible voters, not a single initiative qualified for the ballot between 1981 and 1990. In contrast, Switzerland's threshold of 1.5% results in regular referendums.
In addition to the basic threshold safeguard, other barriers would prevent a plethora of referendums from occurring. Requiring sponsors to develop legislation before it goes to petition or referendum would further ensure that no spurious proposals were accepted. In short, there are any number of safeguards to prevent the referendum process from overuse.
(5) That some issues are far too complex intellectually for ordinary voters and can only be decided by elected representatives who are paid to understand them.
This argument suggest that ordinary voters are less intelligent, less public-spirited and less informed than elected representatives. It not only represents an anti-democratic bias but is elitist and ignores the changes in society over the past century.
Such a presumption, if carried to its logical conclusion, would disallow the possibility of voters casting ballots, not just on referendum questions but for their elected representatives as well. Given the fact that we entrust voters to make decisions based on the detailed policy platforms of political parties, why would we not also allow citizens to vote on policy options outside of general elections?
In fact, recent studies conducted in the US show that, compared with candidate election voters, referendum voters are older, have more formal education, are of higher socioeconomic status and are more involved and active in politics. Analyses of voting behaviour in candidate elections show that these traits are the main correlates of political knowledge and understanding.
Based on this empirical conclusion, it would seem more appropriate to perhaps allow citizens to vote in referendums than it would to allow them to cast ballots for elected representatives.
Perhaps the best anecdotal evidence to suggest that voters can become very attuned and informed as to the contents of a referendum proposal can be found in Canada's recent experience with the Charlottetown accord. Arguably, the referendum on the accord generated more public discussion on substantive and what might be called complicated constitutional issues than this country has ever before seen. The 1992 referendum was not just a vote but an exercise in public education and deliberation on a massive scale. Canadians may never before have been as familiar and well-informed about an issue as they were with Charlottetown.
Still, there exists the possibility that irrespective of how intelligent or informed the electorate might be, they might be tricked into voting for a proposal that runs contrary to their interest. Opponents of initiative and referenda point to the fact that ballot measures in the US are frequently worded so that a yes vote is in effect a vote against a particular policy.
Several studies show that in elections in which voters had to vote yes on a proposition to oppose a policy or no to support one, 10% to 20% of them cast mistaken votes. However, on measures on which most of the voters had very strong preferences, almost all accurately perceived the policy consequences of yes and no votes and voted accordingly.
In order to address the potential problem that voters might be misled to vote for a proposal that they do not support or to vote against a proposal that they do support, the Canadian Taxpayers Federation will be recommending tomorrow that a referendum question be posed as a vote for or against a specific bill. The question would read, "Do you support" followed by the bill number, the bill's long title and a question mark. Voters would not be asked to support or oppose some undefined, ambiguous concept, but rather a fully developed piece of legislation. The proposal would also ensure that the title of the bill would present an accurate description of the intent of the legislation. This simple safeguard would protect voters from being tricked into voting for propositions they oppose or against those they support.
Today there is no longer the difference in wealth or education between voters and their elected representatives. In terms of communication, education and social conscience, voters are far better equipped today to make intelligent decisions on complex issues than a mere 130 men and women whom they pick to send to the Legislature every four or five years. The bottom line is that if one accepts the premise that adult citizens should have the democratic right to vote for others to represent their interests, then one must accept the principle that those same voters should also have the right to express their interests directly.
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(6) That governments, corporations and special-interest groups would buy votes with costly ad campaigns.
Special-interest groups are already affecting legislation in their favour by brokering interests with politicians at all levels of government. The principal difference between interest groups exerting influence without referendum legislation as opposed to having such a process in place is that these lobbyists can obscure their campaigns from public view. Referendums would force special interests to operate aboveboard and to attempt not simply to influence elected officials, but to win over the entire electorate.
The view that voting adults are simply automatons who take directions on how to vote from big-money ad agencies is an unproven theory. If the Charlottetown accord is any measure, it can be readily dismissed. The fact that the Yes side of the campaign, replete with far more interest groups, political parties and corporate interests than the No side, was thoroughly trounced should say something about the possibility of vote-buying in referendum campaigns. Charlottetown tells us that all the money in the world can't convince people to alter their votes.
The referendum is a means for citizens to control the influence of special interests, and not the reverse. In summary, it's harder to bribe or influence the many than it is the few.
To conclude, direct democracy paves the way for the public to enact reforms which may have been neglected by government and to restrain out-of-control government spending and ill-fated legislation. It also diminishes the tyranny of a bloated and largely unaccountable bureaucracy. By providing ordinary people with greater political responsibility, the public interest will be better served and the apathy and alienation which people feel today will dissipate.
Direct democracy works if it is done with care. Referendums are a useful supplement to, not a replacement of, representative democracy.
The Chair: Thank you, Mr Pagnuelo. Questions?
Mr Wildman: Just parenthetically, I don't believe voters can be tricked. I've been in this business for a long time.
I have actually three areas I'd like to pursue with you. You talked about initiative laws, the law that was in place in Alberta. Right now there are initiative laws in place in British Columbia and Saskatchewan. In your view, are these workable pieces of legislation?
Mr Pagnuelo: No. The one, if we take BC, is not workable. I don't want to, I guess, unveil all the details of the proposal that the CTF is going to make tomorrow --
Mr Wildman: Okay, fine.
Mr Pagnuelo: Jason will address that tomorrow. I want to say on that particular point, though, we have to ensure that there are reasonable safeguards and a reasonable threshold in place to ensure we don't end up with frivolous questions being put to people on a regular basis. So we have to make sure the threshold is high enough but, at the same time, that it's reasonable, that it can also be achieved, that it's not so difficult that most people would never, ever be able to achieve it.
There has to be a balance. We hope we have found that balance, and I alluded to it earlier, in terms of 10% of actual ballots cast in the last general provincial election. Although it's a high target, we believe it is achievable.
Mr Wildman: With regard to the Charlottetown accord, I accept that what you're proposing, and I guess will be expanded upon tomorrow in the presentation, is simple, straightforward questions on particular issues, rather than broad --
Mr Pagnuelo: Broad, nebulous, rambling --
Mr Wildman: Which, when we were dealing with the Charlottetown accord, was a very broad question in terms of many different changes to the Constitution.
Mr Pagnuelo: It was really an omnibus bill.
Mr Wildman: Yes.
Mr Pagnuelo: What we're going to be saying tomorrow, what Jason will be saying tomorrow, is that in terms of initiative, an omnibus bill would not be permitted under initiative. It has to be very issue-specific, one issue.
Mr Wildman: I would point out that in that particular case, while it was defeated soundly, as you said, across the country, it was narrowly supported in Ontario.
I want to raise two questions, which I guess I have to do delicately because it might be misinterpreted. I hope it won't be. But sometimes in politics, in my experience, and I've been at this business for over 20 years, there are questions that are so divisive for society that perhaps they shouldn't be put in a black-and-white context, for the health of the society. For instance, it's been suggested in another jurisdiction, in British Columbia, that the recent Gitskan land claim should be subject to a referendum rather than be a matter for which governments take responsibility and defend in an election campaign. Do you see any such issues, or are all issues legitimate ones to be put to the majority in a yes or no vote?
Mr Pagnuelo: All issues are legitimate. We would put some restrictions, and Jason again will address those tomorrow, but the most important which we would want to set out here this afternoon would be the fact that there could be no initiative that would contravene the Canadian Constitution or the charter of rights and responsibilities. That's paramount.
You raise a very important issue. There are particular issues out there that can be very divisive. But what do we accomplish by not confronting them and not debating them publicly and openly? Oftentimes we do more damage by pretending they don't exist than by addressing them up front.
Mr Wildman: Don't misunderstand me. I said the choice was not between not confronting them or having a referendum, but rather confronting them through the normal political process and having governments and elected representatives take the responsibility for making decisions and then defending those decisions, not between sweeping them under the rug or having a referendum. There are other choices.
You will be aware, and perhaps this is going to be commented on by your federal or national colleague tomorrow, that the Premier of the province has made a commitment when he ran for election that there would not be tax increases without referenda.
Mr Pagnuelo: I have a signed pledge right here. I bring it everywhere, hoping one day he may respect it.
Mr Wildman: Okay. I suspect that this discussion paper is related to that. I'm sure you do too.
Could I ask you, how does one define taxes? Would you consider user fees to be taxes?
Mr Pagnuelo: As such, no. If you can price a particular government service that is offered and the cost of that service is not borne by all the general electorate, then we would say that that per se is not a tax as such. What really we think of as a tax is more along the lines of a provincial sales tax, the provincial income tax, those sorts of broad taxes, property taxes, property tax reform. Those are the sorts of issues that we would see.
Mr Wildman: That's fair. The reason I raised it is because Mr Harris, when he was the leader of the third party, said user fees are taxes. It's in Hansard.
Mr Pagnuelo: It's another form of government revenue, but it's not as direct in that it doesn't apply to everyone.
Mr Wildman: Right. But for instance, to use an example, the government recently increased or required seniors who are on the provincial drug plan to pay a fee. That doesn't apply to everyone because not everyone is on the provincial drug plan or needs drugs, but it does apply to a lot of seniors in the province. To use the Premier's own definition, that would seem to me to be a tax increase on those people.
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Mr Pagnuelo: Some could view it as such. We wouldn't.
Mr Wildman: All right. Thank you. Do you see other issues beyond the ones mentioned in the discussion paper or the pledge that you carry with you that should be subject to both citizen-initiated or government-initiated referenda, such as the privatization of government services?
Mr Pagnuelo: Again, the only restrictions we would place in terms of what types of initiatives could be entertained or what would be prohibited would be anything that falls outside or contravenes the Canadian Charter of Rights and Freedoms, anything that falls outside the powers of the provincial Legislature, anything that appropriates part of the public revenue -- in other words, if people wanted to hold a referendum to say, "We're going to spend so much on this," or anything that imposes a tax. Also, we would not see any initiative which constitutes an omnibus bill.
Mr Wildman: Like Bill 26?
Mr Pagnuelo: Yes.
Mr Wildman: My final question is this. If a government, for good policy reasons that it understood and had expressed, determined that a specific service or a number of government services that had previously been delivered by the government itself and had been paid for through the ways governments raise revenue, either through the various taxes or borrowing or whatever in the past, would now be contracted out to a private firm, perhaps because they feel the service could be delivered better, more efficiently or whatever, and that service now would require a fee to be paid by members of the public who benefit from that service, that would be something that you would consider a legitimate matter that could be subject to the initiation of a referendum?
Mr Pagnuelo: It could be subject to initiative, most definitely. I would like to think, by the way, in that case that where that service was now subject to a particular fee, there would be a corresponding reduction in the tax.
Mr Wildman: I'm sure that will happen.
Mr Pagnuelo: You can't have it both ways.
Mr Hastings: Thank you, Mr Pagnuelo, for coming and making a very cogent presentation of the public state of the mind out there of the voter, particularly referencing cynicism and distrust of our public institutions.
My question relates to page 7 in which you specifically would get around the question of what kind of questions would be raised under referenda: "Do you support...." In paragraph 2 you have "followed by the bill number" etc. Do I take it that from that particular slant that your organization only sees referenda being introduced by government?
Mr Pagnuelo: No. They could initiated by citizens, by both.
Mr Hastings: If so, and the question got through all the hoops, the 10% of the people who voted in the last provincial election etc, would the same type of question be phrased in the same way in a citizen-driven type of referendum? Would other words have to have been a bill initiated on a corresponding, simultaneous track in the Legislature dealing with that subject or topic?
Mr Pagnuelo: Again, what we're suggesting, as part of the safeguards to ensure there are no frivolous referenda or petitions, is that if an individual in the public is serious about wanting to petition a referendum, then they should come forward with a serious proposal which means actually coming forward with a draft of the legislation which they would want to see introduced and voted on.
What we're proposing is that obviously not everyone out there will have the skills to do that, but they have to come forward with a basic, rough draft and we would see a role played by the chief election officer in assisting that group or individual from there on.
Mr Hastings: In other words, the Legislature itself could be silent on that topic, whatever it might be, in a citizen-initiated type of referendum.
Mr Pagnuelo: Right.
Mr Hastings: It would still have a bill number or designated in a different way, but the same consistent type of phraseology.
Mr Pagnuelo: Absolutely.
Mr Hastings: What are your views with respect to recall of elected officials and how do they differ from Professor Boyer? When he was here, he was talking about --
Mr Pagnuelo: I missed most of his presentation, unfortunately.
Mr Hastings: He essentially dismissed citizen-initiated moves to recall elected officials.
Mr Pagnuelo: There's the question of, if you've got an unpopular politician or if you've got an unpopular political party that is in power, should you have the ability to recall that individual or to actually recall the whole government, if you want? There are many who support that concept. Generally, we feel that the substitute for that is direct democracy, the ability to be able to undo bad legislation, the ability to bring the views of the constituents to the forefront and bypass the politician.
Again, you're looking at essentially a four- to five-year maximum period where that individual's going to be in power and chances are you're going to possibly realize, two years or two and a half years into the individual's mandate, that perhaps they're not what you wanted. But I think many times where a politician becomes highly unpopular within their own constituency, that they'll see fit to perhaps step down in advance of the conclusion of their mandate. It's an issue that finds favour with some. We don't think it's absolutely necessary. Again, we think direct democracy per se makes more sense and alleviates some of the concerns that might rest with not being able to unseat a politician early.
Mr Hastings: Do you see any specific limits or restrictions on how direct democracy would be implemented in a recall initiative that couldn't be done chock-a-block, a vote a day? Would there have to be a very serious deviation from a broad-based platform of the government?
Mr Pagnuelo: Again, you need to ensure that it truly did represent the majority view. So you'd have to have a high threshold to begin with. It's not something which either ourselves or the Canadian Taxpayers Federation are specifically addressing in this particular initiative. What we're looking at more is the issue of referenda and not so much the recall aspect.
Mr Clement: I'll try to be brief, just two questions. Mr Pagnuelo, thank you for being here. The suggestion that the threshold should be 10% of the ballots cast in the last provincial election, we had a suggestion from Mr Boyer that you might want to ensure that they come from a number of different regions in Ontario, two thirds or three quarters of the ridings in the current Legislature. Just to use the 10% example, let's say Mississauga felt very strongly about a particular item on the public policy agenda but no one else thought it was particularly important; you couldn't have Mississauga driving a $20-million referendum process for the entire province. Is that something that you've thought of here?
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Mr Pagnuelo: We've looked at it and where we've decided it would make more sense to have, if you want, a double majority is on the actual vote itself and not on the petition. Again, before someone would undertake and start out on a petition, they'd have to be pretty darned sure, particularly if it's a regional interest they had, that they could sell this on a province-wide basis. Otherwise there's a lot of time and a lot of energy and perhaps a lot of money on their part that would be expended unnecessarily. It can be a long process just to collect the petitions. People have to approach this very seriously. I don't think you'll find many frivolous attempts being made to get things on the petition route.
Mr Clement: Quite so. One thought came to me when you were discussing with my colleague Mr Wildman the potential divisiveness of some questions, and I wanted to know your reaction to my logic: If you took the example of the free trade debate in the 1988 federal election, one of the huge criticisms of the culmination of that debate was that a party that got 40% of the vote was able to implement the policy on free trade and you could make the putative argument that 60% were not in favour of free trade. So in a sense could you make the argument that we are lessening the divisiveness in society by forcing some of these huge public policy issues on the referendum platform where you needed at least 50% of the vote rather than 40% of the vote in order to carry out the policy?
Mr Wildman: Just to be fair, I wouldn't consider free trade to be one of those kinds of issues. It's usually moral questions.
Mr Clement: But even more so in that case where you wouldn't want a 40% elected government deciding on moral issues when through a referendum you needed over 50% to get them passed. Does that make sense?
Mr Pagnuelo: Let me speak to that in perhaps a different way. What happens is, when you've got one very specific issue like that that becomes the central issue in an election campaign, people's attention is diverted off all other issues and so people don't look at what alternative parties would offer in terms of fiscal responsibility or social responsibilities etc. They lose sight of all that and you end up voting for a government either for or against a particular issue and everything else falls by the wayside. Then we end up with governments that we wish we hadn't elected but we brought in because of how we voted on that one issue. That's where I think the current system we have today -- as we said earlier, a representative democracy can be enhanced by allowing referendums on very specific, single issues that can inflame voters on both sides of the issue.
But let's keep that outside. Let's make for good elections in terms of how we elect candidates and parties and focus on the broad things that they're offering and not just that one specific issue, to the detriment of everything else.
The Chair: Thank you very much, Mr Pagnuelo, for your advice. We appreciate your input.
REFORM PARTY OF CANADA
The Chair: Our next presenter is Mr Scott Reid, who is representing the Reform Party of Canada as a researcher. Mr Reid, welcome to the committee. Begin when you're ready.
Mr Scott Reid: Thank you. Just so people will know, I'm the senior caucus researcher with the Reform Party caucus in Ottawa. Rather than trying to talk today about the merits of referendums, I've chosen instead to try and focus on the question of trying to make the relevant legislation workable. Rather than trying to deal with all aspects of referendum, there were some 12 different types of referendum legislation that were discussed on pages 19 to 23 of the background materials that I was sent. I've decided it would be more appropriate to (a) try and group these options, and then (b) focus on the one option that I think is the most important.
The 12 options that were discussed in the background paper are divisible into three categories. The first are referendums to be held at the initiative of the government. The second are referendums to be held at the initiative of the people whenever a significant number of signatures can be gathered on a petition. Thirdly are referendums that are automatically triggered by some sort of event, such as a new law to raise taxes.
Rather than commenting on all of those, I'll just look at the popularly initiated referendums, the so-called initiatives. The reason I do this is that with regard to the first option, referendums to be held at the initiative of the government of Ontario, such referendums have already been held in the past. They can be held again in the future and it's simply a matter of the government making the decision. Whenever the relevant issue comes up, it's time for us to hold a referendum and we need to get the people's opinion. I don't think we need to consider legislation for that at this time.
With regard to mandatory referendums on such things as new tax increases, and I think I may be wrong from the discussion that just went before here, but I made the guess that this committee would not be looking at that question in depth; that would probably be subject to further hearings and of a separate piece of legislation. That was a piece of guesswork on my part. But just in case I was wrong, I wanted to mention three things. I noted these in my notes.
First, I drafted the Reform Party's template tax and expenditure limitation legislation and have a little bit of knowledge on that, so I can answer some questions with regard to that, if need be.
Secondly, I'm in the process of gathering material for a book on the subject and I've got a fairly extensive collection of background material on tax and expenditure limitation laws.
Thirdly, about six months ago I wrote an article for Gravitas magazine commenting on specific features that I think should be included in any Ontario legislation on the subject of tax and expenditure limitation. I've attached a copy of that article to the back of the materials that I've given to you.
With regard to citizen-initiated referendum legislation, of course you all know that Ontario, if it were to adopt such legislation, would be the third province to have legislation on its books currently. At one point in the past, all four western provinces had such legislation on their books. It's worthwhile noting that in each case the legislation was intended not to actually make such initiatives possible, but merely to provide the appearance of making them possible while in practice making it so difficult to initiate a referendum through popular petitions that none would take place. These efforts on the parts of governments were successful. There has never been an initiative in Canada at the provincial level.
I get the impression from looking at the documentation that was sent around prior to this meeting that this government feels differently and is very sincere about wanting to actually create a workable piece of legislation.
There are three techniques that I want to concentrate on that can be used to prevent initiative legislation from working while giving the appearance that it's meant to work. So if that's your intention, three things I'm going to say are of relevance. If it's your intention to make it workable, then these are three things you'll want to avoid.
The first is placing unreasonable restrictions on the amount of time that can be devoted to collecting signatures on a petition. The second is a requirement that a minimum number of signatures be gathered in each region of the province, which has the effect of driving up the de facto number of signatures that are needed to an unmanageable level. The third method of making sure that initiatives don't actually ever come off the ground is to set very, very high thresholds for the total number of signatures that must be gathered on a petition.
With regard to time limits, of the 23 states in the United States that permit citizen-initiated referendums, all but six place restrictions on the amount of time during which signatures may be gathered. These periods range from 90 days in Massachusetts to 730 days in Illinois.
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Apparently the logic has been of implementing such limits on time to ensure that the number of initiatives will be kept low, but the actual dynamics have been a little different than was anticipated when such limits were put into effect. The tendency is not so much to reduce the number of items that make it to the ballot, but rather to squeeze out grass-roots groups which tend not to be well organized and to have a pre-existing set of institutions in place and to put the signature-gathering process in the hands of interest groups that are well organized.
The best example of how this has happened is California, which has only a 150-day signature-gathering period. Despite the fact that it has a very short period, the third shortest in the US, it has an average of 5.8 questions on the ballot every year, which is of course the largest number in the United States. Significantly, California is the state that is best known for having special-interest groups driving the initiative process.
With regard to regional restrictions on petition-gathering in a number of jurisdictions -- and I've listed these. I should mention that at the back of the materials you've got, you'll see a two-page list of various jurisdictions. In some of the American states there are requirements that a certain number of signatures must be gathered in each county in the state or in each electoral district in the state. A very tough example is in the case of Nevada, where at least 5.5% of the population in two thirds of the counties must sign the petition in order for it to be effective.
The ostensible reason for doing this sort of thing is to ensure that you don't get questions of purely regional interest on to the ballot. This is somehow supposed to be a bad thing, and I have two comments to make on that.
The first is that this argument is objectionable. Why is it illegitimate for an issue that falls within provincial competence but is only of interest or is primarily of interest to people in one part of the province not to be brought to the attention of the people of all the province? It's illegitimate for such a measure to be passed into law if it actually hurts the interests of people in other parts of the province, but if in fact one part of the province has been left out of the process of representative democracy, it has been frozen out of the governing caucus, then it may well be that direct democracy is the only way it can get these issues on to the ballot. Of course we have this situation in Ontario now that once you go north of Parry Sound and North Bay, there are no MPPs in the government caucus, so perhaps this would be an alternative form of representation. A similar comment could be made about western Canada in the last Trudeau administration or of Quebec during the Clark administration, that an initiative would have provided an effective way of voicing their concerns.
Secondly, it seems pretty clear to me that the real function of geographical restrictions is either to make it impossible to get a question on the ballot at all -- and I cite as an example in my background material British Columbia's 1919 initiative legislation which required that 10% of signatures be gathered and I think it was three quarters of the constituencies of the province. That was intended to make sure that nothing would ever get on the ballot.
Or sometimes it's put on to make sure that certain regions will be shut out. I offer in the case of Nevada that the goal seems to be to ensure that the two urban counties cannot get anything on to the ballot without the rural counties giving their approval as well. Again, I find that hard to accept as being legitimate.
With regard to the question of overall thresholds, this is the most important question. What percentage of the voting age population should sign a petition in order for it to be valid? I'm somewhat distressed to find that most of what has been written in Canada on this subject is factually incorrect.
When I was involved in the Reform Party's Task Force on Direct Democracy one of my jobs was to try and establish a percentage that would be good for Canada; we eventually settled on 3%. What I discovered in the process of researching the numbers in Switzerland, and particularly in the United States, was that the percentages that are used and cited are very deceiving. There are two reasons for this.
The first is that normally the legislation will state that X per cent of the voters who participated in the previous election for governor, or sometimes for Attorney General or state Supreme Court justices, whatever, some percentage of participating voters must sign the petition. Remember that in the United States, and particularly in state-level elections, the voter participation rate is much lower than it is in Canada. On average it's 50%, and in some cases it's less, whereas here in Canada 70% to 80% is typical. When you set, say, 10% down in the States and then you look at 10% up here, you're really talking about a number which is substantially larger in Canada. It's a much tougher threshold to hit.
Secondly, sometimes these things are discussed in terms of registered voters, what percentage of registered voters ought to be required to sign a petition. Again, voter registration American style is very different from door-to-door enumeration Canadian style. The numbers are much lower in the States and therefore the numbers appear to be higher than they really are. If we follow their example, based on this we will find that we're setting much tougher thresholds than we intended.
The 3% which the Reform Party has advocated is actually, if you look at the list I've provided, typical for an American state. It's substantially higher than California, where it's 1.9%; that's the lowest in the States; actually Colorado, at 1.8%, is the lowest in the United States. It's higher than it is in Switzerland. It's lower than it is in Illinois and Wyoming, which are the two states cited earlier, at 10%. Should we choose to follow their example, I think we can safely assume that just as Illinois and Wyoming never have initiatives, neither will Ontario.
I don't know how I'm doing for time here. If I've got enough, I'll go on to talk about California. If not, I can cut it off there.
The Chair: You've been speaking for about 15 minutes. Some committee members may have questions.
Mr Reid: Let's go to them.
Mr Bartolucci: Mr Reid, are you saying then that there should be no time limit to the opportunity to gather signatures? What is a preferable time limit, in your estimation?
Mr Reid: As a matter of practice, I think once you get above one year it doesn't really matter whether you have a time limit or not, and that's simply because if you haven't been able to raise the number of signatures in a year, it indicates that you probably don't have the level of popular interest and the organizational support to do it. You can imagine trying to run an election campaign for a year and have volunteers involved. Clearly, that's something that's not workable.
I personally would not put on a limit of any sort, the reason being that one of the processes that happens when petitions are being put together and signatures are being gathered is that these are then submitted to the chief electoral officer, who takes a representative sample and then proceeds to call people up randomly. What will happen is that you'll get a certain number of people who, when they're telephoned, will say either (a) "I don't remember signing that," and their names are stricken off, or (b) have moved and therefore no longer can be considered a valid signature, and those names are struck off. They then take whatever number of false signatures that have been collected, say, 5% or 10%, and they apply it to the whole thing and say: "Okay, you require 100,000 signatures. You've only got 90,000 that are valid. Therefore, the petition fails," or whatever. If you wait a long time and you have signatures that are two or three years old, what would happen is you'd get a high number of negative signatures coming back, so the result would be simply that you'd have to compensate by having a very large number of signatures gathered. It's a self-correcting mechanism.
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Mr Bartolucci: With regard to a particular issue for a referendum, should there be any guideline set in legislation to ensure that frivolous ideas will not make it to the referendum stage?
Mr Reid: What we've proposed in the legislation that we've put forward -- Ted White will be making a presentation on this tomorrow and I believe he'll have a copy of his private member's bill available for you to look at. One of the things you will see in there is something we call the Referendum Review Council. This is a judicial body of selected justices taken from the Supreme Court of Canada or the Federal Court of Canada who will sit in an odd-numbered panel and review each proposed piece of legislation as it comes forward, and they will judge it against certain criteria: Is it an omnibus bill? Is it ultra vires or intra vires? Does it contravene in some way the Charter of Rights? If it does not meet with the right criteria, it will be stricken from the ballot and not permitted to go forward.
Mr Wildman: I'm interested in your comments about Nevada. Perhaps I could pose a somewhat hypothetical situation, but there is an example in Ontario. The protection of old-growth forests is a large issue. Some might suggest that many urban people -- I don't know whether this is true or not -- would be very much in favour of protecting old-growth forests. So conceivably a group could put such a question on the ballot, and yet a particular area of the province would be most affected. In Ontario you might point to Temagami, for instance. Representing an area of northern Ontario, I have often heard the argument put forward by northeners, who are a minority, that they should not have urban people from southern Ontario deciding their fate. It has been suggested in the discussion we've had and in the paper that perhaps in these kinds of situations a double majority should be required. How do you respond to that?
Mr Reid: If there's a case for a double majority, it should be at the far end of the process, when the actual voting is going on. If there are certain issues that you anticipate are likely to be the sort of things where a special majority of some nature is appropriate, one ought to try and classify those in advance. We had to go through this process working at the federal level, as we prepared our own referendum draft legislation, because of course you have certain issues that are simple legislation at the federal level and then you have the question of what's the Reform Party's policy on constitutional amendments? We're in favour of a referendum process on all constitutional amendments, but are we in favour of some form of special majority? We are. Something similar ought to go on at the provincial level where you'd sit down and ask, are there special areas of question that are so important or so sensitive or so regionally sensitive that there ought to be some kind of double majority required?
I suggest that being done at the front end simply because it seems to me when you get to that point, trying to decide whether we should go ahead with a referendum on this issue or that issue, there will always be some group pushing for the double majority, because that's more likely to make it difficult to pass, and another group pushing the other way. You won't have a very honest debate about the whole thing at that point.
Mr Wildman: Wouldn't you be able to avoid that by simply following, perhaps not the Nevada example lock, stock and barrel, but by requiring that, whatever your threshold is, it be a threshold across the province or in a number of regions of the province so that you could not have a situation where people in the greater Toronto area, for instance, who might be very concerned about a provincial issue, could get something put on a ballot despite the fact that it might not directly affect them in ways that it would affect rural ridings, and yet the rural ridings would not necessarily have as many people?
Mr Reid: I have two comments on that. First of all, when tyranny of the majority exists, it can exercise itself quite effectively via representative institutions as opposed to direct democracy, and so I suspect, if people of the urban areas in Ontario acted either rashly or insensitively towards the rural areas, there's a good chance they would simply do so through our representative institutions.
Mr Wildman: We avoid that in Ontario and in most representative institutions by having rural votes worth more than urban votes. It takes fewer people to elect me than it does to elect a downtown Toronto member.
Mr Reid: I'm outside my area of knowledge when it comes to the breakdown of Ontario ridings, but I think the point can be made at the federal level by observing how during the Clark administration there were only two Tory MPs from Quebec, a very important area of the country and how during the last Trudeau administration there were only two Liberal MPs from western Canada. You had a serious problem, which could have been overcome to some degree, of the government passing insensitive legislation. I'm thinking here of NEP, for example. Had there been a method for those areas most greatly affected, Alberta in particular, and to some degree Saskatchewan, if they had been able to carry out an initiative, get something on to the ballot, bring it to the national attention, I'm not sure what would have happened, but it would not have been worse for national unity than the actual outcome, which was the rise of western separatism at a time in our country when we really couldn't afford that sort of thing.
Mr Wildman: In your experience and research, have you come into contact with a situation which I'm told is developing in some parts of the United States, such as California, where there actually are professional firms that a group can hire to obtain valid signatures to get an initiative on the ballot?
Mr Reid: Yes, I'm very keenly familiar with that. That is more a California problem than anywhere else in the United States, although it does exist to a minor degree everywhere. In the United States, it's legal to pay people to collect petitions. Some people have talked about banning that practice in Canada, although you've got to be careful when you do that. You have to be able to pay people for their expenses or else the little old ladies and retired people and volunteers who want to go out and help will be forced to pay out of pocket. That's the root of the problem in the States.
The other thing that's very important in California that sets it apart, and this is really a California problem more than anything else, is the fact that all legislation that is passed by initiative in California becomes a de facto constitutional amendment; that is, it cannot be changed, repealed or amended in any way by the Legislature. It must go to another referendum to be changed.
The stakes are very high. I offered the example in the last page of notes of a particular piece of legislation in California that allowed the lotteries, but the legislation was worded in such a way that ensured only one company would qualify to provide the necessary tickets for the lottery, and that company gave 88% of the funds necessary to gather signatures. But that is a very specific problem. They wanted to get that legislation in. Had it come in Ontario, such a situation, what would have happened is that the Legislature would simply have repealed the legislation or changed that section of the legislation, but in California they had to wait several years so they could go back, have a referendum and remove those provisions. Meanwhile, the money was made back by the company.
Mr Wildman: I guess special-interest groups are very adaptable and can adapt even to referendum legislation.
The Chair: Thank you very much for your presentation. That concludes our witness list for today. There are a couple of things I'd like to remind members of.
Mr Clement: What happened to Donn Carr?
The Chair: I'm sorry; he didn't show this afternoon. We start our hearings tomorrow at 9 o'clock sharp. Tomorrow afternoon we're in the Whitney Block, and again I would ask members to refer to the updated agenda for the room. We're going to be in room 5540 in the Whitney Block at 1 o'clock, not the previously indicated room. I want to thank all members for their insights and cooperation today.
The committee adjourned at 1720.