Forcing Choice: The Risky Reward of Referendums

Forcing Choice: The Risky Reward of Referendums

by J. Patrick Boyer

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Overview

The Hill Times: Best Books of 2017


What happens when crucial public issues are decided the people themselves?



Canadians answered “Yes” or “No” to prohibiting alcohol, conscripting soldiers, and revamping our constitution. Forcing such crucial choices at the ballot box is high-stakes democracy, both here and overseas — as witnessed with Britain’s transformative 2016 “Brexit” referendum.



Forcing Choice dissects Canada’s extensive use of ballot questions at all levels of government, and weighs the benefits of citizens making fundamental decisions for the nation. Holding referendums is tricky, and getting it wrong carries a high price.



This hard-hitting book draws on Boyer’s deep research on direct democracy and his experience advising governments about referendums, writing books, drafting and introducing the Canada Referendum Act, monitoring foreign referendums, and campaigning in Canadian ones.

Product Details

ISBN-13: 9781459739123
Publisher: Dundurn Press
Publication date: 11/14/2017
Pages: 384
Product dimensions: 6.00(w) x 8.90(h) x 1.00(d)

About the Author

J. Patrick Boyer served as Canada’s Parliamentary Secretary for External Affairs, and works for democratic development overseas. He is the author of twenty-three books on Canadian history, law, politics, and governance. Patrick lives in Muskoka and Toronto.

Read an Excerpt

CHAPTER 1: HIGH-RISK DEMOCRACY

Ottawa: October 26, 1992

Television cameras are waiting in the heart of Centre Block inside the historic Reading Room. Evening blurs to night. Voting results bring surprises from Nova Scotia and Ontario, bitter chagrin in Quebec’s numbers. Ballots will soon be counted in British Columbia.

The news cameras are in here, primed to capture Canadian history in the making, because Brian Mulroney knows the importance of venue gravitas for moments of state. This elegant heritage room was made over as a vast committee room two years ago. Gone are the Reading Room’s dramas of public events and news reportage captured in 1920s murals celebrating the spirit of the printed word in diffusing knowledge and portraying the skills and pride of Canada’s printers. In their place hangs a painting of the Fathers of Confederation.

It is the 1990s, and the newspapers themselves, fewer in number, are entombed in a smaller room a floor below along the north corridor. Now the people’s elected representatives mostly receive only a small daily fix of printed news, a second-hand pastiche of articles in French and English from Canadian papers clipped by Commons research staff and reproduced on a dozen or so letter-sized sheets of white paper entitled Quorum. Everybody nowadays gets news from television.

Parliamentary Press Gallery reporters drift in, joining the cameramen, the soundmen with boom microphones, lighting technicians, and uniformed security guards. They check with one another, stand in sombre expectancy for a black limousine to reach Parliament Hill, resigned to wait as one must at a state funeral. They report to viewers that the PM is expected momentarily.

Producers cut to another camera panning the elevated Main Entrance to the Parliament Buildings at the Peace Tower’s base. People are there. The pavement is empty. It is now almost midnight. Producers cut away from the vacant parliamentary stage, ready to return for the leading actor’s appearance. They restore viewers to ongoing coverage of referendum results as they become breaking news, the people’s verdict in a country-wide vote on far-reaching constitutional changes.

Studio anchors bridge to the latest numbers in today’s astonishing results. We get an update first from British Columbia, where the No vote is climbing higher as more polls report.

***

It has taken more than a quarter century to get to this night, a mostly wearisome, intermittently tension-filled roller-coaster ride for Canadians. We’ve been captive spectators watching the country’s political class waltz through interminable conferences discussing makeovers of our Constitution.

It began after the Second World War when Quebecers resumed their perpetual mission to preserve French-language culture in North America’s swollen sea of English speakers. The 1867 Constitution enshrined this imperative by ensuring education and social programs remained a provincial jurisdiction so that Quebec, though not home to all French-speaking Canadians, could at least be “master of its own house” where a majority of Francophones lived.

During the economic depression of the 1930s and the world war of the 1940s, Ottawa used emergency powers and instituted programs in provincial jurisdiction, using a new key called “the federal spending power” to unlock this entrance and extend federal control over social programs and other fields of provincial responsibility. Federal consolidation of power even included a constitutional amendment that transferred provincial responsibility for unemployment insurance to Ottawa.

Predominantly English-speaking provinces, especially the poorer ones, welcomed any new spending by the national government because it saved money they didn’t have. Quebec, however, to fulfill its almost primordial mission, had to return to the Constitution’s original plan. It was not a radical move but a profoundly conservative one: respect the Constitution, end “temporary” wartime measures, and get Ottawa out of provincial jurisdictions.

This was interpreted elsewhere across Canada as “unrest” in Quebec. It puzzled most Anglo-Canadians, some of whom also melded anti-French bigotry into their complaint about Quebec wanting “special status.” So Ontario Premier John Robarts, fancying himself a latter-day Father of Confederation, convened his nine fellow premiers in Toronto for a November 1967 “Confederation of Tomorrow” conference, acting as if it were still the 1860s and organizing a new federal state was a concept waiting to be teased into proper shape from scratch.

John Robarts was probably the only twentieth-century Canadian premier who had read The Federalist Papers , a record of American constitution-makers debating how best to structure powers of state, and one of the few to be candid about what made him tick politically: “I’d rather govern than be governed.” To reinforce the Ontarian’s fantasy universe of ten principalities having carte blanche to fashion a Confederation of tomorrow, Premier Robarts pointedly did not invite Prime Minister Lester Pearson. His presence would have reminded the premiers that an actual living person was in charge of a nation already a century old.

Quebec Premier Daniel Johnson, a conservative man, outlined in a luncheon address to Toronto’s Empire Club how cultural and constitutional imperatives of French-speaking peoples in Canada led to this impasse. Then he told the other premiers, facing them around a conference table on the top floor of the city’s newest sky-scraping bank tower, they had to revisit Canada’s Constitution because for Quebec it was égalité ou indépendance , “equality or independence.” Equality had been the original bargain, with linguistic rights, political representation, and double-majority rules, and since 1875, a supreme court with three Quebec judges to accommodate the province’s long-embedded civil law system with a three-member panel of justices, the same way common law provinces get an odd-numbered bench to decide their cases.

For the next quarter century, constitutional negotiations then ran through the Victoria Charter constitutional agreement, the constitutional package negotiated by Prime Minister Pierre Elliott Trudeau with ten divergent premiers to add a Charter of Rights and Freedoms and an amending procedure to the Constitution, and next the Meech Lake constitutional accord negotiated by Prime Minister Brian Mulroney to address the fact that the Trudeau accomplishment had excluded Quebec. After that came the anguishing three-year death throes of this agreement because the Mulroney government refused to promptly ask in a national referendum if Canadians agreed with the Meech Lake Accord’s five clear points. The traumatic death of Meech was followed by resurrection of constitutional negotiations that produced wholesale changes by 1992 in the Charlottetown Accord, itself touched up with even more tweaking in Ottawa by the Langevin Agreement.

Over those twenty-five unrelenting years, Canada’s governing class had increasingly sought to “constitutionalize” the country’s political issues through this self-reinforcing alternate vehicle of so-called “executive federalism” with “first-minister” conferences, rather than address and resolve problems through normal politics in our legislatures or, for really big questions, force a specific choice at the ballot box. By the time this unstoppable locomotive hurtled into the early 1990s, every Canadian issue of significance had been sucked into its vortex.

The same government that brilliantly negotiated an executive agreement at Meech Lake in 1987 dismally misunderstood the statecraft of gaining constitutional ratification. By not taking the risk of a referendum, it failed to claim its reward. By 1992, Brian Mulroney’s government had no choice except to hold a referendum on the infinitely more complex Charlottetown Accord.

This nationwide referendum on the Constitution had not arisen because Ottawa finally grasped the necessary role of participatory democracy and citizen ratification of major constitutional change, but only because three major and democratic-minded provinces were submitting this fundamental change to direct vote of their people. British Columbia, Alberta, and Quebec had each enacted statutes requiring a province-wide ballot question on any proposed constitutional change before the people’s elected representatives in their legislatures themselves voted to formally approve or reject the measures. Unless Ottawa itself embraced this normal democratic procedure, the country would have two-tier citizens: those with a right to vote on changing our Constitution, and those denied that right.

Prime Minister Mulroney had accepted inevitability. Just three days earlier he’d told the Globe and Mail ’s editorial board, “I always thought, quite frankly, that under the British parliamentary system a referendum was a kind of abdication of responsibility.” He’d changed his mind over the years, he said on October 23. “I’ve come to recognize that in a modern, pluralistic society like ours, people do indeed require a much greater degree of participation than a kick at the can every four years. And they have proprietary rights in respect to the constitutional document. And that indeed there should be public consultation and the ultimate in that is a referendum.”

Tonight the historic price exacted by his failure to be “converted” five years earlier, at the time of Meech, is being doubly paid by the PM’s still incomplete grasp of the referendum process. It is a condition extending far beyond Mulroney himself, involving, too, most of his cabinet and Ottawa’s political establishment. The democratic instrument Canada’s prime minister has belatedly embraced is designed to separate policies from personalities. Brian Mulroney, who’d invested so much political capital in herculean constitutional bartering to create this dense thicket of amendments, saw the Charlottetown Accord as one of his crowning achievements. It just had to get implemented. And our PM knew himself to be one of the best election campaigners in Canadian political history.

Growing desperate over the Yes campaign’s lacklustre effort, he’d heroically flung himself into a crusade for ratification. It was a push for victory that ironically paved the way to defeat. His intense identification with the Yes side coloured voters’ evaluation of the accord because Brian Mulroney’s low personal standing with Canadians by 1992 diminished objective consideration of the changes on their own merits.

Reporters continue to stand by for the PM to address the nation. They know it will be grim. The verdict is being excruciatingly revealed, from east to west, through the country’s four-and-a-half-hour spread of time zones. Even by the time ballots were counted in Atlantic and Central Canada, it seemed the accord’s future all lay behind it.

Table of Contents

Foreword by Peter Russell

On Democracy

Preface: A Word About Words


1 High-Risk Democracy

2 Anvil of a Self-Governing People

3 Our Own Democratic Landscape

4 The Sovereign People of Canada

5 Referendum Law Normalizes Democratic Life

6 Referendums in Harmony with the Constitution

7 Charter Protection of Minority Rights

8 Just What Constitutes a “Majority”?

9 No Such Thing as “Direct Democracy”

10 Referendums and Elections: Alike, Yet So Different

11 “Mandates” from the People

12 How Hard Is Asking a Clear Question?

13 Aren’t Some Issues Just Too Complex?

14 To Vote on the Principle, or the Package?

15 Continuing Adult Education

16 Referendums Reveal, Do Not Create, Divisions

17 Voting on Democracy

18 Voting to Ratify, Join, and Subdivide Confederation

19 Voting to Break Confederation: Round One, 1980

20 Voting on Confederation’s Makeover: Getting to the Charlottetown Accord

21 Voting to Break Confederation: Round Two, 1995

22 Voting on Prohibition

23 Voting on Conscription

24 Voting on Aboriginal Questions

25 Voting on Women’s Rights

26 Voting on Food Supply Issues

27 Balloting on Everything from Time of Day to a Fixed Link

28 Democratic Accountability Through Municipal Ballot Questions

29 Canada’s Place in a Universe of Referendums

30 Rewards of Citizen-Centred Democracy


Appendix: Canadian Ballot-Issue Votes: National, Provincial, Territorial

Acknowledgements

Notes

Bibliography

Index

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