To referendum or not to referendum is not the only voting question

To referendum or not to referendum – that is not the only electoral reform question.  The overall issue is ensuring the review process, including any referendum, meets best-practice democratic standards.

The first important question is the makeup of the committee of politicians that will lead the public consultation.  Normally, the Liberal majority would mean a majority of Liberals on all committees.  However, no more than half the committee should be Liberal MPs to ensure they can’t just push through whatever system they want.  The Liberals should have no concerns about giving up their majority on the committee given that Liberal House Leader Dominic LeBlanc has said voting system reform should have “broad support in Parliament.”

Some claim the Liberals have made it clear committee hearings will be the only consultation process.  It doesn’t seem that clear though, and if they have they should reconsider because hearings alone will not amount to meaningful consultation.

The committee should also undertake a “deliberative judgment” process as the “national engagement” process the Liberals have promised, as it is the best practice for meaningful public consultation.  Either several meetings should be held of a large citizen assembly (as B.C. and Ontario used in the past to review their voting systems) or of small focus groups across the country.

In either case: a randomly selected, demographically representative group of Canadians should be consulted; with public servants or independent, non-partisan organizations coordinating the process; politicians and officials from all political parties prohibited from participating in any way; an integrity auditor to hear complaints about violations of process rules, and; details about the process and results all reported publicly before any policy decision is made.

As the Liberals’ platform promised, the process should cover “a wide variety of reforms” – including the right to vote none-of-the-above (as voters in Alberta, Manitoba, Ontario and Saskatchewan can do by declining their ballot), and the right to file complaints and have politicians penalized by an independent watchdog for unjustifiably breaking election promises.

As well, when the deliberative judgment process is ending and people are asked what changes they support (if any), best-practice methods should be used to record their choices.  These methods don’t offer take it or leave it choices (which can be easily biased) but instead let people indicate the level of their support of various options.

That public consultation process, done properly, can produce a roadmap for change (if change is supported by most people) that is as democratically legitimate as a referendum result.

The difficulty with a national referendum in a federation is the rules.  What proposal should be on the ballot or should there be multiple, detailed proposals?  Should a minimum national percentage of voters be required to vote – or in each province or each region?  Should politicians be allowed to campaign, using their public office funding and travel perks, or not or should their parties have to pay for any campaigning they do?

If a referendum is held, a strong argument can be made, given sections 37, 51, 51A and 52 of the Constitution Act, 1867 guarantee a specific percentage of seats in the House of Commons from each province, that at least a majority of voters in 7 out of 10 provinces representing 50% of the total population should be required to approve any proposed change.

If a referendum is not held, the same approval requirement should be applied to any other type of vote on any change proposal.

The federal Referendum Act – enacted in 1992 for the Charlottetown Accord referendum and for any future referendum on constitutional issues – only requires a simple majority at a national level.  It also has other undemocratic flaws that need to be corrected.

For example, the Act democratically limits spending by individuals and groups (although the spending limit measure is unclear as it has not been properly updated), and it requires them to register as a “referendum committee” if they spend more than $5,000. However, it undemocratically allows for unlimited donations from businesses, unions and other organizations to the committees, and allows the committees to collude with each other.

This would allow businesses and other wealthy interests to set up many committees, and fund them all to spend the maximum allowed.  In 2004, the Supreme Court of Canada upheld limits in the Canada Elections Act on interest group advertising spending, and colluding, during elections specifically to prevent wealthy interests from dominating a campaign.  Similar limits should be in place for any referendum.

Only by following best-practice democratic processes will federal politicians make the best, most widely supported, changes to our voting system.  Canadians deserve such processes, not only for voting system reform but also for all the other real changes promised by the Liberals, and not just because it’s 2016 but also because such processes are the only way that the Liberals can fulfill their promises of a government that “better reflects the values and expectations of Canadians” and that “trusts Canadians” and makes “evidence-based” decisions.

by Duff Conacher

Duff Conacher is the Co-founder of Democracy Watch and a Visiting Professor at the University of Ottawa