Referendums in Harmony with the Constitution
Referendums about the Constitution are one thing, but how referendums fit within the constitutional regime of our country is something else. Does a referendum undermine “parliamentary supremacy,” threaten minority rights, or challenge constitutionally established roles of legislatures? Is voting in a referendum a citizen’s constitutional right?
Slicing through these topics reveals how referendums operate most of the time in harmony with the Constitution of Canada, a term that broadly defined includes the customs, conventions, and enactments of the written constitutional text as well as Canadian political and judicial institutions and processes.
The Right to Vote on Ballot Questions
A citizen’s democratic right to vote on public questions is provided in statutes enacted by the people’s elected representatives. Although not included among other constitutionally enumerated political rights in the Charter of Rights and Freedoms, such as the Section 3 right to vote for one’s representatives, the Charter isn’t a closed list and doesn’t confine our rights and freedoms so much as express most of them. For instance, the Supreme Court of Canada ruled in the 1989 Andrews case that Section 15 equality rights are available to groups even though not explicitly enumerated in the Charter. Again in 1995 in the Egan case, the Supreme Court established that sexual orientation is a prohibited basis for discrimination, despite not being specifically mentioned in the Charter. This was the same unanimous conclusion reached in 1985 by an all-party Commons committee I chaired on Section 15, in our report Equality for All, that the Charter does not constitute a closed list. Case law in Ontario more than a century ago confirmed municipal electors have a right to vote on a local matter, even in the absence of statutory authority, akin to a citizen’s “natural right” if living under a democratic system of government.
The extent of one’s right to vote on issues varies quite a bit from one province to the next. Each jurisdiction imprints its own political culture on province-wide issue-voting through a referendum act and balloting about municipal matters by means of a variety of other statutes, which deal with such issues as libraries, adding fluoride to the local water supply, or other identifiable concerns. Some enactments also specify subset categories of provincial voters for such sectoral issues as milk production and distribution, or fruit and vegetable growing and marketing.
Case law has established some protective ground rules. The right to vote on a ballot issue, as a fundamental democratic right created by a legislature, can’t be altered by a municipality or local board. In the 1929 Ontario case of Eldridge v. Southhampton,1 the court held that unless expressly empowered to do so, a municipality couldn’t itself define the class of voters entitled to cast ballots. That was a matter for the legislature. In 1958 another Ontario court ruled in Freeman v. Farm Products Marketing Board 2 that when the legislature has enacted law entitling persons who engage in farm production to vote on a ballot question, the Ontario Farm Products Marketing Board couldn’t circumscribe those rights, nor could it disfranchise persons the legislature said were entitled to vote.
Through the twentieth century this trend to statutorily codify and judicially confirm the legal right of citizens to vote on ballot questions accelerated. A particular reason was that province-wide referendums, which were increasing, required more structure than municipal plebiscites. In this drive to expand voting rights, the Direct Legislation League, which was especially active from Ontario to British Columbia, became a catalyst to get referendum and initiative statutes enacted in all four western provinces. This movement began in 1898 when South Dakota added referendum and initiative rights to its state constitution, a manifestation of the Progressive Movement then on the ascendant in response to the political and economic needs of rural areas in Canada and the United States.
This early twentieth-century quest for “direct legislation” in Canada wasn’t developing because people thought it might be nice to exercise the legislative function themselves. It was happening because they distrusted their legislatures where large corporations and powerful individuals corrupted general legislation by their self-serving interests in an era of raw political power without any rules addressing conflict of interest, let alone controlling who paid for elections. As a needed counterbalance, this new referendum power made legislation subject to ratification by the people, with necessary exceptions for tax bills, some spending measures, policing, health, and public emergencies.
In the United States, this right of citizens to initiate ballot questions by petition was becoming embedded, either in state constitutions or in statute law. In Manitoba, Saskatchewan, Alberta, and British Columbia, these measures took the form of statutes, although they could have been made part of provincial constitutions. However created, this referendum right provided people a vehicle to express their opinion on legislation before it took effect, while the power of initiative gave people an avenue to propose their own laws. In effect, these two democratic instruments made citizens a component of the legislature, because they could both initiate laws and overturn laws already enacted but not yet in force. Voting non-ratification of new law was akin to a state governor’s veto power, a Swiss suspensory referendum, or a lieutenant governor’s refusal to sign an enacted statute into law.
During the 1970s, election finance laws and conflict-of-interest guidelines removed some of the most blatant corruption from our legislatures and the backrooms of government and politics, ending the original impetus half a century earlier for these four western Canadian Direct Legislation statutes. Cleaning up elections and the legislature did not, however, remove the importance of electors having a direct say by ballot on issues of importance.
The Right to Initiate Ballot Questions
The right of citizens to initiate a ballot question has existed several times in Canada — a century ago under those Direct Legislation Acts of the western provinces, and country-wide from 1878 to 2000 under the Canada Temperance Act.
Today the only province providing a right of initiative is British Columbia. The Recall and Initiative Act of British Columbia was promised by the Social Credit government. A referendum to determine if British Columbians favoured the measure was called by Socred Premier Rita Johnston, and in 1991, it received overwhelming electoral support. Her successor, New Democrat Premier Mike Harcourt, brought forward the legislation, which became law in 1995. The initiative provisions have since been used, most notably by another former premier, William Vander Zalm, in his capacity as a private citizen, to challenge the B.C. government’s move to harmonize federal and provincial sales taxes.
At the municipal level across Canada, the statutory right of electors to petition for ballot questions on issues has remained more fully intact, although how often this right actually gets exercised ebbs and flows. In recent years, ballot issue-voting has been removed from specific statutes, and it has also been discouraged politically in municipalities where entrenched councillors with four-year terms increasingly look to consultants, more than to constituents, for guidance.
The Right to Vote on Legislation in Manitoba
Assessing the fit between referendums and the Constitution requires a closer look at what happened in western Canada. The Liberal government of Tobias Norris in Manitoba, having gotten elected on a pledge to enact a direct legislation statute, did so in 1916 but then referred the act for judicial review of its constitutionality. In the first round, Manitoba’s chief justice, Thomas Graham Mathers of the Court of King’s Bench, upheld the act’s validity.3 Then Manitoba’s Court of Appeal reversed Mathers’s decision.4 On higher appeal, the Judicial Committee of the Privy Council in a 1919 decision rendered by Lord Haldane upheld the Court of Appeal’s decision, agreeing the act was beyond the legislature’s constitutional powers.5
Manitoba’s act wasn’t judged unconstitutional because it augmented the structure of the province’s parliamentary system by enabling electors to democratically work in harmony with their elected representatives in specific qualifying cases. It was deemed unconstitutional only because provinces are unable, said Manitoba’s Court of Appeal and the Judicial Committee of the Privy Council in Britain, to alter powers of the Crown’s representative, the lieutenant governor.
The Judicial Committee’s archaic and formalistic reasoning about a narrow symbolic point allowed their British judicial minds to pivot into a realm alien to North American democratic life and Canadians’ constitutional evolution. The Law Lords in England attributed more, in the way of changed duties for the lieutenant governor, than the Manitoba statute provided. They burnished a brighter role for the monarch’s provincial representative than he occupied in the evolving democratic landscape of western Canada. They alluded obscurely to “legal theory” about the lieutenant governor yet ignored that by 1919 the political reality in Canada had evolved to the point that its government, though still technically described as being a constitutional monarchy was, in fact, more constitutional than monarchical. The right of the monarch’s representative to give Royal Assent to legislation wasn’t a real power for the Crown’s representative to exercise; it was just an honorific formality.
No lieutenant governor would refuse to sign an elected government’s law duly enacted by elected representatives in the legislature once it landed on his desk. So it was a bogus argument to contend, as the British Law Lords did, that the referendum result “renders him powerless to prevent it becoming an actual law if approved by a majority of these voters” when he was already “powerless to prevent legislation becoming an actual law if approved by a majority of” members in the legislature who are but elected representatives of those very same voters. The decision about when to send a bill for Royal Assent always rests with the government and legislature.
Even after a new statute is “signed into law” by the Crown’s representative, the elected government alone decides when, or even whether, to proclaim the statute in force. The ceremonial vice-regal signature, preserving notional vestiges of a reigning monarch still in control, has the same substantive significance as someone throwing confetti on a bridal couple after they’ve already exchanged vows and become legally married. This narrow point over a symbolic role, juxtaposed with sovereign citizens potentially approving a law, was enough to slay the Initiative and Referendum Act of Manitoba.
Albertans More Decisive on the Same Front
Albertans prevailed in a similar contest over the constitutionality of their Direct Legislation Act. When electors voted their province “dry” in 1915, voting for prohibition under Alberta’s Direct Legislation Act, Nat Bell Liquor Company contended that the Direct Legislation Act, which required that a proposed law approved by electors be enacted by the legislature, and the Liquor Act, which had been enacted in consequence of this arrangement, were both unconstitutional.
The case of R. v. Nat Belt Liquors Ltd. gained fame and Prohibition Era notoriety all the way to the final court of appeal.6 The Judicial Committee of the Privy Council upheld the legality of the Liquor Act, with the crucial implication that the Direct Legislation Act itself was also valid. Lord Sumner, delivering judgment in 1922, reaffirmed that, constitutionally, a law is made by a provincial legislature when it has been passed in accordance with its regular procedure and received Royal Assent by the lieutenant governor on behalf of the monarch. “It is impossible to say that it was not an Act of the Legislature and it is nonetheless a statute because it was the statutory duty of the Legislature to pass it,” elaborated Lord Sumner about the logical conundrum facing Nat Bell’s case. “Unless the Direct Legislation Act can be shown, as it has not been shown on this occasion, to interfere in some way formally with the discharge of the functions of the Legislature and of its component parts [meaning the lieutenant-governor], the Liquor Act, 1916, being in truth an Act duly passed by the Legislature of Alberta and no other, is one which must be enforced.”
This judgment became a landmark ruling in Canadian constitutional law as reaffirmation of “parliamentary sovereignty” — in the sense that law-making by the people’s elected representatives, when done in compliance with institutional practice and the Constitution, is not to be interfered with by judges. It recognized the primacy of a legislative body made up jointly of the sovereign people’s elected representatives and the monarch’s appointed representative. Professor Berriedale Keith, a Scottish constitutional lawyer and author of Responsible Government in the Dominions, surmised that Sumner’s view “suggests the Court would look with favour on the Direct Legislation Act if its validity were directly challenged.” This, he continued, indicated “a change of view in comparison with the treatment meted out to the Initiative and Referendum Act, 1916, of Manitoba.” The Judicial Committee’s reasoning, contended Keith, overlooked the vital point that the procedure under the act deprives the legislature of any deliberative function whatsoever and turns it into a mere machine for registering the decrees of the people. He found it “wholly contrary to British political views to treat a member of the Legislature as sent there simply to carry out the instructions of his constituents.”7
Professor Keith’s hostility to accommodating a rising form of Canadian democracy echoed the oft-quoted view, earlier articulated by Edmund Burke, that a parliamentarian is more than a mere delegate sent to do the bidding of the constituency’s electors, that he is, rather, someone who owes them, and owes Parliament and the country, the exercise of his own intelligence and independent thought. It’s a sublime theory. But even by 1916 the notion of an MP or MLA exercising independent thought had been vaporized by the iron party discipline wielded in Canada’s legislative assemblies. Keith also ignored that the legislature itself had enacted the statute by which it agreed to share and limit the scope of its law-making powers.
A different “British political view” that Berriedale Keith might more aptly have considered was the doctrine of parliamentary supremacy: if a legislature wishes to exercise its powers in a way that curtails them, so be it. Forty years after the Scotsman’s stultifying critique of provincial direct legislation statutes, the Parliament of Canada and provincial legislatures amended our Constitution by entrenching in it a Charter of Rights and Freedoms to significantly limit the way they themselves could shape a law. Not only did Prairie legislatures enact self-limiting laws in favour of direct democracy, not only did Canada’s lawmakers with the Charter rank constitutional rights of citizens ahead of the powers of legislators, but all our legislatures have created dozens of Crown corporations, commissions, boards, and agencies to which they devolved extensive powers they’d previously exercised themselves. Constitutionalists like Berriedale Keith simply provided irrelevant fodder for Canadians clinging to non-relevant British concepts, those who in adhering to the outdated Westminster model sought to suppress our democratic vitality.
Referendums Help Maintain Constitutional Operations
For the working of our institutional arrangements, the referendum also plays a helpful role in Canadian parliamentary democracy’s “due process” when issues become too hot for elected representatives.
Manitoba illustrated with the complex and inflammatory issue of prohibiting alcohol how referendums can help legislatures cope with problems too volatile to be contained within them. The provincial assembly sank deep into years of turmoil trying to find a balanced public policy on liquor. The contentious question divided the legislature, fractured the political parties, and split cabinet.
Too explosive to be contained within a “traditional” parliamentary framework, not amenable to any compromise, the liquor question went to the people for province-wide balloting. As it turned out, a single referendum wasn’t enough. But a half-dozen were, over a number of years, until everyone was sufficiently worn down by the intractable hardline positions. Except for zealous “dry” and “wet” diehards, the majority of Manitobans recognized the need for compromise, which the government and legislature were then able to achieve.
Manitobans had voted directly on liquor issues, beginning with a prohibition plebiscite on July 12, 1892, continuing in the national plebiscite of 1898, and next facing a ballot choice between alcohol’s control or prohibition on March 13, 1916. After that came a ballot question on government control of liquor sales on June 22, 1923, a round of voting next topped up on July 11 that same year by whether to ratify or reject amendments to the Temperance Act. Then followed a three-question finale about the sale of beer on June 28, 1927. Over these thirty-five years, eleven general elections took place in the province, generally clear of the divisive liquor question and more focused on a wide range of other important issues. Also over those three and a half decades, as the souring cultural experience with prohibition was being worked out with full public participation and observation, came eventual resolution that would have been impossible if the issue was confined to workings in the provincial assembly, or to parties’ election campaign stances.
The reason the referendum is compatible with our legislative system is because it complements, rather than competes with, our democratic processes.
Hoary Fear of “Mob Rule” and Tyrannical Majorities
The essence of Canadian democratic life is that majorities rule while the rights of minorities are protected.
Fear of mob rule seems a stretch in Canada nowadays, although opponents of citizens voting on important issues continue to invoke this scare tactic. When Parliament was debating a 1973 motion to hold a referendum on capital punishment, New Democrat MP Ed Nelson said the death penalty “must be decided from a logical and philosophical point of view, rather than from emotional motivation.” Then he asserted, with more emotion than logic, “This type of referendum is little more than an invitation to mob rule.” Even in 2016, the alarmist term mob rule was raised in a televised Canadian panel discussion, as if a referendum somehow brings into the streets thousands of rioting people who successfully take over the powers of government. What quality in Canadians would foster a mob surge that is absent from Californians, the Swiss, Australians, and so many others whose political culture successfully accommodates ballot questions?
A second spectre raised by referendum opponents is “the tyranny of the majority.” The rights of minorities in Canada warrant more serious attention.