Charter Protection of Minority Rights
Safeguarding minority rights in referendums is of a piece with our larger democratic framework of majority rule with protection for minorities. Canada’s history shows the risk to minorities has been greater from laws enacted by legislatures than from any questions asked in referendums. But 1981’s constitutional entrenchment of a Charter guaranteeing rights and freedoms of individual Canadians ushered in a new universe in which neither legislative action nor referendum question can trump the standing of minorities.
Today, any catechism against referendums that includes “the danger to minorities” not only ignores our Canadian experience with ballot questions but more importantly fails to recognize the dramatically new era of “Charter” Canada that has existed for more than a third of a century. Our constitutional reality, not lingering fears from other countries and earlier eras, should allay the fear of ballot questions as an instrument for minority suppression.
Even so, constitutional protection of minority rights mustn’t give rise to complacency. Any question pertaining to Canadians who might be subject to discrimination on any of the prohibited grounds specified by Section 15 of the Charter — race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability — or such additional grounds specified in human rights codes as sexual orientation, must be monitored and addressed. The ongoing work of the Canadian Civil Liberties Association and others supports this “eternal vigilance” as the price of our liberty.
Five case studies in this chapter from our history and current events — involving linguistic minorities, religious minorities, and racial minorities — underscore this raw reality about referendums.
French-Language Minority Rights in Manitoba Municipal Referendums
Acrimony spread across Manitoba in 1983 over use of the French language. No province-wide referendum took place, but nearly thirty municipalities, which together contained a majority of Manitobans, asked voters, in conjunction with their October 16 council elections, about French-language services. The ballot question was ambiguously worded, challenged minority linguistic rights, and was beyond municipal jurisdiction to deal with.
As such, this 1983 event is a case study not only about ballot questions on minority rights but, more broadly, it is also a lesson about the risk when referendums are wielded unwisely. It’s a microcosm of Canada’s enduring challenges for English-language and French-language services and minority rights. And, like all contentious matters focused by a referendum, background is key to the story.
When it was created a province in 1870, Manitoba’s two official languages were French and English. However, in 1889, Manitoba Liberal Premier Thomas Greenway had the provincial legislature pass measures removing the right to use French in courts, the legislature itself, and other forums and circumstances. Next, in 1890, the Liberal majority audaciously legislated English as the province’s only official language. These enactments went unchallenged by Liberal Prime Minister Wilfrid Laurier, despite Ottawa’s power of disallowance in an era when that constitutional provision was still being invoked to set aside or “disallow” provincial statutes the federal government deemed unconstitutional.
The issue smouldered; most of a century passed. Then one day a speeding ticket was issued to Robert Bilodeau of St. Boniface. Bilodeau’s blood boiled to see an English-only ticket in his francophone city. Being a lawyer, he decided, rather than pay up, to challenge the ticket’s validity. Contesting the underlying validity of Manitoba’s English-only laws themselves, his case got all the attention it deserved.
While advancing through the courts toward the Supreme Court of Canada, Bilodeau’s challenge spread into the political arena. In May 1983, Premier Howard Pawley unveiled plans to amend the province’s constitution by declaring French and English the official languages of Manitoba, confirming as valid all Manitoba laws enacted before the end of 1985, requiring new statutes to henceforth be in both languages, and completing a bilingual general revision of statutes before 1994. As well, he announced that from 1987 onward every Manitoban would have the right to service in English or French from the main offices of government departments, courts, quasi-judicial bodies, Crown corporations, and government agencies. Also, such service would be provided in local government offices whose nature made bilingual service reasonable and where significant demand warranted. Finally, the amendment would define and restrict the province’s obligation to translate its statutes into French. These dramatic changes had been agreed upon by the federal government, the Société Franco-Manitobaine, and Robert Bilodeau who, if still not happy about being charged with committing an infraction, was grateful that he’d challenged the unilingual ticket. Those three parties, and the NDP provincial government, all recognized that ameliorating steps taken in advance of a Supreme Court decision might more satisfactorily address the long-smouldering issue of French-language rights in Manitoba.
However, when word of this plan became public, anti-French backlash spread. The provincial government responded to the criticisms, saying it would modify the amendment by curtailing the official status of the two languages, deleting reference to main offices, modifying the test of “significant demand,” and ensuring existing rights to use other languages. During the intense summer heat of 1983, Manitoba’s legislature ground to a halt with a series of Opposition walkouts until the premier reversed his earlier decision to not hold public hearings. As soon as they got under way, the meetings became a political disaster for the government. Most testimony was “hostile to the planned amendment, often expressed in the strongest possible terms.”1
For October 16’s council elections, more than thirty municipal jurisdictions, including Winnipeg, where more than half of all Manitobans reside, a ballot question on the issue was handed to voters. In most of these municipalities, the government’s French-language proposal was rejected by margins of three to one or four to one, though in some, as high as sixteen to one. In Winnipeg three-quarters of voters opposed Manitoba entrenching French-language services in the province’s constitution. Turnout at the polls was 52 percent of eligible voters. Usual municipal participation in council elections was about 29 percent.
“The result,” said Manitoba’s attorney general, Roland Penner, “was not unexpected.” He discounted the outcome, noting it was not binding on the government. Penner reiterated that “minority language rights should not be settled by a popular vote of the majority.”2
The municipal voting on Manitoba’s provincial linguistic policy illustrated what not to do when it comes to referendums. First, municipalities inexcusably strayed outside their jurisdictional powers, just as municipalities in Canada have held ballot questions on declaring themselves “nuclear-free zones” — a much-coveted state to achieve, but beyond any municipal council’s powers to bring about. Second, by initiating a democratic process knowing it wouldn’t produce a concrete result, these municipalities made a mockery of referendums as a proper means for citizens to participate in governance.
Third, and most serious, this setup was an attack on minority linguistic rights, which Anglican, Jewish, United Church, and Roman Catholic leaders jointly condemned as “deeply undemocratic.” Respect of minorities, they declared, “is the very essence of democracy,” admonishing that “a referendum or plebiscite is not an appropriate means of determining minority rights.” Dr. Victor Goldbloom of Montreal, president of the Canadian Council of Christians and Jews (and subsequently a member of Quebec’s National Assembly, provincial cabinet minister, then official languages commissioner for Canada), was the group’s spokesperson. He advocated “durable protection” for minority rights that would not be “subject to the opinions which may prevail at a particular time in a particular part of the country.”3
A fourth bad thing about the referendum was the shoddy ballot question. Wording in most municipalities violated even basic rules of fairness and simplicity. Winnipeg’s, which was typical, asked: “Should the provincial government withdraw its proposed constitutional amendment and allow the Bilodeau case to proceed to be heard and decided by the Supreme Court of Canada on the validity of the English-only laws passed by the legislature of Manitoba since 1890?”
Don Sellar of Southam News called it “legalistic in tone, double-barrelled in construction, and dynamite in content.”4 Voters were asked to agree with two statements at the same time: that the resolution to amend the Constitution be withdrawn, and that the Bilodeau case proceed to the Supreme Court. U.S. courts rule, in advance of voting, on a ballot question’s constitutionality by applying the “single-issue” test: a ballot should ask but one question, and deal with just one issue, because a voter can only give a single answer, Yes or No.
Confusion resulting from not even asking a clear question made the exercise more farcical. Pollster Angus Reid surveyed six hundred Winnipeg voters for the CBC, finding confusion so widespread “all sides of the issue can claim a victory on election night with this question.” Some 32 percent of Yes supporters believed they were endorsing entrenchment of French-language rights in Manitoba; 34 percent of No voters believed they were doing the same thing.5
The language issue attracted national attention. The House of Commons passed a resolution, with support of all three national parties, endorsing the Manitoba government’s proposed constitutional amendment. Across the country, editorialists evaluated the process and its outcome. Canadians have “seldom distinguished themselves in matters of language,” said the Vancouver Sun. “It brings out prejudices greatly out of proportion to the amounts of money and inconvenience involved.” Such a referendum, the newspaper suggested, would probably have produced similar results in British Columbia, Saskatchewan, or Yukon, where extension of French-language rights was also being sought, adding, tit-for-tat, that many Quebec leaders seemed “less than cognizant of English-language rights” in seeking to preserve the French language. “Referendums are a bad way to make public policy,” concluded the Sun, “especially when it comes to protecting minorities.” The Windsor Star, noting that the municipal balloting was orchestrated by opponents of the government’s plan with intent “to embarrass the government,” said it had backfired because “it is the electorate which is being embarrassed in front of the rest of the country.”6
Those municipally run ballot questions on provincial policy for French-language services in Manitoba demonstrated a “potential danger” of referendums even though the exercise had no legal consequences. Every democratic instrument, referendums included, must be used with intelligent care and be opposed when that isn’t the case.
Aboriginal Rights and Community Rights in the Northern Quebec Referendum
A 1987 referendum in “Northern Quebec” took place in territory the province acquired in 1912 when its boundaries were extended into the Arctic to encompass land populated by Inuit peoples and by one Cree community on the eastern shore of James Bay. The largest of Quebec’s seventeen administrative districts, Northern Quebec constitutes 55 percent of the province’s land surface, its people dwelling in fourteen widely scattered villages. Beginning in the middle of the twentieth century, non-aboriginal people also moved into the region. The 1987 referendum not only dealt with aboriginal self-government but also became a landmark event leading to the creation of Canada’s third self-governing territory, Nunavut, a decade later.
The saga of this ballot question began with the James Bay and Northern Quebec Agreement of 1975, enabling Hydro-Québec to resume its electricity-generating megaproject, halted by aboriginal action to prevent their lands being flooded behind power dams on major rivers running into James Bay. The saw-off produced $90 million for the aboriginal peoples affected. But with the purse strings controlled by non-Aboriginals in southern Quebec, the Northerners pushed for regional government of their own so they could administer the funds and run their affairs. Besides money, the James Bay and Northern Quebec Agreement granted local government powers to the Inuit, giving rise to a municipal system by 1978. Its success, as evaluated in 1983 by the provincial legislature with Inuit participation, fuelled the drive for greater Inuit autonomy. Premier René Lévesque found it hard to dispute their quest for a mild version of “sovereignty-association.”
In 1984 a task force began working on this goal, and by 1987, agreed that the best form of autonomy would be a regional government. A constituent assembly was to determine its constitution, but disagreement over how to establish this body created an impasse. Those concerned agreed unanimously to force the choice, about forming a representative body to draft the regional government’s constitution and structure, by referendum.
With no directly applicable governing referendum law, Quebec’s chief electoral officer, Pierre-F. Côté, deployed his skills to fill the void and make the North’s first-ever referendum a success. Côté became coordinator and arbitrator between the two contending groups, Citizens for a Responsible Government led by Harry Tulugak from the community of Povungnituk, and Timiujuit headed by Simeonie Nalukturuk representing mayors and regional organizers. “Harry’s Group” wanted constituent assembly members elected by universal suffrage and financed by the local population and businesses through their taxes. Timiujuit favoured an appointed constituent assembly funded by private-sector donations. Both leaders signed, with Chief Electoral Officer Côté, a tripartite agreement establishing all rules for voting, and agreed to abide by the majority decision.7
The chief electoral officer and his staff ran the referendum according to the agreement, adjusting for northern conditions such as the vast distances between widely separated villages. A leaflet on basic principles of the referendum, and posters summarizing key stages, were posted in all fourteen communities. A “publicity pamphlet,” stating the position of each group in their own words, was printed in Inuktitut, French, and English and distributed by each village’s returning officer. A video about the referendum was taken to every village for cable broadcast, as was audio material for local FM stations, the North’s communications system consisting mainly of radio and community television stations.
With umbrella committees for the Yes and No sides, the campaign unfolded and on October 1, 1987, voters chose, by 53 percent, to have a constituent assembly whose members would be elected by universal suffrage and financed by the local population and business through taxes.8
The outcome of this “clash of ideas,” noted Rudy Paltiel, “has broad implications because it could go beyond what happens in Northern Quebec and set a new model for native self-government in Canada’s North.”9 Jean-Jacques Simard, sociology professor at Laval, celebrated the referendum as “one more step away from the concept of a purely native ethnic government.”10 Despite having differences over the form of government, the Inuit insisted that non-Aboriginals have the same voting rights as Inuit, rejecting the concept of a racially based government.
An exclusively ethnic government would shield Inuit culture and language, but as the Edmonton Journal observed, it would do so “at the expense of non-native rights.” Conversely, a “mixed government” could raise alarm in the aboriginal community. “Would the entitlements accorded the Inuit in the 1975 Agreement,” asked the paper’s editors, “be diluted if non-natives are included in future self-government plans?”11
The willingness of Quebec’s legislators to authorize this referendum enabled those directly concerned to have a say themselves. Also significant was the genuine interest of officials in the northern communities to become more adept in the use of voting procedures. The constructive, respectful approach adopted by the two northern leaders, Harry Tulugak and Simeonie Nalukturuk, who’d negotiated an agreement to fill procedural gaps in the referendum procedure and who honoured their voters’ verdict, was another hallmark. Those doubting the capacity of individual Canadians to be entrusted with ballot-box democracy can rightly take inspiration from this Northern Quebec example.
“The parties showed a clear desire to proceed in a democratic manner,” Pierre-F. Côté told Quebec’s National Assembly, “a reality in keeping with the democratic evolution of this community.” The Inuit of Northern Quebec proceeded, with a mandate from the people that included non-aboriginal voters, and with provincial approval, to set up an autonomous regional government, according to the constituent assembly’s realistic plan for “aboriginal self-government” within a public government framework. The aboriginal majority respected the rights of the non-aboriginal minority, from voting rights in the referendum through to the operation of their common government.
Minority Rights and Faith-Based Schools in Newfoundland Referendums
Two referendums on the same question in mid-1990s Newfoundland raised uncommon issues about religious freedom, secular freedom, and the rights of minorities. In seeking voter approval to repeal constitutional guarantees for denominational schools, arguments about protecting religious freedom made by the No side were counterbalanced by arguments for expanding religious freedom from the Yes side. Supporting religious freedom for some meant ending centuries-old systems that enshrined religious freedom for others. Again, historical background is needed to ground the issue.
In 1995, Premier Clyde Wells sought to get at the root of divisiveness in Newfoundland (officially renamed Newfoundland and Labrador in 2001), fostered by faith denominations antagonistic to one another — a system entrenched from children’s early years by religious education in the province’s denominational schools — which erupted in fights at elections, bloodletting brawls at hockey matches, vindictive discrimination in housing and rental accommodation, and revenge-taking in the workplace.
Newfoundland’s long saga of emphasizing religious differences through schools had begun when Anglicans first opened classrooms in the 1720s. Organized religion’s unrelenting political control of this arrangement ever since — Christian churches having the right to own and operate schools using public money supplied by the government — was enshrined in Article 17 of Newfoundland’s 1949 “Terms of Union” for joining Confederation. That made the religion-based school system a constitutional right for particular denominations. To improve education and remove denominational warfare from society, the entrenched guarantee of the churches’ rights to administer education in Newfoundland would have to be repealed.
The premier called a referendum on ending the denominational school system for September 5, 1995. The campaign highlighted controversies, but the referendum didn’t create divisions. They’d existed for decades. By 1980, as the number of adherents to Anglican, Catholic, Methodist, and other Christian religions continued to shrink, a significant number of Newfoundlanders belonged to non-Christian faiths or weren’t believers in any organized religion. For this increasingly secular and multicultural society, Newfoundland’s publicly funded denominational school system had “religious discrimination” stamped all over it in the eyes of many. Others saw it for what it also was: an inefficient antiquated structure. True believers of the established religious denominations, however, saw the arrangement as their best last bastion of religious freedom.
“The greatest single threat to equality of religion and freedom of worship is the restrictive nature of the denominational educational system,” the Newfoundland-Labrador Human Rights Association said in a 1984 brief to the minister of justice. Human-rights advocates saw denominational schools “discriminating on the basis of religion.” In 1990 a royal commission began its two-year study of the matter. Following interviews with more than a thousand Newfoundlanders in all corners of the province, it reported that 79 percent favoured a single school system for all children. The recommendation was to modernize the education structure.
The issue for the No side was “religious freedom.” Christian advocates opposed any change to their costly privileges. Zealous Catholics and Pentecostals rallied in their churches to hear god’s messengers exhort them from their pulpits like gang leaders priming before a rumble. On the streets, the devout canvassed door to door. Churches directed weekly collections of money toward high-profile ad campaigns. Bonaventure Fagan, a Catholic administrator fiercely opposing change, didn’t turn his Christian cheek or seek the brotherhood of Christ-inspired love. Catholics couldn’t “be indifferent to their system and think that they’re going to have it,” he admonished. “You have to be committed to it and have an active faith. You’re only going to fight when you’re committed.”12
It was fighting commitment, after all, that for centuries had kept faiths alive far more effectively than rituals of religious practice and hallowed worship of some nebulous divinity. The fighting ardor championed by Bonaventure Fagan elevated religion’s role through visceral social antagonism. The No side’s intense campaign for religious freedom was not about justice; it was about justification — religion as a cloak rather than a calling.
Supporters of the Yes side documented the need to change a bankrupt and fragmented school system unable to provide quality education. Non-believers emphasized their inability to get a religion-free education in Newfoundland. The province itself needed to save millions of dollars by ending overlap and could no longer justify funding four or five separate church school systems when the government had no evidence that they provided quality education. As numbers of denominational adherents dwindled, children were being bused greater distances to half-filled classrooms that were exclusively one denomination.
Overshadowing the campaign were feelings of disgust and shame about the entrenched criminal patterns of sexual abuse that had been protected and covered up by the Roman Catholic Church at Mount Cashel, a church-run orphanage where the devout brothers preyed on boys who had no way out and nobody to guard them. Evidence was now also public about the abuse and deaths in residential schools of aboriginal children that churches ran for the federal government. Growing numbers of many Newfoundlanders realized the challenge posed to society’s vulnerable members by exclusive religious institutions, and resolved to get churches out of their province’s school system.
Prime Minister Jean Chrétien began the push for Parliament to do its part, in tandem with Newfoundland’s legislature, to amend Article 17 in the Terms of Union. However, the Newfoundland government’s plan was unravelling on the ground. Its policy still allowed religious schools to operate where numbers warranted. Not only did that put an effective public school system at risk, but court challenges were also causing new problems.
After the September 5, 1995, referendum, Roman Catholic and Pentecostal school boards, upset they’d lost, sought an injunction to stop implementation of the result. In response to this, Premier Brian Tobin, who’d replaced Clyde Wells, called a second referendum for September 1, 1997. The question asked if voters agreed to amend Article 17 to enable disbanding the Catholic and Pentecostal school systems and bringing them into the public system. This time, the choice being forced was all or nothing.
Voters approved the measure by a convincing 73 percent of ballots cast. Then, after Newfoundland’s House of Assembly and Parliament passed resolutions amending Term 17, but before the constitutional amendment proclamation could be issued, another injunction was sought, this time to enjoin the governor general from making the proclamation. This application was dismissed. The amendment to Term 17 was made, underpinned by the approval of the people of Newfoundland in two referendums. By 1998 all Newfoundland schooling operated within a single, secular system.
Every young person in the province had the freedom to get a better education. Freedom to practice one’s religion by worshiping in church, synagogue, mosque, or temple — previously eclipsed by the full-bore Christian schooling system — was also enhanced. “Freedom of conscience” likewise meant, more than it previously had, enhancement of minority rights for those desiring secular education in Newfoundland but who’d been restricted to attending denominational schools.
The Charter’s guarantee of “freedom of conscience and religion,” subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” had not been infringed by removing schools from the grip of churches.
However, a third court challenge, made after Newfoundland’s schools had been integrated into a single public educational system, attacked aspects of the September 5, 1997, referendum, as well as the legal instruments that flowed in consequence of the voting outcome. Applicant Robert Hogan, in line with Fagan’s two prior cases, sought a three-part court order (a) quashing the proclamation authorizing the September 1, 1997, ballot question; (b) declaring that failure to provide government funding for the No side in the referendum campaign was an infringement of Hogan’s Charter rights under Section 2(b), Section 15, and other sections pertaining to freedom of religion and equality; and (c) declaring the 1997 vote invalid under Section 171 of Newfoundland’s Election Act pertaining to technical requirements for counting ballots.13
The Newfoundland Supreme Court refused to quash the proclamation that initiated the ballot question. It held that plaintiffs were entitled to funding for the No side. It denied a declaration that the referendum was invalid. In doing so, the Newfoundland court followed the Supreme Court of Canada’s Quebec Secession Reference decision, which held that a referendum is a democratic way of ascertaining the views of an electorate on important political questions, but it doesn’t play a legal role in constitutional amendment.14 The court emphasized legal role because it recognized that when the sovereign people vote on constitutional questions, that alone doesn’t result in the amendment taking place, but it does give a clear signal to their elected representatives in the provincial House of Assembly and Parliament about how to vote on the motions that are legally required by the Constitution’s amending procedure.
Hogan appealed this decision to Newfoundland’s Court of Appeal, but the higher court dismissed it, confirming the validity of the constitutional amendment.15 The Court of Appeal also had to deal with the lower court’s ruling, under Section 15 of the Charter, that Hogan had been entitled to government funding in the referendum campaign, a conclusion the Newfoundland attorney general had cross-appealed. It responded to this contention by ruling, “While government cannot act to restrain access to a medium, it is not required to make the medium available.”16 The Court of Appeal held that the actions of the Newfoundland government hadn’t restricted appellant Hogan’s freedom of expression, and that the government didn’t need to undertake further measures to provide funding. Thus ended the ironic saga of how religious freedom and open education could only be achieved by removal of constitutionally entrenched religious rights — following the due process of one royal commission, two referendums, three court cases, and measures enacted by legislatures in St. John’s and Ottawa. The problem had not been tyranny of the majority, but of the minority.
First Nations Minority Rights in British Columbia’s Land Claims Referendum
In the era of colonization following the arrival of non-aboriginal peoples on their lands, most First Nations in British Columbia either didn’t sign treaties, or if they did, saw them dishonoured. As a result, negotiating treaties, or renegotiating old ones, remains a current event. In the province’s diverse demographic makeup, the First Nations number some 155,000 people, or 3.6 percent, amid a total population of 4.4 million. When combined with Métis, Inuit, and individuals of mixed aboriginal identities, the total aboriginal population of British Columbia numbers 232,290 people, or 5.4 percent of all those living in the province. By any standard, the aboriginal people of British Columbia are a minority.
Several hundred bands of First Nations, from urban Vancouver to British Columbia’s remotest corners, occupy extensive territories and claim the natural resources of their “traditional lands.” The ill-defined geographic boundaries, uncertain nature of “aboriginal title” in the legal context of a land ownership system imposed under colonization, and expanding activity and presence by non-aboriginal Canadians in these territories meant these spaces became used by a wide mixture of people and companies for camps, roads, lumbering, pipelines, mining, and other private and public purposes. Although fraught with ambiguity, the matter is riddled by strongly held beliefs.
To address what since the 1800s has been called “the Land Question,” a regime is today operating in British Columbia to negotiate land claims by protecting constitutional rights while balancing unavoidable compromises. This three-part structure working to disambiguate the complex relationships embraces First Nations, the Government of Canada, and British Columbia’s provincial government. Operating this forum for negotiating agreements, and the channel for ratifying land claim treaties, is the B.C. Land Claims Commission. The stakes are high. Cultural values jostle. Negotiations resemble trying to figure out how to turn an omelette back into eggs. The process drags on over years, decades.
In 2002 Premier Gordon Campbell called a referendum on eight ballot questions to guide B.C. negotiators in developing land claim treaties with First Nations peoples. Debate began over what aboriginal rights mean in today’s context but quickly spread to controversy over whether it was appropriate, or even constitutional in terms of minority rights, for all British Columbians to vote in a province-wide referendum on principles, or issues, touching land claim negotiations. Aboriginal communities again felt threatened by an entire provincial electorate voting on the government’s stance about their claims, just as they had in 2001 when some British Columbians advocated a province-wide referendum to approve the Nisga’a land claim treaty. The Nisga’a stayed discreetly quiet in 2002 because their well-developed treaty had been concluded on a different track from the tripartite negotiating structure Premier Campbell was now addressing. However, other First Nations leaders fought back through litigation and a boycott of the referendum.
In March 2002, Chief Ke-Kis-Is-Uks of the Hupacasath First Nation at Port Alberni, known outside First Nations communities as Judith Sayers, sought an injunction to keep British Columbia’s chief electoral officer from conducting the referendum until her case was decided. Among the issues raised, Chief Ke-Kis-Is-Uks contended the Treaty Negotiation Referendum Regulation was inconsistent with the government’s obligation to negotiate treaties in good faith and in conformity with the honour of the Crown. Another argument was that the referendum about treaty principles would destroy British Columbia’s treaty process. For instance, one of the ballot questions sought to limit the inherent right of aboriginal self-government, guaranteed under Section 35 of the Constitution, by characterizing it as “delegated” and thus no different from municipal governments created by the province under provincial statute.
“As a First Nation,” said Chief Ke-Kis-Is-Uks, “we believe our inherent right to self-government is not delegated but recognized by the Constitution, and that even the powers we now possess are greater than local governance.” Because the referendum was legally binding, another of her arguments was that “a majority vote will not allow the provincial government to negotiate beyond a delegated local government style of government.”
On March 27, Justice Robert Hutchison of British Columbia’s Supreme Court denied Chief Ke-Kis-Is-Uks’s application for an injunction. Sticking to the general rules for granting this extraordinary remedy, rather than dealing with the issues of a political process, the judge said he wasn’t convinced there was a serious question in issue and opined that the irreparability of the harm was speculative and hypothetical.
The chief had also argued that racism could result from holding the referendum. Whether use of ballot questions would create racist views or rather reflect existing ones wasn’t addressed. Instead, Hutchison noted that British Columbia, at that time, comprised 3.9 million citizens of whom 139,655 were Aboriginals whose minority rights under the British North America Act and the Charter of Rights were constitutionally protected. He confirmed that nothing in the Referendum Act or the Treaty Negotiation Referendum Regulation could abrogate those entrenched rights.
Justice Hutchison found merit in the argument that “the questions are in some respects ambiguous and misleading” but added “it is difficult to see how the mere asking of eight somewhat benign questions will cause the plaintiffs irreparable harm, particularly since they have entrenched rights that cannot be interfered with.” In the end, he added, the provincial government in its negotiations “will still have to deal with the problem of those entrenched rights no matter how the questions are answered.”
While this matter was proceeding, Justice Hutchison had requested British Columbia’s chief electoral officer to hold off mailing the ballots. The very day after his decision, Chief Ke-Kis-Is-Uks submitted her application for leave to appeal to British Columbia’s Court of Appeal as a matter of extraordinary emergency, which a single judge of the Court of Appeal heard on March 28 and immediately denied. But in the intervening twenty-four hours, the chief electoral officer had delivered all the ballots to Canada Post. This enabled the Court of Appeal to say her appeal had become moot. But even if that hadn’t occurred, the court said, it wouldn’t have granted her the injunction anyway. Any question about constitutionality of the referendum, based on the vagueness of the ballot questions, it said, could be advanced “in the fullness of time in an action to prevent either the counting of the ballots or to bring about a setting aside of the whole process.”
Chief Ke-Kis-Is-Uks’s campaign to legally challenge the referendum was reinforced on April 14, 2002, by Wilson Bob and four other First Nations individuals. They applied for declarations that the Treaty Negotiation Referendum Regulation violated the equality rights guaranteed by the Charter of Rights and Freedoms and that the regulation was of no force or effect, being a law in relation to “Indians and Lands reserved for Indians,” which is an exclusive constitutional power of the federal government and thus unconstitutional as an act of the government of British Columbia. The applicants also sought an interlocutory injunction to prevent the chief electoral officer from holding the referendum, pending final disposition of their action.
Getting an injunction, which is an “extraordinary” legal remedy, requires proving that it is justified by urgency, irreparable damage about to be done, severe costs that will be incurred, and the issue’s gravity. The applicants advanced the political argument that the issue was discrimination.
At the same time that this new request for an injunction was being heard, the other legal challenge to the referendum resumed in a different courtroom. On April 16, Chief Ke-Kis-Is-Uks, having failed to get an injunction to stop the vote, renewed her campaign by filing a statement of claim seeking a judicial declaration that the Treaty Negotiation Referendum Regulation, and the Referendum Act itself, were unconstitutional.
“The purpose of the Referendum Act is to promote democratic decision-making and to elicit public opinion on specific questions,” she argued. On the other hand, she said, the referendum being held under that statute, pursuant to the Treaty Negotiations Referendum Regulation, “seeks to procure public endorsement of a mandate for conducting treaty negotiations based on principles pre-established by the provincial government, a purpose not contemplated by the Referendum Act.”
The B.C. Supreme Court heard argument in her case on May 11, and Justice James Shabbits issued judgment on June 27, 2002, denying the application and upholding the constitutionality of both the Treaty Negotiations Referendum Regulation and the Referendum Act. He said the provincial government could elicit public opinion as to what principles should guide its participation in treaty settlement negotiations. In his opinion, “the question of whether it ought to hold a referendum, and whether it has appropriately participated in the process of treaty settlements, are political matters for which it is accountable to the electorate, not to the courts.”
Justice Daphne Smith of the B.C. Supreme Court rendered her decision in the legal challenge by Wilson Bob and others, requesting an injunction and a judicial declaration about the provincial referendum’s constitutionality, on May 15. In addition to legal perspectives, she did consider political dimensions, as well.
The plaintiffs, Judge Smith noted, claimed the ballot questions were loaded, biased, and leading, reflecting a design of assimilation and ethnocentrism. They also claimed the preamble to the questions was crafted to evoke a Yes response, substantively promoting discrimination. They contended the questions were confusing, with one framed in the negative, another incorporating two questions, and a third unclear about the answer it sought to elicit. Judge Smith noted that, indeed, witnesses for both the plaintiffs and the Crown agreed the questions could have been worded better, and that wording can slant voting.
Turning to their arguments for an injunction, she found their challenge “neither frivolous nor vexatious.” Indeed, the judge deemed the constitutionality of the Referendum Regulations a serious issue, meriting further examination at a trial. However, she held the plaintiffs had been unable to show “irreparable harm,” a key test for getting an injunction. Their submissions about how reporting the referendum results could have detrimental impact — as demonstrating irreparable harm — were, in her view, theories unsupported by evidence. She concluded that the attitudes, feelings, and opinions of B.C. residents, as indicative of their propensity for racism, couldn’t be proven except by expert testimony. As for the “burden of inconvenience” needed to support an injunction, Judge Smith held that, in the balance of inconveniences, the public interest should be given great weight. Plaintiffs had to demonstrate that public interest would benefit from suspending the referendum. In the end, she saw greater benefit to the public interest in holding the referendum rather than suspending it, which she felt was justified by the province’s stated commitment to “negotiating workable, affordable treaty settlements that would provide certainty, finality, and equality.” She dismissed the case.
Meanwhile, the Union of British Columbia Indian Chiefs (UBCIC) organized an “active boycott” of the referendum. Rather than just not voting, the “active” boycott entailed electors sending their unmarked ballots in a plain envelope to collection points specified by the UBCIC, including union halls and churches, rather than mailing them back to Elections BC.
The chiefs urged this course of action, they said, because the ballot questions “are problematic not only for what they include, but also for what they exclude.” Included, said the UBCIC, were “recycled status-quo positions, which the Province has advanced to deny constitutionally enshrined aboriginal rights,” and arguments that “when advanced through the courts were resoundingly rejected.” Excluded from this provincial negotiating “mandate” being voted on, the chiefs said, was “any reference to acknowledge Crown obligations owed to aboriginal peoples, or attempt to address a century of denial of rights and title.” The mandate did not include “steps to ensure the survival of distinct First Nations within their territories by focusing on language survival, education for non-aboriginal people about aboriginal peoples, or access to higher education for aboriginal peoples.” The “right of self-determination” was entirely absent, and the ballot questions did not address, either, “how reconciliation will occur between the pre-existence of Aboriginal societies and the assertion of Crown sovereignty; how Aboriginal peoples can make decisions as to how the land will be used while, at the same time, co-existing with federal and provincial laws.”
Their ultimate justification for boycotting the referendum, said Chief Stewart Phillip of the Union of Chiefs, Vancouver, and Chief Ke-Kis-Is-Uks (Judith Sayers) of Hupacasath First Nation, was that the ballot questions asked nothing about “providing a path for Aboriginal Peoples and the Federal and Provincial governments to achieve a just resolution of the Land Question and thereby accomplish an enduring and lasting reconciliation between all parties.”17
As for votes not part of that result, the chiefs gathered for a protest finale on April 4, 2002, and in a public ceremony, burned the unmarked ballots of the thousands who’d boycotted the province-wide referendum.
For more about this critical dimension of minority rights in a referendum, see Chapter 24, “Voting on Aboriginal Questions.”
MINORITY RIGHTS OF MUSLIMS IN QUEBEC
On January 29, 2017, at Quebec City’s Islamic Cultural Centre, following evening prayers, six worshippers were killed and nineteen others wounded, shot by university student Alexandre Bissonnette, who turned himself over to police and was charged with six counts of murder. Public support of Muslims in the province immediately coalesced in vigils and rallies. Quebec Mayor Regis Labeaume asserted that the city would stand with the victims’ families. Premier Philippe Couillard ordered flags to half-mast, called for “unity,” and next day told Quebec’s Muslims “We’re with you. You are home. You are welcome in your home. We’re all Québécois.” The victims had established themselves in Quebec as Canadian citizens. They spoke French and sought to integrate into provincial life. They were a local grocery store owner, a professor at nearby Université Laval, three civil servants, and a pharmacy worker.
Their bodies were taken either to Montreal or the country from which they’d emigrated for burial in accordance with Islamic rites and cultural beliefs. Quebec has some two-hundred-and-fifty thousand Muslims, but only one dedicated Muslim cemetery, in Montreal. Religion-based burial places exist for Catholics, Protestants (various denominations), and Jews, plus mixed-denomination cemeteries, several with Muslim designated plots.
On July 16, 2017, a referendum to authorize opening a Muslim cemetery in the Quebec City area municipality of Saint-Apollinaire, on land owned by the Islamic Cultural Centre, produced a majority No vote.
Quebec municipal law permits referendums on rezoning if enough people oppose the project. Anti-Muslim elements seized on the issue to force Saint-Apollinaire’s referendum, then fear-mongered misinformation during the campaign. The only voters were forty-nine people living or working nearby, of whom thirty-six cast ballots: nineteen No, sixteen Yes, with one spoiled.
This unresolved case of religious discrimination mixing with ballot box democracy, greeted by silence or impotence of leaders whose grandiose pledges remain in fresh memory, is stark evidence of a risk with referendums and why those in high public office must match their words to actions.