No Such Thing as “Direct Democracy”
Ballot questions are intrinsically part of our constitutional practices, established democratic procedures, and the rule of law. The referendum is a valid instrument of governance in a democracy, enabling sovereign people to exercise fundamental choice about decisions affecting the future everyone will share. However, this democratic tool is not a free-standing phenomenon. So-called direct democracy, or what Canadian academic Janice Stein disdains as “pure democracy,” is nothing of the kind.
In Switzerland, constitutional lawyers use the more accurate term semi-direct democracy precisely because traditional law-making procedures remain an intrinsic part of the county’s referendum and initiative processes. Peter Stüder, editor of Zurich’s newspaper Tages-Anzeiger, describes his country’s ballot-issue procedure as “a unique combination of representative and direct components.”1
That’s also true in Canada. Although semi-direct democracy is too cumbersome for everyday speech, it correctly defines the reality of all our referendum procedures. Voting in which citizens play a role deciding issues or enacting laws only occurs in concert with our elected representatives. Rather than posing any challenge to representative democracy, this partnership expands and enriches it.
Partnership Between Citizens and Elected Representatives
Canadians who denigrate referendums, saying “our legislators should not abdicate responsibility,” betray their embarrassingly shallow knowledge of what is really going on. Legislators remain intrinsic to the referendum process every step of the way.
The referendum process is conducted entirely within a statutory framework enacted by legislators. The right to vote on a ballot question, or even to initiate one, is conferred only by statute, no other source. Whether it’s the Canada Referendum Act as debated, studied, and made law by Parliament, or a similar provincial statute enacted by a legislature, these deliberately constructed laws guide, regulate, and contain the exercise of ballot-box democracy.
This power to confine the debate, and thereby direct people’s thinking, is in the hands of the elected representatives, not the people themselves: wording of the ballot question is approved by votes of elected representatives.
Balloting on a referendum measure doesn’t end the matter. If the outcome requires a change in some law, it will have to be implemented by elected representatives — be they members of Parliament, a provincial or territorial legislature, municipal council, or band council. This pattern of elected representatives and electors interacting in democratic partnership, each connected to and depending on the other to make Canada’s referendum system work, is an institutionalized and long-standing control ensuring that power can’t pass to “the mob.”
British Columbia, Alberta, and Quebec each signalled their democratic maturity by stipulating in statutes passed by elected members of their provincial assemblies that citizens would get to vote on constitutional change before the elected representatives themselves dealt with the Charlottetown Accord. When this democratic right was then extended to all Canadians, it was Parliament that did so, according to legislation enacted by the people’s elected representatives (and in the second chamber by appointed senators, even though they aren’t representatives of the people).
Power of Citizens to Launch Ballot Questions
The “initiative” is another semi-direct form of democratic engagement by which citizens launch ballot questions themselves. The value of this balloting mechanism resides in citizens being able to trigger it, not having to depend on those in office to start the process.
Even so, where citizens can initiate a ballot question municipally, or provincially in British Columbia, the process is still not “direct” because statutes enacted by legislators, and detailed regulations made pursuant to them, prescribe everything from the number of signatures required on the petition to launch a vote, to the requirement that a judicial officer certify the ballot issue as constitutional and compliant with all statutory criteria, and so on through other rules governing voting procedures and spending limits.
Voting to Recall an Elected Representative
Another semi-direct balloting mechanism, provided only by duly enacted statute, gives voters the possibility of triggering a mid-term vote on whether to “recall” their elected representative. Rather than just waiting for the next election when there would be an opportunity to simply not “re-elect” an incumbent, recall accelerates the timetable. It enables voters to “de-elect” a member of the legislature and then replace that person through a fresh election. In jurisdictions where this procedure exists, it might be invoked by constituents to get someone supposedly more akin to their electoral district’s perceived needs and interests to represent them — a dubious criteria. More serious, however, are cases in which removal might be instigated for a representative because of corruption or some other type of malfeasance.
The recall mechanism has limited Canadian history. In Alberta the procedure was invoked against member of the legislature William Aberhart, whose Social Credit government had itself enacted the measure. The chagrined premier recalled “recall” by having the statute repealed in 1937. Apart from other lessons this example imparts, it is clear how these procedures can’t kick in unless elected representatives in the legislature first enact a law through which, according to rules they provide, it must operate.
In British Columbia, recall has been on the provincial statute books since 1995 after being strongly approved in an October 1991 referendum. Under the Initiative and Recall Act, a registered voter in the electoral district can petition to remove that constituency’s member of the legislative assembly from office. The petition needs signatures from more than 40 percent of eligible voters in the district. To safeguard against recall being used to perpetuate a hard-fought election campaign, petitions can’t be submitted to Elections BC during the first eighteen months after the member was elected.
British Columbia’s chief electoral officer administers the recall petition process, according to rules established by statute. No criteria are specified to recall an MLA. An applicant must state, in no more than two hundred words, grounds for recalling the member. By 2017, twenty-six recall petitions had been initially approved, but on verification five lacked enough valid signatures. Another was halted because the member, under threat of recall, resigned before the process was completed.
A Legislative Veto at the Ballot Box
The legislative veto, a component of Swiss-style democracy, has made it onto the statute books of several provinces. Manitoba Liberals campaigned in 1914 on the idea of empowering citizens to ratify a law after the legislature enacted it but before it came into force.
Working to perfect their democracy, the Swiss adopted a facultative-style referendum in the 1830s enabling voters to petition for a popular vote on a law passed by a legislative assembly and, potentially, to then override the legislature. By the 1860s, they’d progressed to an obligatory referendum for this sort of thing, stipulating certain classes of enactments that positively had to be referred to voters for approval or rejection. This was the measure Manitoba Liberals won election in 1914 pledging to implement.
In 1916, having an electoral mandate for it, Premier Tobias Norris’s government introduced “An Act to Enable Electors to Initiate Laws, and Relating to the Submission to the Electors of Acts of the Legislative Assembly.” The Liberal measure passed unanimously. Conservatives, who’d previously opposed referendums, had become converts.
This new democratic partnership being pioneered between the sovereign people and their elected representatives was challenged on constitutional grounds pertaining to the secondary sovereign, the Crown. Three years after its unanimous enactment by the legislature the act was declared unconstitutional on the ground that the Crown’s powers — as represented by the lieutenant governor, whose vestigial role included formally signing provincial statutes into law — couldn’t be altered by Manitobans. If electors voted approval of legislation and thereby authorized it becoming law, the appellate court felt, this could be interpreted as bypassing the monarch’s pen-holding representative. The justices seized upon this antiquated royal power to thwart a province’s elected representatives in democratizing their constitution. The discouraged Manitobans didn’t redraw their law to overcome this technical formality, as adept draftsmanship could have accomplished. The episode was unhelpful for an evolving nation seeking to clarify and enrich representative democracy and connect our country’s law-making process with the people governed by those laws.
The Minimal Risks of Semi-Direct Democracy
No referendum in Canada takes place until a legislature has enacted the enabling legislation to establish all parameters for it — from approval of the ballot question to formation of Yes and No umbrella committees, from voting procedures to rules about campaign advertising, broadcasting, and financing.
No referendum result in Canada is self-executing. Whatever might be decided by electors, it is the elected representatives of the people who must act through normal legislative procedures to implement the results. In our country, the term direct democracy actually describes something quite different — a multi-stage operation between elected representatives and the people, with a series of interlocking democratic components.
The various instruments of “semi-direct democracy” are important adjuncts to existing legislative procedures, supplementing and reinforcing them in win-win ways for all concerned. Canadians never chose exclusive representative government, nor did we pick a citizens-at-large democracy, but rather, a blend of both. For truly significant decisions that make it onto ballots, we’ve complemented and supplemented the process normally engaged in by the elected few who represent the many. The common denominator for both referendums and elections is a sovereign citizenry expressing itself through the deliberate act of ballot-box democracy.