A Word About Words
The words referendum and plebiscite have been interchanged so much that the legal distinction between them is gone. Originally, plebiscite results would guide those running government, as advice from the electorate, while a referendum would direct a government to do something, or specifically refrain from doing it, as a binding order from the sovereign people. For both the process is identical: a ballot question answered by voters to determine which option a majority favours. Only the outcome is (or was) different in how the results got applied.
Nobody was more ambitious to reimpose this fading distinction than French scholar Jean-Marie Denquin. His 350-page law book Référendum et Plébiscite in 1976 explained numerous distinctions between referendums and plebiscites based on a hierarchy of classifications and subcategories — classic Continental European scholarship. A jurist, Denquin believed these legal distinctions had to be respected. Two years later, however, political scientists David Butler and Austin Ranney looked at the same subject through a different lens. Their 1978 book Referendums: A Comparative Study of Practice and Theory focused on the political phenomenon of referendums rather than their legal implications. “Since there does not seem any clear or generally acknowledged line that can be drawn to distinguish the subject matter, the intent, or the conduct of a referendum from that of a plebiscite,” they said — a Briton and an American eschewing continental scholarship’s formalism — they’d just use “referendum.”
Four years after that, in my 1982 work of legal history Lawmaking by the People, I suggested at least lawyers and drafters of statutes ought to uphold the distinction, and classified ballot questions based on Canadian political experience and case law. That was three and a half decades ago. Today the old legal distinction is too fogged over to be relied upon. Our governments, legislators, commentators, and even those drafting laws use referendum and plebiscite interchangeably. Statutes that invert the meanings include those in Quebec, Yukon, and Newfoundland and Labrador, employing referendum to mean what, in other Canadian jurisdictions, is a non-binding plebiscite.
The muddle is not, however, only legal. In advance of a non-binding plebiscite, government leaders might announce their intent to be bound by the voting results, thus converting the ballot question, politically if not legally, into a referendum whose outcome will oblige, rather than merely advise, the government to take a specific course. Other times, leaders wriggle out of a result they do not cherish. “It’s only a plebiscite, so we’re not bound by the outcome.”
Another effort to classify Canadian issue-voting was proposed in 2001 by Julien Côté of Quebec’s election office, categorizing them as ratification (citizens voting to approve a bill adopted or measure taken by the government, with binding results upon the government), consultative (citizens expressing opinion on policies as non-binding advice to government), and arbitration (citizens voting to resolve a conflict between public authorities).1 The first is another name for referendum, the second a nickname for plebiscite, and the third a German type of referendum never used in Canada. These distinctions and terminology did not clarify our muddy waters in this country but reminded us how much people still struggle to understand what this whole subject is really all about.
Because common speech now employs referendum for all purposes, including non-binding voting, this book follows that usage except where historical context requires plebiscite. I also use the terms ballot question, issue-voting, and ballot-box democracy because they aptly describe the concept, handily cover both meanings, and add welcome variety of expression to an already turgid topic.
Sticklers for linguistic purity might admonish that the plural of referendum ought to be referenda. Although both plural forms are used, contemporary authority favours the Anglo-Saxon referendums. The meaning of the Latin plural gerundive referenda is “things to be referred,” necessarily connoting a plurality of issues, that is, a number of questions on a ballot, which is seldom the case. Even Prince Edward Island’s five-option ballot in 2016 pertained to the sole issue of changing the province’s electoral system. British Columbia’s eight questions on a single ballot in 2002 dealt exclusively with negotiating principles for aboriginal land claims.
Finally, about the use of words, what is often called direct democracy is nothing of the kind. But to explain that — and to deconstruct other misconceptions about the reward that comes, in tandem with risks, when Canadians vote on big issues that affect us — entire chapters are required.