Is a Referendum a Good Way to Make a Decision?

TED MORTON
The professor emeritus of political science at U of C and former Alberta minister of finance SAYS YES

Referendums were first adopted in the western US in the Progressive Era, 1890–1920. They reflected the view that political parties and legislatures had become controlled by “big money” or corrupt political machines and were out of touch with “Main Street.” Referendums were adopted as a way to circumvent politicians and return power to the people.
In Canada, referendums were initially viewed as a US idiosyncrasy that had no place in our parliamentary democracy. In 1919 Manitoba was prepared to adopt a US-style referendum law but the courts said it would be unconstitutional. Alberta used plebiscites—a kind of referendum—several times, including in 1948, when voters said no to replacing private electricity companies with a public utility, and in 1967, when they voted down a proposition to adopt daylight saving time. Four years later Albertans reversed this decision in a second referendum.
In 1980 a Quebec referendum asked if the province should secede from Canada. Quebecers said no. The same choice was put to Quebecers again in 1995. Again they said no. Canadians accepted both referendum results as having decided the issue.
The Mulroney government held a referendum in 1992 on the constitutional changes proposed in the Charlottetown Accord. Charlottetown was supported by the three biggest national parties, all 10 premiers and the national media. Canadians disagreed. Voters rejected the Accord in 6 out of 10 provinces, including Quebec. The outcome illustrates the benefit of referendums: when the “political class” is out of step with ordinary Canadians, the latter get the final say.
Post-Charlottetown, Alberta, BC and Quebec have retained laws requiring that any constitutional amendment first be submitted to a referendum. This practice subsequently received a blessing from the Supreme Court in its 1998 Quebec Secession Reference ruling. Finding democracy to be an unwritten but fundamental principle of Canada’s constitution, the Court declared that “a referendum undoubtedly may provide a democratic method of ascertaining the views of the electorate on important political questions.” The federal Liberal government further legitimized the use of referendums in its 2000 Clarity Act. The Act recognizes the legitimacy of a Quebec secession referendum if there is “a clear majority on a clear question.”
Referendums work municipally too. In 2018 Calgary’s mayor, most of city council and the business community wanted to host the 2026 Winter Olympics. The people who would have footed the bill—taxpayers—disagreed. The no side won.
Referendums are entrenched in our political infrastructure. They may be simplistic attempts to answer complex problems. The people may sometimes be wrong. But this doesn’t mean we should abolish referendums. Legislatures sometimes get it wrong. So do judges. But we aren’t going to abolish them. They are integral to our system of the rule of law and democratic accountability. And so too now are referendums.
 

JARED WESLEY
The associate professor of political science at the University of Alberta SAYS NO

Democracy demands that citizens have meaningful input into political decisions and the ability to hold decision makers accountable. Referendums sit uneasily with these principles. They are crude instruments that place responsibility at the feet of a faceless majority, often at the expense of voiceless minorities. They have become tools to divide citizens rather than bring us together around common objectives. At best, referendums allow elected officials to shirk their responsibility to negotiate and define the common good. At worst, they allow politicians to manipulate the public to achieve much narrower partisan, regional or ideological ends.
Referendums have occasionally been called in Canada to engage citizens to build consensus on topics with major, long-term implications for everyone. Newfoundland and Nunavut used such votes to orchestrate their admission into Confederation. Quebec has famously held two separatism votes. Aside from these, and the Charlottetown Accord, no other referendums have been held to alter Canada’s constitutional order. For good reason: they can be divisive affairs. The Charlottetown Accord failure set off a chain of events that nearly led to the breakup of Canada, ironically through yet another referendum.
But most governments use referendums for convenience or strategy. Referring a question to the public can be a way to end deadlock within a party or to avoid taking responsibility for an unpopular decision. Governments motivated by strategic considerations think they know the eventual outcome of the vote, and they aim to use the referendum result as clout. By Premier Kenney’s own admission, his proposed referendum on removing equalization from the constitution falls into this category. In Kenney’s words, the vote would afford him “leverage” in drawing federal and provincial governments to the table to negotiate related issues such as fiscal stabilization.
Removing equalization from the constitution would require recipient provinces to agree, meaning Kenney’s threat carries little risk to Canada’s fiscal federalism. Yet strategic referendums expose the entire political system to unintended consequences. Disgraced UK Prime Minister David Cameron’s gamble on the Brexit referendum is a prime example of how best-laid plans can go awry. With other governments bringing their own baggage to the table, a yes vote on Kenney’s referendum could carry Canada into another divisive round of constitutional negotiations for which there is little public appetite.
Which of these types of referendum meets the democratic smell test? Only the first respects the accountability and pursuit of the public good embodied in liberal democracy. Indeed, it would seem undemocratic not to pose major constitutional questions to the public for a vote. Convenience and strategic referendums are sadly more common. Designed to avoid accountability or bend the public will to parochial ends, they are far less noble than champions of direct democracy contend.
 

TED MORTON RESPONDS TO JARED WESLEY

The debate over the pros and cons of referendums has a special relevance to Alberta today, given anticipation that Premier Kenney plans to hold referendums in conjunction with the 2021 municipal elections. He has promised to hold a referendum on Alberta’s participation in Canada’s equalization program if the federal government does not make substantial progress on the construction of new export oil and gas pipelines. The premier has also said he will proceed with any of his “Fair Deal” reforms only once Albertans have had the opportunity to vote on them in a referendum.
The legal and political precedents for the referendum to abolish equalization come from the Quebec Secession Reference. The Supreme Court wrote that a “clear majority” on a “clear question” to separate triggers a duty for Ottawa and the other provinces to negotiate with the separatists. If this is the rule to leave Canada, then certainly it is the rule to reform Canada. The constitutional principle of democracy, the court wrote, confers “a right to initiate constitutional change on each participant in Confederation. …the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces.”
Given the undisputed fact that through equalization Albertans have experienced an average net loss of over $20-billion a year since 2010, I would be surprised if a referendum to abolish equalization did not win 80 per cent approval. A clear majority, indeed! Jared Wesley denigrates the potential referendum as a cynical strategy by Premier Kenney to gain “leverage” in his negotiations with Ottawa and other provinces. Given the status quo, what’s wrong with that?
Would such a referendum outcome in Alberta mean equalization would be abolished? Of course not. But it would force the issue onto the national agenda—and it’s about time. Equalization rewards bad public policy by provinces that overtax, overregulate and drive out investment and jobs. Alberta might well find allies in the other “have provinces”—Ontario, BC and Saskatchewan—that are asked to subsidize this kind of destructive behaviour. It’s time to have this discussion.
The Fair Deal reforms are different. They are all already being done by Quebec or Ontario or both—creating a provincial pension plan; collecting our own personal income taxes; creating a provincial police force. So the Kenney government could bring about all of these changes unilaterally, without the need for consent from Ottawa or other provinces. There are still good reasons, however, for submitting them to a referendum.
These reforms would substantially change Alberta’s relationship with the rest of Canada. While none would require a constitutional amendment, all three are constitutional in their significance. This merits submitting them to a referendum. Further, none of them were discussed in the lead-up to Alberta’s 2019 election. A referendum would provide an opportunity for all Albertans—not just Kenney and the UCP caucus—to choose whether Albertans want to go down this new road. Kenney’s decision to use this “bottom up” process should have special appeal to non-UCP supporters, who would be given a chance to have their say.
It merits noting how the left/right disagreement on referendums has reversed. Historically, referendums were opposed by conservatives and business interests that feared the excesses of “direct democracy.” Support came from the left—the Progressive movement in the US and its ideological cousins to the north, the CCF and Social Credit parties. Both were expressions of prairie populism.
The Progressives didn’t just distrust politicians and legislatures. They were also suspicious of courts and policy-making judges. The same Progressive reformers that brought in referendums in the western states also adopted the practice of electing their state judges—unlike federal judges, who enjoy tenure for life. The goal was the same: democratic accountability.
There was a parallel version of this in Canada right up to the adoption of the Charter of Rights in 1982. The most articulate opponents of Trudeau’s Charter came from the legal left. They argued that judges are lawyers and thus inherently conservative. Historically, this was accurate. Law facilitates the business of business and protects property rights. When the Charter was being written, support for adding the Section 33 “notwithstanding clause”—a legislative check on judicial excess—came as much from the left as from the right.
Today, this has all turned inside-out. The strongest supporters of the Charter and the interest-group/identity politics litigation it has spawned come from self-proclaimed progressives—what I’ve described elsewhere as the “Court Party.” Yet these same progressives cast a wary eye on the use of referendums and discourage their use. How did progressives go from being the people’s party to the Court Party? Why are today’s conservatives embracing the populist politics that they historically opposed? But that’s a topic for another day.
A referendum provides an opportunity for all Albertans—not just Kenney and the UCP caucus—to decide.
 

JARED WESLEY RESPONDS TO TED MORTON

Professor Morton and I agree there is value in referendums, and neither of us is suggesting they should be abolished. Our differences surround the effectiveness and appropriateness of referendums as a decision-making tool. Morton argues that referendums are somehow purer than legislative, executive or judicial decisions. History suggests otherwise.
Referendums are not freer from the influence of “big money.” Just ask former Quebec premier Jacques Parizeau. Having narrowly lost the 1995 referendum, he used his concession speech to blame the result on “l’argent et le vote ethnique.” The infamous line referred to the confirmed influence of illegal campaign contributions that flowed into the province to support the “Non” side, while also revealing the exclusionary tendencies of his brand of Quebec nationalism.
Perhaps Parizeau’s loss could be framed as a victory for the masses over what Morton calls an out-of-touch “political class.” If so, it was a narrow win. And as a majoritarian process, referendums run the risk of marginalizing communities such as visible minorities in Quebec. Our system of representative democracy provides a safeguard against this sort of mob rule, as do the courts.
As Morton notes, the courts have ruled that pure direct democracy is unconstitutional in Canada, as it would usurp the authority of the Crown (and its adviser, the cabinet). Referendums will never carry the force of binding votes. Contrary to Morton’s statement, voters never really have “the final say” in policymaking. Governments must act in order for a referendum outcome to come into effect, through legislation, regulation, resolution, negotiation or other means. This ensures that ultimate decision-making authority rests with the cabinet, which advises the Crown and is held accountable by legislators elected by the people. This is an important democratic safeguard.
Whether or not governments declare a referendum result to be binding, they have the option to set it aside if they perceive a more prudent course of action. Canadian leaders have a habit of calling multiple referendums on the same question. On everything from prohibition and daylight saving time to electoral reform and Quebec sovereignty, politicians have refused to take the public’s word as final. Prime Minister King, for example, delayed acting on the results of the 1942 conscription plebiscite. Premier Wade McLaughlin dismissed the results of PEI’s 2016 referendum on electoral reform because he felt the turnout was too low to count as a valid indication of Islanders’ intentions. These politicians showed considerable conviction in bucking the public’s verdict.
Unfortunately, their counterparts have at times used referendums as a way out of making difficult decisions. Their cabinet or caucus were divided over an issue, in some cases; referring the question to the public was a way to end deadlock. Other governments have avoided taking responsibility for a potentially unpopular decision, instead using a referendum as a means to pin accountability on the public. In Morton’s example, Manning’s Social Credit government called the 1948 electrification plebiscite under these circumstances. Unsure whether to nationalize electricity distribution companies or allow them to continue in private hands, the government threw the decision to the people. The nationalization side lost by just 151 votes, and the Socreds emerged champions of the narrowly victorious free market movement.
Other leaders have threatened to use referendums to pre-empt, frame or even circumvent difficult inter-governmental negotiations. I mentioned Kenney’s prospective referendum on equalization in this vein. Similarly, Pierre Trudeau threatened to hold a national referendum on patriating the constitution in the late 1970s, to the consternation of provincial premiers, who had been negotiating with Ottawa in good faith at the time.
On rare occasions leaders may wish to mobilize their base to turn out at a general election by offering a particularly controversial measure as bait or distraction. The deeply unpopular Saskatchewan Progressive Conservatives loaded a series of ideologically motivated referendum questions—including balanced budgets and abortion—onto the 1991 election ballot, for instance. Their attempt to wag the dog failed miserably.
As Morton notes, referendums are often “simplistic attempts to answer complex problems.” Public engagement can be done through more thorough means. Citizen assemblies are effective in bringing public input to bear on thorny issues such as electoral reform, proving that Canadians are capable of doing more than marking an X on a ballot when it comes to policymaking. Consultations and commissions also provide a deeper sense of the public’s feelings on an issue. And, despite Kim Campbell’s famous quip, election campaigns can and should be venues to debate difficult issues. Fortunately, referendums are rare in Canada. This indicates the functionality of representative government and the effectiveness of these other engagement tools.

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