Tuesday, July 28, 2015

Skippy's Phoney Will of the People Referendum

Minister of Undemocratic Reform
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Every once in a while (okay – almost every week) something comes along that shows (a) how little understanding the Conservatives have of our core system of government, or (b) how little they care about our core system of government, or (c) all of the above.

The NDP and Liberals have suggested that we should examine and perhaps reform the “First Past The Post” election system we currently have, whereby the candidate with the greatest number of votes – whether it is an actual majority of 51% or not - is elected. This is the system that allows individual candidates to be elected with far less than half of the popular vote depending on how the rest of the vote is split. This is how the Harper Conservatives acquired their last majority with only 39% of the popular vote and winning by an estimated mere 6,000 votes spread over a couple of dozen ridings.

There are several variations on how alternatives to First Past The Post would work, all lumped into “Proportional Representation”. There are systems that use run-offs, ranked ballots and lists. I’m not someone who sees Proportional Representation as a panacea – after all, the Weimar Republic used a proportional representation list system just before you-know-who was elected.

All that aside, yesterday no less a person as Pierre Poilievre - aka “Skippy”, aka The Minister for Ironic Democratic Reform – floated this idea through Toronto Sun Parliamentary Bureau Chief, David Akin in response to Liberal and NDP talk about Proportional Representation:
The current prime minister, Stephen Harper, has no such plans but he does vow this: If any future government wants to get rid of the first-past-the-post system we’ve used since Confederation, it will need the will of the people.

“Our platform would commit to legislation that would ban any government from changing our voting system without holding a referendum to secure the approval of Canadians first,” Employment and Social Development Minister Pierre Poilievre said Monday in a telephone interview from Ottawa. In addition to his duties as employment minister, Poilievre is also Harper's minister for democratic reform.


A referendum as a requirement before Parliament can act? Sorry Skippy, but that is not how we work. In fact, it's unconstitutional. The Supreme Court (remember those guys and gals?) has already been pretty clear about the legal effect of referendums. After all, we’ve had a few.

It may surprise you to know (it is clearly a surprise to Poilievre) that referendums – even ones run by the government - are not binding on our system of government. Even the Quebec referendums were not binding. In the reference to the Supreme Court in 1998 on the constitutional framework and validity of a referendum on separation (known to lawyers as the Reference re Secession of Quebec, [1998] 2 SCR 217, 1998 CanLII 793 (SCC) ) the court was very clear:

“Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced from constitutional obligations. [para 151 - my italics]”

So the populist “will of the people” baloney that Reform / Conservatives love to invoke through “direct democracy” like a referendum does not trump or shackle our system of government set out in our constitution. It is not even part of it.

Another way to look at it is a government cannot give away its powers and duties to “the people” through a binding referendum. A government may choose to have a referendum (which isn’t really part of our parliamentary system or culture), but it cannot make the results binding on itself or future governments. For that to happen, it would have to be part of our Constitution, which it is not and never has been.

Referendums can have moral and popular influence. That is essentially what the Supreme Court said in the Quebec secession case:

“The continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. [para. 151]”

Note that the SCC said that a clear majority in a referendum on separation would require the rest of Canada to deal with it through further negotiations, but not that it bound anyone to an outcome. It may be a strong message to the rest of Canada but not a constitutional amendment.

Poilievre has to know that he cannot enshrine referendums in the law. Parliament cannot give away its power and duty to govern to referendums. Future elected governments cannot have their hands tied by requiring referendums to govern or change laws. You can’t pass a law – as Skippy suggests – to give away any of Parliament’s power to “the will of the people” through a referendum on voting, abortion, the death penalty or electing a dog catcher.

But to recognize that you need an understanding of or respect for our system of government, of which he and his master have none.