That's History: As electoral reform looms, some lessons from the past

The Liberals’ talk of electoral reform has led to questions about the process to be followed before any such change is adopted. So far, the Trudeau government has opposed holding a referendum on any new proposal, while the Conservatives have declared one must be held to legitimate such an important change.

Canada’s historical experience with referenda has been uneasy. And that’s not surprising, because the Westminster model is predicated on the idea that Parliament, not the people directly, makes all the important decisions.  That, of course, is very different from the constitutional ideas of our neighbours to the south, where many states allow citizens’ groups to propose laws that will come into force if approved by a majority of voters at a referendum.

Similar proposals came to grief in Canada. In 1916, Manitoba passed an act that allowed 8% of the electorate who voted at the last election to demand that a law be put directly to the people in a referendum. If a majority supported the law, it would become law as if the Legislature had passed it in the ordinary way. Both the Manitoba Court of Appeal and the Privy Council held the law to be unconstitutional, on the ground that it affected the office of lieutenant-governor by making his assent irrelevant in the case of a positive result.

A somewhat similar statute was passed in Alberta in 1913, but it was never directly challenged in court. It was used to conduct what were, in essence, non-binding plebiscites rather than referenda on a number of occasions, before its repeal in 1958. The citizen initiative provisions of the law had never been used. 

A federal plebiscite was held on alcohol prohibition in 1898, but in view of the slimness of the victory (51%) and strong opposition in Quebec (more than 80%), the government did not proceed with the measure. A plebiscite on conscription in 1942 gained a higher majority, but it was also strongly opposed in Quebec (70% against).

Both exercises were seen as highly damaging to national unity.

Thus, when negotiations on the patriation of the Canadian constitution occurred in 1980 and 1981, there was little demand for a referendum to legitimate whatever the premiers might come up with. 

In fact, Trudeau the First had been trying in 1978 and 1979 to get legislation passed providing for consultative referenda on constitutional questions. The Progressive Conservatives under Joe Clark fought it tooth and nail, claiming that it usurped the rightful position of the provinces (even though the “referenda” were not binding). The bill was not passed before the election of May 1979, and Clark’s win ensured that it would not be. When Trudeau won again in February 1980, however, there was no time to resurrect the bill given the imminent Quebec referendum. 

Nonetheless, later in life, Trudeau regretted that he had not proceeded with a referendum after the nine premiers had informed him of their “deal” on Nov. 4, 1981. Polling suggested that a majority of Canadians, including a majority in Quebec, would have supported the package. It would have provided the democratic legitimacy the constitutional package needed, and avoided charges that Quebec had been “left out.” Still, that would have been a gamble, and if a majority in each region of Canada had not supported the package, we might not have a Charter of Rights even today.    

Ironically, after the failure of the Meech Lake Accord, the Mulroney government reversed course on the desirability of referenda, passing legislation similar to that which the Clark government had opposed so vehemently in 1979. The resulting defeat for the Charlottetown Accord in the 1992 referendum seemed to confirm Canada’s negative experience with referenda (though this time, at least, Canadians in all regions found themselves united in opposition to the Accord). 

Returning to electoral reform, the New Zealanders accomplished it by first holding an advisory referendum in 1992 asking whether citizens wanted a different system from first past the post, and if so, which among four choices they preferred. Even after a strong majority (65%) chose a mixed-member proportional (MMP) system, the government held a second binding referendum to confirm the results.
MMP won again, though by a smaller margin. 

While New Zealand successfully adapted referenda to a Westminster system, it is a more homogeneous, less regionalized country than Canada. British Columbia named a citizens’ assembly to report on electoral reform, but what works at the provincial level may not be suitable at the national level.

Perhaps what the Canadian experience demonstrates most of all is that we need to develop new ways of holding national conversations on important issues that don’t necessarily lend themselves to the “up or down” vote in a referendum.

Philip Girard is a legal historian and professor at Osgoode Hall Law School. He’s also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is [email protected].

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