The late pioneering social
worker, feminist, and 1931 Nobel Peace Prize recipient Jane Addams[507] wrote (in reference to her experience trying to secure peace and providing
relief supplies to women and children of enemy nations in the First World War)
that “social advance depends as much upon the process through which it is
secured as upon the result itself.”[508] Indeed, the perceived democratic legitimacy of the process of electoral
system reform has been a fundamental consideration throughout the Committee’s
study. Time and again witnesses appearing before the Committee emphasized that
the merits of any electoral reform proposal made by the Committee would be
evaluated, in Ms. Addams’ words, “upon the process through which it is
secured.”
The work of the
Committee has been focused on hearing from Canadians. The emphasis on
consultation as a fundamental part of the electoral reform process was
underscored in the Committee’s mandate, which directed the Committee to:
- consult broadly with relevant experts and organizations, take
into consideration consultations that have been undertaken on the issue,
examine relevant research studies and literature, and review models being used
or developed in other jurisdictions;
- develop its consultation agenda, working methods, and
recommendations on electoral reform with the goal of strengthening the
inclusion of all Canadians in our diverse society, including women, Indigenous
Peoples, youth, seniors, Canadians with disabilities, new Canadians, and
residents of rural and remote communities; and
- conduct a national engagement process that includes a
comprehensive and inclusive consultation with Canadians, including through
written submissions and online engagement tools.[509]
Indeed, as noted in the first chapter of this report, the Committee
endeavoured to consult widely and broadly with Canadians. Over the course of
its study, the Committee held 57 meetings with 196 expert witnesses across
Canada. In addition to its meetings held in Ottawa, the Committee consulted
directly with citizens (567 Canadians participated in open mic sessions) and
experts in every province and territory. As well, the Committee created the
E-Consultation on Electoral Reform to solicit Canadians’ views both on voting,
electoral systems, online voting, mandatory voting and the process for
electoral reform. The e-consultation was accessible online from the 19th of August until the 7th of October 2016. Over this period 22,247
Canadians completed the questionnaire.[510] Additionally, the Committee received and considered 574 briefs and over 1000 pieces
of correspondence from organizations, academics and individuals citizens.
Finally, the Committee received 172 reports from MPs (as well as one from the
Conservative Caucus and one from the New Democratic Party Caucus) regarding
town halls and other consultations on electoral reform.
In this report the Committee has endeavoured to consolidate the
information, briefs and testimony that the Committee received. The Committee
has identified what issues electoral reform would try to address. The Committee
has considered the trade-offs inherent in the five principles set out in the
Committee’s mandate, and how they relate to the various electoral systems
examined by the Committee. Based on all that the Committee has heard, the
Committee has reached a number of conclusions and recommendations. This report
is the product of the Committee’s collective deliberations.
The question that remains is what happens next? What process should
be followed to gauge whether any electoral reform proposals have the support of
Canadians?
The notion of seeking “broad support” for proposed electoral
reforms received approval from respondents to the Committee’s online
consultation. Indeed, 72% of respondents to the Committee’s online consultation
either strongly agreed (55%) or agreed (17%) with the statement that “any plans
for a future Canadian electoral system should require broad public support, in
addition to parliamentary approval.”[511]
Any plans for a future Canadian electoral system should
require broad public support Scale: 1 (Strongly Disagree) – 5 (Strongly Agree);
NA
Finally, in his remarks to the
Committee, Graham Fox, President and Chief Executive Officer (CEO) of the
Institute for Research on Public Policy, addressed the relationship between the
Committee’s deliberations and what ought to come next. After first applauding
the Committee’s efforts to “create more opportunities for people to express
their views”[512] on electoral reform through the Committee’s various consultation tools, he pivoted
to what should follow. He observed that while the “consultation process that's
been launched currently allows for the articulation of interests,” it is “less
clear how those varied and sometimes competing interests will be aggregated
into a public consensus on the best way forward.”[513] The challenge of the next step “is how we graduate from public consultation to
citizen engagement”[514] in proposed electoral reforms.
One recommendation that was almost universal among witnesses who
discussed the process of electoral system reform was the need for robust public
education on the proposed reform (and on the democratic process more
generally), as illustrated by the following examples:
-
Graham Fox, President and CEO of the Institute for Research on
Public Policy: “[T]he educational dimension of this
debate is vital to the way forward. The information booklets on the reform
options provided by the [C]ommittee are very useful, but eventually the [G]overnment
will also have to show leadership and convince Canadians that the reform is
necessary and a priority.”[515] He added that “I think
it is precisely because there is no imminent crisis that this kind of work
needs to happen now. But I would add that it emphasizes the importance of
public education and bringing along voters and citizens as a necessary
component of a successful process.”[516]
-
Marc Mayrand, Chief Electoral Officer: “An extensive public
education campaign would be needed to ensure that Canadians understand the new
system, and can exercise both their right to be a candidate and their right
to vote.”[517]
-
Michael Boda, Saskatchewan Chief Electoral
Officer: “… ensure there is a mandate for a good public education
process associated with any new system,”[518] and “The mandate of Elections Canada or any election management body needs to
be there; they have the capacity to educate the public going forward.”[519]
-
Greg Essensa, Ontario Chief Electoral Officer: “I
would suggest strongly, should this committee decide to alter the voting system
in Canada, that it mandate Elections Canada specifically to be the provider of
factual information on what the new system is. It would afford them enough time
and resources to do an extensive outreach program to highlight for all Canadians
what the new electoral system entails, the benefits, and the issues. I would
also recommend to Parliament that it provide funding for a yes and no campaign.
If there is going to be a referendum on the issue, it should provide equal
public financing for both yes and no campaigns so those campaign offices could
provide the appropriate information to Canadians.”[520]
-
Kevin Dobie, Director, Quebec Community Groups Network: “We recommend that the Government of Canada, in
partnership with the provinces and territories, develop a compulsory civics
course for Canadian students at the secondary four or grade 11 level. Upon
completion of this course, students would be registered to vote in the first
following election after they reach 18 years of age.”[521]
-
Don Desserud, Professor: “[E]ducation
in schools is absolutely essential.… I think the federal government can play a
role in advocating for that, and working with ministers at the provincial level
to encourage them and provide incentives, perhaps, as well. That would be the
one that I would think is absolutely crucial.”[522]
-
Maryantonett Flumian: “Parliament has a duty to ensure that its
citizens understand the importance of their participation in strengthening the
principles of sound public governance. With a civic education strategy that
starts by targeting grade schools and high schools, we can ensure that there
are more first-time voters, regardless of the voting system we choose, and that
many more will become voters for a lifetime, continuing to support the ongoing
foundation of democratic governance. I believe that Elections Canada should be
institutionally positioned to play a leadership role in this strategy”.[523]
A number of witnesses suggested that electoral reform is different
than changing any other kind of legislation, as it gets to the crux of the
relationship – the vote – that connects the citizenry to their representatives
in Parliament and government. Indeed, Graham Fox noted that “the manner in
which Canadians are engaged in this deliberative process is so critically
important to any eventual proposal for reform and to the legitimacy that
proposal will have in the eyes of voters.”[524]
Yasmin Dawood indicated as much in her remarks to the Committee,[525] in her observation that:
Electoral reform differs from the passage of
ordinary legislation because it sets out the very ground rules by which
political power is attained. For this reason, the process of electoral reform
must be held to a higher standard of democratic legitimacy.[526]
According to Professor Dawood, while no particular process is
required to engage in electoral reform, three norms ought to be followed for
the chosen process or processes to be considered “democratically legitimate”:
My main conclusion is that although no one process
or mechanism is required for electoral reform, the process must be, and must
appear to be, democratically legitimate. To achieve democratic legitimacy, the
process should visibly follow three norms: first, political neutrality or non-partisanship;
second, consultation; and third, deliberation.[527]
She then explained that the first norm, “political neutrality or
non-partisanship” is important as it “ensures that the process is as neutral as
possible, which in turn helps to prevent the governing party from entrenching
itself by selecting rules that favour itself at the expense of the other
political parties.” This norm “is difficult to achieve” as a choice of process
can impact what types of outcomes are ultimately considered. Professor Dawood
added that “Any majority government, in particular, must guard against the
perception of self-serving entrenchment by ensuring the process is as
non-partisan as possible.”[528]
Finally, Professor Dawood made three observations to “further
enhance democratic legitimacy and the norms of political neutrality, consultation,
and deliberation”:
-
Obtaining consensus or a reasonably high level of political party
support for any proposed reforms;
-
Considering an additional deliberative process such as a
commission, citizen’s assembly, or referendum (though she noted that a referendum
could be problematic in practice); and
-
Considering extending the December 1st 2016 deadline
to report back to Parliament to enable the deliberative process to unfold in a
less hurried manner.[529]
The Committee heard significant testimony with regard to all of
Professor Dawood’s observations. This testimony can be grouped into three
categories: the impact that the Committee’s ability to reach consensus (or not)
on proposed reforms may have on the perceived legitimacy of the proposed
reforms; the utility of citizen-focused deliberative processes to determine and
evaluate possible reforms; and the perception that a plebiscite or referendum
may be either the ultimate process to ensure the legitimacy of a proposed
reform, or whether it would be, to paraphrase Professor Dawood, an option that
is not politically neutral and may undermine the reform process.
It is important to note, though, that legitimacy is ultimately a
subjective concept,
one that perfectly reasonable people can reasonably disagree about. As noted by
Louis Massicotte:
Legitimacy is not a scientific concept; it is a
normative concept. As a saying goes, legitimacy is in the eye of the beholder.
In order words, legitimacy depends on an individual's perspective.[530]
Paul Thomas further observed that multiple pathways to reform may
be legitimate, and that the term “legitimacy” should be used carefully:
As I said, legitimacy is a contentious notion that
has been the subject of debate among philosophers and social scientists for
centuries, and I don't like it when we have shallow statements in the media
that if you fail to get this approval rating on a particular project, somehow
it is illegitimate, or that a referendum is the one and only way you can arrive
at a legitimate outcome to a process like this. There could be multiple methods
for deliberation and decision-making on a topic as important and sensitive as
electoral reform, and a referendum could or could not be part of it. I am
almost of two minds on that. Legitimacy, use the term carefully.[531]
While legitimacy
may be in the eyes of the beholder, a number of witnesses noted that in Canada’s
representative democracy, any ultimate decision on electoral reform would rest
with Parliament (whether or not supported by a distinct deliberative process or
referendum).[532] For example, as noted by Éric Montigny:
I don't think there's any constitutional
convention for holding a referendum. The broadest possible consensus must be
sought. I understand your committee is trying to reach that consensus. That's
what will be determined at the end of the exercise. That's the first thing to
consider.
The second thing to consider in terms of
legitimacy is that in a representative democracy, the political parties that
appear before the voters have democratic reform proposals in their political
platforms. In a system of representative democracy, if we add up the political
parties elected with the promise of modifying the electoral system, it also
provides legitimacy to the process.[533]
Professor Massicotte highlighted the lessons learned from the
history of electoral system reforms at the provincial level:
Let's look at our system's history lesson, which
is something more solid. In Canadian history, a number of electoral reforms
have been carried out. They began in 1920 in Manitoba and ended in 1956 in
Alberta.
I have looked at the circumstances in which every
one of those reforms was adopted. In each case—so in Alberta, in Manitoba and
in British Columbia—the provincial Parliament implemented a reform without a
referendum. At that time, holding a referendum was not even considered. Based
on the customs of the time, it seems fine that it happened this way.
Those are the indications I can give regarding
whether Parliament currently has the democratic legitimacy to proceed. Ours is
a system of representative democracy. There is no legal obligation to hold a
referendum, but it may occasionally happen that what can be done legally is
perceived as illegitimate by a good portion of the population.[534]
Alex Himelfarb, former Privy Council Clerk, observed that a
referendum could be one of various tools to gauge political legitimacy.
Committee consensus would be another indicator of legitimacy:
I was asked the same question, Mr. Chair, at a
conference and I answered a referendum if necessary, but not necessarily a
referendum, and the entire crowd groaned at me, but it is more or less my
position. Clearly there are reasons for all of us to want public legitimacy and
credibility for whatever decision is made. I think the composition and openness
of this committee goes a long way toward doing that. The opportunities for
people to participate and contribute would go a long way toward doing that.
Whether that's enough or not will depend a lot on what kind of consensus the
committee's able to develop. I think that matters and that over time one might
change one's mind.[535]
Numerous witnesses echoed the suggestion that within Parliament,
consensus
on the Committee as well as some level of cross-party support for any suggested
electoral reform proposals would contribute to their perceived legitimacy. For
example, Emmett Macfarlane suggested that “all-party consensus would alleviate
some of those concerns” around perceived legitimacy.[536] He added, that “We could lock you [the Committee members] all in a room and not
let you out until you reached a compromise, which might be fun.”
Patricia Paradis noted that some form of consensus among members of
the House of Commons on the Committee’s proposals for reform would “go a long
way”:
First of all, as I understand it, this special
committee will be tabling its report to the House. The extent to which the
House itself can be brought to understand and appreciate the work that's been
done by this committee, and to appreciate the number of Canadians who have
stepped up to speak to you and give their points of view, and to consider your
report, will be very important. If we could get some form of consensus or
agreement within the House, that would certainly go a long way.[537]
The Hon. Ed Broadbent suggested that more than one party would need
to support a proposed reform for him to consider it democratically legitimate:
Parliamentary democracy entails not direct citizen
participation but representative participation, so having more than one party
is important. I strongly agree that it would be a fundamental mistake for the
governing party alone to bring in a system that it alone favoured. That would
not be legitimate in a democracy, as has already been suggested by my academic
colleague as well.[538]
Over the past two decades, governments and public service providers
have increasingly reached out to the general public using a variety of
engagement tools in order “create better public services, promote social
cohesion and foster a thriving democracy.”[539] Deliberative
engagement enables people to come together to develop policies, plans,
and programs:
Deliberation is an approach to decision-making
that allows participants to consider relevant information, discuss the issues
and options and develop their thinking together before coming to a view.[540]
There are a variety of means to engage the public in policy
development or reform. Circumstances such as timeline and geography determine the
way a particular deliberative process is formed, such as the citizens’
assemblies used in British Columbia and Ontario, or the Quebec Citizen’s
Committee. The following considerations can help determine the nature and scope
of a deliberative process:
-
the purpose of the process, and consequently the
nature of the results required;
-
the numbers of people to be involved;
-
the timescale of the process;
-
the geographical spread (local, national, international);
-
the point in the policy process at which the engagement
takes place;
-
how complex, contentious or technical the topic is;
and
-
what the mix of specialists and public
participants needs to be.[541]
A deliberative process can be scaled up or down to involve any number
of participants, and the length of time over which such a process takes place
can also
be adjusted:
Deliberative public engagement processes can take
place on any scale - from ten participants (for example, citizens’ juries) to
thousands of participants (such as citizens’ summits). A process may be a
one-off event, or part of a series of activities running over several years.[542]
A number of witnesses suggested that some form of more engaged,
citizen-focused deliberative process to evaluate or propose electoral reform
options would add to their democratic legitimacy. For example, Yasmin Dawood
posited that:
[I]t would enhance the real and perceived
democratic legitimacy of the process if an additional process option such as a
commission, citizens' assembly, or referendum were implemented.
…
A commission on electoral reform might be a better
option as an additional process. Many recommendations from the 1989 Lortie
Royal Commission on Electoral Reform and Party Financing, for example, were
used to revise electoral laws, but there are other smaller-scale options for
commissions. For example, New Brunswick and P.E.I. each established an
eight-person commission, and the P.E.I. commission consisted in part of
citizens. In Quebec, the parliamentary [commission] was assisted by an eight-person citizens' committee.[543]
As elaborated in Chapter 3 of this report, the Committee had the
opportunity to hear from individuals who were involved in the B.C. and Ontario
citizens assemblies, in the electoral reform initiatives that took place over
the past 15 years in New Brunswick, P.E.I., and Quebec, and who were part of
the Law Commission of Canada when it studied electoral reform. Those involved
in the citizens assemblies lauded the process as an “honour and a privilege.”[544]
One drawback of a citizen’s assembly[545] is that while it can be an intense learning and deliberative experience for the
citizens involved, leading to comprehensive recommendations, it may be hard to
replicate on a national scale, and would not work in
a tight timeframe.[546] Others noted the need following an assembly to be able to
share learning with the public to bring the public along, for example as
expressed by Maryantonett Flumian:
The value of a constituent assembly is highly
deliberative. The problem with the constituent assembly is that it is
deliberative for the people who are in the room; the rest of us think they've
drunk the Kool-Aid. They didn't go through the same process and they don't
understand it.[547]
It is important to note that a variety of other deliberative
mechanisms exist or could be designed to further engage the public in electoral
reform. For example, Jean-Sébastien Dufresne suggested a “citizen jury”:
A citizen jury could be a compromise. I invite you
to consider this. It is a type of process that allows random groups of citizens
to express their views on these matters.[548]
As well, Larry LeDuc suggested that some form of deliberative
polling that included a deliberative process over time, could be a useful tool:
There is a mechanism called deliberative polling
that I was going to mention. It hasn't been used all that much in Canada, but
it's more feasible now with the increasing use of the Internet in polling. If
you were to draw samples, the way you do for ordinary public opinion polls, and
then extend them by having people deliberate the issue online and exchange
thoughts about it, the technology is there to do that.
There are several good books in the U.S. written
on deliberative polling, and it has been used in various places, but it has been
on a model a little different from an Internet-based model. I could, however,
see some of its principles being extended, because polls have some credibility,
if the sampling is done right. If you could get a sample that was not just an
instant snapshot of answers to a question but was based on some kind of
built-in deliberative process that took place over a period of time, I think
that's a possibility we might look at.[549]
Finally, a majority of
respondents to the Committee’s online consultation questionnaire (itself an
engagement tool, though self-selected, used by almost 22,500 Canadians) either
strongly agreed (31.9%) or agreed (24.6%) with the statement that “Broad public
support should be gauged through … in person and online consultation with
Canadians representative of Canadian society (demographically and
geographically).”[550]
Broad public support should be
gauged through in-person
and online consultation
Scale: 1 (Strongly Disagree) – 5 (Strongly Agree);
NA
Respondents expressed less support for
the statement that “Broad public support should be gauged through … the
creation of a citizens’ assembly,” with roughly the same number of respondents
agreeing or disagreeing with the statement, and a further 18.9% of respondents
neither agreeing nor disagreeing.[551]
Broad public support should be
gauged through the creation
of a citizens’ assembly
Scale: 1 (Strongly Disagree) – 5 (Strongly Agree);
NA
As alluded to above, the question of whether or not a referendum or
plebiscite should be used to validate or legitimize a proposal to reform the
electoral system was frequently discussed throughout the Committee’s study.
Two pollsters presented findings to the Committee, regarding the
views of Canadians on the need for a referendum. In his appearance before the
Committee on 31 August 2016, Darrell Bricker of Ipsos Research cited a poll,
in which respondents
were asked:
Some people say that any change to the electoral
system is so fundamental that it would require a national referendum. Others
say that a rigorous program of public engagement and parliamentary review
should be sufficient. Which statement is closest to your point
of view?[552]
He noted that the result was a statistical
tie: 49% stated that a referendum was necessary, while 51% stated that a
rigorous program of public engagement and parliamentary review would be
sufficient.
In that same poll, respondents were then informed of the
Committee’s public engagement process and were then asked:
In your view, is the process of public engagement
and parliamentary review now being undertaken by the federal government
sufficient to give them public consent to fundamentally change our federal
election system without a national referendum, or, do you want them to seek
public consent for the changes they come up with through a national referendum?[553]
Dr. Bricker summarized the responses as
follows:
To this question, ‘consultations are sufficient’
dropped by six percentage points to 45%, and ‘national referendum’ increased by
six percentage points to 55%. What this suggests to me is that the more people
know about this, the more they actually want to have a direct say themselves.[554]
He added:
A majority in every demographic category we looked
at supported a referendum—by gender, age, education level, income, and whether
or not you had kids in your house. A majority of the people who had kids in
their house—or didn't have kids in their house—also supported having a
referendum.[555]
In his appearance before the Committee on 28 September 2016, Mario
Canseco of Insights West released the results of a poll, conducted by his firm
earlier that month, in which respondents were asked:
Regardless of how you feel about electoral reform,
do you think a change in the current system should be put to a nationwide
referendum, or do you think a vote in the House of Commons is enough to settle
the issue?[556]
He noted that 68% responded that a change
to the current system should be put to a referendum, while only 21% indicated
that a vote in the House of Commons would be sufficient (11% were undecided).[557]
When asked to interpret these results, Mr. Canseco stated:
Regardless of which system is ultimately adopted,
68% of Canadians believe a referendum is required to settle the issue of
electoral reform. This majority of Canadians encompasses both genders, all age
groups, every region, and supporters of the three main political parties
represented in the House of Commons. The call for a referendum is not unique to
a particular party.[558]
Mr. Canseco also noted that this result
“has consistently been at roughly the same level, given the margin of error
that we operate under,” [559] over the course of three polls conducted by his firm in February, June, and
September.
Of note, a majority (almost 55%) of respondents to the Committee’s
online questionnaire were supportive of the idea of holding a referendum on
electoral system reform. Indeed, 43.9% strongly agreed, and a further 10.8%
agreed, with the statement that “Broad public support should be gauged through.…
A direct vote by Canadians on an option or various options for a future
Canadian electoral system (through a plebiscite
or referendum).”[560]
Broad public support should be gauged through a direct vote
by Canadians Scale: 1 (Strongly Disagree) – 5 (Strongly Agree); NA
The primary arguments raised in favour of a referendum are that
Canadians should have the final say on a change to the electoral system, and
that politicians and political parties are too self-interested to be trusted
with the decision. For example, as expressed by Emmett Macfarlane:
The question becomes one of who gets to make the
final call. With respect, political parties have too much self-interest to be
trusted with the end decision. There is already sufficient anecdotal evidence
that the parties each of you belong to are already entrenched in their views
about the outcome of this process. It would be absurd, especially considering
the arguments against first past the post, to enact an electoral system against
the wishes of a majority of Canadians.
The government's campaign promises gave it a
mandate to pursue reform, but they do not provide a mandate to enact any
particular electoral system. An electoral change is not like any other ordinary
legislation. Canadians should have a say in the design of the fundamental thing
that links them to the state.[561]
Other witnesses, such as David McLaughlin, posited
that a referendum would confer legitimacy to the electoral reform process:
[P]ublic legitimacy of a new electoral system is
highly desirable and surmounts party and politician interests. It is about the
citizen and voter in a citizen-centred democracy.
A referendum is the simplest, clearest, and most acceptable way of conferring
legitimacy for the long term, not just on the system but more importantly on
the outcomes it produces.[562]
From a comparative perspective, Arthur
Lupia stated, “Democracies around the world use referenda to offer legitimacy
and elevated legal status to a range of statutory and constitutional proposals.”[563]
Benoît Pelletier suggested that a referendum on
electoral reform could increase Canadians’ confidence in their democratic
institutions:
I am very much in favour of holding a referendum
on the matter like this. One of the main reasons is that, if we want to reform
the method of voting, it is for the benefit of Canadians themselves so that
they have more confidence in their democratic institutions. In that
sense, I have a hard time seeing how we could carry out a reform in the method
of voting worthy of the name, in other words something significant and
substantial, without asking Canadians for their opinion.[564]
Several others argued that a decision of such magnitude should only
be decided directly by the people, not by politicians. As Rodney Williams
indicated, “[m]y view on electoral reform is that you have to let the people
decide this. That's what you take back to the House of Commons.”[565] Suzanne Sexton echoed this sentiment, stating:
You've been put here by your constituents …, and
they had faith in you to do your jobs. Give them that same right to vote on
changing our democracy. If they trusted you, you should trust them to choose
the system and you should have a very clear question.[566]
On a related note, Rémy Trudel posited that a referendum campaign
could be a tool for needed public education on the proposed electoral reform:
Yes, in my opinion,
Canadians have to be consulted because any change would be significant. It
would mean turning the page on a system that has been in place for over 200 years.
Our democratic institutions will be affected by the change. The population must
be consulted, but I really think that a referendum is an outstanding tool for
public education.[567]
Others, such as Arthur Lupia, suggested that just because voters
voted for candidates or parties who supported electoral reform in their
campaign platforms does not necessarily mean that the voters gave the parties
the mandate to engage in reform:
[I]n an election it's very difficult to say that
the reason that the electorate chose a particular candidate is because they had
a strong feeling about a particular issue. Some people may have felt very
strongly about change but other people may have felt strongly about the economy
or inequality or social issues or things of that nature. So, as a general
matter, it's hard to find one issue that is the reason that a majority cast a
vote and for me it's impossible to do without data.[568]
A referendum, it follows, would be the clearest way to know that
the public approves a mandate for reform. However, other witnesses, such as
James T. Arreak, suggested that having a subsequent election, with proposed
reforms clearly laid out, could be a preferable way to proceed:
Rather than having a referendum, due respect for
democratic process and for our parliamentary history would be shown by having
each majority party adopt a clear position on a detailed program for electoral
reform prior to the next federal election and then let the voters make their
judgments on those proposals as part of casting their votes. In that fashion,
the next Parliament would have a mandate to proceed.[569]
As detailed below, the primary arguments that
witnesses who appeared before the Committee made against holding a referendum
or plebiscite on electoral system reform are that it is a flawed instrument
that does not lend itself well to the reform process; they tend to breed
misinformation and favour the status quo; they are divisive; and that the cost
is not worth the effort.
Maryantonett Flumian commented on how referendums
tend to be blunt, and less useful, instruments to decide complex policy
matters:
It's [a referendum] a very blunt instrument that
leads to binary choices on very complicated matters when we haven't even
figured out what the questions are yet in a governance ecosystem.
When I look around the room, I look at the age of
this committee and at my own age. I am the generation, as you are the
generation, of people who are the recipients of national referenda and
referenda recovery in a world where our national referenda have tended to be
extremely divisive, not leading to goodwill and greater understanding on the
importance of the issue. This is why it's so important that all of you, as
parliamentarians, take this role seriously in what you're going to be doing.
There's nothing more important.[570]
A number of witnesses and open mic participants
expressed concern about the potentially divisive nature of referendums. For
example, James T Arreak, speaking from Iqaluit, noted that:
Given the small population weight of Nunavut in
Canada, our voice would be a very small one in any national referendum or
plebiscite. That would be an important drawback in itself. The larger and more
compelling drawback to a referendum would be its potential to divide Canadians
from one another, reopen old lines of division, and create new ones.[571]
Other witnesses, such as Arthur Lupia, commented
on the prevalence of misinformation and confusion that often exists in
referendum campaigns, particularly on issues deemed “arcane” or “abstract.” As
well, in consequence, groups that are already underrepresented in the political
process tend to not participate:
If it seems like this arcane and abstract type of
thing that really isn't connected to their life.
It might be something that just the elites are arguing about. That's when they
stay away. Even if they go to the polls to vote for another candidate, there's
this idea of drop-off, where referendum is just too confusing or too abstract,
they just wash their hands of it. That's the main variation. The other thing
that I'll say is, when that happens, the people who are more likely not to turn
out, tend to be people who are lower in socio-economic scales. If you're
worried about people who have less education or less income being part of this
process, then if you have a situation where the referendum is confusing and the
interests groups aren't telling people what's going on, the folks who that are
most likely not to participate would be lower SEC, and of lower education.[572]
Arend Lijphart suggested that the misinformation
and emotion found in referendums renders their outcomes volatile and unpredictable:
I am skeptical because outcomes of referendums are
often highly volatile and unpredictable. They often involve a lot of emotion,
demagoguery, and outright lies.[573]
On a related note, witnesses such as Yasmin Dawood
commented on how referendum education campaigns often do not sufficiently
enable voters to make informed decisions:
[W]hat the research seems to show in a number of
studies is that there isn’t sufficient education or money put into educating
people in terms of what is at stake in a referendum. Given that fact, people
often tend to favour the status quo.[574]
The notion that referendums tend to favour the status quo was
further explained by Arthur Lupia:
In terms of campaigning, the no campaign always
has this advantage if they can make their case well, because if you vote no,
you continue with something known. At the time of the campaign, yes is an
imaginary thing. Yes is this virtual world, this thing that has to be described
to you. No one has lived it before. The modus operandi for a no campaign is to
find a worst-case scenario and run with it. It's very easy to do that if you
know what scares voters. The yes campaign has to find a simple, urgent, and
direct message to try to relate it to people's lives. It can be done, but it's
harder. I would say that, if two sides are given equal amounts of money, the no
side still has this advantage because it's just built in. They are advocating
for something that people have lived through, while the yes side is advocating
for something that, at least at the moment, people can only imagine.[575]
He added that a referendum that did not include
the status quo as an option would be non-traditional and would challenge the
usual dynamic:
[If a referendum does not include status quo
option] That's a non-traditional referendum. Usually, there's one proposal put
forward and people vote Yes or No. If that wasn't on the table, then the status
quo...that dynamic would not be present. Then it would be more like a candidate
campaign, where you have ostensibly two new people.[576]
One area of discussion was the logistics associated with holding a
referendum to approve a new electoral system. Two issues raised by witnesses
were the financial cost of a referendum, and the time constraints associated
with holding a referendum on a new electoral system, and then implementing the
system in time for the 2019 election.
At his 7 July appearance before
the Committee, Chief Electoral Officer Marc Mayrand stated, “Our estimate is
that it would be around $300 million to run a referendum.”[577] However, Mr. Mayrand indicated that these costs could be lowered, if
legislation were enacted to permit innovations. In response to a question at
the same meeting, he observed:
[M]ore and more, referendums are being conducted
by mail, and that significantly reduces the cost. As I said, all sorts of
scenarios are possible, but it will be necessary to revisit the legislation.[578]
In testimony delivered to the Procedure and House Affairs Committee
on 4 October, Mr. Mayrand stated:
The other question for this committee to consider---and
it’s not for Elections Canada---is whether in this modern age there are
alternatives to how we run a referendum. I understand that in B.C. they run
plebiscites by mail. I understand that in P.E.I. next month they will be
running a plebiscite online and by phone. There’s nothing about those modern
alternatives that’s available under our federal statutes, which causes a
significant cost to a federal referendum.[579]
Some indication of the degree to which the costs associated with a
referendum might be reduced via the use of a postal ballot was given by British
Columbia’s chief electoral officer, Keith Archer, who described to the
Committee of his experience administering a mail-in referendum on the
province’s Harmonized Sales Tax (HST):
One of the arguments that
has been used in British Columbia for the mail-in ballot is its
cost-effectiveness. Our budget for the last provincial general election was
about $35 million. The HST referendum that was conducted with mail-in balloting
was just over $8 million. It's a much less expensive option and in British
Columbia we have confidence in the integrity of a referendum process that uses
mail-in ballots.[580]
He noted, in
addition, “[t]he cost of the plebiscite in 2015 was $5.4 million, or $3.44 per registered
voter.”[581]
Dr. Archer also noted that the cost
of holding a referendum at the same time as a general election – something not
currently permitted at the federal level – could reduce the costs still
further:
In 2005, Elections BC's
total costs in administering the general elections were $22.9 million, or just
over $8 per registered voter. The cost of the referendum was just over $1
million, or an additional 37¢ per registered voter, so this thin layer is very
inexpensive to administer.[582]
Finally, one idea, which was raised by several
witnesses, and by more than
20 open mic participants, was to implement a new electoral system by means of
ordinary legislation (i.e. without a referendum), and then to hold a referendum
after one or
more elections had been held under the new electoral system. The rationale for
this approach is that it eliminates the perceived tendency of voters to
reflexively vote in favour of the status quo and against any new or novel
electoral system. Lee Ward expressed this view as follows:
I support a referendum. I support a referendum on
all kinds of issues. I think the referendum has to be an intelligent one,
though, and it has to be comparing apples with apples. I think there should be
a sunset clause in the legislation whereby, after two elections with a new
system, we have a referendum to compare it with the old one so that the public
has a genuine choice. I wouldn't buy a car without a test drive.[583]
This kind of post facto referendum has never been attempted in Canada or in the United States. When
asked about holding a referendum only after one or more election cycles under a
new electoral system, Professor Lupia responded,
The situation you’ve
described is quite rare, that you enact the change and then ask for a vote
later. What’s more common is that you would have an advisory referendum. First
you say that you’re going to put this out to a vote, but we’re not going to implement
it yet and it’s not going to count; we just want to get a sense of the people.
That’s a little more common as an alternative to the normal referenda where you
vote on it and they implement it.
The case that you’ve
described happens, but it’s pretty rare. Once governments invest in a change
like this, typically there’s a reticence to put it out there and change it. It
has happened, but it’s really rare.[584]
Finally, recent experience suggests
that the extent to which voters may opt against changing the electoral system
in a referendum or plebiscite may be overstated. Indeed, following the November
2016 plebiscite in P.E.I., where a majority of those who voted opted for
electoral system reform, proposals to replace FPTP have received majority
support in two out of five such votes held since 2005 (as discussed above, the
2005 referendum in B.C. on BC-STV was supported by over 57% of voters).
If a decision is made to hold a referendum, the natural next
question is how the referendum ought to be conducted. As elaborated more fully
in Chapter 3 (regarding the history of reform at the federal and provincial
levels), provincial plebiscite experiences in British Columbia, Ontario and P.E.I.
offer useful lessons.
A number of witnesses highlighted the importance of educating the public
about the alternatives being considered in a referendum or plebiscite. For
example, in preparation for the 2016 plebiscite in P.E.I., the Chief Electoral
Officer set up a website dedicated to explaining the technical aspects of each
of the options on the ballot. According to P.E.I. Member of the Legislative Assembly
(MLA) Jordan Brown, who chaired the legislature’s Special Legislative Committee
on Democratic Renewal, this educational initiative was designed, in part, as a
response to complaints following the 2005 plebiscite, that the MMP option being
considered at the time was overly complex and insufficiently explained.[585]
Turning to the experiences of other provinces that have conducted referendums
on electoral reform, Brian Tanguay noted that a “lack of education, a lack of
information, and confusing signals sent out by the parties themselves, all …
led to a less than optimal context for the conduct of the referendum vote
itself.”[586] Professor Tanguay had served as the lead author on the Law Commission of
Canada’s 2004 report titled Voting Counts: Electoral Reform in Canada,
and had appeared as an expert witness before the Ontario and Quebec
legislatures to discuss electoral reform.
In a similar vein, Leslie Seidle noted, “you
cannot divorce a referendum from a public education campaign.”[587] Nicole Goodman added that “[e]ducation and outreach need to be key
elements of the referendum process.”[588] Irish Professor Michael Marsh emphasized the importance of setting aside significant
resources to inform the public during a referendum campaign:
If you do have referendums, I think you need an
awful lot of resources going in to inform people. We have a referendum
commission charged with mobilizing voters and occasionally with disentangling
truth from fiction. It doesn’t campaign and it no longer puts out a booklet
telling you exactly what the referendum is about in fine detail … we leave that
to parties and civil society groups, and the one control over that is that no
public money is spent.[589]
This advice regarding the importance of robust public education was
offered to the Committee in the interest of achieving a well-informed
electorate. However, one witness articulated the fundamental challenge for
advocates of electoral system reform to persuade voters in a referendum.
Professor Lupia explained the challenge facing the pro-change campaign:
As a general matter, ‘Yes’ campaigns are more
difficult to wage than ‘No’ campaigns. ‘Yes’ campaigns seek to persuade
citizens that invisible and unprecedented change will improve their lives. ‘No’
campaigns seek to persuade citizens that change is dangerous and scary.
So if your members want electoral reform to pass,
the ‘Yes’ campaign will need to focus on relating consequences of the change to
the aspirations and daily struggles of Canadian citizens. If the ‘Yes’ campaign
offers intellectual abstractions while the ‘No’ campaign offers emotionally
salient reasons to fear change, ‘No’ will have an important advantage.[590]
Another concern raised by witnesses was the prospect of one side in
a referendum campaign spending far more than the other side. The most
remarkable example of this kind of large-scale referendum spending was related
to the Committee by Professor Lupia:
[In 1988] there were five different referenda [on
the ballot at the same time] in one state, in California, and the amount of
money spent for and against these five referenda was more money than was spent in
the presidential election nationally that was happening at the same time…. [Y]ou
can get in the $150 million to $200 million range at the top end.[591]
While no witness suggested that the spending on
either side in a referendum on electoral reform would be anywhere close to the
levels recorded in California, the
issue was raised regarding the need to update or replace the federal Referendum
Act.[592] One such update would be to set spending limits on the participants as currently
no such limits exist.[593]
In addition to public education, any referendum campaign should
make voting as accessible as possible. Jordan Brown suggested to the Committee
that the reduced number of polling stations, and the fact that there was only
one day to vote, resulted in lower voter turnout in P.E.I.’s 2005 plebiscite.
For the 2016 plebiscite, voting was allowed over a number of days, and in
addition, voters were able to cast their votes electronically or by telephone.[594]
As well, Elections Canada must be given sufficient time to address
the technical issues associated with conducting a referendum. Marc Mayrand
outlined these issues to the Committee as follows:
[W]e would have to prepare the ballot, setting out
the question to Canadians. We would need to revise all the material that hasn’t
been reviewed since 1992 and redo all the training manuals for elections staff.
Basically, we would have to prepare the materials to train the 255,000
Canadians who help administer elections.
We would also need to review all of our systems
that are not yet tailored to a referendum. We estimate that about 15 computer
systems would need to be adapted. What’s more, certain contracting arrangements
would be necessary as far as supplies and equipment were concerned.[595]
Mr. Mayrand estimated that these changes would take about six months,
and so conducting a referendum would add to the overall timeframe for
implementing a new electoral system.[596] He
indicated in an appearance on 4 October 2016 at the Standing Committee on
Procedure and House Affairs:
First, we need to update the regulation under the Referendum
Act. That’s the very first thing that needs to be done, because that sets
out the specific tasks and the variances that exist with the normal conduct of
an election. Bringing that regulation up do date would be the top priority for
Elections Canada. It has been done once in the last 10 years, so it needs to be
revised, updated, and tabled before Parliament.[597]
Another issue that was raised
during Committee testimony was the 60% threshold set for the B.C. referendum on
electoral reform. As observed by Gordon Gibson, the B.C. referendum did not
fail, as it “received the affirmative support of almost 58% of the electorate,”
had a turnout of 61.5%, and “secured an absolute majority in 77 of 79 ridings.”[598] Craig Henschel added that members of the Citizens’ Assembly were particularly
concerned about the 60% threshold,[599] and fellow Citizens’ Assembly member Diana Byford saw the threshold as a
failure on the part of the B.C. government.[600]
By contrast, New Zealand Chief Electoral Officer reiterated that in
New Zealand, the referendum threshold is 50%, the same basis
for the elections of members of Parliament (MPs).[601]
One
idea raised over the course of the Committee’s study[602] was to open the vote on any referendum on electoral system reform to 16 and 17
year olds. Indeed, 16 and 17 year olds were able to vote in the November 2016 P.E.I.
electoral reform plebiscite. Mr Brown further explained that the vote was
opened to 16 and 17 years olds as “they will vote in the next election,” they
are in school, and “they will be engaged in a setting where, effectively,
there's some structure to how they learn about politics and democracy and
they're able to participate in it.”[603] As well, Scotland lowered its voting age to include 16 and 17 year olds in its
September 2014 referendum on independence, and there was high turnout in
the
new age bracket.[604] Subsequently, the British Prime Minister agreed to set a separate
voting age, of 16 rather than 18, for all elections to the Scottish Parliament
and local
Scottish authorities.[605]
Finally, Katie Ghose, Chief Executive of the Electoral Reform
Society UK shared the Society’s reflections on recent referendums held in the
UK. She concluded that:
Done well, referendums can
hope to achieve high-quality public information and debate in the run-up to
polling day. Done badly, a referendum can obliterate any chance of meaningful
public and political debate, as the ballot topic is completely overtaken by proxy
issues.[606]
Recommendation 11
The Committee recommends that electoral system reform be
accompanied by a comprehensive study of the effects on other aspects of
Canada’s “governance ecosystem”, namely:
- the relationship between, and operations of, the legislative and
executive branches of government;
- the relationship between, and operations of, the House of Commons
and the Senate;
- parliamentary procedure and conventions related to government
formation and dismissal;
- the impact on the operations of political parties.
Recommendation 12
Observation: The Committee
acknowledges that, of those who wanted change, the overwhelming majority of
testimony was in favour of proportional representation. The Committee
recognizes the utility of the Gallagher Index, a tool that has been developed
to measure an electoral system’s relative disproportionality between votes
received and seats allotted in a legislature, as a means of assessing the
proportionality of different electoral system options.
The Committee recommends that:
-
The Government hold a referendum, in which the current system is
on the ballot;
-
That the referendum propose a proportional electoral system that
achieves a Gallagher Index score of 5 or less; and
-
That the Government complete the design of the alternate
electoral system that is proposed on the referendum ballot prior to the
start of the referendum campaign period.
Recommendation 13
The Committee recommends that Elections Canada should produce and
make available to the public materials describing any option, including maps
depicting potential electoral district boundaries applicable under that option
and sample ballot design, prior to the start of the referendum campaign period.
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