Procedure and House Affairs Committee on Nov. 24th, 2009

[Patrick Boyer]

They're confusing to everybody. You could do a great service to the nation if you actually could define it in the act.

You know, this is Canada. What we call a “taxicab” is called a “taxi” in Britain and a “cab” in New York. We say “tin can” in Canada. In Britain they say “tin of fish”. In America they say “can of beans”. We're so used to mangling words and putting them together. We can't quite decide what they should be.

In Newfoundland, where it's the Referendum Act, all that ever happened under that was plebiscites. In the Loi référendaire du Québec, those were non-binding. They're both the same. They're questions on a ballot answered by a yes or a no, given to citizens who are qualified to vote.

The process is all the same, but what's the legal significance? If you go back in law, originally a plebiscite was a non-binding vote and a referendum was a binding one. However, not only in practice and terminology but also in the actual statutes of our country, three of the jurisdictions have now used the opposite meanings.

That's why I think it's easier, generally, to refer to a ballot “question”--it's just more generic in terms of what the process is--rather than define whether you prefer the Greek word, “plebiscite”, or the Roman word, “referendum”, to describe something that's very Canadian.

In my act, which I had drafted and presented to Parliament, I referred to “public consultation”. I referred to it largely as that.

To answer Marlene Jennings' question, there's a third thing I would change. I would refer to it as “citizens' consultation”, not “public consultation”--

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

But prior to having that actual vote take place, should the citizens not be informed on whether this is binding, non-binding, consultation, or seeking their input? Otherwise, what value is there in holding it in the first place?

[Patrick Boyer]

Yes, they should. And you can provide that in the act. My private member's bill talked about the need to declare whether this was going to be binding or non-binding.

What actually took place in 1992 on the Charlottetown Accord, under the Canada Referendum Act, was in fact a non-binding vote, although everybody called it a referendum. When the results came in, it was as if it had been a referendum. It was that very night that Prime Minister Mulroney said, “The Charlottetown Accord is history.”

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I have a little bit of time left, and just a quick question.

You made a comment early on in your remarks that I appreciate. You urged us not to deal with just some technical details but with the broader democratic principles.

I'm not a lawyer, and I probably won't have time to go through your private member's bill word for word....

Even if I could, I wouldn't understand it--no reflection on you.

[Voices]

Oh, oh!

[Patrick Boyer]

I think you're underselling yourself, sir.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Could you commit to putting in lay terms for me, and perhaps for the committee, a two- or three-page, maximum five-page, summary of the principles that you would urge this committee to consider as we move forward to hopefully come up with a report to Parliament?

It would help me to understand in lay terms what those key principles are that you think we need to grapple with. You don't necessarily need to tell us which way we should go, although I'd welcome that as well.

It would be really helpful if you could do that for us.

[Patrick Boyer]

Thank you.

Perhaps that's already been largely accomplished in this book, The People's Mandate. Pages 204 to 212 are more or less your five pages.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

[Patrick Boyer]

That covers everything from the subject of the referendum to the creation of what I call the public consultation council. This is one of the things you'll be getting into--enforcement and arbitration of issues during the period of the referendum, the issuing of the writs, the polling divisions, the registered committees, expenses, qualification of electors, information for electors, political broadcasts.

I think that, plus what's already on the record from earlier this morning in these proceedings--

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

That's very helpful.

[Patrick Boyer]

--the two plus one, the three changes, in answer to Marlene Jennings.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you.

Monsieur Guimond, do you have another question?

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Yes. I will keep it brief, Mr. Chair. I simply wanted to wrap up my earlier comments about the expenses incurred by third parties in conjunction with a love-in, so to speak. Professor Boyer started off by saying that yes, Canada does love Quebec, that he loves Quebec, that as an Ontarian, he loves Quebec, and so on and so forth.

You agree with me that expenses incurred by third parties should be accounted for. That is what you said at the conclusion of your response. I simply want to make the following comment for your benefit, and for the benefit of committee members. An outpouring of affection should not give rise to any illegal acts. I'm not sure whether your have a son or a daughter. You love your children, you love to spoil them and to give them nice gifts, but I'm fairly confident that you wouldn't hold up a bank and steal $100,000 to give to your children because you love them. In short, an outpouring of affection should not result in any illegal acts such as the ones committed in Quebec during the 1995 referendum.

[The Chair, Conservative, Joe Preston]

Okay. Agreed?

Mr. Lukiwski, I'm trying to give everybody a chance at the end, so try to keep it brief, if you can and we'll get in as many as you want.

Monsieur Godin, there's nothing for you? Okay.

All right. Go.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you.

I have two or three interconnected questions. I recognize that some of this information is contained in your publications, Monsieur Boyer.

You said the referendum questions should be transcending issues, and I agree with that. If you were drafting a legislative framework--a new referendum act--what criteria and conditions would you include that would define a transcending act? In other words, nobody would want to see a frivolous question placed on a ballot. You gave the example in Saskatchewan. Whether or not public funding of abortion is a transcending issue could be argued. Regardless of that, how would you define a question--whether it was brought forward by a private citizen, a private citizens' group, or a government--that meets the conditions that would allow it to be considered in a referendum?

Secondly, once the question has been defined and agreed upon, what percentage of voter turnout do you suggest would be necessary, if it were a binding referendum, for government to be obligated to act upon the results? We've seen many times, even in provincial byelections and municipal elections, that it is not uncommon for voter turnout to be 20% to 25%. What would happen if a national referendum was called, voter turnout was 15%, and the yes or no side got 51% of that? In other words, 7% of Canada's population expressed an opinion, and the government said that was going to be a binding referendum. How would you deal with those issues that could quite conceivably come to pass?

[Patrick Boyer]

Two questions, and the second one is a real tough one.

The first one is, what would be the appropriate subjects to have a ballot question on? When I was drawing up my act, I discussed this with a lot of parliamentarians and came to the conclusion, after a lot of thought, that it was impossible to draw a line down the centre of a page and put on one side subjects that should never be submitted to the people in a referendum and, on the other side, topics that must always go to the people in a ballot question, no matter what. They were not watertight compartments.

Fine. So then I went to solve that problem another way. I looked back through Canadian history and the wider political history that informs Canadian thinking, and I was able to draw out five, six, or seven principles. In fact, they are summarized again in The People's Mandate, on pages 118 and 119.

For example, briefly, one of them comes from a speech that Prime Minister Arthur Meighen gave in 1924, where he said that if a subject is going to affect a positive principle of the state, then the people ought to be consulted on whether to make that change.

There is another example where an issue comes up that had never been discussed in the prior general election at all and it is not a trivial thing. It's not a housekeeping matter; it's something that is really major for the country and its future direction, but it hadn't been part of the debate in the election and therefore no party in government could say it had a mandate for it.

Therefore, prior to proceeding with that in a mature democracy, where you want to have the consent of the government and you want people to buy in and participate, be educated and informed and the government to respond accordingly, that would be a second appropriate instance for having a referendum.

As I say, there are about seven principles. One final example comes from The Economist magazine, when it was discussing a number of referendums in different countries. It said it could be that on a particular subject a country would want to have a referendum domestically in order to enhance its ability to deal with that issue internationally.

So it's like that. Basically we are here with the exercise of statecraft. It requires good judgment and good leadership. If it were otherwise, we wouldn't need parliamentarians and governments; it would all be run by robots and computers. This does require good judgment.

The second really hard part relates to voter turnout. We of course are all aware of generally declining rates of voter participation in general elections, as well as referendums. You almost want to say that a minimum turnout has to be specified, but you know in doing that you're perhaps creating a principle that is going to swallow the exercise. So you get to another point where you say, “Let's just hold this ballot question and see if anybody comes.” If not too many do, they're the ones who make the decision. If what turns out to be a majority of people who stayed away don't like it, isn't that too bad, because you're a citizen and there was a voting day and you were on the list, you had all the rights and there was a lot of information out there, where to go and vote, and you stayed away. The decision was made without you.

I kind of think in my moderate middle age I am getting more bloody minded about that, where I would just say, set out the rules and those who get to play govern the country and help make the decisions, and those who stay away can go to Tim's and have another coffee and grumble about it.

[The Chair, Conservative, Joe Preston]

Thank you.

I have Mr. Reid for a short question to finish this portion.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you.

I heartily agree with your comment regarding voter participation thresholds. I can see the merits of doing what the Australians do, saying you either vote or you get a $200 fine. I can see the merits of accepting what the Swiss do, which is to say, if we get 30% voter turnout, that in its own way is a healthy thing because it indicates that people are voting on question A, which they understand, but on question B, which was also on the ballot, they're choosing not to vote because they think their lack of information would make them vote unintelligently and they would let others who understand it vote. Those are respected.

What you don't want to have, I think, is what Italy has done, which is to say you have to have x per cent vote in order for it to succeed, and then one of the messages that goes out from those who oppose whatever measure is on the ballot is just to stay home. In so doing, you will more effectively kill it than if you came out and voted against it and raised the threshold above a certain level. So inherently, under the Italian example, you de-legitimize referenda. That's just a comment.

With regard to the idea of epoch-making or defining issues, the one that comes to my mind most clearly is the Anti-terrorism Act in 2001. We were all elected a little less than a year before 9/11, with no mandate to act in any way at all on the fallout from 9/11. It struck me at the time that the Anti-terrorism Act, which of course suspended some fundamental civil liberties, and did so permanently, would have been a perfect item on which to have a referendum. I guess I'm inviting your comment on that.

Finally, I wanted to ask you about the idea of putting multiple questions on the same ballot. You mentioned that the Meech Lake Accord would have been a perfect item to put on the referendum ballot. The Meech Lake Accord, in practice, was going to involve five separate amendments to the Constitution of Canada. The one that required the unanimity threshold was arguably the least contentious of those, regarding the structure of the Supreme Court, ratifying the convention that three Supreme Court justices be from Quebec, whereas the most contentious, the distinct society clause, required only 7/50. Would that, by way of example, have been a good idea, to take that question and put it on as a serious and separate question on those separate amendments? Or would you think that would have been ill-advised?

[Patrick Boyer]

Thank you. You've covered a lot of ground.

On the last point, I think the agreements hang together as a whole entity. This was also what Prime Minister Mulroney said about the Charlottetown Accord, which had eight fundamental different areas, from developing aboriginal self-government and so on...that the constitutional package was itself a compromise and you couldn't cherry pick among the parts. It's like when we had to vote in Parliament; it was the whole package, or not.

That is not to say there isn't thoughtful discussion going into the run-up to the voting. A lot of education does happen in that process. People do become more aware of the five or the eight component parts in coming to their ultimate conclusion.

As an aside, one of the very important things about a referendum process is not just about the ballots that are counted on the voting night; it's equally about the education process that goes on during the campaign period, which is when citizens become seized of an issue and the outcome. Any government in office is then going to be operating in a policy field with an electorate that's better informed about the issue.

With respect to the thresholds, obviously the committee is already well served to address that issue. I was despairing in answering your colleague about what you do in a democracy. When I was in Iraq working on the inaugural elections and advising on the constitution, it was a dangerous place to be. On the first day I was in Baghdad, three election officials were pulled out of their vehicle in front of the election office and murdered in the street.

But I met a young woman who came up to me and said, “I am going to vote. If they kill me...I am going to vote.” I think about that attitude and determination from people who have lived under a repressive regime, and I sometimes wonder about the complacency of the expectation in this country that what we have so richly will be here indefinitely.

On your point about whether it was the War Measures Act or the legislation following 9/11, when civil liberties were curtailed in this country, a government will always invoke the urgency and the need to act today. But as we always see, whether it was in the long aftermath of the invocation of the War Measures Act at the time of the kidnappings in Quebec or it was in the long aftermath of September 11, 2001, there is ample time for the citizens to be involved in a consultation.

[The Chair, Conservative, Joe Preston]

Thank you very much.

That's going to be all we have today. I will suspend for a couple of minutes while we move in camera.

Thank you to the witness for coming and being so entertaining today. It was great. Thank you very much.

[Proceedings continue in camera]