At the time this article was
written Roger Gibbons was Professor of Political Science at the University of
Calgary. David Thomas was Chairman of the Department of Economics and Political
Science at Mount Royal College
It is not our intent to assess why
the constitutional referendum failed. Rather, we will address the lessons to be
learned regarding the future use of constitutional referendums. We will suggest
that their use may become more problematic, not less, and indeed will emerge as
a serious impediment to change. More specifically, the peculiarly Canadian
rules of the referendum game as now played, and the nature of our
constitutional conflicts, may make the referendum a particularly inappropriate
mechanism of change or choice. At the same time, the demand for popular
participation will remain strong, particularly if Quebec continues to use the
referendum as its method of constitutional choice. Hence the dilemma.
We face a serious dilemma. The
uniquely Canadian referendum process is probably unavoidable in the future,
unworkable in many of its important details, and totally unsuited to the avoidance
of our longstanding and extremely complex abeyances.
In thinking through the recent
Canadian experience, it is important to note that the October 26 referendum was
not of the sort held in relatively homogeneous states such as Ireland or
France; even in these cases referendums create serious difficulties, as was
evident with the Maastricht vote in France and the divorce referendum in
Ireland. Other federal states which use a constitutional referendum process,
such as Switzerland or Australia, operate on the basis of either a simple
majority (of cantons) or a qualified majority (two thirds of the states). In
Canada, however, a unique set of rules produced a federal referendum based on a
provincial vote and requiring unanimity.
It was the provincial governments
in Alberta, British Columbia and Quebec which made the Canada/Quebec referendum
inevitable. (Quebec, of course, remained a unique case by rolling only the
timing of its referendum into the national campaign.) They had each put in
place legislation requiring a referendum before legislative ratification. It
appeared in early 1992 as if other provinces -- Saskatchewan, Manitoba and
Newfoundland in particular -- were likely to follow suit.
Thus in a quite extraordinary way
our constitutional wheel has come full circle. During the patriation debate of
1981-82, the federal government used the threat of a preemptive national
referendum to its advantage. Such a referendum was feared by the premiers, who
did not want to campaign against the Charter of Rights. It was only Lévesque
who, when goaded, took up the challenge and in so doing split up the "gang
of eight" who were opposed to the Trudeau package. In 1992 the tables were
turned and, in a sense, the chickens of 1982 came home to roost. To our already
very provincialized amending formulae has now been added a final power play by
the provinces via direct appeals to their electorates.
The end result has been a unique
referendum process with very troubling implications for future constitutional
politics. Before turning to this general conclusion, let us briefly consider
ten more specific lessons that might be drawn from the October 26 experience.
Lesson 1: The 1992 precedent will
be very difficult to ignore.
If our provincialized national
referendum process is so complicated, requiring the winning of what Jeffrey
Simpson has called ten poker hands in a row, why won't future governments just
ignore it and pursue ratification of constitutional amendments through
legislative action alone?
In practice, this would be very
difficult to do. There is little doubt that the public will see October 26 as a
binding precedent, and it would be all but impossible politically for
provincial governments to rescind the referendum legislation now in place.
Certainly it is unlikely that the Rest of Canada, having seen how effective a
referendum can be against Quebec, will ever let Quebec threaten to use a
referendum unilaterally, unopposed by a popular vote elsewhere. The use of
referendums outside Quebec becomes a way of underscoring provincial equality
and protecting symmetry within the federal system. Referendums will also be
supported by groups who might feel excluded from intergovernmental and/or
legislative politics, or who might lose in those forums and will then appeal to
the public as a court of last resort.
Lesson 2: Referendums cannot be
used to pick and choose.
In the public debate over the
Charlottetown Accord there was considerable frustration that voters were unable
to pick and choose among the constitutional offerings. The basic governmental
strategy -- to produce an inclusive document, replete with bells and whistles,
that would have something in it for almost everyone -- met with considerable
public opposition. However, it is not clear that this concern can be addressed
in the future.
Although it would have been
possible to trim down the Accord by cutting out non-constitutional elements,
the basic problem is that the Accord was a balanced package. If voters had been
able to pick and choose, the results could have been chaotic. For example, we
could have had Senate reform approved in the West and rejected in Quebec, with
the distinct society and 25% seat guarantee for Quebec winning in Quebec and
going down to defeat in the West. We would then have been left with a dog's
breakfast, a constitutional mishmash acceptable to no one.
The only way in which elements of a
future accord could be uncoupled would be to adopt a sequential strategy, to go
to the Canadian people first with one element of the deal, then come back again
with the second element, and then the third, and so on. However, this strategy
holds out no greater hope than a one-time vote on the separate elements. Region
A would not accept element X until it could be assured that Region B would
accept element Y, and so forth. Thus it will be all but impossible to uncouple
constitutional elements that form a package of balanced tradeoffs; a referendum
on Senate reform or the recognition of Quebec as a distinct society alone would
Lesson 3: Either partisanship or
nonpartisanship is the kiss of death.
It would be extremely difficult to
win a national referendum unless the major national parties all supported the
package, as they did in 1992. Given the regionalized nature of partisan support
and the provincialized amending formula, partisan discord would be the kiss of
death for a package requiring consent in ten electorates across the country.
Unfortunately, nonpartisanship poses an equally formidable problem. In a
nonpartisan campaign, partisanship cannot be used to sell the package, and
party organizations have no incentives to get out the vote or to sell the types
of compromise packages that are commonplace in national election campaigns. If
partisanship is neutralized, then voters are free to gravitate to specific
issues in their assessment of constitutional proposals. Nonpartisanship sets up
the type of campaign environment -- death by a thousand cuts -- that worked to
the advantage of the No side in the 1992 referendum.
Lesson 4: Elite consensus is
difficult to sustain in a national referendum campaign.
During the recent campaign the
Minister of Constitutional Affairs, Joe Clark, stated repeatedly that we would
be unlikely to see again the elite consensus found at Charlottetown. Yet creating
this consensus in the first place is only part of the problem; the more
difficult problem may be sustaining it during the national campaign. It
appeared in late August that our elites had reached a consensus and we would be
spared a vociferous debate about national values and identity. But the apparent
consensus, and along with it public support, were quickly eroded. This happened
not because elites were opposed by "the people" and not because
members of the original consensus defected, but rather because the campaign
mobilized competing elites. To a degree, those competing elites were drawn from
groups who felt excluded from the intergovernmental process leading up to the
Charlottetown Accord, and such exclusion will be inevitable in the future.
It could be argued, admittedly,
that the erosion of support was due to voter alienation and angst, especially
among those lower down the educational and socio-economic ladder. Nevertheless,
it is clear that the charge against the Accord was led more by disaffected
elites than by an amorphous disaffected public. Apart from their exclusion from
government, Pierre Trudeau, Preston Manning, Jacques Parizeau, Deborah Coyne,
and Sharon Carstairs shared an elite status indistinguishable from those
gathered around the table at Charlottetown.
Lesson 5: We cannot neutralize the
impact of personalities.
One of the concerns raised during
the recent campaign was that many Canadians might use the referendum to express
their disapproval of incumbent politicians, in their own province or elsewhere.
For example, the No vote may have been increased by labelling the Charlottetown
Accord the "Mulroney deal." At the very least, the prime minister's
lack of popularity was an impediment to the Yes campaign. However, it is unlikely
that anything can be done about this type of contamination. Indeed, we would
suggest that future constitutional referendums will likely be held in
conjunction with federal elections, if only to avoid the very considerable cost
of stand-alone referendums. (The administrative cost of the 1992 Canadian and
Quebec referendums has been estimated at approximately $165 million.) This
strategy would make particular sense if future referendums were more narrow in
scope, and tackled very specific aspects of constitutional reform, much as
Australian constitutional referendums have done. Yet in this scenario, the
dynamics of a national election campaign, in which political leaders play a
central role, would inevitably spill over into the referendum debate.
Lesson 6: The mechanisms of
interstate rather than intrastate federalism have been strengthened.
The apogee of "interstate
federalism" in Canada has been the First Ministers' Conference. Although
First Ministers' Conferences are not a formal part of the constitutional
process, they have played the central role as the premiers and prime minister
have been expected to be the initiators of constitutional change. It might be
argued, then, that the use of referendums will take power away from the FMC and
the premiers, and thus strengthen the "intrastate" or centralizing
mechanisms of the federal state. This would normally be the case, and Canadians
may well feel that they have been empowered as citizens. However, such an
outcome requires a truly national referendum campaign and this is difficult to
achieve when the rules of the game create provincialized electorates. The Yes
side was forced to run a national campaign in 1992, but the No side was not
and, as a consequence, found itself in an easier strategic environment. When
the Yes side tried to exploit the provincialized electorate, disaster ensued.
Witness here the experience of Mr. Sihota when he tried to defend the
Charlottetown Accord in British Columbia by arguing that Quebec had caved in on
Lesson 7: Referendums have not
worked to Quebec's advantage.
The national referendums in 1898
(prohibition) and 1942 (conscription) were both defeats for Quebec,
particularly the latter. The 1980 Quebec referendum on sovereignty association
did not provide the government of Quebec with a clear constitutional mandate,
nor did it provide useful leverage on the Canadian state. Indeed, it led
directly to the 1982 Constitution Act and the "betrayal" of
Quebec. The 1992 referendum shows that our provincialized populations are not
as accommodating of Quebec as are our provincial/federal elites. When premiers
gather around a table they begin to see each other's points of view; they
develop a better sense of the country's history and complexity. This does not
happen in a referendum campaign.
Lesson 8: The referendum process is
inappropriate for constitutional changes affecting Aboriginal peoples.
The October 26 referendum was
particularly ineffectual in capturing the preferences of Aboriginal peoples.
During the campaign there was considerable division of opinion within
Aboriginal communities, and particularly within the Assembly of First Nations.
In the referendum itself, many communities did not participate, many Aboriginal
voters living off reserve and in urban settings were swallowed up in the
provincial vote count, and where a count could be done of Aboriginal
preferences, those preferences were often at odds with the constitutional
position adopted by the Aboriginal leadership. In short, we do not know who
speaks for Aboriginal peoples, but we do know that a national referendum is
ineffectual as a ledger of Aboriginal preferences.
Lesson 9: We may have picked the
wrong amending process in 1982.
We have put ourselves through all
sorts of constitutional contortions, and have succeeded in creating a virtually
unworkable amending formula, in order to avoid the overt recognition of
Quebec's demand that it should possess a veto or, to be more positive, that its
consent to major change be required.
Any move to the only other amending
approach in sight, some sort of four region ratification, would meet very
strong opposition. It would be seen as running counter to the doctrine of
provincial equality asserted in 1982, restated in the Meech Lake Accord,
re-emphasized in the Charlottetown Accord, and reinforced by a provincialized
referendum process. It would be seen as a major concession to Quebec, without a
quid pro quo. Yet such an approach has always been a highly recommended
alternative. It formed the basis of the Victoria Charter of 1971, The Unity
Task Force Report of 1979 recommended a four region ratifying referendum
process, and the Beaudoin-Edwards Committee returned to the Victoria approach
in its conclusions.
Lesson 10: In cases of confusion or
doubt, the status quo will win.
This is not surprising. Alan Cairns
noted in 1983 that the constitutional status quo "survives because no
other constitutional option enjoys enough first choice support to replace it…it
alone possesses the supreme advantage of existence…."1 In this
case, failure of the referendum entrenched the arrangements arrived at in 1982,
arrangements which still lack political legitimacy in Quebec. If the future use
of referendums threatens to inhibit rather than facilitate constitutional
reform, then the 1982 arrangements are likely to be further embedded with the
passage of time.
In summary, future constitutional
referendums may be difficult to hold and impossible to avoid. This dilemma,
however, goes much deeper than the specific concerns mentioned above. More
fundamentally, we might ask if referendums can be used to address the types of
constitutional conflicts we face, to bridge conflicting national visions, and
to accommodate quite different conceptions of the political community.
Unfortunately, there may be constitutional conflicts for which referendums
would be inappropriate and even dangerous. If this is the case, and if we are
locked into constitutional referendums, are there some forms of constitutional
change that should be avoided altogether?
This issue was touched on in Kenneth
McRoberts' insightful analysis of the October 26 outcome. McRoberts argued that
the Charlottetown Accord was fundamentally flawed in its response to the
constitutional visions of Quebec and western Canada:
For 30 years, the primary focus of
Quebec's program for a "renewed federalism" has been to expand the
powers of the Quebec government so that it can assume its proper role as a
"national" government. In recent years, Western Canadians, with some
Atlantic support, have championed reform of the Senate, preferably along
Triple-E lines, to weaken Central Canada's hold over the federal government.
One might have expected a trade-off -- a Triple-E Senate for Western and
Atlantic Canada, combined with an "asymmetrical federalism" through
which Quebec would exercise powers that other provinces did not want. Instead,
while the accord adopted these projects in form, it compromised them to a
degree that many of their supporters could not possibly have accepted.2
Our own assessment of the
Charlottetown Accord is in basic agreement with the above. However, McRoberts
goes on to argue that an acceptable compromise was possible, and that
governments must be willing to confront directly what Canadians are seeking.
This runs counter to the view that constitutions should remain silent on
matters which are inherently intractable. According to Michael Foley, mature
and workable constitutions contain abeyances which one approaches and makes
public at one's peril. Such abeyances are holes or "gaps of
unsettlement" in a constitution, and "it is recognized that any
attempt to define them would be not merely unnecessary or impossible, but
positively misguided and even potentially threatening to the constitution
itself."3 Abeyances represent implicit understandings by which
we preserve "an approximate appearance of internal coherence," but,
in reality, matters have not been resolved nor have fundamentally differing
points of view, or principles, been reconciled: they are simply ignored and set
aside so that we may live to fight another day.
Abeyances are usually the product
of long historical experience and accumulated practice, of which the public is
but dimly aware. They will never be neatly set out in readable and explicable
form, but exist in a "shadowy world" of complicity, loosely linked to
political conventions and expediency. As such, they are exceptionally difficult
to discuss and explain during a referendum debate. Merely raising them ups the
ante so much that passions may reach a crisis point. It is almost impossible to
explain why there cannot be a principle (such as equality) which
In Canada's case, abeyances include
the question of popular sovereignty, the clarification of Quebec's
distinctiveness, the problem of provincial equality, the resolution of the
amending process (prior to 1982), and the definition of aboriginal rights. Such
abeyances will not fare well when the searchlight of public debate is turned
upon them. They may well appear too equivocal, and too dangerous to leave
unresolved (and well enough alone). Hence abeyances are precisely those matters
one does not want the public to sink its opinions into.
If we are to use referendums in the
future, how are we to avoid drawing abeyances into public debate? How do we
avoid spelling out what we know cannot be spelled out? How do we avoid
providing textual certitude and clarity when any inability to do so will be
seized upon by a small army of single principle exponents who will claim that x
or y is being threatened by attempts to leave matters vague, generalized and
contradictory? How do we keep abeyances under the constitutional rug, knowing
as we do that referendum campaigns are a blunt and even dangerous tool to use
on such deep-seated and emotionally powerful problems?"
1. Alan Cairns, "The Politics of
Constitutional Conservatism," in Keith Banting and Richard Simeon, eds. And
No One Cheered: Federalism, Democracy and the Constitution Act (Toronto:
Methuen, 1983), 53.
2. Kenneth McRoberts, "Blame
it on a fundamentally flawed accord," The Globe and Mail, October
29, 1992, p. A19.
3. Michael Foley, The Silence of
Constitutions (London: Routledge, 1989), p. 9.