We were in the midst of discussing a motion that was put to the committee by Mr Clement; members will recall that we were on point 2 when we last met. Mr Wildman, I believe, had indicated an interest in moving a motion. I assume Mr Silipo would be prepared to move that. Are all the members comfortable with moving on now from point 2? Has all the discussion taken place that members want to engage in on point 2? Mr Curling, did you have something you wanted to say?
Mr Alvin Curling (Scarborough North): When we were here last week, we discussed discretionary referenda. As you said, we are on number 2, mandatory referenda. In the meantime, I came across something that is extremely pertinent, as a matter of fact quite timely. I thought I would share this with the committee as we ponder and put our position --
Mrs Margaret Marland (Mississauga South): Excuse me. There's a fan or something working over here, so I'm wondering if we can turn the mikes up a little bit. For one thing, there's a big echo in this room and it's very hard to hear in the best of times. I didn't want to interrupt you, but I want to hear what you are saying.
Mr Curling: Thank you very much. I'll lift the voice a bit. I was just saying, for the member for Mississauga South, that I came across something that I think is quite pertinent as we deliberate on referenda and I thought I would share this with the committee. You are of course quite familiar with one of the prominent social thinkers of today, John Ralston Saul. He made some very pertinent comments in regard to referenda or plebiscites, as he called them. Let me just read some of the things I came across. He says:
"Referendum or plebiscite: Most commonly used to deform or destroy democracy, referenda casually offer a false choice -- to accept a change proposed by those who have power or to refuse it. In other words, there is a single option, which is not a choice.
"Referenda were introduced as a political tool under the French Revolution, but they came into their own under Napoleon." You remember him. "He used them to create something new -- a populist dictatorship. Referenda resembled a democratic appeal to the people, without requiring the long-term complexities of elected representatives, daily politics and regular elections. Instead he combined his personal popularity with a highly focused appeal on a single subject." Sounds very familiar. "The result was that he could later claim the general support of the populace on any subject for undefined periods of time. In 1804, Napoleon used a referendum to become emperor, thus destroying democracy. Hitler did virtually the same thing in 1933 and again in 1934. In two referenda he got more power than an absolute monarch.
"Those who propose the question invariably argue that a yes vote will solve problems; a no vote will bring on the apocalypse. This was as true of Napoleon as it was of the Canadian government's constitutional referendum in 1992.
"All the efforts of those with the power to pose questions are concentrated on making the populace understand that they `need' to vote yes. `Necessity,' William Pitt once said, `is the plea for infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.' And as André Malraux noted, `The slave always says yes.'
"Even at its best, democracy is a cumbersome and often tiresome business. Nor is it surprising that the gradual conversion of political propaganda into an important profession -- public relations -- which runs together social, economic and political questions, should favour the Heroic referendum approach over the complex, multifaceted and slow process of electoral democracy. The result is that we are increasingly subjected to the Heroic view of government. Even legislative elections are being turned away from their normal mix of issues and personalities to the illusion that a single candidate's position on a single issue or a personality flaw is all-important. Single-issue lobbyists are as devoted to converting elections into referenda as public relations firms."
The Vice-Chair (Mr John Hastings): Mr Clement, it says in the standing orders under 23(d), "In the opinion of the Speaker, refers at length to debates of the current session, or reads unnecessarily from verbatim reports of the legislative debates or any other document." It gives considerable latitude, it would appear.
Mr Clement: I would argue, Mr Chair, that this falls into the category of "or any other document." I would encourage you to encourage the member opposite to confine his remarks to what he feels is pertinent and not to read at length. He can maybe cite the passage to us and we'd be happy to read up on it in our own time.
The Vice-Chair: I'm trying to be flexible, but on the other hand, we had other situations, just before Christmas, similar experiences where people wanted to read from documents. I am prepared to make a ruling if we get into this sort of excessive situation, where you would read another document for 15 minutes. I'm not saying you will. Could we use some discretion here? Proceed, and hopefully in a couple of minutes you will have concluded, or nearly.
"And the press quite easily fall into the plebiscite game plan, because they find it easier to harp on about the same subject, dramatizing, hyping it in fact, than to deal with a mix of complex issues.
"A new face. The reduction of debt. Immigration. Nationalization. Privatization. Free Trade. One of these is the answer to our problems. It will allow us to avoid the apocalypse. The choosing of hundreds of representatives in the context of hundreds of issues, big and small, is in this way reduced to a plebiscite. Referenda are thus anti-democratic because they lend themselves so easily to the politics of ideology."
My point is that sometimes the members of the NDP will want to accuse us, questioning whether we are for referenda or not. But in any debate looking at an issue, it is important that we see both sides of it and don't just ram it through, blindly taking one position. That is why I felt it was important to hear from one of the top social thinkers what he feels about that. I read it into the record because I hope you'll have that to digest.
Whether they are discretionary or mandatory, we have to be very careful that when we do have referenda or a referendum, if there is one, the issues are debated openly and it's not reduced to a simple yes or no and there is no movement whatsoever; that the government does not use it to advance its own cause but to make sure that the people we serve understand the issue.
These days, the present government so often say things like: "It doesn't matter what the people say. We're going to just go ahead and do it anyhow. It doesn't matter if there is a referendum and the majority vote one way or the other. We know exactly what we're going to do."
I question whether one can trust that government to now sit down and debate referenda or plebiscites on the one hand, and at the same time they are carrying through legislation now that calls for people's input, which will call for a referendum by the people, and they say it doesn't matter one way or the other. I think that's what John Ralston Saul was saying here: We have to be very careful that these things are not used for our convenience. Those are my comments in that regard.
Mrs Marland: Yes, I am. Mr Chairman, just before I make the comments I want to make, I would like to ask a question of the Liberal caucus, the official opposition representatives. It's my understanding that their leader, Dalton McGuinty, has said publicly on the record, I think on Focus Ontario, that they are opposed to referenda. If that is the position, it would be nice for us to know that.
Mr Curling: Let me just say this to the member: We don't get marching orders from our leader to say yes or no, like you do in your party. He trusts that we can think independently and are thinking about the people all the time in this regard. Although the member for Mississauga South would like to indulge in political football now, to find out what my leader said and what her leader said, I won't be dragged into that. This is a committee where we will debate the issues as we see them, and when we're through we hope we'll bring the best legislation report forward to the House.
I also want to say to the member that if their minds are made up -- I know many of their minds are made up over there already, or, if it's one mind they have, it is made up already -- they should tell us so we would know exactly how to respond to you. But our mind is not fully made up as we go through these debates for every issue here. We will debate them as they come along.
Mrs Marland: That's a rather significant response in light of the fact that their leader -- not another caucus member, but their leader, who I can only assume must speak for the Liberal Party policy, the official opposition policy -- has said they are not in favour of referenda.
The reason I'm bringing this up, Mr Chair, is that it's obviously a total waste of time to go through a process in a committee when the leader of the party has said in response to a direct question, "We as the Liberals are not in favour of using referenda and we are opposed to referenda."
If the exercise is to fill out time of this Legislative Assembly committee by having the kind of exercise that I witnessed last week for the first time, after having sat on this committee for a long time, and obviously what we were launched into this afternoon as well, it's almost -- I won't allow myself to use the word, but I think you can probably guess the kind of word I might like to use to describe that kind of participation. If we're truly all here with an open mind to discuss something and improve something and develop a report and ultimately a policy we can all support with shared amendments and other changes, that is a fair purpose for us.
But if last week's example and obviously the role being played by Mr Curling today is an example of, "Let's drag this out" for no productive reason, I think we all have far better uses for our time. The government is not using the power of their numbers on this committee, which they certainly could. I certainly experienced that a lot in opposition. I respect that government members in a majority have that power, and as an opposition member for 10 years I experienced both the Liberals and the NDP using that, which is their prerogative.
In any case, Mr Chair, I guess we have to take some direction from you about where we're going with this. If it is going to be a series of filibusters every week in terms of the debate, it's not very productive if, at the end, those who are filibustering are simply going to realize, of course, that they cannot sit in here and vote against a policy that's already been pronounced by their own leader.
Mr Tony Silipo (Dovercourt): I have to say that I continue to be puzzled by the strategy my Liberal colleagues have chosen to adopt on this, but that's their choice. I take what they say at face value, and if they want to continue debating every one of these points, that's their right, I suppose, within the rules allowed in this committee.
I can't for the life of me understand why they would not want, as we want -- I'll be very clear about this -- to get on with this and have the report go to the House and have the government continue to explain, once that happens, the inconsistency they're caught in, of wanting to draft a piece of legislation to guide referenda while at the same time being out there opposing the referenda process in Metropolitan Toronto.
I want to get on with it. We have been clear, I and Mr Wildman sitting here on behalf of our caucus, that we have had discussions with our caucus members on this. Although I know other members -- not of this committee but of other committees -- like to quote individual members of our caucus with respect to referenda, I can tell you unequivocally that when I speak at this committee or when Mr Wildman speaks at this committee on the issues addressed by the motion before us, we speak not only for ourselves but for our caucus. I want to carry on with that.
I believe we're supposed to be discussing item 2. I have an amendment, Mr Chair, the one Mr Wildman had given notice of, which was to delete item 2. I will speak briefly to that amendment if you will allow.
Mr Silipo: As we've both put on the record on more than one occasion as we've gone through this discussion, we have said very clearly that we believe in the usefulness of referenda if they're used as part of the parliamentary process, in addition to the process. I won't belabour those points.
But we also believe fundamentally that whatever the new law looks like, it should not prescribe the issues upon which a referendum must be held. Based on the experience we've had so far on most issues affecting the Constitution, we probably think it would be wise to have referenda held on those issues. We don't believe it's necessary or appropriate to have that actually prescribed in the laws of the province.
Second, with respect to the issue of new taxes, the law saying that new taxes couldn't be imposed prior to a referendum, we again think that really is fundamentally contrary to the notion of parliamentary democracy. What taxation measures governments decide to implement is really at the heart of what the government is about, whether they are wanting to increase taxes, decrease taxes, change the variety of taxes, and that really needs to be, at the end of the day, at the heart of what each political party puts forward in terms of their position and proceeds with, gets elected, deals with, takes responsibility for, rather than getting into a pattern which we think would fundamentally change the nature of our process of democracy to one that says that before any particular tax could be implemented, a referendum has to be held on that issue.
For those reasons, we think it would be appropriate for this report to go forward indicating that we don't think it's appropriate for there to be mandatory referenda on those two items or any others. Again, I could go on and even here indicate some of the contradiction that I think the government members would find themselves in if they insist on this being part of the report. They also said there should not be casinos implemented without referenda taking place, and yet they're prepared to now sacrifice that issue. So if that, why not some of the other points?
On the question of new taxes, what's a tax? I've seen descriptions of taxes that would clearly say that user fees are taxes. Are we to understand, if this were to go forward, that the imposition of new user fees would not be possible without a referendum first having taken place? If that were the case, then I would say to the government members that they've already contravened that very notion, because there has been many a user fee. I'm not even talking about the ones that municipalities are having to put forward, or school boards or other bodies at the local level. I'm talking about direct user fees that the government has made decisions on through its power of regulation. So I think again the government members are caught on that one.
The most logical way to deal with this would be to delete item 2 and stay somewhat more consistent with the approach. So my motion is to simply delete item 2 -- my amendment, rather, to the motion in front of us.
Mr Gerretsen: I wanted to address some of the issues that were addressed earlier as to what exactly the policy of our leader was with respect to referendum. I would just simply say that it is almost impossible on an issue like this to make a categorical statement either one way or another.
I don't know what the government's position on referendum is either, quite frankly, because the Minister of Municipal Affairs has quite clearly stated in the House that he doesn't care what the citizens of Metro Toronto decide in their referendum on March 3 or 4 or whenever it is; he's not going to adhere to it either. They're wasting their time in holding the referendum. I would say that this applies, exactly the same thing, to our own situation as well. The issue with respect to that particular referendum in Metro Toronto, though, deals with whether or not we, as an elected body, allow other elected bodies, local municipal governments, to hold referendum, and on that issue, let there be no mistake about it: We clearly recognize the fact that any local municipality or a local group of citizens that wants to hold a referendum has the right to do so. That is a position that our leader and our party have consistently taken in that debate.
Quite frankly, whether or not we're in favour of referendum depends on what the issue is. It depends on what kinds of restrictions you put on that and, in that regard, I totally agree with the amendment that has just been made in the deletion of item 2 on this list.
I don't know why any government would want to tie its hands by the need of going to the general public every time it wanted to introduce a new tax, and I don't really know what you mean by a "new tax" in the context of item 2. Do you mean any increase in an existing tax as well? Is that a new tax?
I think it would be rather ridiculous that every time there's a change made in a tax or in a user fee, even a minimal user fee, you in effect spend more money in going to the electorate of the province to determine whether or not they would like it.
I truly believe the people of Ontario have elected us to do a job. They may not like what we're doing. They may not like what any particular government is doing at any one given time, and those people have an opportunity four or five years later to make their views known on that. But to bind the hands of any government or of a Legislature that every time it wanted to make a move it would have to go back to the people of Ontario, I would say that this present government, certainly in its actions over the last year and a half, in many respects would have had the requirement to have many, many new referendums called on those issues, particularly if you interpret a "new tax" to mean a user fee as well, as has just been indicated by Mr Silipo.
Quite frankly, the issue here is not at this stage whether we are for or against referendum. It's what the government feels about referendum. You hold the majority on this committee. You hold the majority in the Legislature. I'm sure the people of Ontario are much more interested in how you feel about this particular thing, because you can actually implement whatever you stand for in this regard. So it's your policies that are at issue here, not so much the policies of the opposition parties at this stage. We can debate that during the next election.
I suppose one could say that when Mr Mulroney introduced the GST in 1991 or 1992, according to your criteria he should have held referenda on that as well. I wonder how you feel about that particular issue.
I'll make it as short as I can. I'm not a man of many words, particularly on an issue like this. I cannot for the life of me support, nor can my caucus, item 2 on this list. I think in effect you'll be tying the hands of any government that may be in power at any one given time.
Mr Clement: I'd be happy to speak to Mr Silipo's motion to delete. Let me say at the outset that Mr Silipo's point of view is a legitimate point of view which I would recommend to this committee. It would be appropriate, I think, in this particular case to both have a point of view as expressed in item 2 and Mr Silipo's point of view as an alternative point of view as part of the final report. The final report can indicate that there was not unanimity on this particular issue and that there are points of view for Mr Silipo's point of view and there are points of view that are obviously different.
Let me just try to articulate why item 2 is there so that both points of view are on the table. The members opposite talk about binding the Legislature of Ontario. In effect, legislatures bind themselves on a number of issues in the course of their deliberations, and by setting that threshold, obviously a future government would have to delegislate in order to unbind itself from previous decisions. That's in the matter of course that occurs in this Legislature frequently, at least with this government. As a result, it is not unusual to have a Legislature that feels itself bound by previous laws or regulations and that wishes to unbind itself. I don't think there's anything out of the ordinary in a piece of legislation seeking, through a matter of public policy, binding the Legislature.
The fact of the matter is that previous taxes imposed by previous governments have bound the taxpayers and the people of Ontario. They are forced to pay those taxes or they would be in contravention of the law. So in that respect, we are in a bound situation as it is. This section merely states that if you're going to bind not only the government of Ontario but its citizens, the citizens should have a say. That I don't think is particularly revolutionary; it follows as a matter of course.
As the honourable members opposite know, there was a point in the campaign where members of the campaign team of Mike Harris felt that this was a principle important enough to sign a pledge with the Taxpayers Coalition which said that any new taxes we would first put to referendum. Our leader made it clear that we intended to restructure the tax system in Ontario, so that we were looking at tax increases that were not revenue-neutral, so that sometimes in a budget one tax may go down or in a rearrangement of tax priorities one tax might go down, another tax might go up, but if it's revenue-neutral, that should be taken into consideration as well.
Mr Gerretsen's definition of taxes is a bit broader than my definition of taxes. I think everyone distinguishes between user fees and taxes. User fees are on a user-pay basis. Taxes are exigible to the government on the basis of either income or some other means. So there's a big difference between paying my $5 at Brampton Arena so that my kids can skate for an hour and my income taxes and my sales taxes, a very large difference, and that is identified in Ontario law and in Canadian law. So I would encourage members opposite to take that into consideration. We were talking about taxes; we weren't talking about user fees.
In so far as the Constitution of Canada is concerned, I would hope we have progressed and matured in this nation to the extent that we now consider it an obligation of government to consult the people before any meaningful constitutional change takes place. That is the norm in a number of other countries.
We saw with the accession to the Maastricht treaty in Europe a number of countries, the Danes, the Swedes, the Norwegians, the Swiss, who wanted to -- a group of Swiss wanted to adhere to the European Economic Area, which is a substation from the European Community, and they had a referendum on that, but also the Danes and the Swedes and even the French had a referendum on this issue, because the Maastricht treaty involved constitutional issues. Our Australian cousins are now talking about a referendum on whether to continue to adhere to the monarch as the head of state, and I think that's entirely appropriate. That's an entirely appropriate means to decide that issue in Australia.
It seems to me that the force of history has been, and I think quite rightly so from a public policy point of view, that the Constitution which binds all citizens should also gain the agreement of all citizens before it is changed or altered in any particular way.
So one sees the common thread in this particular motion. When things bind citizens either economically or politically to such an extent as to affect their welfare to a large degree, I believe there is a need for the government to feel that it must have a mandate in order to proceed. That is the essence of this resolution. Mr Silipo has another point of view, and I would like that point of view to be expressed in the final report, but I would like both points of view to be expressed, which is why I cannot support his motion to delete.
Mr Gilles E. Morin (Carleton East): The word "tax," to me, Mr Clement, is very simple. Anything that comes out of my pocket because of a government decision, to me, is a tax. Call it user fees, call it a tax -- it's a tax. It's money that I don't have to spend any more. That's what it means.
Mr Clement: The answer is no. What I am suggesting in the case of Mr Silipo's motion is that there is a legitimate disagreement on this committee. The best way to handle it so that all points of view are expressed in the final report, and I'm trying to be inclusive here, is that we can have both points of view in the final report. Certainly that way we are not trying to silence Mr Silipo's point of view on this. I think that if reasonable people can differ, let's put it all on paper and consequently we can debate it on another day when the legislation comes forward.
Mr Silipo: Thank you, Mr Chair. I don't have anything more to add. If my amendment is defeated, we will deal, I guess, in terms of what we do then, with how we express the two opposing views. But that's fine.
Mr Gerretsen: Just a very minor point. Mr Clement made reference to changes in the Constitution of Canada. I would suggest that if there are to be any changes in the Constitution of Canada, then surely it's up to the federal government to decide whether the issue is sufficiently important to have a referendum or not. We've had two of those situations already; at least one, the Charlottetown accord. That was not a provincial decision that was made at the time as to whether or not there should be a national referendum, it was made by the national government, and I think it ought to stay that way.
Mr R. Gary Stewart (Peterborough): Just a comment: I can appreciate that the opposition Liberals don't wish the new taxes to be included in this, the fact being that over the last 10 years we'd have had 65 referendums, which tends to be a little bit costly to the taxpayers of this province.
When I listened to what Mr Clement is suggesting, that possibly it could be described two different ways, whether in support of Mr Silipo's amendment as well as the possibility of including the mandatory referendum, I believe what it does give is the flexibility to future governments to decide which way they want to go. I think that may offset his concerns one way or another.
For those who may know about it, I believe it's Switzerland that has TELs in operation. TELs are Tax and Expenditure Limitations. What they do, when the new government goes in, if they wish to have major expenditures either by taxes or whatever, they then go back to the people. I emphasize the word "major," and I think, again, the suggestion of the two interpretations, either mandatory or what Mr Silipo was saying, gives the flexibility to future governments to do this.
It gets around the point of, if there are major tax increases, which there have been in the past, the taxpayers of this province have the opportunity to respond to it without something being forced upon them. I guess what it also does is add credibility to the government of the day on how it sees the operation, both in taxation and expenditures of the government of the day.
Mr Gerretsen: First of all, I hope that one of these days -- I'm not sure, it will probably be around the year 2000 -- we're finally not going to talk any more about what happened 10 years ago or 15 years ago because, quite frankly, I'm not interested in what happened then. I think the economic circumstances of this province were totally different, life was totally different, and I don't think the citizens of Ontario are interested in what happened in the past as to who raised taxes or what have you. We're more interested in what happens in the future.
The problem with saying, "Only if there are major new taxes," you know what the debate is going to be the first time that something like that happens. No matter which government is in power or which party is in power, there is going to be a debate about whether the particular tax is, in effect, major or not. Obviously, the government at that point in time is going to say, "No, it's only a minor thing and that's why we don't go to the people by way of a referendum because we, after all, were elected to do...." As you people have said so often over the past year and a half, you were elected to follow a certain course of action and you're doing it. That's what the mandate of June 8, 1995, was, and you're doing it; it's not a major tax increase and therefore there's no referendum. The opposition parties, no matter who they are, will say at that point in time, "No, it's not a minor tax you're trying to implement, it's a major tax."
The moment you bring in very subjective terms that can be interpreted in different ways, you're not really solving anything. Any governing party with a majority at that point in time is going to interpret it according to its own wishes and desires. You know, we're all big boys and girls here. Let's at least acknowledge that. Let's not play games with that. The fewer subjective terms you have in this kind of document, in my opinion, the better the ultimate document is going to be and the less it's going to be subject to all sorts of interpretations afterwards.
Mr Stewart: Due to the fact that there has been an amendment come forth and there is some concern, I think probably on both sides, of where it fits into this and how it should be introduced, I would request a 10-minute recess.
The Vice-Chair: You can have a vote on it. After whatever happens to it, let's say it's not passed, then we can make a note to our legislative researcher that in the report in terms of the discussion of this item that Mr Silipo or the NDP had made their views known regarding item 2 and that it would reflect another interpretation or viewpoint from the one Mr Clement has offered so that it would be included in that context. That's one way it could be handled, but if you still want your 10-minute break, we can certainly accommodate you.
Mrs Marland: One thing I would like to suggest to the committee members -- and we actually have a motion on the floor right now so it would be after we have dealt with that motion. To expedite this process, I would like to ask the honourable members on both sides of this room to identify which of these 12 clauses to this motion they have concern with so we can go to them. I think last week, when I spoke briefly with Mr Silipo, he did identify another one -- I've forgotten which one it is -- when we were talking informally, not on the record.
I think, because we are busy people and because of the demands right now for members on other committees that are being held concurrently with this committee, we could utilize our time more productively if, after this motion is dispensed with, we go to what the other areas of concern are and deal with them and then we can move the whole motion. Would that be agreeable?
Mrs Marland: It doesn't take me two weeks to read one page of text. I know now, reading it, whether I have any questions, and I'm sure from the official opposition and from the third party. As I say, Mr Silipo already came last week with his two areas that he mentioned and maybe this week he has something else, but the point is, why waste time going through something that's in print before us if you can read it and decide, "I don't have any questions until I get down to 8," or "I don't have any questions until I get down to 9"? There isn't any requirement, when a motion is written like this, for us to go through items 1 to 12, one by one by one, because we're not voting on it as single clauses; we are going to vote on the whole motion. But if your goal is to prolong something and filibuster, sure, you'd want to go through it clause by clause by clause. I'm just asking for a little productive cooperation of the committee members to get on with this job we have.
Mr Gerretsen: This is the second time this afternoon that this particular member has ascribed motives to the position that some of us have taken on this committee. I think that's out of order and out of line. You can have your own opinion as to what's going on, but to actually publicly ascribe those motives to other members of this committee I think is improper and is not in order.
Mr Silipo: I think I understand what Mrs Marland is suggesting or trying to do. I don't particularly have any trouble with going that route but it can only work if everybody's agreeable. I think, likewise, we can get through this if we want to get through this, because as we keep going through this item by item -- I have an amendment on the next item, but on 4 and 5 I'll be able to tell you, "I agree, period; let's get on to the next ones," so they don't necessarily have to take a long time if there's a will to keep going through them and resolve where we are on them.
Mr Clement: Mr Chair, I'd like the record of this committee to show that although Mr Silipo's amendment failed, we would be amenable to the reasoning behind his amendment being part of the final report. Obviously, it's a minority view but I think it is quite legitimate to have that view represented in the final report.
Mr Silipo: I have an amendment and I have written it out for the clerk so I can give you that. If I just read the words they may not make sense, so let me give you a brief word of explanation. First of all, I want to say that on the thrust of item 3, I think I've stated before, and I will just briefly again state for the record, that we are agreeable to that and I think the fact that the threshold is now categorized as 10% of citizens is useful.
My amendment is not to change the significance of number 3 but to make it consistent with what I believe we agreed to earlier on. If you remember, when we were talking about the opening words of this motion at the beginning of this discussion, I asked and was given answers that indicated that when we talk about the holding of provincial referenda on any topic within the jurisdiction of the Ontario Legislature, that could encompass both referendums that would apply province-wide, where the issue applies across the province, as well as referendums that would only apply to one region of the province, where the jurisdiction rested with the province rather than a regional or municipal government, but the issue applied only to a particular province. I used the amalgamation within Metropolitan Toronto as one clear, ongoing, live example.
It seems to me that to be consistent with that, what we should have is a provision that says that where the issue applies province-wide, then obviously you want the threshold of the not less than 10% of citizens on the petition to apply province-wide. That's only sensible. But where the issue applies only to a particular region of the province, it seems to me only logical that the threshold should only apply to that particular region, and that's what my amendment seeks to do.
For example, let's assume that Bill 103 was not in existence and you were dealing with the issue of amalgamation within Metropolitan Toronto. Then it would seem to me, if this were the law, what you would want to do is to have the framework set up in such a way that it would require 10% of the citizens within Metropolitan Toronto to make a request for a referendum for whatever the request would be. That's what the words I'm going to move in amendment would do.
I think there are a couple of responses to this. First, the motion that Mr Silipo has presented was not recommended by any of the deputants as far as I -- I know it was in September and a long time ago now, but I think I recall fairly clearly and I have reviewed my notes incessantly on this, and I don't recall any of the deputations suggesting this particular point of view. Maybe it just came up because of the recent vigorous debate we're having on Bill 103.
The second point is that this really is outside of the context in which we find ourselves, to use Bill 103 as the example on the table. We don't have only the MPPs in 416 in the Ontario Legislature voting on Bill 103 and there's a reason for that. The reason is because Bill 103 and the future success of Toronto is an issue for all of us. I admit I live in Brampton but I grew up for a good part of my life in Toronto, my wife works in Toronto and I suppose I work in Toronto for part of the time. I have as much stake in the future success and the future structure of Toronto -- well, almost as much -- as someone who pays taxes here.
Certainly, because of the way our services are delivered, and those services include Metropolitan Toronto, I, as an Ontario taxpayer, also have a stake in Toronto. We're going to be paying 50% of the social services costs if the proposal goes through, and a lot of those costs go into Toronto, and Toronto deserves to have 50% of those costs paid for by all the taxpayers in Ontario.
My point is that is why in our Ontario Legislature and our principle of democracy, we don't just have the MPPs in 416 deciding this issue. It is all 129, or 128 excluding the Speaker, MPPs who will be deciding upon this issue. I would like to see a similar principle, which I think is an important principle, for pieces of provincial legislation to also be the principle for citizens' initiatives.
I have tried to recognize, in part 5 of my motion, that there are issues which are under the jurisdiction of the municipalities which of course would have thresholds that would match the municipal boundaries and the voters in those municipalities, those issues which are just in that jurisdiction of that particular municipality. I've tried to allow for --
Mr Gerretsen: I don't have any objection to this item, but I would just like to get some clarification on the gathering of signatures for profit. Are we talking about organizations that may be hired by a citizen group to in effect conduct a drive to get signatures on a particular petition? I'd just like your comment. I'm not taking a position on it, but it seems to me that it should almost be irrelevant as to the manner in which signatures on a petition are obtained.
Mrs Marland: No. Since you put that on the record, obviously, if somebody was being paid $5,000 a name, they could be pretty persuasive in getting another name on the petition. Hence, my putting my own hands around my own throat as a demonstration of how people might persuade signatories to a petition.
I wonder if Mr Clement could just make a comment on that. If there is a group that, let's say, wants to retain an organization, not to get signatures by X number of dollars for each signature but just to sort of set up a booth somewhere for a three- or four-day period, and irrespective of how many names they collect the group's being paid X number of dollars to actually take up those petitions, that would include that kind of situation as well, I take it.
Mr Clement: The situation which animated this subsection of the main motion was based on the deputations and some of the descriptions that we heard at committee in the month of September where a number of deputants referred to the situation in California where there is a multimillion-dollar industry centred around $1 a name, that sort of industry, and it is an industry in California with respect to their propositions.
It seemed to be certainly the overwhelming majority of the deputants we heard felt that this was not an appropriate industry, that when we're dealing with the democratic process -- obviously money is involved in the democratic process; we all know that in terms of funding of campaigns and what have you -- this particular item would not be helpful in terms of moving along a genuine public policy debate.
I must say that I personally was persuaded by that and would not like to see that. Let me put it this way: Just as we prohibit people in elections being allowed to pay people to vote in a certain way -- that is a prohibition in the Election Act -- similarly this would I think fall into that category of being an undesirable element of our democracy.
Mr Gerretsen: As long as we're not trying to tell citizen groups how to run their business in collecting signatures. It may very well be that the citizen group may want to hire one or two people to coordinate certain activities relating to the signature drive that they may get paid for, but the amount of money they get for the coordination has nothing to do with the number of signatures they collect. As long as we're not trying to limit that kind of citizen participation; that's all I'm saying.
Mr Clement: For the record and for the final report, we have in our province people who get paid to mount campaigns in provincial elections and who presumably when they are successful in getting out the vote and what have you -- generally, I'm talking about, in a macro way -- they are paid for a successful campaign. That's all part of the process.
Mr Clement: No, so obviously, remuneration for work that is being done in general elections is part of our political landscape. However, this motion does not speak to that. It speaks to a per capita gathering of names which would be similar to the prohibition of the per capita gathering of votes. You're paying someone $5 for a vote. Maybe the cost has gone up, I don't know, but I've heard stories about this in other provinces. I haven't heard stories about this in Ontario, where we seem to be relatively clean of this, but in any event, it would work in a similar way.
Mr Gerretsen: Again, a question. I noted a dozen or so years ago it was quite popular for local municipalities to declare themselves nuclear-free zones and things along those lines. I think it's fair to say that it was a statement of intent by the local municipality as to how they felt about a particular issue, but it's also fair to say that they really couldn't control this in one way or another because they really didn't have any control over the nuclear industry as such.
I take it that what's envisioned in clause 5 here is that those kind of referendum -- and there were actually suggestions made in some municipalities that some of these notions or ideas be put out for a referendum at the time of municipal elections -- would not be allowed under this legislation.
Mr Clement: If I can respond to that, municipalities, under Bill 86 and indeed prior to Bill 86, have the ability to hold plebiscites on any issue they so choose. If they wanted to take a public opinion poll or a non-binding plebiscite, they were perfectly at liberty to do so, and indeed did so. Mr Gerretsen might recall that there was a push in 1982 or so to have hundreds of municipalities pass, through plebiscites, anti-nuclear declarations, which the anti-nuclear network wanted to string together to illustrate that Canada was a nuclear-free zone etc, all of which was very interesting, but, as you rightly put it, it was not up to the municipalities to enforce that. They had no power to enforce. They had the power to take the public opinion pulse of the people in their jurisdiction and they continue to have that power.
Item 5, however, deals with binding referendums, and with binding referendums, I make it clear that it's regarding issues within their powers. What I meant by that, and certainly I hope the record shows this, "within their jurisdiction" is included as within their powers, so that if they do not have jurisdiction over an issue, they can hold a plebiscite on that issue. They are perfectly at liberty to do so, and as a matter of common sense I would encourage them to do so. But in terms of binding referendums, they would have to stick to issues within their jurisdictions.
Mr Clement: The member might want to read some of the deputations that we had before this committee. The committee heard from experts such as Patrick Boyer and others who drew a very clear distinction between plebiscites and referendums. The term "referenda" here refers to binding referendums. Plebiscites are non-binding referendums.
Mr Gerretsen: I'm fully familiar with that. You're saying then that in this resolution, every time we refer to the word "referenda," we're talking about a binding proposition, and it's only non-binding if you say "discretionary referenda." Is that correct?
Mr Clement: No. Again, these terminologies are found both in Your Ontario, Your Choice and in the Issues and Options paper that was done by the researcher. "Discretionary referenda" refers to referendums that are put before the people at the discretion of the government or the Legislature of the day.
Mr Clement: The issue of binding or non-binding is not taken up here. The issue is, under what circumstances will binding referendums occur and under what umbrella legislation would they occur? I would refer Mr Gerretsen to item 8 of my motion, which indicates what I mean by "binding."
The committee heard a number of constitutional lawyers and experts say that you cannot bind the crown, and in fact there are constitutional cases from the Supreme Court of Canada on down saying that you cannot bind the Lieutenant Governor by any referendum legislation. Then the issue becomes, how are we going to bind it? My proposal before this committee is that a referendum which is passed, that meets all of these criteria, would then become a government bill. That's the best that you can do in our parliamentary system.
Mr Gerretsen: But that's as far as it goes. In other words, if the government doesn't proceed with the bill after first, or in some cases second, reading, that would be the end of the exercise anyway. How would that deal with the municipal situation where you don't have the same kind of introduction of bills etc as we have here provincially?
Mr Clement: Mr Chairman, I'm quite willing to take his recommendations on how best to make a municipal referendum binding. Certainly if we could come up with some wording that would do so that we can include in our final report, I would love his comments on that.
Mr Gerretsen: I'm not suggesting that they be binding at all. As I've stated before on the megacity issue, I think we should be supportive of allowing local municipalities to have a referendum on any topic that they see fit. As to the use that the local municipality wants to make with respect to the results of the referendum, that ought to be left to the local municipality.
Mr Clement: Last week, Mr Gerretsen, your caucus said that the only case where they wanted binding referendums was in the case of municipal referendums. So I'm a bit perplexed as to what the position of your caucus is, I must say.
Regarding 5, near the end it says, "receive a citizen's petition regarding issues within its powers" -- that is the municipality -- "upon the same thresholds and terms." Would there have to be any interfacing or linking with the Municipal Act? Where there are referenda allowed, when they're initiated by a council, would there have to be a change in the Municipal Act or would a proposed referenda bill override the Municipal Act?
Mr Clement: That's a very good question, Mr Chairman. I think if the government were serious about allowing this option to occur, there would either have to be concomitant changes to the Municipal Act or there would have to be a very clear clause in whatever referendum bill is proposed to the Legislature making it clear that it takes precedence over any prohibitions or other terms that are found in the Municipal Act. Quite so.
I would refer the writers of the final report to a number of deputations that this committee heard with respect to the question of how to ensure that the process is as clean and fair and open and honest a process as we can devise. There were a number of deputations which felt that when the state is the body that is able to completely devise the question without any sort of check and balance, that could lead to a situation where a binding referendum is somehow skewed to a particular choice.
Not that I wish to take issue with anything in particular with our cousins in Quebec, but a number of the examples that the deputants raised centred around the Quebec referendums where it was alleged that the Parti Québécois in two separate instances, 1980 and 1995, tried to skew the question to obtain a desirable response on the issue of Quebec's status within Confederation.
So I guess there have been unfortunate Canadian examples, if these deputants are to be trusted with their interpretation, where governments have misused their power and authority to obtain a desired result. That's something that I think we all want to avoid, because if you truly believe that referendum should be the expression of the public will rather than necessarily the expression of the government of the day, obviously we wish to avoid that.
This clause references the fact that there would be an independent commission which would be charged with a couple of responsibilities. The first set of responsibilities are found in item 6 and refer to the issue of how this commission would vet the final question for referendum, either proposed by citizens or proposed by government, and in my view -- I'm trying to animate item 6 -- it would ensure that the question is as neutral as possible.
Secondly, in conjunction with Elections Ontario, they would oversee the conduct of the referendum procedure so that it's not the government of the day that is overseeing that conduct. It's made very clear that that would not be appropriate. It should be a separate body.
I do not want to duplicate bureaucracy here, so if it's appropriate for Elections Ontario to oversee some aspects of this, then obviously Elections Ontario would be the appropriate place, but if there are some things that are outside the jurisdiction of Elections Ontario in terms of ensuring that a referendum proceeds fairly and honestly from start to finish, obviously this referendum commission would be in charge of that.
My final point would be that I make reference to justices of the Supreme Court of Ontario, which would be involved in this commission. My view is that they can be trusted to ensure that things are done in a neutral, fair, open and honest way, and so they would be the natural repositories of fairness in that regard.
Mr Silipo: Yes. I should tell you, I was out there responding to Minister Snobelen's announcement of a 10% tuition fee increase, although in typical government fashion it's actually allowing colleges and universities to increase up to 10%. I'm sure my government colleagues already know this.
Mr Silipo: On item 6, and I apologize if this issue may have been addressed while I was out, it strikes me here that again the question of having a body that would be responsible for approving the final question for referendum is a useful way to go. I hope that in the report we would sort of flesh that out a little bit in terms of the rationale for that. I think that's a good thing to do. But I don't see the wisdom of actually having that issue interwind with the conducting of the referendum, particularly because I do think there is a distinction here between a process that's necessary to sort out what the final question should be, and there I think the potential for involving the justices of the Supreme Court is maybe a useful way to go, although I hope we would put that not as a finite way to go but as a useful suggestion in terms of the government thinking about how to set that up.
Where I have a difference is in terms of the rest of the motion, the last part, which talks about the conducting of the referendum. There I would suggest -- and this is coming from a New Democratic Party member, let it be noted -- that you don't need to duplicate the service you already have in the elections commission, which is responsible for running elections. In fact, what we should be doing, what I think would be logistically easier to do, in terms of the conducting part of the referendum, is to let the people who already have the expertise -- I think it's the election commission --
Mr Silipo: Yes. Let that body have that responsibility for running the referendum, because the process would be the same as or similar to the one we would use in the election of members to the Legislature. Why create another structure that would have that responsibility when that expertise exists? What pieces of it don't exist in terms of whatever else comes out of this could more easily be added to that body than set up with a separate commission. I think that would be a more useful separation of these two issues than having a completely separate commission.
Mr Gerretsen: That's exactly our point as well: The framing of the question has nothing to do with the conducting of the actual election. We already have bodies set up for that and should utilize them.
Mr Clement: I'm quite willing to amend my motion to eliminate "and oversee the conducting of the referendum," so long as the final report indicates that Elections Ontario would be the appropriate vehicle, and for items within referendums that are not automatically part of Elections Ontario, we would either have to go to the commission to solve or to Elections Ontario to solve. There has to be some body that is independent of government that would solve those issues, rather than the government of the day. That's the purpose of my submotion. If it gains the agreement of my colleagues and friends across the way, I'm willing, given those caveats, to remove "and oversee the conducting of the referendum."
Mr Gerretsen: I agree with that. The other question I have deals with the independent referenda commission. Are we talking here purely about referenda initiated by the province or a citizen group within the province, or are we also talking here about municipally initiated referenda? Do we also want the justices of the Supreme Court involved in that, or would it simply be left to the local municipality to frame the question?
Mr Clement: When I framed the motion, I was referring to anything that was conducted in the province of Ontario pursuant to the legislation in place. Theoretically, I guess that would mean on the issue of municipal referendums as well -- binding referendums; not plebiscites under Bill 86, but binding referendums.
Mr Silipo: I think, from what I heard Mr Clement say, that his problem with what I'm suggesting is that he envisions that even though an issue may only apply to one part of the province, somehow everyone in the province should be involved in being part of the threshold for citizen-initiated referenda.
I have a bit of trouble with that logic. Maybe the example I've used isn't the best one because I know it triggers certain emotions and reactions. It's the starkest one I could think of, but there are lots of others we could think of where it could be an issue that clearly in everybody's minds applies only to Ottawa or applies only to the northern part of the province, and to say that that issue -- this doesn't fit under the municipal umbrella we have in here, because whatever is being requested would not be within the power of the municipality, local or regional, to enact.
That's the distinction for me. I appreciate that there is also a structure envisioned in here that would deal, on a parallel basis, with municipalities and citizen-initiated referenda, under number 5, that deal with questions within the jurisdiction of municipalities to decide. The problem we have is, what do you do when the jurisdiction is provincial but the issue is local?
I'm not talking about where there's doubt about that. I'm talking about where the law has to be changed by the province, by the provincial Parliament, but it's clear in everybody's minds that the impact of that would only be to one particular area. Municipal governance is probably the easiest example I can think of, but I'm sure there are many others. In that instance, I can't imagine why we would want to have the citizen-initiated petition have to apply across the province.
Why would people in downtown Toronto care about what the governance structure locally should be in Ottawa? Maybe this is again something that would help if there were more time to reflect on this. I'd be happy to stand this down if you want, because I presume we're not going to finish this today, even with our best efforts, and it may be that we can find a meeting of the minds with some time for reflection on this.
That's the gist of what I'm saying. That's why I made the point at the beginning of this process, if you'll recall, Mr Chair, when we were talking about the jurisdictional question. I wanted it to be clear at that point and the answer I got was that, yes, we were dealing here with questions that could apply province-wide as well as questions that could apply on a regional basis. I think it's an issue we have to sort out.
Mr Gerretsen: I have the same concern. I can think of an issue that could very well become provincial, something I've been advocating for years, that the province take a much stronger role in, for example, waste management sites etc. As a matter of fact, I think the province should even operate these, rather than having municipalities do study upon study and not being able to agree where they should be located. As a result, millions of dollars have been wasted in the province.
I could well imagine a situation where you're going to ask the people of a particular area, not in one municipality but in an area that encompasses more than one municipality, whether there should be a dump located there. I'm sure the people who live far away from there would have to say, "Yes, that's a good idea." It's a situation that affects a local municipality, but the way this is written, it could in effect be determined by an area much larger than that, people who may benefit from that waste management site being in a particular area saying: "Sure, we all agree it should be in location A, B or C. We're not directly affected, other than that we benefit from the fact it's there because we can now utilize it."
I'm saying that I support Mr Silipo's amendment that if you're going to have issues that are not province-wide but that affect one particular municipality, whether it's a regional municipality or a local municipality, the rules should apply to the area that is going to be, in one way or another, affected by it, the same 10% rules.
Mr Clement: I understand the conundrum we're in, but I have a difficulty with the phraseology. Mr Silipo says there might be issues that only apply to one part of the province. My difficulty with that is that there are lots of issues in this House that putatively apply to only one area of the province but they are provincial issues, issues that involve every one of us in the Legislature. I think it would be a mistake to break from that practice. I think you can find, in whatever issue is before the province, an issue which has an impact throughout the province. I've already said why Bill 103 is an issue not only for Torontonians but all of us, and I believe there are other examples.
My friend from Brantford reminded me that there might be changes to the way the hydro board is constructed in a particular municipality which, if passed, would have repercussions in either adjoining municipalities or throughout Ontario. There are lots of cases where, although they look on the face of it to be a local issue, they have provincial connotations.
It may well be that what we are coming up against is that there are some issues which are just not appropriate for referendums. It may well be, because we're in this conundrum, Mr Silipo, that we are coming up against something where you say, "Because of the nature of the question and the nature of the answer sought, in this particular case a referendum is not appropriate." I hope those issues are few and far between, but there may be an argument to be made that it was not foreseen that binding referendums would not have that particular say on that particular issue.
I don't particularly want to set out what those issues are. We have to understand that jurisdictions change over time and issues change, but one rule of thumb is to say that if it is an issue before the Ontario Legislature, it is an issue for all Ontarians to have a say in. That might be an effective way of deciding which is a local issue and which is not a local issue and when the referendum should and should not be used.
The Vice-Chair: With your indulgence, before I give the chair back to the Chairman, could I make a suggestion as to handling of this item? If it couldn't be settled today, could we possibly get our legislative researcher to look -- there may be examples of referenda provincially but of a regional impact. Those could be brought to the committee for the final round. That's just a suggestion I make.
Mr Silipo: I would certainly be fine with that, Mr Chair, as I would be with us not proceeding to a vote on this and allowing people to think about it over the course of the next week. If Mr Clement wants to maintain his present position, with all due respect, it's untenable for you to say that an issue like the local governance structure in municipality X should be determined by the people who might want to change that having to go and convince people across the rest of the province in sufficient numbers to be able to exercise their right, which you want to give them, to a citizen-initiated petition. It nullifies automatically the right to a citizen-initiated petition for a whole slew of issues if you're going to do that, and it makes what you're trying to do severely limited.
I'm assuming that other jurisdictions have had to deal with this, so it would be useful if we asked legislative research to take a look at what other examples might exist of similar types of situations. Maybe that will help us in getting through it.
Mr Gerretsen: I find it extremely encouraging if Mr Clement, after his extensive research and delving into this problem as extensively as he has over the last two or three months, has finally come to our position that indeed there may be many issues that simply do not lend themselves to being subject to a referendum. We are often discouraged in this place, sitting in the opposition, but I'll tell you, moments like this really make it worth my while.
Mr Stewart: Just one comment: I have difficulty really seeing what the problem is because I think it's a very finely defined area of what the province is in control of and what the municipalities are. If you talk on Mr Gerretsen's thought about municipal landfill, clearly that was given to the upper tier back two or three years ago under the previous government. To have an Ontario referendum for landfill in Kingston or whatever is certainly not an Ontario issue, and that's what we're talking here, as I understand. If there are referendums that involve all of Ontario, indeed you have 10% of Ontario. If it be a local issue, as pertained in Metro, that in my mind is clearly a municipal issue.
I don't understand how we're trying to make something that I believe is very simple, very complex. I'm not being critical. I'm just saying that Ontario has jurisdiction over this and if we call a referendum for it, then indeed we should have the 10% for all of Ontario. I can think of welfare, consolidated welfare, and there is a problem, as they know, in the province that maybe that should be done, but if you get involved with landfill or something like that, which is clearly a municipal issue and has been for a number of years --
Mr Stewart: I'm not talking about toxic waste. If you talk of a toxic waste site where you are going to have toxic waste probably coming into it from across Ontario, travelling the roads of Ontario, absolutely. It's an environmental issue, so why wouldn't it be an Ontario 10%? Because it affects all of Ontario. But if you're talking of a landfill in Peterborough county or a landfill in Kingston, that indeed in my mind is clearly a municipal issue. I just can't understand why we're trying to make something I believe simple, very complex.
Mr Silipo: I think Mr Stewart asks a good question. I just want to be really clear that I understand the distinction between municipal and provincial, and I know that this proposal in front of us does address that. It addresses the two issues where there can be a request by a group of citizens to have a referendum on an issue that applies across the province and on which the provincial Legislature has the legislative right to make that decision versus an issue on which a municipality has the power to make a decision -- that may include a landfill site; I don't know -- and applies to that particular municipality or area. I'm not quibbling with either one of those.
I'm talking about I guess a third situation which we do have to address -- I'm not trying to make it complicated but I think it's an issue that we have to address -- which is where the application of the change is regional or local but the jurisdiction is provincial. Again, and please accept this, I use the example of the amalgamation within Metro not to try to rile any antennae but because it's the clearest example I can see in front of us. Clearly you couldn't have a municipal referendum under this structure and have it mean anything, because it's not the municipality that would be able to change anything, it would be the province that would have to make the change, if you're talking about those kinds of changes, and yet the application of that is not provincial. Yes, there may be implications, but there may be implications to anything we do.
That's the dilemma and that's why I was suggesting the dual application of the 10% threshold. But as I say, maybe the best way to deal with this is to see how this type of situation has been dealt with elsewhere, if it has, and see whether that helps us.
Mr Clement: I could just state for the record the intention of the mover on this. Clearly we had a number of deputations before us that were quite concerned that the referendum was going to be used as a tool to defeat entrenched minority rights that were found in the Charter of Rights and Freedoms and the Ontario Human Rights Code. This makes it clear that the referendum in Ontario would not be used for such a purpose; that if there was something that was, on its face, in violation of the Charter of Rights and Freedoms or the code, the commission would have the ability to negate that question and the referendum would not proceed. I think that goes a long way to assuaging the concerns that we had heard at the committee.
Mr Silipo: I support the intent of this very strongly and I urge that we find some fairly strong language in the report to indicate that this is really a major concern that has to be addressed in the legislation very clearly. I'm not sure that we've done it completely here. I know there may still be some concerns. I don't have any additional words to offer at this point, but I may have in terms of the actual words that we put into the report. Again, I'm putting forward these comments in a helpful and constructive way, but to indicate that it may very well be that simply dealing with this in the context of the charter and the Ontario Human Rights Code may not cover the range of concerns that we heard about.
I'm not sure. Perhaps if our research staff, in looking at this, could also look at whether that would leave out some concerns that we heard some of the deputants, if we were to limit it this way. I don't know if Philip is able to respond to that now, or perhaps in coming back he could look at that, because that would be my concern: whether this captures the fullness of the issues that we had presented to us, which I think there was general agreement to deal with and respond to in a positive way.
Mr Philip Kaye: A formulation which might capture more of the submissions might make reference to the commission determining whether the referendum question is in violation of rights entrenched in the Constitution, including the Charter of Rights and, for instance, denominational education rights, because that was a concern. Those rights are not in the Charter of Rights but in the Constitution Act of 1867. Aboriginal rights, for instance, are not in the Charter of Rights but in the Constitution Act of 1982, in a section right after the Charter of Rights.
Mr Clement: I'm not saying no to that wording. One question would be, if there was a constitutional amendment proposed by the premiers, let's say, that affected those rights, because it might be against the current Constitution, but it might be a constitutional amendment to change the Constitution that would affect these rights in some way, or maybe the argument will be raised by its opponents that it does affect their entrenched rights, what do we do in a case like that?
Mr Clement: I'm not saying no to that wording. I'm just saying, as long as we make it clear that there has to be an exception for constitutional amendments as proposed by governments. We're getting into a morass here, I can see.
Mr Silipo: Mr Clement, would it be helpful -- wasn't the intent behind 7 to deal with citizen-initiated referenda, essentially? I'm not sure that I would agree with this; I'd need to reflect on it. But that would be one way to separate it out, because either way, Philip is right: We have to address the question of requests for referenda that would in fact be requests to amend the Constitution. How do we deal with that? One way would be to say they can't come under the umbrella of citizen-initiated referenda; they would fit under your proposed scheme, under item 2, as part of changes to the Constitution. In fact, they would be mandatory in that case.
Mr Clement: I'm thinking out loud, Mr Silipo, but as a matter of law, the government of Ontario and the government of Canada are bound by the Charter of Rights and Freedoms, for instance, and the Ontario Human Rights Code. Individual private citizens acting in private contexts are not bound by the Charter of Rights and Freedoms. So I guess my answer to your question is, yes, it was directed towards citizen-initiated referendums, because in actuality the government of Ontario is bound and cannot promote a law that is contrary to the charter, for instance; that would be contrary to the charter by doing so. I'm just working it through in my own head here, but I guess that makes sense from a legal perspective.
Mr Silipo: I suggest this is an issue that we do have to, one way or another, be clear on in the report; or if we're not going to deal with it, we should at least point to the issue and say we don't have a position on it. Because it is going to be one of the questions that the legislation, when it comes back, will have to address, which is, where does referendum, whether it's citizen-initiated or government-initiated, fit in when the request that's being made is to try to seek a constitutional amendment? That's what it would be in that kind of instance.
The Vice-Chair: Let me make a suggestion here on this one then. Would it be possible that we could have Philip check out how solid the intent of your point is, Mr Clement, taking into account the presentations we did here about protection of minority rights, and actually reference that out, and then in the next section, right under that, deal with what you two gentlemen have been dealing with in addition to what you have originally stated in here about the Charter of Rights and Freedoms and the Human Rights Code?
Mr Clement: Right. I have no objection to that. I'm perfectly fine with saying anything in violation of the Constitution Act of Canada, but I would also like a reference -- even though I know it is part and parcel of the Constitution Act of Canada -- to the Charter of Rights and Freedoms separately to make it clear to anyone reading this that we are dealing with the charter as well as the Constitution Act. But I'm willing to broaden it out, unless my colleagues have an objection --
Mr Silipo: Why wouldn't you just say on that then "in violation of the Constitution of Canada, including the Charter of Rights and Freedoms"? I think it's clear; I think you need to have the broader one.
Mr Gerretsen: My concern is about something else. It deals with the notion that the final question is already going to be put by this commission and now we're also asking it, in effect, to take a position on the legality of the question. It reminds me a little bit of the situation where you're asking the same body to come up with the proper question and then to make some sort of ruling as to whether or not the question is legal. It would seem to me that the question itself maybe has to be supported by a legal opinion from some outside source or body as to whether or not the question violates the Constitution of Canada or the Ontario Human Rights Code.
I always find it very dangerous that if you have the ultimate decider -- because let's face it, if there is a challenge somewhere along the line on the constitutionality of the question, the Supreme Court of Ontario would probably get involved at the initial instance, and now you're having that same body decide in this administrative process in which it determines whether or not the question is properly posed etc. At that outset you're going to have to decide as to whether or not the question is constitutionally legal etc. I have some difficulty with that.
I don't think there's any problem with respect to getting whatever the question is supported by an outside legal opinion, but I don't think that legal opinion should be given by the court system that may have to deal with the issue at some point in time in the future.
Mr Clement: Mr Gerretsen raises a good point. I think that in reality with anything that was controversial -- and that's presumably why we have referendums, because if something was not controversial there would be no need for one -- presumably legal opinions would be flying hither and yon. I would expect that to be the case.
I guess I envisioned this referendum commission playing a quasi-judicial role. I'm not sure about the niceties of what that means in terms of the review of those decisions. Presumably it would be like anything under the Statutory Powers Procedure Act or any other piece pertaining to administrative law in the province of Ontario where administrative or quasi-judicial opinions frequently are reviewable, except in a few cases like the Labour Relations Board and other well-trodden ground. So there would be a reviewable procedure. Even though a judge was involved in the first instance, there would be an opportunity to review, just as there are opportunities to review a lot of administrative or quasi-judicial positions in our system of administrative law.
So I did see it as probably, let's face it, somebody's going to take somebody to court at some point, and take this commission to court because they didn't like a decision. That's going to happen. I suspect that when these issues get dusted up there will be legal opinions going back and forth on whether this is an appropriate way to proceed. That's how I see it working in reality.
Mr Gerretsen: That's precisely why I had some concern as to whether or not the judiciary should be involved at the outset in even making some sort of ruling on the question itself. That's why I think there maybe should be an independent body.
Mr Clement: We've got lots of administrative tribunals and commissions. I just think of the Krever commission where you have a judge of the Supreme Court whose decisions and non-decisions are being reviewed by the Supreme Court of Canada right now. It's not unheard of to have situations where sitting judges are having their decisions from an administrative law point of view reviewed by a higher court. I don't have a particular problem with that so long as it's all done aboveboard and in accordance with the principles of administrative law in the province.
Mr Clement: Just to start off very quickly, item 8 was an attempt to get around the -- not get around but to meet the issue of what would be the effect of a referendum passing, particularly citizen-initiated referendums, because that would be a case where the government of the day or the Legislature of the day would not necessarily be committed to the referendum's passage.
It says a couple of things: Number one, based on the recommendations of Mr Boyer and others who appeared before this committee, we would be looking for a yes or no answer from a clear and concise question, and the passage would require 50% plus one, versus 66% or some other higher method. It would be just a clear majority of voting Ontarians.
The effect of the passage I tried to divide into two cases. In the case of a simple question it would be a government bill introduced for first reading, and in the case of a more defined bill or proposition -- I'm using the terminology from our cousins to the south where in some cases propositions are quite extensive and complex but none the less clear. In those cases where a form of legislation is asked to be agreed upon by the people in a defined bill, that would be introduced for second reading, again as a government bill, where the government could entertain amendments if things crop up at committee, but in essence the government would agree with the principle of the bill and would have to proceed on that basis.
Mr Silipo: I think I understand a little bit more clearly now the difference in the second part of that motion, but I suggest that what we should do here -- and there's that in addition to the question of 50% plus one. I'm in agreement with 50% plus one. The only caveat to that would be that if I could just put a place-holder in there, based upon whatever we decide, back on the point that I was making about the regional issue on number three. But whatever we determine on that, in either case I'd be more than comfortable with 50% plus one.
The second point here, and I was looking to see whether we actually say it anywhere, is that I'm assuming that Mr Clement is actually agreeable to the notion that if there is 50% plus one, then the government or the municipality, as the case may be, is bound to implement whatever the question is that's been determined. Right?
Mr Silipo: It may be that the best way is not to get into this question of first reading versus second reading. I'm not sure where it gets us. What we should be doing is being clear. Even if we do have this distinction, we need to insert something here that says very clearly that what we're recommending is that where that 50% plus one is achieved in a referendum, then the government and/or the municipality, depending on what the referendum is, is bound to implement that decision, and then if you want to go from there, to talk about how they should implement that. That's what I think you've been saying.
Mr Clement: That is exactly what I'm saying, but again maybe it's the lawyer in me, I was led to believe by our committee hearings that you should not -- we're at a pre-legislative stage so maybe it doesn't matter, but we have to find some wording eventually which says the government is bound without saying the crown is bound. That's the problem, because you cannot bind the crown constitutionally in this country.
Mr Silipo: All right, that's fine. I think the intent would be that the government of the day, just leaving out the provincial level for a second, would be bound to respond and that would mean in effect carrying forward a piece of legislation right through to passage, to first, second and third reading and presenting it to the crown to sign. Right?
Mr Silipo: Maybe there's something I'm missing here in terms of this. I guess what I'm saying is we don't have to get into the nuances of the crown because it's not the crown that's got the responsibility to initiate the bill. It would be the government. But it has to be clear and the law would have to be clear, if this is what you're intending to do. Otherwise, it just becomes a plebescite, and I think you've been clear in saying it's a binding referendum. If it's binding, then it means the government of the day has to respond by within -- whatever -- reasonable time lines. I'm not sure we should get into all that kind of stuff -- maybe we do, to express some of that -- but clearly we have to indicate the government or the municipality is bound.
First of all, that principle has to be in the report, and secondly, if we need to get into how that should be proceeded with, I think we can, but I'm not sure we need to here. I'm assuming that the distinction between this first reading and second reading depends upon what is actually being put in front of people in the referendum, because Mr Clement is envisioning the possibility where somebody's actually drafted a bill and presented that as part of the referendum question. My sense is let's cross that bridge when we get to it.
What we need at this point is a legislative framework that says clearly what the intent is, facilitates the process through and deals with that. If the drafters, when they look at the legislation, feel they've got a deal with each of those possible scenarios, then that's fine, we can deal with it then.
Mr Gerretsen: This whole discussion has been going back and forth. It's really sort of solidified my view on it. Here we're having the government member saying we can't bind the crown. That's the whole purpose of a mandatory referendum.
Mr Gerretsen: I know you can't bind the crown, so if you can't bind the crown, then do away with mandatory referendums. Use referendums to get a better sense of the public opinion that's out there on a particular issue that's out there. You can't have it both ways. It seems to me that the government will say, any government -- I'm not trying to make this a partisan issue, but it seems to me that if we have a referendum along your lines of a mandatory referendum, and if all the government has to do is either introduce a bill for first or second reading and then stop the process, that to me is saying you're not really having a mandatory referendum, because the government can in effect decide not to carry out whatever the decision of the referendum is. Then let's call it for what it is. Let's just call it a discretionary referendum that can be implemented if the government feels like doing so, rather than giving the public the impression that somehow if we're making it mandatory, whatever you decide, we're going to implement.
I agree with you: We can't bind the crown. If you can't bind the crown, then say so openly and fairly to people and say that all referenda, no matter what you decide, may or may not be implemented, the results may or may not be implemented by the government of the day. I certainly agree with that notion. But you can't sort of bring up these legal kind of arguments to the general public if you do not like a particular result that happens as a result of the referendum, because I don't think that's being honest with the general public.
Mr Ted Arnott (Wellington): I'm not supposed to be engaging in this, but I just wanted to point out that in a minority situation, of course, the government of the day can't be assured of passing any legislation and we've got to come up with some way around that, obviously, if Philip considers it.
Just so readers of Hansard are sufficiently clear on this, we on this side, and I believe Mr Silipo representing the NDP caucus, are fully in favour of binding referendums. We want to bind as much as possible. If it was within my power to bind the crown -- I believe it's only the power of God to bind the crown and I'm not God -- if I had that ability to bind the crown, believe me, I'd put it in item 8 here. But I don't have that ability, and the Supreme Court of Canada has made it clear by throwing out referendum legislation in Alberta in the 1930s and what not.
What we are grappling with, Mr Gerretsen, is how best to make this very clear, that the government is bound by the decision, both morally and legally. It is a government bill. It is a whipped vote. I'm not sure exactly how we cover off everything. I am not sure of that. I will plead guilty to that. But we believe, and I think Mr Silipo believes, that we should use every contingency we can, if it's a provincial issue or a municipal issue, whatever -- it goes for the municipal as well -- that we are seeking to make this a government piece of legislation with all the resources that the government has at its disposal to pass a piece of legislation.
That is the intention of item 8 and I take your point and Mr Silipo's point that we didn't quite get there with my wording. I'm quite willing to have whatever wording we can come up which relays to the Legislature our intent to make this as binding as possible within the law.
Mr Gerretsen: I don't think that talking about first reading or second reading is going to do it because you and I know -- the general public perhaps doesn't know out there -- that first and second reading doesn't get you anywhere if it stops at that process. What you've set up here is a situation where a government, after it's given a bill first and second reading, in accordance with this particular rule can simply refuse to take the matter any further.
Mr Silipo: Let's put the words in the motion that state the intent and then let's worry about the mechanism later on, or let others worry about the mechanism. If the intent is that this be binding, then we need to say it's binding. If we're not sure on what the best mechanism is, then let's just say that's something that has to be addressed when the legislation comes back. Maybe in the meantime we can think of something better that does it.
Mr Clement: Can I suggest this wording then: in the third line after "The effect of such passage would be," strike out the rest and insert "to make the referendum result binding upon the Legislature of Ontario."
Mr Gerretsen: Of course. It's the government that is bound by a referendum, according to your notion. You cannot bind all the members of the Legislature. It may very well be that on the particular issue, whatever the issue happens to be, the opposition parties have a completely contrary viewpoint.
Mr Silipo: It may be that looking at what happens elsewhere might shed some light on this. I agree you either write it in a way that says the Legislature is bound or you write it in a way that says the government is bound, and remind people that at the end of the day the government isn't all of the members of the governing caucus. I know the dangers that poses, but I don't know how else you would do it, because presumably we still want some way that doesn't bypass the parliamentary process -- right? -- that doesn't turn a resolution passed in a referendum automatically into a law without going through the process of vetting the law, so we've got a bit of a dilemma here.
I don't know what happens in other jurisdictions where it's clear that whatever is passed gets implemented. That's all we hear about. We don't hear how it gets implemented. Presumably there have to be laws introduced at some point, so maybe again if we state the intent, we can then look at the experience of other places that have dealt with this very dilemma as some guidance for how that's done.
Mr Kaye: British Columbia is the only province currently which has legislation providing for citizen-initiated provincial referenda and that legislation is in British Columbia's Recall and Initiative Act. It says that the consequences of a vote where a majority is in favour of the measure holds that the government must introduce a bill for first reading. That's the only example in Canada at the provincial level.
Mr Gerretsen: All I would simply say is that quite often the differences that parties may have are not in the general manner in which the bill is written or what the bill is trying to accomplish, but rather in the detail that is contained in the particular bill. I find it very difficult to envision a situation, unless the question is clear-cut and the bill is a clear-cut, one- or two-line bill etc, where you can take a referendum question and simply implement it into a law without there being arguments about the manner in which it's implemented or the various provisions that the subject matter may deal with. I don't think you should bind the Legislature.
Mr Kaye: I should add as well that Saskatchewan does have legislation providing for citizen-initiated plebiscites, but because they're plebiscites they are not binding, so the question as to what the effect on the government is in terms of the options doesn't arise. It's only in British Columbia where there's any kind of binding effect for a citizen-initiated provincial referendum.
Mr Clement: Could I just go back to my original wording then, because I tried to make it clear -- perhaps it should be more clear -- that whatever bill is introduced has the impact of being government-supported. I'm quite willing to make that clear. Perhaps it's a bill that you could say is a government-supported bill, so first reading and second reading, having reviewed again what British Columbia does and having seen a bit of what California does -- California's propositions have the exact bill as part of their proposition, so they skip a step that we are allowing to occur, because we know that in some citizens' initiatives perhaps they have not crossed every t and dotted every i. I am not trying to presuppose, but that may be the case. I prefer to go back to my original wording, then, and just to add a clause saying which bills would be supported by the government.
The Vice-Chair: Thank you very much. Before you go, thank you very much for entertaining my activist position. I'd like to thank all the members for getting us up to 8. Next week we'll come back -- that's February 12 -- and we'll deal with all these points, 3, 7 and 8, plus the remainder.