Essay #2: On Constituency Referenda

By Scott Reid

Member of Parliament for Lanark—Frontenac—Kingston

Open the PDF here: On Constituency Referenda

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This is the second in a series of essays that I will be publishing, during the course of the 2020 Conservative Party leadership race, with the goal of persuading any and all leadership candidates to borrow what I believe to be intelligent and practical policy positions. For essay #1, go HERE.

A leadership race is a time when the usual barriers to free speech for MPs are relaxed. Candidates for the leadership can say things which would, in the normal course of events, be seen as a breach of the need, in a caucus built around the Leninist ideal of “democractic centralism,” to publicly endorse all of his/her caucus’s existing policies. During a leadership race, it is considered acceptable for candidates to criticize their own party, suggesting ways in which they would change things, if they were leader.  Although I am not a candidate for leader, it stands to reason that the same relaxation of the rules applies to all caucus members. Now is our opportunity to express our own ideas, in the hope that we can help our party to plot a new course in a better direction. 

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THE PROBLEM STATED: HOW BEST TO CONSULT WITH CONSTITUENTS?

Some time before the House of Commons rises for its summer recess, MPs will vote on Bill C-7, An Act to amend the Criminal Code (Medical Assistance in Dying). This autumn, we will vote on Bill C-233, a private member’s bill to prohibit sex-selective abortions (in which fetuses are aborted solely because the baby will be a female). Bills C-7 and C-233 may or may not be good laws, but nobody would disagree that both bills deal with profoundly important moral issues. When a vote takes place on an issue of conscience such as this, it is obviously unacceptable for the various party whips to dictate how MPs will vote.

Therefore, I am very happy to be a part of a party in which the right of MPs to vote freely on such matters is guaranteed. This right is entrenched in Article 7 of the Conservative Party’s Policy Declaration, which was adopted at the time of the party’s foundation fifteen years ago: 

On issues of moral conscience, such as abortion, the definition of marriage, and euthanasia, the Conservative Party acknowledges the diversity of deeply-held personal convictions among individual party members and the right of Members of Parliament to adopt positions in consultation with their constituents and to vote freely.

So far, so good. This policy is binding upon the party’s leaders, present and future, and any leadership candidate who suggests that he or she will ignore so clearly-stated and unequivocal a policy is, in so many words, declaring his or her intention to be an elected dictator, to whom the party’s constitution and policy declaration are irrelevant tissues of powerless, and therefore meaningless, words.

But it is nonetheless true that the best way to “adopt positions in consultation with … constituents” is not necessarily obvious—particularly for a new MP trying for the first time to vote on an issue of moral conscience. So in this essay I will attempt to show how I do it. 

Over the years, I have developed an instrument that I call the “Constituency Referendum.” This instrument has some shortcomings, which I will try to enumerate in the following pages. But over the past two decades, the concept has gradually gained credibility. Every year, Maclean’s, the weekly newsmagazine, awards a series of “Parliamentarian of the Year” awards to MPs who have been voted, by their colleagues of all partisan stripes, as the best MP in some aspect of the job. In 2017, I was given the award for “Best Civic Engagement,” entirely on the basis of the three Constituency Referenda that I had held during the previous two years, on the Medical Assistance in Dying Act, the Cannabis Act, and on the government’s promise to adopt electoral reform without first holding a national referendum. 

I think that this award serves as evidence that the Constituency Referendum may be (as the saying has it), an Idea Whose Time Has Come. 

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THE MORAL CASE FOR REFERENDA (AND, BY EXTENSION, FOR CONSTITUENCY REFERENDA).

I hold Constituency Referenda because I believe that Canada’s citizens, not our politicians, should have the final say in the nation’s most important policy decisions. The voters of Canada are no less thoughtful or reasonable than are our elected officials. Nor are the consciences of the citizens that I represent inferior to my own. And—significantly for any candidate for the Conservative leadership who is arrogant enough to threaten to demote any front-benchers who follow the lead of their constituents rather than that of the party whip—my constituents are not morally inferior to you, either.

This instrument has allowed me, on a number of issues over the years, to vote as instructed by my constituents. The subjects of these votes have, on occasion, been very close to the subject-matter of the upcoming votes on Bills C-7 and C-233: 

• in 2012 I held a Constituency Referendum on the abortion issue (Commons motion M-312, which would have established a House of Commons committee on the start of life); and
• in 2016 I asked constituents how to vote on Bill C-14, which created a legal framework for medical assistance in dying. 

The goal, in a Constituency Referendum, is to replicate as closely as possible, within a single constituency, the experience that a voter would experience if an actual referendum were taking place. If Canada had a truly democratic political system, like Switzerland or Ireland or Liechtenstein or New Zealand, all such matters would be put to a national referendum, and the people of Canada would vote directly. But since Canada’s political system removes all direct decision-making from the people and assigns it to the lucky few elected to Parliament, the Constituency Referendum is my attempt to re-enfranchise the citizens in the little corner of the country that I represent in the Commons. 

I will make no pretense that a Constituency Referendum is as good as the real thing. Later on in this essay, I will note various shortcomings. But direct democracy is always, in my view, superior to representative democracy, in which factors such as horse-trading, the need to maintain party discipline and message conformity, and other pressures cause the actions of the 443 enfranchised Canadians (338 MPs and 105 Senators) to only obliquely reflect the actual volition of the nearly 38 million Canadians who, on matters like assisted dying or cannabis legalization, are unenfranchised. 

Since I was first elected back in 2000, I have conducted six “Constituency Referenda” asking the voters in my riding how I ought to vote on pieces of legislation then under consideration in the House of Commons. Additionally, I’ve held three other referenda on non-legislative issues of similar importance (for example, in 2001 I asked constituents how I should act with respect to a voluntary opt-in provision included in legislation awarding a $25,000-per-annum pay increase for MPs). 

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HOW TO KEEP A CONSTITUENCY REFERENDUM IMPARTIAL: THE BASICS

To ensure that each Constituency Referendum will provide a fair and accurate measure of the will of local voters, I design and mail out a publication to every household in the riding, modeled on the impartial Voter Information Booklets that are sent by the government to voters in state-level referenda in California, Oregon, and other American states where referenda are used frequently to decide public policy issues. 

The principles that I follow, in order to make sure that the Constituency Referendum Booklet that I send out (and the procedures that my office will follow, as the results arrive at our office) are impartial and user-friendly, are laid out below.

1. The question itself must be completely neutral;
2. I must provide a neutrally-worded explanation (in my own words) of the measure in question, and why it is important;
3. Arguments must be provided, taken from public statements by public figures, on either side of the issue;
4. There must be information directing readers to a dedicated page on my website, that provides direct links to information from advocates on either side of the issue (House of Commons rules prohibit MPs from advertising direct links to third-party websites in their mail products). 
5. The votes of constituents must be treated as confidential information.

Below, I will describe each of these in more detail. But first, an important consideration: Because more than one voter can live at a single mailing address, the mail-out sent to each home includes an official ballot with space for up to four voters (I’ve found that it is rare for a single household in my riding to contain more than four eligible voters; most contain one or two); this ballot can be detached and mailed to my office, postage-free (Canadians can always send mail to MPs postage-free). 

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PRINCIPLE #1: ASK A NEUTRAL, NON-LEADING QUESTION.

Canadian referendum history is replete with deliberately misleading questions. The most famous example is the wording of René Lévesque’s 1980 referendum on Sovereignty-Association for Quebec, which became legendary for its essay-like length and use of multiple semicolons. This history has prompted some commentators to suggest that referenda are inherently biased instruments asking inherently biased questions—it’s just the way that referenda work, don’tcha know.

This is, of course, entirely untrue. What Canadians typically refer to as “referenda” have almost always been substitutes for a House of Commons vote at “second reading”—that is, approval of the general idea of the proposition, not the final version of something, such as:

• The secession of our province (Quebec in 1980 & 1995);
• The adoption of an as-yet-not-fully-designed new electoral system (numerous referenda in BC, Ontario and PEI);
• Getting the government off the hook for some election promise that served a useful partisan purpose at the time of the last election, but now is unhelpful to the party’s goal of maintaining itself in power (the 1942 plebiscite on conscription). 
• An as-yet-incompletely-drafted set of changes to the Constitution (the Charlottetown Accord referendum of 1992). 

The ‘Second Reading’ problem was also the underlying issue with the Brexit referendum of 2016; the referendum was a request for voters to give the UK government a mandate to negotiate an exit deal with the European Union. It was not a request for the voters to approve a finished deal. A referendum on the final deal would have been entirely appropriate. I note that in Switzerland, finalized treaties are approved by referendum, but mandates to initiate treaty negotiations are not. Most Swiss citizens think this is just fine.

At any rate, whenever I’ve conducted a Constituency Referendum on a piece of legislation, I always make it clear that I will use the result to guide my vote at Third Reading only. At Second Reading, I will vote Yes or No based on other considerations, including my own judgment. For example, in 2016 I voted against Bill C-14 at Second Reading in order to signal my disapproval of the Trudeau government’s decision to use ‘Closure’ to shut down Parliamentary debate on an issue as important and nuanced as a legislated response to the very detailed and complex Supreme Court ruling which found, in Section 7 of the Canadian Charter of Rights and Freedoms, a right to seek outside assistance in ending one’s life. But at Third Reading, I set all such quibbles aside; when my constituents instructed me to vote in favour of Bill C-14, I did so. 

With this in mind, here are the questions on the six constituency referenda I’ve held so far on Bills, to guide my vote at Third Reading:

Referendum #1:  Not a vote on a Bill. Subject-matter was a pay increase for MPs.

Referendum #2: “I want Scott Reid, MP to vote as follows: YES, vote for Bill C-5 / NO, vote against Bill C-5.”

Referendum #3: “If the Government refuses to add a ‘Sunset Clause’ to Bill C-36 [the Anti-Terrorism Act], how do you want me to vote in Parliament? (If a Sunset Clause is added, I will vote for the Bill.) YES / NO.”

Referendum #4:  Not a vote on a Bill. Subject-matter was riding boundaries.

Referendum #5: “Should Scott Reid, MP, vote FOR the Civil Marriage Act (Bill C-38)? YES / NO.”

Referendum #6: “Should Scott Reid, MP, vote FOR Motion M-312? YES / NO.”

Referendum #7: “Should Scott Reid, MP, vote for Bill C-14—the Medical Assistance in Dying Act? YES / NO.”

Referendum #8:  Not a vote on a Bill. Subject-matter was electoral reform. 

Referendum #9: “Should Scott Reid, MP vote for Bill C-45—the Cannabis Act? YES / NO.”

As you can see, the wording has been adjusted somewhat over time—mostly to accommodate the lessons I was gradually learning regarding ballot design. (I have been trying to make the ballots look, as much as is possible, like the ballot that a voter would encounter when voting in an actual referendum, conducted pursuant to Canada’s Referendum Act. 

Each of the ballots listed above can be examined at my website, at https://scottreid.ca/category/constituency-referenda/; readers can make up their own minds as to whether or not I’ve perfected the way that the ballots should be laid out. 

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PRINCIPLE #2: GIVE A NEUTRALLY-WORDED INTRODUCTION TO THE ISSUE.

On the front cover of the Constituency Referendum form is a letter from me, starting with the words, “Dear Constituent”. This letter gives my reasons for holding the referendum, and attempts to outline the importance of the issue without taking sides. The letter typically fits onto an 8 ½” x 11” sheet of paper. A longer introduction would, in my view, serve primarily to scare away potential voters. 

On the whole, I’ve found that my constituents seem to trust that my cover-page explanatory letter is genuinely neutral. Perhaps their confidence in me is simply a function of habit, as I’ve been consulting them in the same manner for nearly two decades. 

But the media is far more suspicious. An example will demonstrate just how cautious MPs have to be in crafting the neutral introduction, if the goal is to be above any suspicion of manipulation. 

In 2016, I was approached by a reporter for a national news outlet, regarding my plans to hold a Constituency Referendum on the Medical Assistance in Dying Act (Bill C-14). The reporter took issue with my use of the word “euthanize” in the second paragraph of my explanatory letter. The reporter observed, correctly, that it was only the opponents of assisted dying who were using the terms “euthanasia” and “euthanize.” In 2016, supporters were using the term “physician-assisted suicide.” (The use of the term “medical assistance in dying” as well as its acronym, “MAID,” dates from the adoption of Bill C-14 itself; in 2016 the term was not yet in wide circulation.) Thus, the reporter argued, my use of “euthanize” could be taken as a subtle use of negative language, for the purpose of swaying the vote. 

In the subsequent conversation, I partially agreed with the reporter. It was certainly true, I acknowledged, that the term “euthanasia” was being used almost exclusively by only one side in the debate, and that, among those who were using it, it was seen as a more negative term than the phrase, “physician-assisted suicide.” But I was able to point out that in the very same paragraph of the explanatory letter (which I have reproduced below), I had also used the alternative term favoured by the other side in the debate:

Bill C-14 would amend the Criminal Code to allow what the Government characterizes as “medically-assisted dying”—what is more commonly known as “physician-assisted suicide.” If the bill becomes law, it will be lawful for a physician or nurse practitioner to euthanize a patient, as long as a series of conditions are met.

The use of both terms, side-by-side, seemed to me to be pretty neutral. I then challenged the reporter to provide me with another word that would be less neutral than “euthanize.” For example, would “kill” be better? She conceded the point that the use of “euthanize” was not, in this particular case, prima facie evidence that I was trying to nudge them into voting against Bill C-14. 

For me, the exchange with the reporter was a healthy reminder that we MPs really do have to work hard to remove any hint of bias in one direction or another. A year later, when I did a Constituency Referendum on the cannabis legalization bill, I adopted the practice of running the text of my cover letter past a few friends who were on different sides of the relevant issue. This seems to have been a pretty effective way of catching the unintended hints, buried in my own prose, that may point in one direction or the other. 

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PRINCIPLE #3: IMPARTIALLY PRESENT THE KEY ARGUMENTS FROM EITHER SIDE. 

It is vital that, in addition to the cover letter on the front page of the booklet, I include a section in the interior in which the arguments For and Against will be presented in a manner that accurately reflects the positions being taken by the leading defenders of each of the two options being disputed. 

In a government-sponsored referendum in a place like California, the electoral authority often produces a booklet in which each side is given a set number of words in which to present its argument. (In some jurisdictions, like Quebec, the initiation of a referendum also results in the creation of “official” and regulated “yes” and “no” campaign organizations. The details vary between jurisdictions.) Obviously this is not an option for a Constituency Referendum.

But the impartial presentation of the key arguments for either side is nonetheless critical. In order to collect the best possible material for this part of the Constituency Referendum booklet, I make an effort to follow the debate on the relevant Bill in the House of Commons, as well as the presentations made by expert witnesses to the parliamentary committee studying the legislation, and discussions about the Bill in the media. I read newspapers and transcripts of debates with a highlighter in hand, marking passages that I regard as being particularly well-written presentations of the key arguments. 

The set-piece speeches by ministers who are launching a proposed new law are particularly good places to look for cogent arguments (always on the Pro side, of course). For example: 

• In the Constituency Referendum on the Medical Assistance in Dying Act, I quoted from then-Justice Minister Jody Wilson-Raybould;
• In the Constituency Referendum on the Cannabis Act, I again quoted from Minister Wilson-Raybould, and also Public Safety Minister Ralph Goodale; 
• In the case of the 2016 Constituency Referendum on whether the Government should be required to hold a referendum prior to adopting a new electoral system, I quoted Democratic Institutions Minister Maryam Monsef at such length (171 words) that the chief of staff to then-leader Rona Ambrose called me up to object that he didn’t want the other Conservative MPs who were thinking of conducting their own Constituency Referenda on this subject to be using such an extensive argument from “the other guys.” I disagreed, and in the end he and I sent our MPs rival templates for Constituency Referenda. My version was clearly the more impartial of the two options, and it is my belief that this impartiality added a great deal of credibility later that autumn, when I held a press conference to present the national media with a pallet-load of signed and returned Constituency Referendum ballots from across the country. 

The Con side is always a bit more difficult. In part this is because the ministers are all on the Pro side of the issue. But also, the opponents of a Bill do not necessarily present a united front. In the case of both the Medical Assistance in Dying Act and the Cannabis Act, some opponents thought the legislation went too far, and others felt that it did not go far enough. So (to give one particularly clear example), in the referendum on cannabis legalization, I wound up quoting committee testimony from longtime cannabis-rights activist Jodie Emory as one of the arguments on the Con side. I invite readers to take a look at the Constituency Referendum forms that I have posted on my website [https://scottreid.ca/category/constituency-referenda/] to make up their own minds as to how successful I have been in presenting these arguments in a reasonable manner.

It is also important, in the interest of impartiality, that the word-count for the arguments on either side be about the same length. In the Constituency Referendum on electoral reform, the total word-count for all arguments on both the Pro and Con sides were 465 words and 515 words, respectively. For Bill C-45, I compiled remarks from nine advocates for either side, totallying 620 words on the Pro side, and 687 words on the Con side. 

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PRINCIPLE #4: ENSURE A FULLY-INFORMED ELECTORATE (BY PROVIDING LINKS TO SOURCES OF ADDITIONAL INFORMATION).

I suspect that, prior to receiving their copy of a Constituency Referendum in the mail, most voters have already made up their minds about how they think I should vote on the relevant Bill in the House of Commons. Nonetheless, it seems reasonable to me that I ought to do all that I can to create circumstances in which they will be confident that they are properly informed. And after all, if the use of this information causes even a small number of voters to read further and to develop a firm position where before they had been uncertain, then this itself is of value.

So here’s an example of what I’ve done on a past Constituency Referendum:

For 2016’s Bill C-14, the Medical Assistance in Dying Act, the webpage I set up was www.scottreid.ca/BillC-14. This page is still active on my website (although a few of the links that were active in 2016 may now have stopped working). My webpage linked to: 

• three websites of groups supportive of Bill C-14;
• three websites of groups opposed to Bill C-14;
• three Justice Department (Government of Canada) web pages providing useful background information;
• six parliamentary resources, including the text of the Bill, the Library of Parliament legislative summary of the bill, the reports of the House of Commons and Senate committees reviewing the bill, and the dissenting report of Conservative MPs on the House committee; and 
• the Supreme Court ruling in Carter v. Canada, the 2015 case that had precipitated Bill C-14.

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PRINCIPLE #5: GUARANTEE CONFIDENTIALITY AND DISCRETION.

It is, unfortunately, not possible for me to give my constituents the ability to vote confidentially, since this would be incompatible with ensuring that each vote that is cast is actually a valid vote cast by a qualified voter. Polling stations along the lines of those used on election day by Elections Canada would be needed—or else a mechanism similar to the anonymizing double-envelope system used by Elections Canada for postal ballots. I have no means of doing either of these things. 

So here is what I do instead:

1. Constituents who choose to respond are asked to include their address and the names of each participating voter, on their ballot. This is done so that I can confirm that each vote originates from within the riding and from an individual who is eligible to vote in federal elections (as per the Elections Canada list of electors, which is provided annually to Members of Parliament). 
2. I protect the privacy of voters by keeping the ballots I receive in a locked filing cabinet in my Parliament Hill office, and by destroying all ballots following the vote in the House of Commons. 
3. On each ballot, I leave space for voters to send comments. If the comments appear to me to invite a response, then I write back. 
4. Notwithstanding the previous point, I do not record how any voter has cast his or her ballot, and no information is added to any database, or retained in any other way. The ballots are then shredded (a process that can take a considerable amount of time, when several thousand ballots are being destroyed). 
5. Once a constituency referendum has been conducted, and the votes counted, I always vote in the House of Commons as I was instructed to do by the voters in my riding—even when this has meant voting, alone, in opposition to every other MP in my party, and even when this has meant voting against my own policy preferences. I always make the results of the referendum public prior to the vote in the Commons. 

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DETERMINING WHAT INFORMATION TO LEAVE OUT OF A CONSTITUENCY REFERENDUM.

All policy issues—both the ones that give rise to Constituency Referenda, and the issue that do not—are inherently complex. So too is the way in which the government of the day chooses to deal with each issue. These are important discussions, and MPs should have intelligent opinions on such meta-issues. But it is my view that it is best for an MP who is conducting a Constituency Referendum not to raise such issues on the Constituency Referendum mail-out form itself. To show why this is, I will provide a brief discussion of a meta-issue relating to the subject-matter of the Constituency Referendum I conducted on Bill C-14, and the Constituency Referendum that I plan to conduct this spring on Bill C-7.

The Supreme Court’s ruling in Carter v. Canada (Attorney General) was handed down in February 2015, when the Harper government was still in office, with a twelve-month suspension on going into effect. I argued to my Conservative caucus colleagues that if our government were re-elected, we ought not to provide remedial legislation in response to the ruling. Had the government been reelected, and had my advice been taken, the relevant provisions of the law, which the Court had found to be in contravention of Section 7 of the Canadian Charter of Rights and Freedoms, would still have been of no force or effect; no Act of Parliament is required to cause an unconstitutional law to become void.

It was my view then, and still is my view today, that the common law—that is, the series of court rulings that follow each other, gradually distinguishing between the slightly different circumstances that pertain in each case that the courts consider,  very nearly always produces a set of rules that is less mechanistic, and more subtle, nuanced, and genuinely humane anything that statute law can produce—although I freely concede that the common law is also slower to develop than is statute law, since the common law must y necessity be the product of numerous court rulings, rather than of a single sweep of the Parliamentary pen. 

Speaking frankly, I still feel the same way today, in the context of Bill C-7, which is a response to the Quebec Court of Appeals’ Sept. 11, 2019 ruling in Truchon v. Attorney General of Canada. Once again, the court found that the law as currently worded does not permit some Canadians, under some circumstances, to have a realistic prospect of gaining access to assistance in ending their lives, and that therefore the penalties that the law imposes for assisting such a person to end his or her life are unconstitutional. 

So if, in some highly improbable scenario, the Trudeau government had sought my advice as to how to deal with the Truchon ruling, I would have recommended enacting no statutory response. An appeal of the ruling to the Supreme Court might have been reasonable, but if the Court of Appeal’s ruling had been upheld, I would have counseled allowing the court system to gradually develop reasonable guidelines and limits, which is what the common law does best.  

But such discussions have no place in the introductory letter on the front page of a Constituency Referendum mail-out package. The voters ought to be confronted with the same binary choice that faces MPs at third reading: Regardless of what you think of the circumstances that led us to this particular spot, there is now a binary choice to be made: Yes to the proposed Bill, or No. 

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WHAT WOULD A CONSTITUENCY REFERENDUM ON BILL C-7 LOOK LIKE?

Over the next few months, as the debates on these two bills unfold, I plan to construct the mail-out forms for these two Constituency Referenda online, building them so that observers can see what they will look like, before they are actually mailed to my constituents. 

To give an idea as to what this would look like, here are links to PDFs of the six Constituency Referendum forms that I have mailed out in the past. (Readers can also review the press releases by which I announced the results of these referenda), and see other related materials, all of which are posted on my website.

(Referenda #1, #4 and #8 were on subjects other than Bills / Motions, and are therefore not included below.)

Referendum #2: Bill C-5: Species at Risk Act 

Referendum #3: Bill C-36: Anti-Terrorism Act 

Referendum #5: Bill C-38: Civil Marriage Act 

Referendum #6: Motion M-312: to establish a committee to study when life begins (re abortion).

Referendum #7: Bill C-14: Medical Assistance in Dying Act

Referendum #9: Bill C-45: Cannabis Act

As well, I am including, below, a first draft of the letter that I propose to include in Referendum #10, on Bill C-7.

I welcome any comments from any constituent, any fellow MPs—and of course, from any contestants for the leadership of the Conservative Party, all of whom should be prepared to publicly acknowledge that it is the right of every MP, whether on the back benches or the front bench, to consult his or her constituents in this manner (or merely to consult his or her own conscience), and then to vote on either of these two bills without regard to the Leader’s preferences or the Whip’s instructions.

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First draft of letter to appear on the cover of my Bill C-7 Constituency Referendum.

2020.03.03 – C-7 MAID Riding Referendum – Cover

Open the full essay PDF here: On Constituency Referenda

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