Constitutional Issues in the Albertan Leaders’ Debate


This leadership debate dredged up several interesting constitutional issues and revealed a great deal of ignorance toward the principles of Responsible Government, the use of direct democracy (in this case, initiative-referendums and government-led referendums)in Canadian history, and the role of the Charter of Rights and Freedoms within the overall constitutional framework. In general, I support primaries within electoral districts (but would not for the election of a party leader), and I support referendums on broad questions such as changing the electoral system and amending the constitution. However, referendums on spending detract from Responsible Government. I oppose the Canadian method on fixed-elections, and I object to ambiguous pledges to allow for more free votes, particularly in the smaller provincial legislatures. I’m also skeptic toward the utility of recall.

Direct Democracy

The debate on direct democracy started around 28 minutes into the debate. New Democratic leader Brian Mason accused Wildrose leader Danielle Smith of promoting “an Americanization of our political system with citizen-initiated referenda that allow special interests to hijack the political agenda.” Judging by Danielle Smith’s description during the debate, a Wildrose government would promote a “British Columbianization” of Alberta’s politics by adopting a system most similar to that which British Columbia implemented in the early 1990s. Progressive Conservative Premier Allison Redford also choose to sow fear on the issue by invoking the spectre of California, which even within the United States is widely recognized for its dysfunctional system of direct democracy. However, several referendums have been held in Canada, including three at the federal level: on prohibition, on conscription, and on the Charlottetown Accord.

However, the Wildrose policy declaration remains ambiguous:

Implement legislation establishing the essential democratic tools of voter recall and citizen-initiated referenda. In a healthy democracy, ultimate power must reside with voters. This can only be truly achieved if there are legislated mechanisms in place that allow voters the opportunity to recall their representatives and/or initiate legislation that their representatives are unwilling to bring forward. Of course such tools should be used sparingly and without frivolity. The support thresholds for both must be high enough to ensure that only petitions with exceptionally strong grassroots support are permitted to proceed to a vote. As with all legislation, all proposed initiatives should be constitutionally sound and kept within the parameters of the provincial budget.[1]

On the Notwithstanding Clause

At 33 minutes, Danielle Smith said that a judge would review all citizen-initiated referendums in order to ensure the question conformed to both the division of powers (contained in the Constitution Act, 1867) and to the Charter (contained in the Constitution Act, 1982).  The new legislation on initiative-referendums would also ensure that all proposals be revenue neutral. This latter statement suggests that citizens would be able to initiative referendums on money-bills, which would in turn threaten some basic principles of Responsible Government. These initiatives could work best if they proposed questions that would not require the Royal Recommendation in order to be passed into law. Then Allison Redford, in her subtle ad hominem toward Wildrose, retorted:

So the issue becomes that everytime a question is asked of a federally appointed judge, you simply start by saying, ‘Should we use the Notwithstanding Clause?’ And every single time that you do that, a judge will have no choice but to approve that referendum – no matter what it’s about.

With the phrase “no matter what it’s about”, Redford asserted that a provincial legislature could invoke the Notwithstanding Clause in order to over-rule any constitutional challenge, whether it resulted from the federal-provincial division of powers contained in the Constitution Act, 1867 or from the Charter. This is false. The Notwithstanding Clause (Section 33 of the Constitution Act, 1982) allows the Parliament of Canada or any provincial legislature to pass a law notwithstanding Sections 2 and Sections 7 through 15 of the Charter. Such a statute would automatically expire after 5 years, but the legislature may re-enact the legislation in perpetuity.  The Charter is only one part of the Constitution Act, 1982, and the Notwithstanding Clause does even extend to all parts of the Constitution Act, 1982. The Notwithstanding Clause most certainly does not extend to the federal-provincial division of powers contained in the Constitution Act, 1867!

On Votes of Confidence

In Democracy & Accountability: Strengthening Alberta’s Democratic Rights, the Wildrose Party has released an incoherent and contradictory policy on party discipline and free votes in the legislature and an ill-advised policy on fixed dates for provincial elections, senatorial advisory elections, Speeches from the Throne, budgets, and legislative sessions.[2]

A Wildrose government would supposedly “restore the role of elected MLAs by mandating that all votes in the Legislature and caucus be free and transparently reported to the public.”[3] First, how would a Wildrose government “mandate” this policy? Would it pass legislation to this effect, or would it simply pledge its support? The latter seems more likely. Second, this proposal would eliminate the confidentiality of caucus and therefore might infringe upon the privileges of members. This policy would at the very least be ill-advised because the media would then highlight any division within the Wildrose caucus and portray it as an inherent weakness in the government or the precursor to a backbencher’s rebellion. And how would Wildrose “transparently report” votes in caucus to the public? Presumably, this declaration means that caucus would then become televised. Third and most fundamentally, Wildrose presumes the delegate theory of representation, that “the role of elected MLAs” involves channelling their constituents’ concerns to the legislature and therefore potentially withdrawing their confidence in the government.

The first sentence of the paragraph declares that “all votes in the Legislature” shall be free. Votes on ways and means (the budget) and supply (the main and supplementary estimates) occur in the legislature. By the conventions of Responsible Government, all money bills are matters of confidence. Therefore, MLAs of the Wildrose Party are free to vote against the Wildrose government on matters of confidence. This syllogism seems to incorporate the basic logic of the Wildrose Party’s platform.

The next sentence reveals that a Wildrose government would heavily modify the confidence convention – the essence of Responsible Government – by ensuring that votes on money bills are no longer matters of confidence. Instead, only specific motions “That this House has no confidence in the government” would qualify as matters of confidence.

Motions of non-confidence would remain an option, but would be held as separate stand-alone votes. This would allow MLAs to vote on each piece of proposed legislation based on the interests of their constituents and Albertans, rather than being forced to tow the party line.[4]

This radical break with tradition would allow MLAs to vote against money bills but still retain their confidence in the government. Such an arrangement would destroy Responsible Government by severing the link between the government, the parliament, and expenditures. Governments implement most of their policies by spending the taxpayers’ money, so it is inherently irresponsible and hypocritical of an MLA to express confidence in the government but then vote against its main policies. If they oppose the government’s proposed expenditures, then they oppose the policies of the government and therefore withdraw their confidence in the government itself!

There is an inverse relationship between the number of seats in a legislature and the importance of party discipline: the fewer seats in the legislature, the more crucial party discipline becomes in order that a government may remain in office. The British triple-vote system would be a realistic solution to excessive party discipline. On votes of confidence, both the cabinet and backbenchers must toe the party line; on matters where the government has not declared a position, all members may exercise a free vote; and on government policy that does not involve spending, Ministers of the Crown must maintain collective ministerial responsibility while backbenchers can vote freely.[5]

The Wildrose Party has in effect proposed the same idea as Heard and Aucoin et al., whereby the legislature could only withdraw its confidence from the government through a “constructive vote of non-confidence”, which proposes that the same parliament support a new government instead of allowing the first minster to advise the dissolution of the legislature.[6] It would follow the formula, “That this House has lost confidence in the current government and is of the opinion that a viable alternative government can be formed within the present House of Commons.”[7] This procedure of constructive non-confidence would only work if the legislative assembly could dissolve itself by an act of parliament, as the British Parliament now can through the Fixed-Term Parliaments Act, 2011. However, as the fixed-elections legislation of every other province and of Canada have shown, only a constitutional amendment to s. 41 (a) of the Constitution Act, 1982 could truly eliminate the Crown prerogative on dissolution and vest it in the Crown-in-Parliament, as the British legislation has done.

In other words, the Wildrose Party’s policy makes no sense and is totally incoherent. The headline on the page that introduces  these proposes reads “Get it Right.” I’m sorry, Wildrose, but you’ve got it all wrong.

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[1] Wildrose Party, Democracy & Accountability: Strengthening Alberta’s Democratic Rights [accessed 11 April 2012]: 3.
[2] Wildrose Party, Democracy & Accountability: Strengthening Alberta’s Democratic Rights [accessed 11 April 2012].
[3]
Wildrose Party, Democracy & Accountability: Strengthening Alberta’s Democratic Rights [accessed 11 April 2012]: 3 [emphasis added].
[4]
Ibid.
[5]
Peter Aucoin et al, Democratizing the Constitution: Reforming Responsible Government (Toronto: Emond Montgomery Publications Limited, 2011): 128.
[6]
Peter Aucoin et al, Democratizing the Constitution: Reforming Responsible Government (Toronto: Emond Montgomery Publications Limited, 2011): 222.
[7]
Andrew Heard, “The Governor General’s Decision to Prorogue Parliament: A Chronology and Assessment,” Constitutional Forum (2009-2010): 3.

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One Response to Constitutional Issues in the Albertan Leaders’ Debate

  1. ““an Americanization of our political system with citizen-initiated referenda that allow special interests to hijack the political agenda”

    That is because America has no real democracy – any attempt to limit special interests (usually code for money) is ruled unconstitutional (just the other year they struck down an initiative enacted in 1912 which prohibited corporations from campaigning).

    Anyways, my reply to this would be:

    Firstly, so what if special interests use the process? So what? So what if animal rights activists want to raise an issue about animal rights? So what if libertarians want to limit taxes the way Swiss voters have (income tax is constitutionally capped to 11%, corporations tax to 8.5%)? So what if conservatives want to make changes to antidiscrimination legislation? So what if people want to legalize marijuana? In “hijacking” the political agenda you need to make a cogent argument (which itself might have educative effects on voters, and tells us nothing about whether the “hijacking” is good or bad in substance). The special interests group is an argument against democracy itself, including representative government (hijacking/bribing a handful of legislators is easier than a million voters).

    Secondly, it assumes the people cannot see that special interests are hijacking the agenda – that might be enough to destroy the measure, or make people very suspicious of it.

    Thirdly, it ignores the fact direct democracy makes representatives even more representative.

    Ps
    “his latter statement suggests that citizens would be able to initiative referendums on money-bills, which would in turn threaten some basic principles of Responsible Government”

    Firstly, re financial issues: 3-5% of the entire Californian budget is truly “locked in” by initiatives. I hardly think that is large. Secondly, the legislature in Switzerland can issue a counter-proposal which is usually what the voters accepted most of time (rather than the proposal by citizens). Thirdly, direct democracy is responsible government writ large: we all have to take responsibility and recognize the mistakes we make because we have to live with them, or at least hear about them.

I invite reasonable questions and comments; all others will be prorogued or dissolved.

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