by J. Patrick Boyer, QC

Since 1898, on 15 separate occasions, British Columbians have gone to the polls to vote on ballot questions, each time approving or rejecting a proposal by a “simple” majority – half the votes cast, plus one or more. This year, British Columbians voted on a question about the system for electing MLAs, but for the first time, somebody had changed the rule.
On May 17 this year, 57 percent of electors affirmed the proposal for BC-STV – a clear win under the rule that until this year had governed referendums on everything from enfranchising women, conscripting soldiers, changing the Constitution and adopting public health insurance. But the law had been changed to require double 60 percent approval: more than 60 percent of all voters had to approve, and more than 60 percent of all constituencies had to approve.
So who invented this new legal definition for democratic approval in a referendum? Why was this double 60 rule only to apply to the referendum on how MLAs get elected? The rule is still “50 percent plus one” on any other ballot question, according to the Referendum Act of British Columbia.
The answer is a trick. It’s not what you’d expect. The someone who invented the double 60 rule which goes against the established democratic norm in British Columbia and Canada, a norm so deeply embedded in our history and democratic practice as to be one of the rules of our “unwritten Constitution” as well as one of the written rules in British Columbia statutes that governed all ballot questions in the past and will govern them all in the future according to present law, is the very same person who after May 17’s endorsement of STV by a clear majority of British Columbians said he “didn’t want to change the rules.”
Not only that, but the correct answer to the double 60 question is a double trick: the person who invented the double 60 rule, a new threshold for approval that is unprecedented and arguably unconstitutional, is the very same person who sponsored the whole enterprise that took voters into the May 17 referendum to make provincial elections more democratic in the first place.
While Premier Gordon Campbell enjoys the summer figuring out how to extricate his government from its self-created conundrum over the May 17 referendum, British Columbians know they have approved the proportional electoral system and can figure out what to do to help their government implement their democratically approved right to STV.
Seen in light of history, it’s no big deal. The premier could just get on with it. After Premier W.A.C. Bennett came to power with his Social Credit/Progressive Conservative alliance in 1953 under a single transferable vote electoral system, he introduced legislation to repeal that electoral system and replace it with the simple plurality or “first-past-the-post” system. He didn’t hold a referendum on changing the province’s electoral system. He didn’t think a change in the Election Act about the way ballots get counted on election night to determine who becomes an MLA required 60 percent approval, or double 60 percent. Nor did anyone else. The rule is that in a constitutional democracy a government can introduce legislation and if it is given three readings and debated and approved by 50 percent plus one of the members it becomes law and gets royal assent. That was the rule half a century ago under which Premier Bennett brought about changes in the electoral system. It’s still the rule today. It has not been changed.
Premier Campbell isn’t the first British Columbia leader to struggle translating direct democracy into legislative action. From the province’s first referendum on November 25, 1909, on a local option policy for liquor control, down to last month’s vote on a revised electoral system, British Columbia holds the record for the most ballot questions in Canada. And since the issues that get referred to citizens for resolution in ballot box democracy are invariably controversial, more than one premier has grabbed this democratic bull by the horns only to get skewered by not understanding the art of democratic statesmanship involved.
Even before the 1909 BC vote on local option, the liquor issue had been on a ballot in British Columbia as elsewhere across Canada in 1898, when the national government of Liberal Prime Minister Wilfrid Laurier presented the first country-wide vote on the question of prohibiting liquor. A majority of British Columbians voted for Prohibition, as did majorities in other provinces – except Quebec, which strongly rejected what was seen as a Protestant puritanical campaign. Laurier grappled with the outcome, then realized no national standard was possible, so declared Ottawa out of the field, leaving implementation of Prohibition to individual provinces that so wished, which is what happened. A large number of provincial ballot questions ensued, including in British Columbia, over bringing in the prohibition of alcohol, and after the dry years of legal hypocrisy when organized crime supplied booze to all manner of law-abiding citizens, other plebiscites to repeal Prohibition. In British Columbia the first such provincial ballot question after the 1898 Canadian plebiscite on prohibition of liquor, came to a vote on November 25, 1909, on whether to adopt a “local option” policy for liquor control. Then, on September 14, 1916, voters across the province went again to the polls to vote on prohibition of liquor. How greatly alcohol and all the business going with it dominated the first half of twentieth century public affairs is demonstrated by the fact that British Columbians went to the polls three more times to address the government’s policy in the matter. On October 20, 1920, the ballot question was on Temperance. On June 20, 1924, the issue was sale of beer by the glass. On June 12, 1952, yet another ballot question asked citizens of the province for further direction on regulating the sale of liquor. Including the vote in the Canadian plebiscite of 1898, that’s six times British Columbians marked ballots to help decide public policy in relation to alcohol. In every single case, the ballot question would carry or be defeated by a vote of 50 percent plus one.
This pattern was similar in most parts of the country, with only New Brunswick never having a provincial vote on liquor. Alberta, Saskatchewan, Manitoba, Ontario and PEI were balloting on booze just as much, as their premiers sought to engage the people in an issue that was dividing their cabinets, splitting their parties, and turning their legislatures into turmoil. The politics of alcohol was a major component of public life for 70 years. In other provinces, too, the rule was that a simple majority – not 60 percent, and certainly not double 60 percent – would determine the issue.
In British Columbia, this democratic device of ballot questions was applied to other major issues as well, and generally ahead of most other jurisdictions in Canada. Extending the right to vote to women is an example. In September 1916, BC conducted the only referendum every held in Canada on women’s suffrage. Ironically, it was a vote in which only men could participate – a double irony, in fact, because as early as 1873 BC had enfranchised women for municipal elections. While it may have had this double irony, the 1916 women’s suffrage referendum did not require double 60. It seemed only natural to all concerned that a democratic verdict would mean 50 percent plus one.
More than that, the 1916 referendum provided interesting entertainment for voters who saw their premier twist and turn in a conundrum of his own making. As the dynamics of this public consultation process developed, and popular opinion grew to favour changing the electoral system to add women as voters so the legislature would be more reflective of the province, they overrode the calculations of the government. Conservative Premier William J. Bowser, who had decided on the plebiscite as a means of delaying and ultimately defeating the drive for women’s suffrage, could see the strength of popular opinion and did not foolishly try to defy it, so in a classic BC finale, ended up campaigning in favour of the very measure he had sought to avoid. Women in British Columbia had won the vote.
Public health insurance was another substantive subject on which British Columbians expressed their judgment in a referendum held June 1, 1937, a time when there was no system of state health insurance anywhere on the North American continent. The high-stakes drama of medical politics in Saskatchewan in the 1960s when Tommy Douglas’ social democratic government battled to bring in public health insurance while defiant doctors went on strike had already been acted out in British Columbia in the 1930s. The intense contests between the Liberals, Conservatives, citizens, the medical community and insurance companies over who would pay for medical services, and how, is a big and revealing chapter in BC’s political history. The controversy over health care, with which we are still embroiled, was embraced by the 1937 BC referendum. It took place in the depths of the Depression, and was an integral part in the decades-long process of clarifying the issue and establishing public policy on paying the costs of people’s medial services. When the ballots were tallied on June 1, 1937, some 116,223 British Columbians had voted for the Health Insurance Act, while 80,982 opposed it. A large majority had approved the health plan proposal, far in excess of the going rule that it only took 50 percent plus one to carry. At the same time, the Liberal government whose own legislation on health insurance had initiated the public debate was re-elected. This meant it had a double mandate to deal with the health insurance question, because the Liberals had explicitly pledged to honour the outcome of the balloting. Yet the re-elected government of Premier T. Dufferin Pattullo chose instead to wait, neither enforcing nor replacing the 1936 act for the public health insurance program. The overwhelming mandate the people had given the government to proceed was ignored. The Liberal premier of the day had changed his self-imposed rule. Citizens felt they had been used and abused.
By 1952 another issue British Columbians share with others across this vast northern transcontinental country, the problems of time zones and time systems, had generated so much controversy it could only be resolved at the ballot box. The choice between shifting to daylight saving for part of the year, or staying on standard time for all 12 months, pitted urban dwellers who liked daylight saving against rural folk who did not. Farmers claimed to be losing two hours working time per day. Desiring to resolve the controversy once and for all, the British Columbia government submitted a ballot question on the subject to voters, along with another ballot question on the still controversial liquor question, in conjunction with the provincial general election on June 12, 1952. Some 290,353 people voted in favour of daylight saving, and 231,008 voted against. Even as they reached the polling stations many citizens could still not make up their minds, evidenced by 20,828 voters rejecting their time question ballot. With a favourable vote, and the farmers having had their day in an open contest over the best public policy for the province as a whole, “fast time” was proclaimed to apply throughout British Columbia. In this, BC pointed the way again, and the provinces of Alberta and Saskatchewan subsequently held direct votes on a common plan for setting the clock. In all three provinces, the rule to determine the outcome was 50 percent plus one.
By 1991, British Columbia voters again went to the polls to cast ballots on issues that set them ahead of and apart from other parts of Canada – initiative and recall. The “initiative” is the legislated right of citizens to cause or initiate a referendum on an issue for which they can generate enough public support as shown by a petition signed by the required number of voters. The “recall,” is triggered when a requisite number of voters sign a petition on a stated reason as to why their elected representative in the British Columbia Legislature should be recalled and a by-election take place for a replacement MLA. Both measures had been intrinsic parts of the populist direct democracy movements in Canada and the United States a century ago, and were revived in the early 1990s as a manifestation of citizen disillusionment with politics and disengagement from established party political processes. When Social Credit Premier Rita Johnston announced the two-question referendum, NDP leader Michael Harcourt said it was unnecessary because the government could simply introduce the legislation and get on with it. “Citizen initiatives and recall should have been incorporated in the Referendum Act that the Social Credit government passed last year,” said Harcourt in September 1991. The NDP supported direct use of the legislature to enact changes to the provincial democratic system, according to the rule of a constitutional legislative democracy. The vote took place, however, and the governing rule in that arena, of course, was 50 percent plus one. Although the government itself was defeated, British Columbians were unequivocal about enhancing the democratic infrastructure of the province. In favour of recall were 1,058,137, against were 248,432, with 128,171 rejected ballots. Counting only the valid votes cast, 80.99 percent of the citizens approved recall. Of the valid votes cast for initiative, the second question, the number was even higher at 83 percent. During the election, Harcourt had indicated he would follow the results of the mandate from the people, not a radical idea for a party leader in a democratic society, and he did not change the rule. Following his election as premier, a committee of the legislature was given the mandate in 1992 to study the details and recommend specific legislative measures for initiative and recall. The provisions were duly enacted and are law today.
By 2002, another major ballot question, this time on aboriginal treaty rights in land claim negotiations, brought with it a lot of controversy and even a court challenge. (I remember it well because I was called by the Crown to give expert testimony about referendum law and British Columbia democratic practices and norms.) That referendum is still fresh in most people’s memory, so we can skip the details, except to note that as exceptional as the whole matter was, nobody thought to change the 50 percent plus one rule because it was so deeply established.
So, why did BC face a new rule for a ballot question on modifying the way the electoral system works? The rule was changed by the Campbell government sponsoring an amendment to the Referendum Act and passing it into law in the legislature with its majority who are all members elected under a different electoral system than the one being proposed. Under the Charter in our Constitution, a law that curtails the rights and freedoms of citizens can only be subject “to such reasonable limits prescribed by law [in this case, the amendment to the BC Referendum Act to change the 50 percent plus one rule to the double 60 rule] as can be demonstrably justified in a free and democratic society.” When the courts interpret this, they look to the laws and norms of “a free and democratic society.” British Columbia as a free and democratic society for more than a century has conducted referendums on the legal requirement of 50 percent plus one being the threshold for approval. The democratic right of British Columbians to vote in referendums is granted by statute enacted by the legislature in accordance with the constitution of the province. Once that right is granted by law, even though it is not one of the explicitly enumerated democratic rights in the Charter, it does exist as a right that can only be subject to “such reasonable limits as can be demonstrably justified in a free and democratic society.” To argue otherwise is to change the rule about changing the rules. A court ruling in response to a citizen-based challenge to the double 60 rule is not the next thing Premier Campbell would hope to see, but the prospect is not unimaginable.
It needn’t be this way. In British Columbia the process involving the Citizens’ Assembly deliberately studying voting methods followed by the May 17 ballot question on the single transferable vote it recommended was launched by Gordon Campbell. His commitment given in the prior election was duly honoured during his first mandate. As Nick Loenen, a persistent British Columbia advocate for proportional representation, noted more than a year ago, “Campbell was not pushed from behind. On this issue he led his party, cabinet and caucus. His achievement is remarkable.”
That’s an understatement. Across Canada other premiers and provinces have been following Premier Campbell’s example and British Columbia’s lead. In Ontario, Premier Dalton McGuinty’s plan for “democratic renewal” includes a citizens’ assembly on electoral system change followed by a referendum. This is a direct copy from Premier Campbell, and on June 14 Ontario’s legislature enacted a law to set this process in operation. On Prince Edward Island, Premier Pat Binns initiated a process for electoral reform that will culminate in a referendum this year. In New Brunswick, Premier Bernard Lord is following suit. Ottawa and Quebec are also on the move, in the same direction. All eyes have been on BC. They still are – especially because the province that initiated the current Canada-wide surge in democratic renewal is also, oddly, home of the double 60 rule.
On June 6, Fair Vote Canada president Wayne Smith urged New Brunswick’s Premier Bernard Lord, who’d followed Gordon Campbell’s lead and is proceeding with a referendum on a mixed-member proportional voting system, to let 50 percent plus one decide the outcome. Said Smith: “The government of British Columbia has put itself in an embarrassing position by having an unprecedented double super-majority threshold for their recent referendum on electoral reform.” The double refers to the need for a majority of constituencies to also approve, which overwhelmingly happened. BC-STV was endorsed by a majority of voters in all regions of the province, 77 of the 79 ridings.
The “BC mistake” of the double 60 rule required to carry the referendum will almost certainly be avoided elsewhere. Nobody else has ever run a referendum except on 50 percent plus one, and why would they change?
Why, indeed, did Gordon Campbell change the rule? The premier had to strike a deal with his cabinet and caucus to get support originally for his electoral reform proposal – amendment of the province’s Referendum Act to require double 60 approval for simply changing an electoral system. Last month’s voting perversely showed that while 47 percent of the popular vote was enough to form a government, 57 percent was not enough to approve a change in the way the ballots get counted – at least once you’ve changed the rule about changing the rules. By all other standards, including the still operational provisions of the BC Referendum Act on any question other than the electoral system for MLAs, the unchanged rule remains 50 percent plus one.
To repeat, the May 17 vote needing 60 percent voter approval is a sharp contrast to earlier BC referendums on allowing women the right to vote (1916), a government health insurance plan (1937), Prohibition (1909, 1916, 1920, 1924 and 1952), daylight saving time (1952), recall and initiative (1991) and aboriginal treaty rights in land claim negotiations (2002). Those ballot questions only needed 50 percent plus one for approval. It’s the norm, both in BC and elsewhere. Newfoundland’s referendum in 1948 on joining Canada, or Quebec’s referendums in 1980 and 1995 on separating from Canada, needed only 50 percent plus one approval. The Canada-wide referendums on prohibition of liquor (1898), military conscription in wartime (1942), and the Charlottetown Accord constitutional package (1992), were each determined with simple majorities, not a 60 percent threshold, although the questions posed to voters were of profound consequence.
No other province or country imposes a 60 percent approval requirement for a referendum on electoral reform. PEI’s coming referendum on electoral reform will entail a simple majority, which will be the case in Ontario and New Brunswick as their premiers learn from Gordon Campbell’s predicament and seek to avoid the BC mistake. New Zealand adopted electoral reform when its referendum passed with 54 percent. Ireland and Italy twice conducted electoral reform referendums requiring only the norm of a simple majority. The list is long.
Just how perverse the British Columbia mistake is comes across in the numbers: while 47 percent of the popular vote was enough to form a government, 57 percent was not enough to approve a change in the way the ballots get counted. Political conditions today have changed from the time Gordon Campbell first exercised leadership, stepping out in front on this issue and having to bring along a reluctant caucus. The BC experience, copied elsewhere, has shown in the intervening years just how ripe electoral reform is for the picking. This was less evident to most politicians a few years ago when caution gave birth to the unprecedented double 60 rule.
Politically, the double 60 rule has become a python tightening around the government. It squeezes legitimacy from the very Campbell government, ensconced in Victoria with a significantly lower popular vote, that sponsored it. It chokes off the electoral reform process which was the child of that same government. The art of politics practised by leaders involves knowing when to change with changed times. The political risk faced now by Premier Campbell comes not from making a change in the electoral system, but rather from failing to make it.
Clearly Gordon Campbell understood the antiquated nature of the first-past-the-post system by launching the process that considered alternatives and gave British Columbians a ballot choice to retain the present system or move to more proportional representation in the legislature. Electors in British Columbia last month became the envy of other Canadians who feel frustrated by an electoral system that produces legislatures unreflective of the way we vote.
Just as French and Dutch voters in recent referendums on a new European Constitution sent a broad signal by voting to reject the proposal, British Columbians sent a clear (but in this case positive) signal to the rest of Canada where referendums are pending or proposed for revamping the electoral system. The strong popular support of BC voters for electoral reform has impact far beyond the province’s borders.
The present paradox is that the process started by the Campbell government has hit this odd snag of its own creation – the double 60 rule. That provision is no barrier to action, however. While the Referendum Act would have made it mandatory for the government to bring in legislation creating the single transferable voting system if just 3 percent more had voted for the measure, absolutely nothing prevents the government from doing so now of its own volition.
Gordon Campbell started this current phase of democratic renewal with his speech to the Liberal policy convention in Kelowna on April 17, 1999. He will likely wish to see this long-needed reform through to completion. He certainly has solid arguments and impressive historical precedents on his side, bolstered by his own prior leadership on the issue. As with any non-binding plebiscite (which in law is what most Canadian events of direct democracy have been, rather than legally binding referendums) the premier can be guided by the results of May 17, even though he doesn’t have to follow through on them.
Perhaps what is strongly felt in British Columbia, even more than an affinity to BC-STV or any other particular model, is the desire to move to a voting system that will see the membership in the legislature more closely mirror the way voters actually supported candidates and parties at the ballot boxes. That, as Gordon Campbell grasped from the start, would bring us Canadians closer, whether in British Columbia or other parts of Canada following the inspired West Coast lead, to requalifying ourselves as a self-governing democracy.
www.fairvote.ca
http://citizensassembly.bc.ca/resources/flash/bc-stv-full.swf
www.positiveeffect.ca

J. Patrick Boyer, QC, former MP, lawyer and university professor, is author of three books on direct democracy in Canada: Law-Making by the People, Direct Democracy in Canada, and The People’s Mandate. His new book on this subject, Forcing Choice, to be published this fall by Canadian Shield Books, will explore British Columbia’s rich experience with referendums and political choice. patrickboyer@sympatico.ca