From the House – Should Canadians have the ability to nullify bad legislation

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John Rafferty MPOTTAWA – Leader’s Ledger – Should Canadians have the ability to nullify bad legislation, and propose new legislation that the government of the day refuses to introduce? After witnessing the recent – and successful – anti-HST initiative in British Columbia I am beginning to think so.

For those of you who don’t know much about the subject here is a quick primer on what are widely known as ‘Legislative Initiative’ campaigns. In short, Legislative Initiatives are legally recognized campaigns that are undertaken by the general public to propose new, or defeat existing legislation. Legislation is often proposed when the public feels that political ideology or indifference by the governing party prevents it from being brought forward in the normal manner. Campaigns are often undertaken to nullify legislation when a majority of voters find it necessary. Legislative Initiatives fall into the category of ‘direct democracy’ and can override the bad decisions or indifference of elected officials in our ‘representative democratic’ system. I believe that British Columbia is the only constitutional jurisdiction in Canada that has such a process, but citizens in many US states are also able to exercise this power.

If we are going to look at allowing Legislative Initiatives in Canada or Ontario, then we should look to British Columbia for how it may work. Any Legislative Initiative campaign in British Columbia happens in four phases – an application must be submitted, followed by a petition, then a campaign period where mail in ballots are issued and returned, and finally if the campaign is successful then the initiative must face a vote by members of the legislature.

In British Columbia, the draft initiative – which is basically a bill or law – must first be approved by the Chief Electoral Officer who ensures that it is in compliance with other laws and most importantly our Constitution. The proponent, or sponsor, of the Initiative then has 90 days to collect the signatures of at least 10% of the registered voters in each and every electoral district. If enough petition signatures are gathered and approved, then the initiative enters a campaign period where it must obtain the support of more than 50% of the registered voters in the province, and at least more than 50% of the registered voters in at least two-thirds of the electoral districts. If the Initiative obtains this level of support in the ballot process, then the Chief Electoral Officer must request that the government introduce a bill in the legislature based on the initiative “at the earliest practicable opportunity.” As you can see, the bar is set pretty high for the Initiative process, which is good because it ensures that the process won’t be abused and is unlikely to pit region against region.

So Legislative Initiative campaigns may (or may not) sound like a good idea, but do they actually work as intended? The short answer is ‘yes.’ Since 1995, when the Recall and Initiative Act was first passed by the New Democrat (!) government of the day, only seven Legislative Initiative applications have been approved on topics ranging from electoral reform to balancing the provincial budget, and only one Initiative has obtained the required number of signatures to pass by ballot – the anti-HST initiative that began in 2010 and which was passed by more than 50% of all voters, and more than 50% voters in two-thirds of the ridings just this past summer. Because of the success of this campaign, the HST will be revoked in British Columbia this year.

The only successful Legislative Initiative in the history of British Columbia provides can provide an important lesson for us in other jurisdictions. Once they obtain a majority with the support of as little as 38 percent of voters, governments often feel entitled to do whatever they like whenever they like as if they were exercising some divine power. The Ontario Liberals under the leadership of Dalton McGuinty struck a deal with the federal Conservatives under the leadership of Stephen Harper to introduce the Harmonized Sales Tax and did so without any public debate and without consulting the small businesses and families that are footing the bill. The citizens of British Columbia were able to right this wrong through the Legislative Initiative process, but what can we do here?

It would be nice to have the opportunity to recall the offensive HST legislation that was passed under dubious circumstances by Liberals in Toronto and Conservatives in Ottawa, but right now, our only choice is to vote them out of office. After looking at British Columbia’s HST experience I think we can do better here.

John Rafferty MP
Thunder Bay Rainy River