In Canada, a referendum has no force of law. It is nothing more than a non-binding plebiscite, or a glorified, expensive opinion poll.
By Larry Pattison
Published November 30, 2012
We have seen the word "referendum" pop up more than once over the course of the past few months with regards to talks about the possibility of a new Casino in Hamilton. Most notably, Ontario NDP leader Andrea Horwath herself had asked the Liberal government to have Ontario Lottery and Gaming Corp. (OLG) provide more time for Hamilton council, and other communities across Ontario, to make their decision so that we could hold local referendums on the issue.
In the meantime, a Bill was before the Ontario Legislature but died with its prorogation, titled Ensuring Local Voices in New Casino Gambling Development Act, 2012.
The bill would have ensured that all municipalities which have had the casino carrot dangled before them would have the opportunity to hold referendums. It was set to pass this fall.
Long-time Hamiltonians may remember that on the 1997 municipal ballot, there was a referendum item that asked voters whether or not they wanted a Casino in Hamilton. 64 percent of Hamiltonians said no.
In 2001, the newly amalgamated City of Hamilton adopted a Casino from Flamborough, grandfathered in and a location that only housed slots and horse racing. However, there was no full service casino in our downtown. So far, the 1997 referendum was being honored.
Four years after Amalgamation, City council passively sidestepped the referendum ballot when, in 2005, they approved an amendment to the Downtown Master Plan that would allow a Casino to locate in our city core.
I asked City staff to identify where it states this in our zoning By-Laws, and was told that any zone in 05-200 that permits Commercial Entertainment may include a Casino as one of the possible uses.
In a recent discussion about referendums on The Hamiltonian, someone pointed me to a document by the late Professor Donald Rowat, "Canada's foremost academic expert on ombudsmen and oversight of public agencies", titled Our Referendums are not Direct Democracy.
It's an eye-opening paper that brings to light the ineffectiveness of referendums in Canada. Most importantly, it clarifies that in Canada, the term "referendum" has no formal meaning. There is no such legal thing as a binding referendum in Canada - hence why our 1997 referendum results were ignored when revising our Downtown Master Plan.
The term that should be used to describe what was held as part of the 1997 municipal election, was a 'plebiscite', meaning 'non-binding' - an over-glorified, really expensive poll.
The benefit of a referendum is that it is supposed to be an engine of direct democracy. As professor Rowat states, "This is not true, because of our confused use of the word referendum" in Canada.
Mr. Rowat continues, "In the United States, the word means the reference of a legislative proposition, initiated by the citizens, to a popular vote, the result of which is binding. In other words, the voters pass laws directly, without reference to the legislature, and this is why it is called direct democracy."
What makes it a direct democracy in the United States is that if voters approve the proposal before them, they are in fact passing legislation. Their vote is final. (Sidenote: In Washington and Colorado, recent referendum votes on legalizing marijuana might not have the force of law since marijuana is controlled under federal law.)
Unfortunately, in Canada, holding a referendum is just a waste of time and energy because it's not binding and can be ignored completely.
As Rowat notes, the same thing happened when voters in Toronto voted against amalgamation, but the Harris government ignored the results and went ahead and did it anyway.
This citizen engagement tease reminds me of a line from the old Eddie Murphy ice cream skit. "Want a lick? .... Psyche!"
Rowat states, "The consultative referendum has often been used by authoritarian regimes to get a show of public approval for an arbitrary action. These regimes rig the vote to make sure they get a massive favourable majority."
Professor Rowat finishes by stating that democracy means not only majority rule, but also compromise and the protection of minority rights. So a majority vote may override these rights, and is often referred to as "the tyranny of the majority."
Regardless of time allowable to hold a referendum, and whether or not anyone would actually listen to the results, it was also revealed recently that the cost of holding a referendum outside of an election are quite substantial with a $1 million price tag floated in this Spectator article.
As an attempt at some sort of feeling of municipal democracy, councilors and various online media sites have taken it upon themselves to reach out to the people in a number of ways [PDF], including holding their own online polls, or contacting constituents to allow them a say via phone polls.
Our decision timeline has been extended to the end of February 2013, but there is no indication that such a resolution will be based on anything more than information provided by OLG, recommendations from staff, and perhaps some weight given to the various polls that have been hosted.
In closing, I'd recommend that in light of the prorogued Ontario government, Ms. Horwath could perhaps recommend that until the Legislature returns to order, and until Bill 76 is passed to give municipalities the option of holding a plebiscite if they so chose, that the decision by Ontario Councils also be put on hold.
I would also suggest that the word "binding" be included in Bill 76 so that it has some force of law.
If by some miracle Bill 76 is passed before Hamilton's decision deadline and we opt to hold a referendum by a similar miracle, I would suggest that we make the importance of majority participation clear to voters.
When the Ontario Government first approved allowing casinos in Ontario two decades ago, I never thought that the province would end up being filled with them.
The Rae government saw gambling as a way of helping a cash-strapped province - just as cities like Hamilton now see them as a way to get out of the red.
It would have been better for us as a province to figure out what caused our financial problems in the first place and fix those problems. We should never have put ourselves in the position of needing casino revenue to survive.
Think of a casino as a Payday Loan store. Once you reach into the money bag, you reach in again, and again, deeper and deeper, until there is no way out. You end up counting on that source to survive, but the fees associated with that income end up just digging you into a hole so deep that there is no way out.
Hamilton has unfortunately already been dipping into that money bag for over a decade with seemingly no way to survive without it. The truth is that we need to fix the core problems with our municipal finances before the cost overcomes the need.