Friday, October 05, 2007

Ontario MMP Referendum: No et Non

My verdict on Ontario's MMP Referendum is now in.

The Top Line

I will be voting against the Ontario MMP proposal in the October 10, 2007 Provincial Referendum.

On close scrutiny, the MMP option proves to be unnecessary, vague, and fatally ill-defined.

Its supporters seek to fundamentally change an electoral system that has long served Ontario well. There is not much to justify this change.

Ontario's political system has a proud history, steeped in Canadian tradition. It is worthy of preservation and respect.

Thus, there are only two possible, appropriate responses in Ontario to the MMP proposal.

No.

Et non.

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(For more background on Ontario's referendum choice, see our September 12, 2007 blog post, Ontario MMP Referendum and our September 29 update, featuring links to a number of writers on both pro and con sides).

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Discussion

Our reasons for opposing MPP are not all that complicated. I'll break them down.

1. There is no compelling reason to overhaul Ontario's electoral system - "It ain't broke, so don't fix it."

Prior to the announcement of this referendum, there was no apparent public dissatisfaction with the current system, nor was there any groundswell or audible call for a change to Ontario's legislative and electoral structure.

I cannot recall a single occasion where the passage or failure of a Bill was followed by any commentary at all that suggested our electoral system was somehow at the root of any unsatisfactory result.

Never did I hear the utterance, "gee, if we only had MMP, this wouldn't have happened."

While there will probably always be justified concerns about policy and the job performance of our elected representatives, I have never, outside the context of this referendum, heard any politician or a commentator call for mixed member proportional representation as a solution or answer to any specific concern, injustice or inequity.

MMP was not on anyone's radar before the referendum was called, and I would suggest that even to this day - with the referendum less than a week away - MMP remains as a peripheral notion for most people outside of political circles, if they have heard of it at all.

I wonder how many Ontarians will go to the polls on October 10th and say "huh??" when they receive their referendum ballots.

The alleged flaws in our current governance are not going to be solved by new age political engineering or by adding a few fringe players and political hacks to the Legislature. We have many needs in this Province, but bloating the Legislature with more partisan bodies will not likely address them.

2. This Referendum is not about a specific and detailed legislative proposal. There is no concrete, complete draft of the MMP electoral system that can be vetted and properly evaluated. Rather, we are being asked to vote prematurely on a vague and loose concept, the details of which can best be described as "coming soon to a Legislature near you."

On the eve of this Referendum, we still are left with much uncertainty as to how MMP would actually function in the real world.

Contrast this with the last time Ontarians voted in a referendum.

On October 26, 1992, by a 55.7 - 44.3 margin Canadians said no (et non) to the following referendum question on Canada's Constitution:

"Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?"

Virtually the entire referendum debate in 1992 centred on the wording of the proposed constitutional change, as politicians, lawyers and pundits exchanged impassioned arguments as to how they anticipated Canada's courts would interpret the actual language of Brian Mulroney's Charlottetown Accord.

There was specific language in to be considered. We knew what we were voting on.

Not so, with MMP.

Even this week, there is no actual text on the table.

Even if proportional representation seems like a good conceptual idea, the real sticking point with the actual MMP proposal is its silence as to how the 39 "List Members," who will not be directly elected by a riding, will actually be chosen.

There is genuine concern that List Member nominations will be little more than a refuge of choice for unelectable, and perhaps extreme, party hacks.

While the leaders of all major political parties scrambled this week to reassure voters that there will be some democratic nomination system in place within each party for choosing List Members, no leader has yet actually defined what these processes would be, who will have a vote, or whether taxpayers will pay for what, presumably, will be a legislatively-mandated nominating process.

With hat-tips and thanks to VoteforMMP.com, this is what Ontario's party leaders have told us, so far:

  • Dalton McGuinty, Premier: "We are committed to choosing all of our candidates through a democratic and transparent process. We are pleased that our party attracts people from all walks of life and we will continue to work to ensure our party reflects the diverse and multi-cultural nature of Ontario. ... And we remain committed to further improving the prospects of women candidates running for our party in the future."
  • John Tory, Leader, Ontario PC Party (National Post, September 25, 2007): "The Conservative leader went on to say that if the referendum passes, his party will likely find a democratic way to develop its list of candidates:'The history of our party is that the party insists on choosing its candidates democratically.'"

  • Howard Hampton, Leader, Ontario New Democratic Party (Ontario Today, CBC Radio, September 26, 2007) "We believe we should nominate the at-large candidates according to a very democratic process. We would want to ensure we have more women, more visible minority candidates, more First Nations candidates...a lot of people who make up the Ontario mosaic."

  • Frank de Jong, Leader, Green Party of Ontario (GPO press release, September 27,2 007): "Democracy extends to choosing candidates in a transparent and equitable manner...We are committed to using a transparent and equitable process to produce a slate of qualified Green candidates who accurately reflect Ontario's diverse population."

These are hardly specific, carved-in-stone answers.

Rather, the leaders' platitudinous comments would best be characterized as election promises. And we have certainly heard much in this election from all parties about whose election promises can and cannot be trusted.

As a result, on Referendum Day we will still have these unanswered questions:

  • Who will be entitled to vote in elections to choose the List Member "slates?"

  • Will nominations occur at the riding association level, with some form of political convention required? If so, will each riding association nominate delegates to vote, or will all dues-paying party members be eligible to vote?

  • Alternatively, will an American model of party registration and formal primary elections be used?

  • Will all parties be obliged to use the same democratic process?

  • Will each party's election of "list members" be financed by the party or the public?

  • Will the party nomination elections be supervised by Elections Ontario or by the parties themselves?

  • What financial cost, if any, will there be to taxpayers for these processes? When will they occur?

  • After provincial elections, will the slate members be selected as List members solely based on the order of their vote tallies in the pre-elections, or will parties be permitted discretion to choose from candidates on their slates based on other important, remedial objectives, such as achieving regional balance, gender equalization or minority representation (or less savoury considerations like party loyalty and patronage obligations)? Who will decide? Party leaders? All elected members? Riding associations?

  • Will these processes, once determined, be incorporated into actual legislation, or will parties be at liberty to change them as and when they see fit? If this is to be left to the parties, who within them will be entitled to make those changes - elected legislature members, the cabinet, the leader, the grass roots? What will the amedment process look like?

  • Once the system is fully defined, can it be changed or fine-tuned? If so, how? By whom? With simple majorities? Or 60% approval?

  • Will there be another referendum on a more detailed and specific legislative proposal, once these remaining questions are decided?

  • How, when and by whom will any of these decisions be made?

The Referendum question itself blurs the reality that so many details of MMP have yet to be determined:

Which electoral system should Ontario use to elect members to the provincial legislature?/Quel système électoral l’Ontario devrait-il utiliser pour élire les députés provinciaux à l’Assemblée législative?

The existing electoral system (First-Past-the-Post)/L’actuel système électoral (système de la majorité relative)

or

The alternative electoral system proposed by the Citizens’ Assembly (Mixed Member Proportional)/L’autre système électoral proposé par l’Assemblée des citoyens (système de représentation proportionnelle mixte)

While the two options are presented in the Question with a tone of equivalency, the "alternative electoral system," referencing MMP is just a collection of concepts and directional suggestions contained in a preliminary discussion paper. There is no carefully drafted, statutory proposal to consider.

That is highly problematic.

As a result, a vote for MMP is little more than a signature on a blank, electoral cheque.

At root, this referendum is about whether there should be constitutional change to Ontario's system of governance. For that reason, to pass, Mixed Member Proportional representation must receive at least 60 per cent of all votes cast across Ontario and 50 per cent or more of the ballots cast in at least 64 of the Province's 107 ridings.

Let us briefly look at the actual law that this Referendum will attempt to change. Ontario's Representation Act, 2005 currently sets out the actual structure, districting and composition of the Ontario's provincial legislature. The Referendum essentially is a proposal to amend this statute.

Section 2 of the Representation Act establishes the current electoral system:

Redistribution

2. (1) For the purpose of representation in the Legislative Assembly, Ontario is divided into the following electoral districts:

1. The 11 northern electoral districts listed in section 4, with the same boundaries as were in effect on October 2, 2003, subject to subsection (2).

2. In the part of Ontario that lies outside the 11 northern electoral districts, 96 southern electoral districts whose names and boundaries are identical to those of the corresponding federal electoral districts, subject to subsection (3). 2005, c. 35, Sched. 1, s. 2 (1)....

One member per district

3. One member shall be returned to the Assembly for each electoral district. 2005, c. 35, Sched. 1, s. 3.

The M.M.P. system would require an amendment of the Representation Act, so as to change the number of MPP's, and to replace the current legislation's "one member per district rule" with a mixed member proportional representation system of government.

Since we are voting about a change to the law, it is unacceptable that we will not be able to vote in the Referendum for or against a specific legislative proposal.

We should know exactly what we are getting with MMP, but we don't.

3. There is no compelling reason to rig the electoral system to ensure that fringe or otherwise unelectable parties and candidates are guaranteed parliamentary representation.

Canada's political party system is certainly not static.

There is much recent history in our nation to demonstrate that new political parties can and do emerge to achieve great, early electoral successes, if and when they resonate adequately with voters.

Federally, the Bloc Quebecois and new Conservative Party predecessors, the Reform Party and Canadian Alliance, are all recent creatures that established significant electoral strongholds in very short timeframes.

In Quebec, Mario Dumont's Action démocratique du Québec, founded in 1994, rose to become Official Opposition in 2007. Numerous other smaller parties vied for power and influence in the Province's last election.

Recent history demonstrates conclusively that there is much room in Canadian politics for electoral success by new political parties under the existing rules. Affirmative action for fringe political parties via MMP is undemocratic and unnecessary.

In fact, newer parties in Ontario like the Green Party are experiencing real electoral growth right now, without MMP. There is great specuilation that the party's first provincial representatives will be elected on October 10.

To advance, new parties simply need to get better at the political game. They must become more responsive and familiar to voters the old-fashioned way - by campaigning hard, reaching the electorate and winning seats.

They do not need an assist from MMP and they should not be given one.

4. The Referendum Question itself is not neutral - it is skewed and biased.

I won't argue that the Referendum Question fails to plainly spell out the choice to be made. It does have at least a modicum of clarity.

I will point out, however, that the Question is loaded.

Why, for example, does the Referendum Question imply that the MMP option is about a specific, wrinkle-free legislative proposal, when in fact, the actual MMP proposal leaves so many critical questions unanswered?

Why is the current system described, in almost derisive slang, as "First Past the Post?" That phrase, never heard in connection with our governance before this referendum , more appropriately connotes a cheating sprinter who "jumps the gun" than a time-honoured, enduring system of democratic election.

The accurate and legislatively appropriate phrase describing our current system is found in the Representation Act, mentioned above: "one member per district." That is the wording that ought to have been in the Question.

The Referendum Question is not neutral. Its language is loaded and it is misleading in its implication that the MMP proposal is a completely formulated, well defined system to be considered.

Summing Up

In short, the case for MMP has not been made.

There is no requirement or demand in Ontario for change of a system that has no apparent or demonstrated structural flaws.

We have no actual legislation to consider, so we don't know what we'd actually be getting with MMP.

Small parties don't need affirmative action - they need sound policy, time to build and political skills to get elected.

And finally, the framing of the Referendum Question itself leaves much to be desired.

Thus, we do have two choices in Ontario:

Do we vote no?

Or non to MMP?

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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