Saturday, August 22, 2015

On twisted outcomes

At the moment, plenty of Canadians are looking forward to waking up on October 20 and finding that Stephen Harper's Conservatives have lost the election, to be replaced by a government determined by the MPs elected by voters. And we should certainly be hoping for, and working toward, that outcome.

But imagine if the electoral process worked differently, potentially rendering all of our efforts useless.

Imagine if the Conservatives could dictate that incumbents would keep their seats unless they were defeated by some amount which was never stated in advance. Stephen Harper could then retroactively set the required opposition margin of victory in just the right place to nullify any desire for change even while his candidates were defeated by competitors in a majority of seats based on raw vote totals.

What's more, imagine if the Conservatives could determine after the fact that there hadn't been a clear ballot question, so nothing would be permitted to change regardless of how the vote turned out.

I trust we can see how asinine and undemocratic that system would be when it comes to voting for a government. Which raises the question: why do the Libs insist on defending it, and indeed attacking the NDP for proposing an alternate model, when it comes to a possible future vote on sovereignty?

As others have pointed out, the real question we might face in the event of a future referendum is what it means to negotiate if a vote meets a threshold to trigger negotiations. But there's nothing to be gained (other than entirely-justified resentment) by playing silly bugger in determining what threshold will apply in bringing the federal government to the table.

It's utterly counterproductive to declare in advance that a major vote will be subject to Calvinball rules - that nobody except the people currently in office will have any say in determining what, if anything, the vote means, and that they'll be under no obligation even to hint at what standards might be decisive until after they know how they want to spin the results.

We wouldn't want Stephen Harper to be able to change election rules and standards after the fact to nullify our votes. And based on that recognition, we shouldn't pretend that model is acceptable in a referendum either.


  1. I am not sure I understand you "after the fact" comparison. Isn't this how constitutions routinely work? Most political parties (I believe the Parti Quebecois included) have a rule that matters of constitutional change require 2/3 majority. Isn't this declaring in advance what will determine what a vote means? Don't get me wrong, you know I am not a Liberal. However, let's not pretend that such predeterminations are not a routine part of many constitutional processes. I believe that any % determination is arbitrary (even 50% is actually an arbitrary number with a widely spread predetermination of legitimacy). What is the legitimate number?? I have no answer except to say that whatever number you come up with is arbitrary, and some will say 50% is the benchmark for all matters but some will say that 2/3rd should always be required for matters of constitutional change.

    1. I'd have less of a problem with some other number being set out *in advance*. As you point out, any number may be seen as arbitrary or inappropriate - but at least it's possible to debate what threshold is required in advance, and to run a campaign based on the knowledge as to what that number is. And that's why party constitutions - whether they require a supermajority or not - do generally set out that number for everybody to see and act upon.

      The problem with how matters stand now is that a sovereignty referendum wouldn't be subject to any advance notice of the number at all. Under the Clarity Act, the process is to have the vote conducted first, then have Parliament determine whether the result is a "clear majority" based on vague theoretical standards and no clear numerical thresholds. So even if a vote were 68% in favour, the threshold could be set after the fact at 70%.

      Hence Mulcair's debate challenge to Trudeau to name his number - and Trudeau's refusal to do so since it conflicts with his party's preference for ambiguity.

    2. Ok, I see what you are saying. I was being rather obtuse. I think all the parties have a bit of a problem here and unfortunately the SCofC didn't really clarify it for anyone (an irony given he name of the Act) The NDP say a simple majority (and I suspect that they say this for purely electoral reasons) but to me that is a non-starter given not only what the SC said but on basic principle. The LP is reluctant to give a number (again for electoral reasons) which is, as you rightly point out problematic. But the Cons have never given a number either. However, I have lost track a bit. The NDP voted not to repeal the Clarity Act but now support the 50 plus one principle, which just seems opportunistic to me. I just think it is a no-win situation (the Kobayashi Maru of Canadian Politics if you will). I don't think either international law or precedent are with Quebec Separatists but nationalist party positions on the issue are in a 'damned if you do and damned if you don't' situation.

  2. Anonymous6:11 p.m.

    The greater point, Tom Mulcair above you and I - he is a lawyer - should know that the bill introduced by Stephan Dion simply sets out a law in line with the decision of nine judges from the Supreme Court of Canada that only a clear question with a clear majority could cause discussions about separation. It was not stated what the clear question nor a clear majority would be. Tom Mulcair does know this as surely as Stephen Harper knew about the cheque all along. He was just using the issue to raise his profile in Quebec. He then wanted to dodge the discussion in the ROC. He's as two faced as Harper and if he succeeds but does not toe the socialist line he will be out on his butt in a blink, making Olivia Chow the likely leader and new PM.

    1. If you think the NDP is still in anyway a socialist party (or that there is an accepted "socialist" position on an issue like this) then you really haven't been paying very careful attention.

    2. As it happens, I'm a lawyer too. And so I know that if the only effect of the Clarity Act was to echo the wording of a binding Supreme Court decision, it would be an absolute waste of ink not worth defending.

      Instead, the Secession Reference sets out a constitutional minimum as to when Canada may be required to negotiate with Quebec, while leaving to the political sphere the job of determining how to implement at least that minimum. Which is why it's important to point out when the political process chosen is patently unfair.