Letter to the Editor of the Globe & Mail

By Avigail Eisenberg

Last month the British Columbia Civil Liberties Association launched a challenge to B.C.’s recall legislation. In a brief prepared for the BCCLA in 1994, I argued that the legislation has been misunderstood as a good way to enhance democracy. In fact, the legislation threatens democracy, democratic representation and good government. Since the case against recall was launched, confusion about the issue persists. Gordon Gibson, in the March 24 issue of the Globe and Mail, did not help to further the public’s understanding of the issue.

Gibson’s central claim, that the recall debate does not belong in the courts, is both confusing and disturbing. This claim is confusing because, after all, the debate is not in the courts, nor need the courts ever address the issue. Rather, it is fully within the public arena. It is being debated in the workplaces, at the dinner tables and through the newspapers in B.C. (and nationally).

The courts need not determine the fate of recall just because a court case has been launched. If the Government of British Columbia was to admit that the legislation was not passed with the required constitutional amendments and if it recognized the ways in which this legislation violates our constitutional right to effective representation (Constitution Act, 1982, s3), it could rescind the law before the case makes it to the courts next year.

Gibsons’ claim is disturbing because it implies that the courts have no business protecting the integrity of political institutions in this country. Nothing could be further from the truth. The protection of rights, such as freedom of speech, freedom of assembly, and the right to vote is precisely why the courts are needed. And these rights are fundamental to Canada’s political institutions. Recall draws into question the significance of our right to vote. The BCCLA will argue before the B.C. Supreme court that a piece of legislation that allows an interest group, which did not like the results of the last election to circulate a petition amongst constituents for the purpose of undoing the results of that election, is a means of undoing our carefully scrutinized and protected right to vote for the candidate of our choice.

Consider for moment the process by which this “undoing” takes place: after securing less than a majority of signatures (40 percent is required), of some, though not all, constituents, without a secret ballot, and without the sort of scrutiny that we all expect of our electoral processes, our vote can be overturned. In the same way as democracy is threatened by a law that allows the majority to deny someone the right to free speech, recall threatens the core of democracy by allowing some constituents to overturn the right of others, who do not agree with them, to their vote.

The legislation so significantly changes the electoral and legislative systems that it is also bound to run afoul of procedural aspects of Canada’s Constitution Acts. Indeed, the government violated due process by passing recall without securing the required amendments to the Constitution Acts, 1867 and 1871. The most important violation in this respect is the guarantee in the Constitution Act, 1867 that Canada has a form of government that is “similar in principle to that of the United Kingdom”.

Gibson entirely misunderstands and distorts the significance of this guarantee and the BCCLA’s commitment to it. No one wants to “petrify” our political institutions “in amber”. And, in the past, the BCCLA has been at forefront of calls for change. The organization was wholeheartedly in favour of the last major change to our political institutions, namely the entrenchment of the Charter of Rights and Freedoms, which gave to Canada a Constitution significantly different from that of the United Kingdom (where rights are not codified in a charter). But in order to pass the Charter, the federal government had to secure a constitutional amendment. Understandably and wisely, we cannot just change the nature of our political system without due process and, if necessary, constitutional amendments.

Gibson identifies exactly the reason why recall is popular, namely, because it makes some people feel that they have more control over their government. But, in this case, feeling control and having control are two different things.

In the current system, MLAs are expected to represent their constituents’ interests, but, at the same time, to work in cabinet and in caucus, developing policies that are good for the province as a whole. Recall is intended to bind the MLA more closely to the will of her/his constituents. Its goal is to make MLAs into “parish pumpers”—mouthpieces for their constituents’ interests—rather than decision-makers whose job is to make wise public policy. If recall prevails and it becomes the instrument of democracy, for which its supporters hope, it will result in a system in which MLAs, especially those elected by slim margins, will focus during their term on fighting for their political lives by doggedly pushing for their constituents’ interests regardless of whether these interests are consistent with a coherent plan, e.g. to improve the provincial economy, to conserve fish, forests or jobs.

Regardless of their qualifications, MLAs elected by slim margins are unlikely to be chosen for a cabinet position in a system in which recall is used. One need not be a political ideologue to see that recall is a very bad idea. It violates our democratic rights, it undermines the effectiveness of our government and it does so in order that constituents can feel as if they have control. As a public policy it is an unwise and undemocratic one. But, in a province, such as B.C., in which it is currently the law, what elected individual in their right mind would launch a campaign to be rid of it? Thank goodness for the courts!