Assemblée législative de l'Ontario

REFERENDA

CONTENTS

Wednesday 18 December 1996

Referenda

STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY

Chair / Président: Mr Ted Arnott (Wellington PC)

Vice-Chair / Vice-Président: Mr John Hastings (Etobicoke-Rexdale PC)

*Mr TedArnott (Wellington PC)

Mr RickBartolucci (Sudbury L)

*Mr DaveBoushy (Sarnia PC)

*Mr TonyClement (Brampton South / -Sud PC)

*Mr CarlDefaria (Mississauga East / -Est PC)

*Mr BillGrimmett (Muskoka-Georgian Bay / Muskoka-Baie-Georgienne PC)

Mr JohnHastings (Etobicoke-Rexdale PC)

Mr RonJohnson (Brantford PC)

Mr FrankMiclash (Kenora L)

*Mr Gilles E. Morin (Carleton East / -Est L)

*Mr John R. O'Toole (Durham East / -Est PC)

*Mr TonySilipo (Dovercourt ND)

*Mr R. GaryStewart (Peterborough PC)

Mr BudWildman (Algoma ND)

*In attendance /présents

Substitutions present /Membres remplaçants présents:

Mr Douglas B. Ford (Etobicoke-Humber PC) for Mr Hastings

Mrs SandraPupatello (Windsor-Sandwich L) for Mr Bartolucci

Also taking part /Autres participants et participantes:

Mr JohnGerretsen (Kingston and The Islands / Kingston et Les Îles L)

Clerk / Greffière: Ms Lisa Freedman

Staff / Personnel: Mr Philip Kaye, research officer, Legislative Research Service

The committee met at 1534 in room 228.

REFERENDA

The Chair (Mr Ted Arnott): I wish to call the standing committee on the Legislative Assembly to order. When we last met, two weeks ago, we were discussing the referendum issue and working on writing our report, which we hope to eventually table in the chamber. We were working on the very first point on this discussion paper which was prepared by Philip Kaye, "Should there be legislation authorizing the holding of provincial referenda?"

Mrs Pupatello had the floor at the end of the meeting. Before I recognize her to continue her discussion, I would just draw committee members' attention to this newspaper clipping that was from yesterday's Toronto Star, "Quebec Referendum Law `A Danger to Freedom.'" I'm sure it is of interest to committee members.

Mrs Pupatello, do you have more to contribute to this debate?

Mrs Sandra Pupatello (Windsor-Sandwich): Absolutely. When I had left off last meeting, we were speaking about the impact of referenda on other jurisdictions and I thought that it was very responsible of all the committee members to be aware of the kind of impact that referenda have had in our history and will have in the future of Ontario, should the government continue on this course.

I realized the last time we spoke about this that there were some guffaws from the other side of the committee, almost in disbelief at some of the information I was giving that clearly is factual, because as we've said many times in the House on our side, we refuse to use information that is going to be perceived as biased or partisan and we only choose to use information that is factual, like real statistics, historical facts that simply cannot be misconstrued.

In the case of referenda, because we personally believe that the impacts of them are so huge and can be so long-lasting, it is incumbent on us as responsible representatives from our constituencies that we take the time required to understand the full implication of bringing forward legislation into the Ontario Legislature that has anything to do with referenda. I thought that we would continue in that vein.

There was even some discussion publicly on the whole issue of referenda, and one of the points I'd like to make today -- and there are several -- regards their constitutionality and political perspectives of that. I was so pleased to see last time that the Chair of the committee was so interested and I managed to keep his attention for the entire committee time. I hope the same could be said of all committee members today as well. There are legal and constitutional aspects that need to be addressed and I would like to do that.

If I may quote from an article written by one F. M. Brookfield, entitled "Legal and Constitutional Aspects," in a discussion paper entitled Referendums: Constitutional and Political Perspectives, he states:

"In one specific respect ministerial responsibility certainly is, or should be, affected when a matter is to go to referendum. The cabinet is released from the need to form a collective view of the merits of the proposal to be put to the people and individual ministers should be free to speak publicly for or against the proposal."

It's quite interesting that Brookfield views this as such because I don't believe that it would be the intent of this government to bring forward a referendum without having an opinion on the matter. In fact, this government wants to have complete control over the writing of it, the issuing of it, the selection of the topic, the distribution of information as such. We have proof of this in the case of the megacity discussion we're currently undergoing. Not only is this government quite clearly setting its position as, "There will be one Toronto. End of story," this government is now spending $1.2 million to print propaganda material in support of its case.

Clearly, even though those who are experts in the field of referenda believe that governments should be quite neutral, it would be our government's intent, as has clearly been shown already, to be biased on any of the issues that the government itself intends to put forward.

As we began our committee two weeks ago we started with our proposal, to form a tripartite committee, a committee including all parties, and that there would be unanimous consent among all parties as to the kind of question, how it would be put and all of that. The government members, only three weeks ago, turned that down and said that they did not agree with that. When we say we put that forward as an opinion, it's because that's what those who are expert in this field truly believe is the only way to go when governments, state or provincial, choose to go into referenda.

1540

"One may infer that this is generally the position in New Zealand," which is another example that I'd like to use. "Admittedly, in one referendum matter, that of compulsory military training, in 1949, the cabinet appears to have maintained collective responsibility for the policy of submitting the matter to referendum and of recommending vigorously to the electorate, without conceivable latitude for any dissenting minister, that the proposal should be carried. But in other instances, the referendum for off-course betting (1949), the referendums for extending hours for the sale of liquor (1949 and 1967) and for extending the parliamentary term (1967 and 1990), apparent government neutrality to the proposals seems to have indicated no collective cabinet views about the respective merits of them. Scope was left, one supposes, for a cabinet minister to express publicly his or her own views for or against, if wishing to do so."

Those of us who sit on the government side in this room but may not be members of cabinet certainly have their own views of the current issue concerning Metro Toronto, the megacity, but these members here in our own government have never been allowed to express their own views as to whether we should have one Toronto or not. You have various government members who are totally opposed to the Conservative government's direction and you have other members who are totally in favour. The issue of neutrality is critical in the issuing of a referendum item, and that is never going to be the case here. As we well know, when you enter into partisan politics, you join your political party, and as we are seeing as examples by the Conservative government, your own members simply don't have the latitude to stand up and say: "I don't agree. I don't think we should do it." They should be allowed, if they're really representing their own constituents, to advocate on one side or the other of such a proposal. That will never happen here, and we know that's the case. There are government members from the Toronto area today who are not in support of what this government is initiating and creating: one great big Toronto. All of them are being muzzled. It's incumbent on the rest of the government members to ensure that those members too have a voice and will be heard.

"Of course, such government neutrality had come to be expected in these contentious but traditionally non-party matters."

That really is a significant statement because, as the Liberal Party put forward in our recommendations early on three weeks ago, we believe that issues that should be left for a referendum should be non-partisan and non-political, things that specifically deal with items of national or provincial defence; items of national unity; items against terrorism on a national front, such as the War Measures Act that Trudeau had installed in 1972.

There are a number of topic matters that we know could be highly appropriate for referenda in Ontario, and when we put those forward they really are those that are truly of a neutral, non-partisan, non-political sense, but the government members of the committee only three weeks ago denied allowing us to say that this is when a referendum is appropriate and any other time it simply isn't.

The last time we spoke, about three weeks ago, I had put a question to government members that none of them has been able to answer yet in the couple of weeks ensuing. It was quite simple: What could the government members possibly hope to achieve through referenda that they cannot achieve through bringing forward legislation and allowing us the appropriate course in the House; namely, the introduction of a bill, bringing it in for first reading; bringing it in for second reading, having a full and open debate in the House; perhaps holding public hearings if it were a matter of that importance; following public hearings, which may travel or not, reporting back to the House; the introduction of that bill for third reading, further debate and finally a vote? There you are as government members, clearly in a majority. Surely, with the whip on your side, you can pass any kind of bill you choose. Why would you need referenda in order to bring something in unless there was an ulterior motive?

For those of you who don't believe your own government has an ulterior motive, then I would suggest that you access more information about those who are truly running your government. There is very much another reason you choose to bring in and use referenda. It is actually quite interesting that one member interjected and said, "What would be wrong with bringing in a referendum on such issues as taxes?" That's exactly the point. That will be your first topic.

You'll say, "What's wrong with that?" If you look historically, every time that issue has been brought forward in a referendum fashion that proposal has passed and the end result for that community, for that zone, that state, whatever jurisdiction we're in, has been the demise of the very two tenets that we all as Ontarians hold dear. Education and health have suffered greatly at the hands of people who never understood that would have been the outcome of voting in favour of whatever the proposal was during the referendum issue.

That is the case, that the government will never put forward all of the data, and that speaks to what our role is as legislators in this House. It is our job to spend as many hours as are required, do as much travelling as is required, meet and speak and greet whomever is going to have impact or is expert in the field of the matter at hand. That is our job to do that. That's not the job of the guy who works at Chrysler for 12 hours a day, five days a week and then goes home to a family of four children. He doesn't need to worry about all the detail that might be incumbent in voting on a proposal, nor does he have time to do that. That is why he elects a legislator to the House here at Queen's Park. That is our job. There can only be one reason you'd like to give your job away, and that's because you'd like to present information in such a way as to have it passed by the electorate and therefore you can pass the responsibility of the outcome of that decision on to the masses instead of taking the responsibility yourselves.

Whether it's going to be taxes, whether you're going to balance a budget or whatever it's going to be, you will then have bound and handcuffed yourselves to the decisions you choose to make and not take responsibility for it. You will have the right to say to the masses: "You made us cut health care to such an extent that it's no longer available for the people at large. You made us cut education to the level that it's not available for anyone but the affluent or those from affluent areas." That will be the result and you'll be able to walk away from your responsibility, the very reason the people sent you here in the first place.

This is what history shows us, that it is nothing but a measure used by neo-cons and those on the far, extreme right wing so that you don't take responsibility for the tough decisions you have before you; that is, balancing a budget and being able to do so and taking care of the people while you do this; that you make the right kind of priority decisions and choose to spend your money where it counts the most and that you always help the people who truly need the help. You're going to get away from your responsibility by offloading it, frankly, on the general population, who will not take the time to understand fully what the implication of passing such a proposal will be.

When we look at the constitutionality of it, Justice Wallace made various commentaries on the legal and constitutionality aspects, and there were points he took from the suggestions that were made:

"Any move towards binding referendums in New Zealand" -- and I guess without question you would insist that any referenda that you pass in Ontario would be binding -- "would be a change which has very significant constitutional implications. It would radically alter the principle of ministerial responsibility and would represent a significant tilt away from representative democracy towards direct democracy. The evidence also indicates that the outcome of referendums is liable to be influenced by popular indignation and prejudice, which is readily able to be fanned by advertising and other publicity emanating from monied interests, leading to simplistic and ill-informed judgements on issues which are in fact of real complexity. When that is coupled with the likelihood of low turnouts if there are regular referendums, it is clear that there is a risk of a relatively small number of people misusing the system."

It is therefore this gentleman's view, Justice Wallace, who comes to us on this issue with far more expertise than we in this room that "if anything resembling a system of citizen-initiated binding referendums were to be introduced in New Zealand, it would be essential to ensure that there are appropriate constitutional safeguards. I believe we need to consider whether legislation is required in relation to some or all of the following matters."

This is actually quite interesting: "[A] fully written constitution, which is not readily susceptible to change, that is entrenched in a way which prevents amendment by referendum in which the turnout does not reach an adequate level. It's noteworthy that Switzerland has a written constitution, as do those states in the United States which make significant use of referendums."

There should also be "appropriate constitutional protection for individual and minority rights," again entrenched. "Protection of minorities is especially important because experience indicates that referendums can be used against minorities. Larger groups can use referendums as a vehicle to curb special programs for disadvantaged minorities or to enforce their own cultural dominance. By its very nature, a minority has no defence against the voting power of a larger group. In a context where only numbers count, one can ask, for instance, how long the Waitangi tribunal would have survived, especially when it moved to deal with some of the more controversial issues, if the act by which it was established was able to be the subject of a citizen-initiated referendum."

1550

As our government knows, there are many concerned groups out there today that are highly concerned about their democratic rights and, as well, any move by government policy that serves to --

Mr John O'Toole (Durham East): Mr Chair, on a point of order: I appreciate the views of our fellow committee member. In my opinion, she has expressed the view that we and other Ontarians aren't capable of having informed opinions or making informed judgements. I take great exception to that statement. And I believe, if she wishes to share her views, which she is reading from some prepared text, that she should share that with the Chair and the members of this committee; we would certainly take the time to deliberate on them. But I think this is a deliberate attempt to stall the business of this committee, which is charged with discharging the responsibilities of the people of Ontario and this province. She's providing in her remarks some information and her views. I don't particularly share all of them; some of them I do. But could we not proceed with the debate of the day, the charge of this committee?

The Chair: I hope we can, Mr O'Toole, and you've articulated a significant disagreement with some of Mrs Pupatello's comments.

Mr O'Toole: Could I ask, how long is she going to filibuster? For the entire time of this committee assigned?

The Chair: She does have the floor and the standing orders allow her to make her presentation.

Mr O'Toole: Could I ask a question, through the Chair, of the member for Windsor-Sandwich?

The Chair: You may, if she chooses to answer the question.

Mr O'Toole: Is she prepared to tell us how long she is going to filibuster?

The Chair: Can you inform the committee as to when you might be almost completed?

Mrs Pupatello: Do I have the floor?

The Chair: You do.

Mrs Pupatello: What's important to note is that when we discuss issues with regard to referenda, there are --

Mr Bill Grimmett (Muskoka-Georgian Bay): Point of order, Mr Chair: I wonder if you'd remind the committee what the question is that's currently being discussed.

The Chair: "Should there be legislation authorizing the holding of provincial referenda?" is the question the committee is dealing with at the present time.

Mr Grimmett: On a point of order, Mr Chair: I'd like to point to standing order 23(d) and perhaps ask you to rule. She's referring at length to a document and I don't think that is allowed under that particular standing order. I'd like you to bring the speaker to order.

The Chair: Mr Grimmett is quite correct. The standing orders, strictly speaking and interpreted, exactly indicate that the members must not read unnecessarily from verbatim reports of the legislative debates or any other documents, so I would ask you, Mrs Pupatello, to endeavour to do that.

Mrs Pupatello: I'm sure the Chair will see, because all of my documents are being transcribed as well through the committee Hansard, that most of what I say is my own commentary and I only occasionally refer to the text. What I must do throughout this, in my description of what I believe to be essential information necessary for committee members to make their decision soundly and wisely, is to ensure that this information get out, but I must always make it relevant to the topic at hand, and that is, should we have legislation for referenda in Ontario?

Some of the reasons we should not, and I've started with only one of those today, include constitutional change that is the result. What impact on the Constitution is there when we have referenda? As pointed out by this individual, Justice Wallace, he talks first about a fully written Constitution which is not readily susceptible to change. Have we done our homework on that basis? Have we discussed that it is not going to be susceptible to change?

He went on to describe the kinds of things that minority groups have to worry about. Can someone by mere power of numbers -- does that mean that we are going to reverse ourselves back to the time when people don't have constitutional rights, human rights in Ontario because someone, a government, is bringing in legislation that is going to allow, by mere numbers, the galvanizing of a vote to go one way or another despite the rights of a minority group? This is critical. Given the fabric of Ontario, given how we are made up in terms of our immigrant groups, in terms of the various races, religions and creeds that exist in Ontario, we can't allow this kind of referenda legislation to continue without a whole dialogue and assurance that we have looked into the very constitutionality, protection that needs to be in place before this kind of legislation goes forward.

Some of the members are so busy talking about how they might stop me that they're not listening to the topic at hand. This is such a serious matter. You can't imagine -- as you know, I've been subbed into this committee and I have a right to be here -- that I would spend my time at this time of the calendar year, when I have other committee duties and House duties as well, to discuss this issue if I didn't think that the forwarding of this kind of legislation is the devil itself. I truly believe that there are matters at hand and there are people on the government side of the House who have not taken the time to look at the historical view of other jurisdictions that have brought in legislation like this to the demise of their communities. That was the result.

When legislation came in in other jurisdictions, they have waited 10 to 20 years since they brought it in, because some of them -- as you know, we discussed at length Proposition 13 in California. We waited years to watch the utter demise of the education and health system, the utter demise and the confusion over the protection and provision of services to the people of California. With the good history we've had in providing good service to Ontario, why would the government now change tack completely, offload its responsibility for making good, sound decisions based on bills, a process they are currently following in the House, to turn something over to a referendum process?

It is not acceptable to me, to my party, to the other opposition party, I believe, to most people who have a good sense of what democracy is about. In my view, there is nothing more serious in terms of proposed legislation than this bill right here, and I intend to do everything I can to make all of the committee members fully aware of every implication that such legislation could bring.

I hope the Chair doesn't agree with some of your colleagues on the committee that this might be frivolous information. I do not believe it is. It is highly related to the matter at hand, there is no question about that, and I intend to find everything to bring forward, because the government members are committed to making responsible decisions. They can continue with their point of order, but I will tell you, I'm highly on topic.

Similarly, in New Zealand, international and treaty obligations should not be directly or indirectly overridden by a referendum. This is particularly related to Ontario because of the highly sophisticated nature of treaties between Ontario and nine other provinces in Canada, which has a huge impact on Canada, and the massive number of treaties that Canada has with other international countries. Are we sure that there is something in place in the legislation that would be brought forward that would not override international treaties or treaties that Ontario currently shares with other provinces?

1600

Obviously we have this issue. We wouldn't have a Ministry of Intergovernmental Affairs if there weren't such issues at hand. Have any committee members sought their advice, sought any advice at all to see how referenda would have an impact, depending on what the question was, that would actually override currently existing treaties? Those who have done this before have often said that is something you absolutely must be accountable for, that when you write legislation you ensure that safeguard is there. Currently nothing has been shown by government members that you've taken this kind of thing into account.

Any legislation that establishes a system of referenda should give government or parliament the ability to put forward a countervailing proposal to be voted upon at the same time as the initiative. That brings forward a very interesting point: What were those qualifications for passing a referendum that would make it binding? Is it going to be the two-thirds level on that proposal, if it was passed by two thirds? What if the vote was "Get rid of the Harris government" and it was passed by two thirds because people brought it forward themselves? Would the Harris government then have the ability to put forward a countering proposal?

I'll bet if you ever knew there was that kind of movement afoot among the populace of Ontario you would scramble to get a kind of counterreferendum proposal in place so you could at least allow the very select group you've been targeting continuously since your last year and a half here in government to have their say, so those few could still say: "No, we have to keep Harris. Please don't throw us out." The reality is dependent on how the legislation comes forward, how it becomes binding, what the percentage of vote required will be so it would be considered passed.

Then we have to talk about how much of the population should be voting. As you know, we may have 11 million people in Ontario, but we don't have 11 million people who vote. Let's assume that half those people are of voting age, so that leaves us 6.5 million. Let's assume that at least a million of those people, say 1.5 million, are invalids and probably don't get out to vote because they're not able to do so or they're quite senior. That brings us down to 5 million people. After 5 million, then you have that typical voter turnout of eligible voters at any given election, depending on municipal, provincial or federal level, which often might be under 50%.

If you have voter turnout that is, say, 50% of the 5 million people, now you have 2.5 million people, on average -- you could probably agree with my collection of data there -- who will make a decision. If the rule on this legislation is going to be 50% plus one, say it's 50.1%, you're going to have the megacity making a decision that will affect the whole of Ontario. Those people in that little dot on the map of Ontario, a square- mile area, are making a decision for one of the largest regions in the world, after maybe five or six other countries.

That's why we spoke about protection of minority rights etc. We saw much of that debate and we won't go through the kinds of debate that came forward under Bill 81 in the redistribution, but the discussion and the contra-argument to Bill 81 are exactly the same as what we're talking about here. The premise is the same, that if you don't have appropriate representation for positions, then depending on where those people are, who motivates them to come out, how they choose to come out, what types of people you get coming out, you will have one very small group having an enormous say about the rest of Ontario. Most other jurisdictions have shown that they have done that in a very inappropriate fashion.

Just a moment ago the member for Durham suggested I was suggesting that people in Ontario just aren't smart enough to understand the question. I assure the Chair that simply is not the case. The political reality as it exists in every other jurisdiction today, and in my few years on this earth I've had some opportunity to travel, the one thing that has struck me everywhere I go, is that people are the same all over the world. It doesn't matter whether you're in South Africa, Italy, Ontario or Auyuittuq, our new Baffin Island, human nature is the same, politics is the same, so regardless, you will get the same outcome many times. It has nothing to do with whether people are sophisticated or intelligent enough to understand but everything to do with what people's priority and motivation is. People will not take the time to see all the implications when they vote yes or no on a given proposal. They'll simply look at the most simplistic one because that is what's being made available to them.

I have to come back to the discussion on Constitution because there were two other very pertinent points, so I'll ensure that I do that. But just to continue, this brings me to a very specific piece of information that I know the committee will enjoy, which has to do with the politics and partisanship that gets involved in the actual vote. There is an excellent dissertation by Betty Zisk in a book entitled Money, Media and the Grass Roots. It gives various examples and topics for discussion but it specifically outlines how political parties have influenced the outcome.

Before I do that, just so that there will be some continuity for our government members -- I'm very concerned that the follow along -- let me go back to the descriptions. If I give you some examples of propositions that have come forward in the past, we'll get a much clearer idea about what this government is going to do, how they'd put that question forward. Because of the lack of detail in legislation that we believe would be required in the use of referenda, they should have examples of what's been done historically.

1610

Let me give you an example of what some state propositions have included. There was Proposition 128, which was called Big Green: "Ban use of cancer-causing pesticides; implement a statewide plan to end use of toxic chemical gases harmful to the ozone layer; authorize sale of $300 million in bonds to buy old-growth redwood trees; ban new offshore oil and gas production; toughen standards for clean water; create a new state environmental czar." I think we have a lot of czars in Ontario already. This was the context of Proposition 128.

Fairly complicated. Let's ask most people what "toxic chemical gases harmful to the ozone layer" means to them. Some women might say that's probably the aerosol can hair spray. Most men, I would say, probably have no idea what kind of impact a particular product might have on the ozone layer. The reality is that there's much lack of information out there and this is what they found.

It goes on: "Expand testing of foods for pesticide residue." Again I ask the people at the committee, what's a pesticide residue? I haven't got a clue. "Eliminate some industry fees for pesticide regulatory programs; require that the state dispose of illegal pesticides and appropriate $5 million a year for pesticide research."

"What they say": "Supporters say it will protect the state from toxic chemical pollution of air, water, and land and will save billions of dollars in health care and energy costs. Opponents say it is too costly, too sweeping and too complex. They call it the `Hayden initiative.'" That's likely the gentleman who put it forward.

Agribusiness supporters, on the other hand, who put it on the ballot to fight pesticide provisions of Big Green, say, "It's a safety policy based on science, not politics." Opponents call it "Big Brown" and say it "weakens current pesticide regulation."

Another interesting example was banning forest clear-cutting, of particular interest to those of us who live anywhere near the Temagami forest in the north: "Ban forest clear-cutting; authorize $742 million in bonds to buy stands of old-growth redwood and retrain lumber workers who lose jobs; restrict timber harvesting on private lands; prohibit sale of timber from state-owned lands to companies milling outside the United States."

"The supporters of the bill say it will save the remaining 5% of the state's virgin redwood forest. They admit there will be an initial loss of jobs but say there will be a gain in the future because of increased forest yields. Opponents predict significant unemployment of up to 100,000 jobs lost in California."

Why is this example relevant to us? The New Democrats will well remember the issues they faced in the Temagami forest. The Conservatives certainly will remember their position only within the last year and a half on this very issue. The reality is that with the Temagami forest there is no winning, no matter what side you're on. Why is that? Because the issue is so highly complex. It deals with the economy, with the environment, it talks about jobs, about a healthy environment. There are wins on both sides of the argument, but ultimately, governments of the day must make very tough choices. When they made that tough choice, your government made the decision to continue to cut trees.

They laid out certain parameters with which they could do that, and the NDP did the same thing. They too allowed continuing cutting of the Temagami forest and they laid out whatever parameters they set apart. Had you decided to have a referendum on the issue of cutting trees in the forests of Temagami River, you likely would have -- gosh, we don't know the outcome. The reality is that no one would have been happy, because the thing would have been taken away from those who were given the responsibility to do so. In fact, you don't know what the outcome would have been.

If the government and those who are expert in the field honestly felt they have some knowledge at hand to find the compromise, government members wouldn't have been able to do so because they had given the right to the people to have a binding referendum on the issue, and depending on who's funding it, that's what you would have had.

Going on now from that discussion, we have additional information on "Voting Behaviour: Confusion and Rationality on Ballot Questions." I'll have to forward information about the actual authors and titles of the book, because I see there's such interest in the committee that you'll want to read the entire text, not just hear the few phrases that I pull out

Mr R. Gary Stewart (Peterborough): We'll go to the library and sit and read them.

Mrs Pupatello: I certainly hope the member does that.

If I might leave you with just one particular example, because I'm always interested in giving only the best information: On page 172 -- it actually goes on quite at length in the whole chapter, and I don't want to bore you with details -- it talks about voting behaviour on ballot propositions, and this is a book entitled "Direct Legislation" and it was written by David Magleby. It specifically talks about voting intentions. What I found most fascinating about this book was that depending on who puts it forward, what groups support it, what the demographics are of the group that tend to surround the issue, they can determine whether it will fly.

They were also able to say that depending on the initial public reaction of a proposition being put forward, they could estimate whether it would have legs and have that kind of support from the introduction of the proposition right through until the end, and it was wholly dependent on a couple of things. One most significant item that was responsible was how much money was backing the proposition.

The government members should use extreme caution when they go forward with this kind of legislation, because depending on what the issues are, you will pull out the most ferocious of fighting people with lots of money to back them up. You will spend millions of dollars, as is currently the case in the megacity discussion of Toronto. Today we already know -- and this is just today; Minister Leach only introduced legislation yesterday -- that the glossy has been printed and you're spending $1.2 million on propaganda to advance your side of the proposition.

In fact, you've not even going to allow a referendum in that case, so you're being quite contradictory. Clearly this committee had no input on the whole issue of the Toronto situation, because clearly the Chair would have said: "Here we are as a committee looking to introduce legislation on referenda in Ontario, and the people of Metro Toronto want a referendum and you won't give it to them. How ridiculous." Surely you told that to the Premier. Surely the members of the committee said: "We've spent hours sitting on this committee. We've had to listen to Pupatello go on and on about the evils of referenda in Ontario and now you won't give it to the people who are asking for the referendum." Why you couldn't be consistent on this issue is beyond me, but I guess that only goes to tell us that those of you who want it, it's not even in your hands. It also speaks to the issue that the reason certain topics will be put on this agenda item, once you have referenda legislation in place -- you will have no control over the topic, over the outcome, over how it plays in that machiavellian way the government tends to work these days; why you'll select the topics you will, what those outcomes will be, and how it's meant to play, just in time for the next election.

I believe my colleagues have something to say as well, so I look forward to their continued debate and I hope you also look forward to mine.

The Chair: Are there any other comments on this point?

Mr Tony Clement (Brampton South): I'd like to move that the Legislative Assembly committee's report indicate that legislation authorizing the holding of provincial referenda to be held on any topic within the jurisdiction of the Ontario Legislature be subject to the conditions and thresholds described below:

(1) Discretionary referenda may be initiated by the Legislature of Ontario.

(2) Mandatory referenda shall be initiated on issues involving the Constitution of Canada or Ontario, or involving new taxes paid by Ontario taxpayers.

(3) Citizen initiatives shall be allowed to be initiated whereby citizens may mandate a referendum to be held, within reasonable time or in conjunction with a municipal or provincial election, upon receipt by the Legislature of the signatures of not less than 10% of the citizens of Ontario, such petition having been submitted within 180 days of its initiation.

(4) There would be a prohibition against the gathering of signatures for profit by any person or company or association.

(5) Municipalities would be empowered to hold referenda or receive a citizens' petition regarding issues within its powers upon the same thresholds and terms.

(6) There would be appointed by the Legislature of Ontario an independent referenda commission, headed by a justice of the Supreme Court of Ontario, which commission would approve the final question for referendum and oversee the conducting of the referendum.

(7) The commission could also determine whether the referendum question, on its face, is in violation of the Charter of Rights and Freedoms or the Ontario Human Rights Code, in which case the referendum would not proceed.

(8) Referendum questions would ask a clear and concise question which would demand a yes or no answer, and would require a 50%-plus-one majority of voting Ontarians in order to pass. The effect of such passage would be, in the case of a simple question, to introduce for first reading a bill designed to accomplish the referendum result and, in the case of a more defined bill or proposition, introduce for second reading a bill designed to accomplish the referendum result.

(9) Where citizen petition requirements have been met, the government would have the option of introducing legislation to accomplish the intent of the petition, in which case the referendum would not proceed.

(10) Other forms of electronic, telephone or mail-in voting would be allowed upon the commission's determination that such a method was possible and desirable.

(11) Maximum campaign spending and contribution limits and advertising limits would be similar to current election legislation, provided that each recognized organization seeking to participate in the referendum shall be taken as having the same rights and constraints as a recognized political party in the province's Election Finances Act.

(12) The issues of recall and electoral reform are important issues in their own right. The committee recommends that these issues be referred back to the committee for further study and citizen input.

The Chair: That's a fairly detailed motion. Mr Clement, do you have copies of that for members of the committee so that we can have a discussion on it?

Mr Clement: I have a single written copy, Mr Chair, and I'd be happy to submit that.

The Chair: I'd like to recess the committee for at least five minutes so we can get photocopies of that.

Mr Clement: Oh, I don't think you can read it.

Mrs Pupatello: Could we have it typed as well? I've seen your writing.

The Chair: I'll recess for 10 minutes. I don't think it's going to come back typed.

The committee recessed from 1619 to 1631.

The Chair: We'll start again. Mr Clement, if you could just read this again now that we have it in front of us so that everyone has a good understanding of what your motion says.

Mrs Pupatello: I'd like to put on the record that the member for Brampton has the most terrible writing I've ever seen in the Legislature.

Mr Clement: Thank you. I'm just humbled by the accolades. The motion reads as follows:

I move that the Legislative Assembly committee's report indicate that legislation authorizing the holding of provincial referenda to be held on any topic within the jurisdiction of the Ontario Legislature be subject to the conditions and thresholds described below:

(1) Discretionary referenda may be initiated by the Legislature of Ontario.

(2) Mandatory referenda --

Mrs Pupatello: "Shall be"?

Mr Clement: "May be." Number 1 is "may be."

Mrs Pupatello: By the Legislature --

Mr Clement: Of Ontario. Obviously it's on any topic within the jurisdiction of the Ontario Legislature, which is in the previous paragraph.

(2) Mandatory referenda shall be initiated on issues involving the Constitution of Canada or Ontario, or involving new taxes paid by Ontario taxpayers.

(3) Citizen initiatives shall be initiated, whereby citizens may mandate a referendum to be held, within a reasonable time or in conjunction with a municipal or provincial election, upon receipt by the Legislature of the signatures of not less than 10% of the citizens of Ontario, such petition having been submitted within 180 days of its initiation.

(4) There would be a prohibition against the gathering of signatures for profit by any person or company or association.

(5) Municipalities would be empowered to hold referenda or receive a citizens' petition regarding issues within their powers upon the same thresholds and terms.

(6) There would be appointed by the Legislature of Ontario an independent referenda commission, headed by a justice of the Supreme Court of Ontario, which commission would approve the final question for referendum and oversee the conducting of the referendum.

(7) The commission could also determine whether the referendum question, on its face, is in violation of the Charter of Rights and Freedoms or the Ontario Human Rights Code, in which case the referendum would not proceed.

(8) Referendum questions would ask a clear and concise question, which would demand a yes or no answer, and would require a 50%-plus-one majority of voting Ontarians in order to pass. The effect of such passage would be, in the case of a simple question, to introduce for first reading a bill designed to accomplish the referendum result and, in the case of a more defined bill or proposition, introduce for second reading a bill designed to accomplish the referendum result.

(9) Where citizen petition requirements have been met, the government would have the option of introducing legislation to accomplish the intent of the petition, in which case the referendum would not proceed.

(10) Other forms of electronic, telephone or mail-in voting would be allowed upon the commission's determination that such a method was possible and desirable.

(11) Maximum campaign spending and contribution limits and advertising limits would be similar to current election legislation, provided that each recognized organization seeking to participate in the referendum shall be taken as having the same rights and constraints as a recognized political party in the province's Election Finances Act.

(12) The issues of recall and electoral reform are important issues in their own right. The committee recommends that these issues be referred back to the committee -- that is to say the Legislative Assembly committee -- for further study and citizen input.

The Chair: We now will have discussion on this motion. Mr Clement, would you care to lead off?

Mr Clement: I'll certainly defer to my colleagues as well as the debate proceeds. This is an attempt by me, on behalf of the government caucus, to put some issues on the table for further elaboration and discussion which would ultimately, I hope, lead to all-party consensus in the form of a final report.

I understand from my Liberal friends across the way that there may be some things on here that they feel they are not in a position to agree to and I'm sure we will hear from Mr Silipo on behalf of the NDP as well, but perhaps this is a way to provide a framework for our further discussions on this as a committee.

In terms of process, certainly I would be happy to see what your recommendations are. I know we have a very full agenda as a committee leading up to the next year. There may be a more appropriate way to deal with this in subcommittee or whatever the Chair feels it the most appropriate.

Let me say at the outset, though, that I believe this is a piece of the puzzle which does represent the views of the PC caucus. The working paper which this committee had charge to investigate said at the outset that this government felt the referendum technique was an appropriate mechanism to deal with certain issues, maybe not all issues, but that certain issues that are before the public can be dealt with in whole or in part with referenda.

Having said that, we feel there are two ways that issues of importance can be dealt with. There are mandatory issues -- that is to say issues that are subject to mandatory referenda -- which shall be dealt with by the Ontario Legislature in the form of a referendum. The issues are any issues involving the Constitution of Canada or Ontario or involving new taxes. All the rest are up to the discretion of the Legislature where they wish to put something to a referendum.

Having said that, though, there is also another mechanism, which I think is critically important to the electoral process and to the democratic process that is part and parcel of this and, quite frankly, I find this to be a more exciting topic than simply the government deciding which issue should be before the people in the form of a referendum and which should not be. What I'm speaking of are citizens' initiatives.

The importance of citizens' initiatives is that it is not the political class or the media class that is determining what is an appropriate issue for discussion or debate in the form of a referendum; it is the citizens or a certain percentage of the citizens who have signed a petition that will be able to allow this to be a part of the public discussion.

It is important, though, that it not be an insignificant portion of the electorate that gets to decide this. There has to be a threshold, and the threshold that we have put up for discussion is 10% of eligible voters, which means it has to be of a certain significance. I think we heard that from some of the presenters, that this should not be a referendum process that allows a referendum to take place at the drop of a pin or a referendum to take place because there is a particular hot issue of the week in the Ontario Legislature. It is a referendum process that says that even if all of the political parties don't think it's an appropriate topic or even if the government of the day doesn't think it's an appropriate topic, if there is a certain minimum number of citizens in Ontario who are registered as voters who feel it is an appropriate topic and they are able to sign a petition within a period of time, and that petition represents a certain minimum percentage of the voters of Ontario, then yes, there is an opportunity for there to be a citizens' initiative referendum to take place within a reasonable time of that decision having taken place.

1640

That is a very important sea change, if you will, in terms of the way that we conduct our democracy in Ontario and it is something that is utterly consistent, may I say to my friend Ms Pupatello, with the pronouncements relating to the latest announcement yesterday that there has to be some sort of framework in place. You cannot just have an anarchistic situation where there's duelling referendums or there is some form of question which becomes the topic of debate rather than the public policy issue at hand.

What we're saying is that we would like to have a framework so that everyone knows that there is a way to ensure that a referendum question is fair and open and concise, and that there is a way to ensure that this referendum issue either has the support of the Legislature of Ontario to put to the people or, alternatively, has the support of a certain minimum number of citizens. That is a very consistent and open and honest way to deal with the referendum question on behalf of the citizens of Ontario.

As I say, by allowing this process to go forward, by suggesting, as I do in my motion, a couple of caveats, we can ensure that the referendum process is not, as Ms Pupatello has evinced, a process that is going to allow for results which are going to be seen as being unjust or unfair to certain members of the citizenry. For instance, we have the signature threshold for petitions. For instance, those signatures have to be accumulated within a certain period of time.

We also have in the motion a reference to an independent referendum commission, which commission would be there to mediate, to ensure that the referendum question is fair. It is not simply a matter of the government of the day --

Mrs Pupatello: Appointed commission?

Mr Clement: That is correct, an appointed commission.

Mr Gilles E. Morin (Carleton East): Appointed by the government.

Mrs Pupatello: Appointed by the government?

Mr Clement: By the Legislature of Ontario. There's a difference between the government and the Legislature of Ontario, as she well knows.

Mr Morin: You've got to be joking.

Mr Clement: This commission would have the ability to ensure that the questions are fair and are not pointed in one way or another.

Item 7 is also important: "The commission has the ability to determine whether the referendum question, on its face, is in violation of the Charter of Rights and Freedoms or the Ontario Human Rights Code...." This makes it very clear that it is not the intention of the government to have referendum questions which would be in violation of basic human rights in the province of Ontario. Certainly this would not be a tool that would be used to restrict minority rights, as was feared by a certain presenters and as has been raised by Ms Pupatello as well.

All in all, we have the proper safeguards. We also mentioned, if I can parenthetically say, that we would try to create a system whereby there would be certain advertising campaign and spending limits, so that it would conform to what is already in place as passed by the Legislature of Ontario with respect to electoral spending limits vis-à-vis the Election Finances Act.

All of these things together meet the concerns that were presented by the presenters, who were overwhelmingly in favour of referendum legislation, but some of them did have some legitimate caveats or concerns they wished to have addressed by this committee.

I'm hopeful that my colleagues on the other side will take this as how it has been intended, namely, as a legitimate first attempt to come up with a coherent and cohesive plan for referendum reform in Ontario.

The Chair: I intend to move in rotation, allowing one speaker from each party as we continue this discussion on Mr Clement's motion, and I'll turn to the Liberal caucus.

Mr Morin: Let me just say that I think it's unfair. For me anyway; I don't know for the others. I cannot read that. With all respect, it should be typed properly and presented to us properly so we can read it. There's no way I can read that, honestly. Again, it's got to be done properly. I would suggest, Mr Chairman, that we get the right copies in front of us as soon as we can and then we'll continue with the debate afterwards.

The Chair: I must say in response, Mr Morin, that it is somewhat difficult to read. That's why I asked Mr Clement to read it a second time. I'd hoped it would have given people an opportunity to make it legible in their own minds. I hope that we could continue. I would ask all committee members in the future, if they have a complicated motion that they intend to bring to the committee, it would be helpful, although not absolutely necessary, to all committee members to have it typed up in advance.

Mr Morin: But there's no point in continuing a conversation unless I have the text in front of me and I can read it and understand what it says and make the necessary corrections. Honestly, it is totally unfair.

Mrs Pupatello: It really is a mess.

Mr Morin: Why don't you adjourn for an hour and have it typed.

Mr John Gerretsen (Kingston and The Islands): Did the staff quit on you, Tony?

Mr Clement: Times are tough.

The Chair: Mr Clement, would it be possible for you to have this typed up in, say, 10 or 15 minutes, if we were to recess? If it's impossible, I guess we'll try to continue.

Mr Clement: Certainly. I will do my level best, Mr Chair.

The Chair: So you would be prepared to do it?

Mr Clement: I will undertake to do my level best.

The Chair: Can we resume then in 15 minutes? The committee is in recess.

The committee recessed from 1646 to 1705.

The Chair: We'll start again. Thank you very much, Mr Clement, for getting us this and getting it turned around so quickly. This is very helpful and we can have a much more reasonable discussion this afternoon.

Turning to the Liberal caucus, do you have any contribution you want to make to the discussion on this motion?

Mrs Pupatello: Yes. Item 2: Was that "initiated" or "mitigated" in your rough copy? "Mandatory referenda shall be mitigated on issues involving constitutional" --

Mr Clement: "Initiated," Mrs Pupatello. "Mitigated" doesn't make sense in the context of that sentence.

Mrs Pupatello: Okay. Could you please give me an explanatory note on item 2? What was your frame of mind that resulted in item 2?

Mr Clement: I'd be happy to answer that question. I would refer Mrs Pupatello to Your Ontario, Your Choice, as well as the attendant documentation that was ably prepared by Philip Kaye, which was my guide for the 12 statements you see in the motion. One of the issues that you will see there is, "On which topics should there be discretionary referenda and on which topics should there be mandatory referenda?" By discretionary referenda I believe both the Your Ontario, Your Choice document and the Kaye document, which sought to systematize some of the deputations that we heard, indicated that there were a couple of issues involved there. First of all: What are the terms of discretionary referenda? Should there be certain issues that should not be allowed to be put to referendum by the Legislature of Ontario? My motion suggests that basically any issue within the purview or jurisdiction of the Legislature of Ontario can be the subject of a discretionary referendum. That is to say, the Legislature may decide on any topic within its jurisdiction to put that question or that topic to the people of Ontario.

Item 2 then is: On which topics is it required before the Legislature acts? On which topics should they go to the people prior to such action having legal force and effect? Again, I would refer you to Your Ontario, Your Choice and the explication of Mike Harris's positions both before the election and during the election period, in which I identified two issues which he identified as the PC Party of Ontario position with respect to mandatory referenda. First, if there are any changes proposed by either the government of Canada or the government of Ontario with respect to the Constitution of Canada or the Constitution of Ontario, those have to go to the people before they are passed by the Legislature of Ontario. Second, any new taxes that would be proposed by the government of Ontario would face the same precondition.

Mrs Pupatello: You haven't given the parameters for discretionary or citizen initiatives. You have given the parameters on the issues that could be involved in mandatory referenda. Are you limiting in any way the topics for discretionary or citizen initiative types of referenda?

Mr Clement: I would say that the answer to that would be yes. There are more limits on the citizen initiatives that there are on discretionary referenda, but in each case I would refer you to item 7 which indicates that the referendum question, if it is on its face in violation of the Charter of Rights and Freedoms or the Ontario Human Rights Code, if it is found to be such by the proposed commission, would not proceed. That would be in the case of both discretionary referenda and citizen initiatives.

I would say parenthetically that you almost don't have to say that, but in order to ensure that the position of the Legislature of Ontario on this is crystal clear, I wanted to put it in there. Quite frankly, if there is a referendum question that is purporting to initiate a process whereby a bill would be passed in the Ontario Legislature which is in contradiction of the Charter of Rights and Freedoms, then obviously that is ultra vires the Ontario Legislature and --

Mrs Pupatello: Therefore in your point 9, "Where citizen petitions have been met," you mean the criteria and result of the petition?

Mr Clement: That's right; that is to say, the thresholds.

Mrs Pupatello: Right. The government has "the option of introducing legislation to accomplish the intent...in which case the referendum would not proceed."

Mr Clement: Correct.

Mrs Pupatello: If the reverse is true, what then is your opinion? If the reverse is true, that the government has the option and chooses not to introduce legislation where citizen petitions have been met, what then is the outcome?

Mr Clement: Are you saying the submission of the petition, or the referendum result?

Mrs Pupatello: If the citizens' initiative follows all the procedure and process that you lay out and they meet those guidelines and criteria, the government has the option of introducing legislation to accomplish the intent. That means they're in support of it and therefore they bring in a bill etc, and the referendum doesn't have to be held.

If the reverse is true and the citizens' initiative meets its criteria, submits the required number of signatures within the required number of days etc and the government doesn't wish to introduce a bill, you're saying the referendum would proceed. It relates to the question of the binding nature of the referendum, which is not discussed in discretionary, mandatory or citizens' initiative. What is the binding nature of any of these?

Mr Clement: I refer you to item 3, where it says, "Citizen initiatives shall be initiated," if you take that in conjunction with item 8 -- let me say it this way: If there is a citizens' initiative which produces such an overwhelming majority of support within the province of Ontario that it is quite clear that there is almost no point in holding the referendum because the result would be an 80% yes or a 90% yes, then the Legislature does have the option to consider a bill without going through the process of the referendum prior to the referendum taking place, in which case the referendum would not occur.

Mrs Pupatello: True.

Mr Clement: That's item 1. Item 2 is, what if the citizens' initiative meets all of the criteria, the petition is submitted, the referendum takes place? In my view, according to what I have posed here for discussion, then if the question is a simple question -- and that's where you need the sage advice of prominent Ontarians -- if it's a simple question without a bill attached to it, if you will, then that is deemed to be the first reading of the bill and it is up to the Legislature to put some flesh on the bones of that people's choice. If the citizens' initiative is much more complex, so that as part of the public debate there is a fine proposition or bill that has been obviously put before the people, then you can assume it's gone to second reading, according to what I've suggested.

Mrs Pupatello: Yes. What, in your view, is the status of the mandatory nature of implementation by government of the outcome of the referendum?

Mr Clement: It becomes a bill of the government, in which case the government is obliged to support it.

Mrs Pupatello: Only when the government chooses to introduce the bill. When the outcome of the citizens' initiative is one which the government does not agree to and it goes forward regardless as a referendum item, then what is the intent? How binding is the outcome of the referendum? You haven't referred to the binding nature of any of these, and that's the question.

Mr Clement: I think I would demur from that because I think that I've laid out in item 3 that it "shall be initiated"; that is to say that the referendum shall take place.

Mrs Pupatello: The referendum, yes, but the outcome of the referendum, is it binding on the government?

Mr Clement: I gather you were not here at some of our hearings, but there is a constitutional issue about how binding referendums can be.

Mrs Pupatello: What are you recommending? That's the question.

Mr Clement: I'm recommending that it become a bill of the government. We cannot bind the Lieutenant Governor; that is to say, you cannot force the Lieutenant Governor to sign a bill. So we are taking the advice of some of the deputations that we heard, Mr Boyer among them, who have suggested that the best you can do and the way to proceed is that it become a bill of the government to which the government is attached and is responsible for.

Mrs Pupatello: So is the government bound to introduce legislation, regardless of the question of the referendum, simply on the outcome of the referendum? The government must support it?

Mr Clement: If you're asking me whether the government is obliged to support through the legislative process the result that has come out of a citizens' initiative, I would say the answer is yes, absolutely. Otherwise that would be contrary to the intent.

Mrs Pupatello: So why wouldn't you include in your motion today the binding nature of each of the referendum types here?

Mr Clement: Quite honestly, I thought I had, but if you seek to improve upon it, I'd welcome your improvement.

Mrs Pupatello: Which number discusses the binding nature of the outcome of a referendum on government legislation to be introduced as a result of the --

Mr Clement: Item 8.

Mrs Pupatello: So you're telling me, regardless of whether it's citizen- or government-invoked, a discretionary matter, whatever you want to call it, regardless of it and regardless of the outcome, if it passes as a referendum item with whatever thresholds we say there are going to be, the government is bound to introduce the legislation on it.

Mr Clement: Yes.

The Chair: Okay?

Mrs Pupatello: I can wait.

The Chair: All right. Yes, we'll come back if you have more questions and comments.

Mr Tony Silipo (Dovercourt): I want to just say a couple of comments in response to this and will go on as long as you'll let me and then come back in the subsequent rounds.

Let me just say, first of all, because I spend a lot of time, and justifiably so, criticizing the government, that I appreciate having this motion in front of us. I think it sets out a series of points that we can actually discuss and decide whether we agree with them or not. Given the government's stated preference for this, it's incumbent upon them, as I've been saying all along, to come forward with something, and I'm glad that they have because it makes it easier for me to express my view and that of my caucus on this. I continue to look forward to hearing the view of the Liberal caucus on this as soon as they determine what it is, but we'll see that as it unfolds.

Let me just tell you, as I've said before, starting from the premise that I have and that our caucus has, that it is useful for referenda to be used. We don't believe it should be used every other week because we believe the parliamentary process really needs to continue to be upheld, needs to be improved. I've got a lot of interest in the very last of the recommendations in this report that I'll speak to as well, where I think a lot of improvements can be made in terms of the electoral reform and the legislative functions. I want to suggest we need to add to that as well, but I'll come to that later.

Let me just say, starting from that premise then, that we believe referenda, if used wisely and sparingly, can actually assist in the parliamentary process. I would have to say there's at least here a useful framework. There are some things that we will not support and I will not support and there are some other areas where we'll make some suggestions for changes, and we'll see how far we can get.

I think I've said before, and it bears repeating, given that we now have a specific motion in front of us, that I will not under any circumstances support mandatory referenda, so I will not support item 2 of this. I don't believe it is appropriate to say that there have to be certain issues upon which there shall be a referendum. As far as the government-initiated referendum is concerned, I think that is a political decision to be made by the government of the day in sizing up the nature of the issues that are in front of it and determining whether you should go to the people with a referendum or not.

I would think that there are certainly some areas such as constitutional questions where it would prove to be wiser to go to the people. I, for one, if I were in the position, would continue on that one to say that's probably the best example that I've seen of cases where you should go to referendum, but even so, I wouldn't put that in the law in terms of saying that you have to. There may be a small constitutional amendment upon which there is agreement and I'm not sure that you would want to have a law that says you have to take that out to referenda when in fact there may be broad agreement.

On the other hand, if there are some major changes contemplated, my attitude as a legislator would be to say it publicly is wiser to go to the people, but that's not a good enough reason to have it mandated in legislation that there should be in those circumstances.

1720

The other part that's in that motion that I completely oppose is the provision that says you have to have a referendum when there are new taxes to be paid by Ontario taxpayers. Again, it seems to me that's a political decision that's made by the government and the government should not skate out of that responsibility by taking the referendum route. They should be clear that if they want to raise taxes, they have the right to do that and then they have the responsibility to defend that action with the population.

Having said that, I'll be interested, as we get into this, to test my colleagues across the floor on this, particularly in terms of what they really mean by "new taxes." I don't know whether we have any definitions of taxes, but I think that there have been lots of instances already in the life of this current Harris government when they have raised taxes.

Mr Gerretsen: User fees.

Mr Silipo: Yes. They call them user fees.

Mrs Pupatello: Copayments.

Mr Silipo: They call them copayments. They call them lots of things. They call them tuition fees, for example, but they're new taxes that people weren't paying some time ago. So I'd be interested as we get into this discussion more to see how my colleagues across will try to delineate taxes. Property taxes are also taxes. They go up sometimes because of voluntary actions by members of municipal councils or school boards; oftentimes, as we've seen in the last year and a half, because they have had no choice, given the cuts imposed upon them by this government.

I could go on, but I just make the point that that's an area we're not able to support.

In going on, I'll just follow the order that's set out here. Item 3 deals essentially with the threshold. I've indicated before that I appreciated the government members' movement on this from the initial 5% to the 10%, which I think is a more realistic threshold. I'm subject to further refining of this.

Thinking of this, I think it's not a bad threshold to have, but there is one major piece that's missing from this and I'll just suggest this as a way to see if there is some potential agreement on this. I think it would be useful to have as part of this threshold some sense of the 10% of citizens' signatures needing to come from different parts of the province. I think if you have a threshold as high as 10%, it's not unreasonable to also be looking at a regional breakdown, and I'm not talking about riding by riding or constituency by constituency. We'd have to look at a way of roughly defining the province in its four regions or six regions, however you wanted to do it. It's that kind of approach that I think would add to this in terms of having a sense that if we were going to proceed with a citizen-initiated referendum, it would be done on the basis of a good enough cross-section of support from all parts of the province that we would not be in a situation in which people from some of the more populated parts of the province would be seen to be dominating the agenda.

When it comes to the vote, obviously there are also some issues around what you do with that. I personally am more comfortable with that point in saying it's 50% plus one across the board, but in terms of initiating it I see the sense and I just ask my friends across to think about this in terms of putting in place some provisos that would say the 10% has to also reflect some regional breakdown.

Going down the list and just skipping a few of these, number 5 intrigues me. If I understand that correctly, what Mr Clement is saying is that he's trying to apply to the municipal level here the same kind of test and approach that we would apply to the provincial level. In other words, there would be both citizens' petitions or initiated referenda available on areas of municipal jurisdiction as well.

One of the interesting things that isn't addressed there, and obviously given the debate around the future of Metropolitan Toronto that I am particularly interested in, is what happens when you are faced with a situation like that. What I take from a strict reading of this is that municipalities would certainly be able to go ahead and hold that referendum, but the question I think it begs is, what is the responsibility of the provincial government in that instance in terms of respecting the wishes of citizens in that jurisdiction once they've expressed themselves through a referendum?

That's something it would be interesting to come back to. As we get more into this I will certainly want to come back to that with some particular amendments and suggestions on that.

In number 6 I like the notion of a separate commission to look at issues around the question to be asked. I want to reserve a little bit on whether that should be headed by a justice of the Supreme Court, but I like the notion of having someone removed in that sense look at that. I suggest again to our members opposite that you don't necessarily have to have that same body be the body that runs the referendum.

The reason I suggest that is because it seems to me we have already in place a commission, the elections commission, that is better equipped to actually do the nuts and bolts of running the referendum. I would think a government that's concerned about not furthering duplication wouldn't want to set up another commission to do the same kinds of things the elections commission is now equipped to do.

I think you could separate out the question of running the referendum, hand that out to the elections commission -- you may have to change the mandate of that, obviously, a little bit -- and then leave to this referenda commission the other aspects of it around sorting out the question, sorting out whether there are questions, as in number 7, that impact on the Charter of Rights and Freedoms or the Ontario Human Rights Code, which I think are separate from the nuts and bolts of actually running the referendum.

On the issues raised in number 7, and I appreciate the effort to try to deal with the issue of minority rights and how those should be protected, I just want to reserve on this in terms of coming back with some further points because I think we need to build on this. But I think this is a useful start in terms of acknowledging that there are questions we would not want to see proceeding in a referendum where they clearly infringe upon the charter.

My concern is that other instances may not be a direct infringement of the charter that clearly would impinge on minority rights, and I think we've got to find a way to do that. I don't pretend to be able to do that here on the spot. I want to flag it as something to think about more and come back to because I think it's a major point, and depending on whether we sort that out, we may or may not agree on that point.

In number 8 I found the exchange between Mrs Pupatello and Mr Clement helpful. I want to make sure I understood what number 8 is trying to do. As it is written, I don't think it does what Mr Clement wants it to do. I'm assuming the premise here is that when there is a referendum we need to have legislation, whatever the decision is. If it's a decision in order to implement a decision, there has to be legislation put in place.

What caught me on this was that I didn't understand this distinction between first reading and second reading. It sounded like all the government had to do when there was a simple question was to introduce a bill for first reading and then it could forget about it. That's not what I heard Mr Clement say. Mr Clement said earlier that there would be an obligation upon the government to carry forward that legislation and pass the legislation to implement the decision that had been arrived at through the referendum.

I see him nodding. I think that just needs to be reflected in the wording so the report would say the intent is for there to be an onus on the government to introduce legislation, see it through its various stages and actually get it passed.

1730

The other point I wanted to make is around number 11. This is a useful start in terms of acknowledging that there would have to be rules set. I think we should give some more thought to this in terms of whether we need to, because I think we probably do, but I'd want to hear more discussion on this in terms of actually setting up a yes-no committee process with some clear rules around that.

I think it would be useful here for us to look at what exists, as we have the material. I would think we need to go in the direction of actually saying, however many forces are in favour or against the referendum question that's in front of us, whether it's initiated by the government or by a citizens' group, that there has to be a structure set in place that allows people to focus their energies and allows the public to control, through this process, the spending and other aspects of the process.

On the last one I would like to make two suggestions. The first is that this needs to also encompass the question of legislative reform or how the Legislature functions, or whatever the right words are around that, in terms of the issues to be looked at. The second is that rather than the committee simply recommending that these issues be referred back to us for further study, we don't need to ask the Legislature that they be referred back.

If we want to, as a committee, delve into these issues, and it would be my preference that we do, then I think we should indicate in our report that we intend to study these issues further. I would even suggest some time lines, that we certainly intend to study them, seek some citizen input on them and do them preferably this spring, once we're done with this report, and that we will report back to the Legislature. Again I would prefer to have a time line in there. I'm going to suggest June. If that's too early I'll be very open to listening to other suggestions from members of the committee. But I would like us to be more proactive on this and say that this is something we recognize as another major piece of work this committee should be doing and that we're ready to do it, and we'll do it as soon as we get through this particular piece of work.

Those are my suggestions and comments at this point. I hope and foresee that there is a number of areas where we can find agreement. There are some areas where we will not agree and there are other areas where arriving at some agreement will depend on the willingness of other committee members. That's where I would be at this point. I find it helpful to have this in writing in front of us and I'm assuming, and we won't finish this today, as we come back with the Legislature in January and therefore the committee sitting, that we'll have an opportunity to get into these in greater detail and see where we can go.

Mr O'Toole: I appreciate being able to comment. First I want to acknowledge the thoroughness of the work Mr Clement has done to lead this committee in some kind of constructive manner. We're all familiar with the paper that was issued by the government, Your Ontario, Your Choice, and the public hearings that were held throughout the province during the month of September. Mr Clement has deliberated and listened to this issue for a long period of time, and this committee has to some extent been derailed by Miss Pupatello, and I'm not really sure of the purpose or intent.

Being more productive, as we are today, I really appreciate the comments of and thoroughness with which Mr Silipo has deliberated on each of the 12 recommendations. I think he's made some very solid, sound observations. This gives us a very focused piece of recommendation from the government, which Mr Clement has presented for this committee, and I believe it forms in all respects a very solid basis to the work that was provided to us by the clerk of the committee. Philip provided us each with a format for debating the referendum issue, and I think he's really coined or structured the recommendation we're dealing with from Mr Clement in response to each one of those issues, the format for discussing this referendum issue.

For the record, really, I want to establish first in my mind: Is Mrs Silipo substituted formally on this committee today?

The Chair: Mrs Silipo?

Mr O'Toole: Pardon me -- Pupatello. Is Ms Pupatello substituted as a --

Mrs Pupatello: It's Mrs.

The Chair: Mr O'Toole, Mrs Pupatello is properly substituted.

Mr O'Toole: Good. Is Mr Gerretsen substituted in?

The Chair: No, he's not.

Mr O'Toole: There are three regular members of the committee, Mr Bartolucci, Mr Morin and Mr Miclash, who are not here?

The Chair: That's correct.

Mr O'Toole: And the substitutes are Ms Pupatello --

Mrs Pupatello: John, it's Mrs.

The Chair: Mr Gerretsen is not subbed in, to the best of my knowledge. Mrs Pupatello is.

Mr Gerretsen: Mr Chair, just for the record, I'm here because I'm interested in this issue. If the member has any objection --

Mr O'Toole: Good, excellent. No, I'm very pleased. I'm pleased by the consistent participation of those members and I'm glad they are ongoing members. This debate should not be diminished by frivolous participation. That's really the point I'm trying to make. In concluding, I would like to compliment Mr Clement for bringing forward a document we can focus our attention on in a more constructive manner: allowing the people of Ontario their choice.

The Chair: Mr Gerretsen, did you want to go next?

Mr Gerretsen: If it's all right with Mr O'Toole, I'd just like to make a few comments.

Mrs Pupatello: Now, don't make it frivolous, John.

Mr Gerretsen: I'm not trying to be frivolous. I don't think I've made any comments to the committee on this issue today. I'm here purely out of interest and have a number of questions I'd like to ask Mr Clement. One relates to item number 2, where he talks about "new taxes paid by Ontario taxpayers." Mr Silipo raised this issue as well, that we're not just talking about provincial taxes here, I assume, and I take it also that we're not just talking about new taxes. Are we talking about increased taxes within a particular taxation category as well?

Mr Clement: Forgive me for my inelegant phrasing. This motion was an attempt to break a bottleneck that was occurring in this committee. Some of the phraseology is inelegant and perhaps inexact, and that is no one's fault except my own, so let me just apologize in advance.

Mr Gerretsen: There's nothing to apologize for. The new taxes you're referring to, are we just talking about provincial taxes there or are we also talking about municipal taxes?

Mr Clement: I'd like to have further discussion about that, but my understanding of the pledge that government members made in the election was that it would be provincial taxes.

Mr Gerretsen: Okay. And when you're talking about new taxes, are you talking about a new taxation category or are you also talking about an increase of existing taxes?

Mr Clement: This is the sort of thing we can settle with this discussion. I'm quite willing to get your feedback on what you think is appropriate.

Mr Gerretsen: Okay. Those are the only comments I have currently.

Mr Silipo: I don't have anything further to add at this point. I would appreciate if there were some response by Mr Clement or others on some of the suggestions I've made, or if there are things they need to think further on, that's fine too. If there are any responses, I'd appreciate hearing them. Then I could respond back if there's a need to do that.

Mr Clement: I'd be happy to respond very succinctly, at this stage of the late afternoon, to Mr Silipo's very constructive discussion of the motion that is before us. We've already had a bit of a discussion about item 2.

The geographic threshold is another issue that I think we have to talk out a bit as a committee. Certainly there are pros and cons for a geographic threshold item as part of a general threshold when it comes to citizens' initiatives. The pro of that threshold would be to ensure that a referendum question is not dictated solely by a particular region of Ontario, so that it is not being driven by a region or by two regions, much to the disapproval of other regions within the province. The con side of the argument, on the other hand, is that if there are sufficient numbers of citizens within a particular region who feel strongly about an issue, to demand double or triple or quadruple majorities in terms of thresholds before the issue gets discussed as a matter of public policy in Ontario is perhaps too demanding. A citizen is a citizen is a citizen, and if a requisite number of them meet the thresholds, those citizens should have the opportunity to have a referendum placed on a ballot or a series of ballots. But I think reasonable people can differ on that issue. There really are two sides to this issue, both of which are equally legitimate, and perhaps we can generate some light on this particular issue in the furtherance of our discussions.

1740

There was a very interesting question by Mr Silipo about the effect of municipal referendums. We might want to discuss this further as well, because certainly in my mind, as I drafted the motion, my view was that a municipal referendum would have effect upon issues that are within the jurisdiction of the municipality. That is to say, a municipality could not seek to have a referendum question on an issue that is outside of its normal jurisdiction. The further question that is begged by that, and I'm sure Mr Silipo, who is of quick mind, has already thought of this even as I speak, is what happens if there is a question that pertains to something of shared jurisdiction? That is a very good question that I think we should discuss as a committee and perhaps seek some expertise on, because one can predict already where that issue might come forward if we had this legislation drafted and passed by the Legislature. So that is something that perhaps we can make some recommendations to the government on as a prelude to legislation.

The fourth thing I'd like to comment upon with respect to Mr Silipo, and then I have a question for the Chair, is that he has identified an area where I was fuzzy, and that was with respect to umbrella committees and whether, if we are going to have spending and contribution limits, that automatically predicates that you have to have registered umbrella committees in order to police the campaign spending and contribution limits. That is an issue which did cross my mind and which I think we should discuss further to see whether that is a necessary precondition. If it is, perhaps we should say so. If we have come to the conclusion through our discussions that it is not a necessary precondition but maybe it's a preference by one or more of the parties represented around the table, we should say so as well. It would probably be of help to the drafters of the legislation to have our thoughts on those matters. So again I would thank Mr Silipo, as always, for his commentary.

May I say one thing about item 12 on the motion? I understand, Mr Chairman, that we have a very full agenda on this committee for the early spring session of this committee and I certainly wouldn't want to tie your hands as Chair or start to dictate right now exactly what should be the order and priority of matters before the committee. Suffice it to say that I stand by my comment that recall and electoral reform are important issues that should be discussed in the fullness of time. I'm a bit uncomfortable, I will say to Mr Silipo, with strict time limits as to when those issues will be discussed, but I agree with him that they should be discussed within a reasonable period of time. I don't think we're trying to torpedo this and put it in a closet somewhere without having the opportunity of the committee to further discuss it, but my own opinion is that in order to discuss it fully, we need some citizen input as well, that it can't just be us as self-proclaimed experts opining to each other.

Mr Gerretsen: Maybe we should hold a referendum.

Mr Clement: You know, this thing just keeps catching on, I tell you?

I would recommend, as my own personal opinion, not having discussed it with my colleagues, that we would try to find some time once we have dealt with matters that I know are pressing to you, Mr Chairman -- that that would be an item on our agenda once we've dealt with some of the pressing items that I know are following.

With that, I would just ask a question, having, I will confess --

Mrs Pupatello: I have one more question too.

The Chair: Go ahead, Mr Clement.

Mr Clement: I'm not cancelling debate on this, Mrs Pupatello, but there is a question on my mind and it would hopefully help further direct this committee. Not having gone through this process before -- I will admit to that on Hansard -- I'm just wondering whether you have an opinion as to what the best way to proceed is. Do you see us moving as a committee item by item, number by number through this? Is that the way to best proceed, or what do you recommend?

The Chair: We could. I think we've had a really good discussion this afternoon and certainly we've made considerable progress as a committee. There have been some very constructive comments made from the opposition and the government members that we might all want to reflect upon over the break, because we're getting close. I suppose in theory we could try and deal with this motion this afternoon, but I think the constructive input that has been brought forward and the constructive manner in which it has been brought forward would give us all cause to want to think about it further and reflect upon it, perhaps check with our colleagues, but to bring this back in the new year when we discuss it further. Then we could talk about going line by line to deal with the issues in your motion. That's just my observation, but I'm certainly in the hands of the committee.

Mrs Pupatello: I'd like to ask Mr Clement a question. Have you written this motion in the appropriate manner to allow a question such as, as a referendum question, the continuing of full funding for Catholic education? Would that as an issue fit each of the items you've laid out in your motion? Would that issue fit under each one? Could you in fact hold such a referendum in Ontario on that issue?

Mr O'Toole: If I may, through the Chair, number 7 would clearly disqualify that question, as the courts have just recently interpreted it.

Mrs Pupatello: I was asking Mr Clement if the motion he wrote has taken into account that kind of issue. And in number 7, with that commission that is struck, regardless of what they deem, would such things as appeals etc be allowed prior or post?

Mr Clement: That's a fair question. I expect what would happen is that this commission would make an initial ruling as to whether the referendum question, on its face, is violating the Charter of Rights and Freedoms or the Ontario Human Rights Code. Knowing the way our society is, regardless of the ruling, probably there would be one group that would be upset or another group that would be upset and they'd probably take the matter to court, in which case I have no idea what the court would eventually decide. But it would be an interesting law school examination question.

Mrs Pupatello: Do you think as the writer of the motion you need to take some more time over the course of the break to further refine any of the points you've laid out, such as the commission and terms of reference for the commission, an appeals process or some allowance for it? Do you think you need to refine any of the points so that we might review a refined motion as opposed to the one that I know you were forced to do quite hastily and you'd likely review and make some change to?

Mr Clement: I thank Mrs Pupatello for the question. I would say that my preference is to refine together the sometimes inelegant wording that this motion represents. I don't claim to have perfection, so this is not a perfect motion by any stretch of the imagination. I think it would be now incumbent upon us to use this motion as a benchmark to then come up with a report. If the report is something that the parties opposite feel comfortable with, they'll sign on or sign on to parts or sign on to none, but I don't think at this stage the search for the perfect motion is going to be helpful to the committee.

Mrs Pupatello: Then might I request a change in the motion, if you'd like us to do it as a group? I'll show you why you might choose to review it and come back with something else. I propose that you completely eliminate number 2 of your agenda item.

Mr Clement: No, I would not do that. Subject to how we wish to go, Mr Chair, there might be parts or all of these items that through discussion we decide to alter, or in some cases the government members may decide to keep and the opposition members may want to eliminate, in which case, on that particular question you might wish to file a minority opinion.

The Chair: Mrs Pupatello, in theory you could move that as an amendment if you chose, but my sense is we're still in a preliminary discussion stage.

1750

Mrs Pupatello: Right, and that's exactly the point, Mr Clement: that should we do this, we as opposition members only have the opportunity to move a motion which will be defeated by your fellow colleagues on this committee. I am supposing that you personally would be of the opinion that we allow for addenda or clarifications, spelling out terms of reference, that would allow for certain parameters to be set in certain areas and you might do that willingly, as opposed to motions put forward by opposition members that will be denied. Would you like to review them and allow for some of that expansion?

Mr Clement: Sure.

Mr Silipo: I also had a couple of process questions and suggestions. First of all, I wanted to know, Mr Chair, if there's something I've missed. Mr Clement suggested that we have or will have other business that we'll have to deal with. Can you just refresh my memory in terms of what else is referred to us?

The Chair: I would ask Lisa, our clerk, to give you that if she has that information handy. But the one thing that came to my mind is that we are responsible, according to the standing orders, to annually review the TV service in the Legislative Assembly, and unfortunately it hasn't been done for several years. That's one issue. There are a couple of other issues, motions that have been left over from earlier, I guess, the fall session and the spring session: teleconferencing, videoconferencing.

Interjection.

The Chair: Oh, and the rings. We've been asked to look at whether or not the Legislative Assembly crest should be on a ring that members could purchase.

Mr Grimmett: That should take us about a minute.

The Chair: None the less, it's all business.

Mr Silipo: I guess the word "pressing" is a subjective term, then.

The Chair: Quite a number of things.

Mr Silipo: I thought maybe we were being delegated one of the major pieces of legislation coming forward, but I guess not.

The Chair: Certainly government business would probably take precedence over these.

Mr Silipo: Then I would just say -- and I don't want to show any disrespect to those other important issues -- that the items raised in number 12 are at least as important as, and I would think more important than, any of those items you've listed.

We'll come back to that in terms of suggesting -- I don't want to be unrealistic about it. I just want to be clear that there is agreement around this committee that this is an issue we want to look into and that we will look at some reasonable time lines within which to do that, as opposed to putting it off and never getting to it.

I understand, Mr Chair, that if the Legislature were to decide that we should deal with a major piece of legislation, that would take precedence, as it always does, over anything else. That's fine. I would ask people to think about that.

I would suggest in terms of process that I would concur with what you have said. This has been a useful start, and perhaps it might be helpful if Mr Clement and other members of the government side would want to reflect upon the suggestions that have been made today in response to his initial presentation here in the form of this motion and perhaps come back with something that's reworked showing where there is some further movement, if any. I think that gives us something we can go from.

I would be just as happy, quite frankly, if we were to ask staff to begin to do some of that fleshing out, but maybe we're not quite ready for that yet. I think we're not that far away from completing our report on this. There clearly are some things on which we will never agree no matter how long we discuss them, so let's just decide that we're not going to agree on those. Then we can each put whatever wording we want in there. But there are some things where if a few more meetings will help us to get some agreement, we should try to do that.

To get us to the next stage, it might not be a bad idea if we all reflect on these until the next time we meet, which will I guess not be until the middle of January. I for one expect to come back with some further suggestions and amendments. I would expect and hope that Mr Clement and others on the government side would do the same and I would hope that our Liberal colleagues would be in a position to tell us their positions on these issues by that time as well.

The Chair: It would make sense to me, from my perspective, to suggest a next step perhaps. We've got this motion and we've had good preliminary discussion, but it might be helpful to have the subcommittee meet to further refine this relative to the comments we've heard today when the House comes back in the new year. That would be my suggestion.

Mr O'Toole: I just want to ask the clerk if we could get a list of those outstanding items to be discussed by this committee. I would hope the recommendation I made some time ago with regard to reviewing the standing orders and decorum and voting and those other procedures -- is that not standing up, and has that not been somewhat deliberately set aside, representing a rather unique, House leaders kind of issue? Every time it's come up, we've really ended up adjourning or running into gridlock.

I consider that a fairly important issue. I'm patient, but I would not like to trivialize it along with the crest for the ring on agenda items. I think it could take a substantial amount of time for this committee to really deal with some of the operational guidelines or standing orders in the House. So I'd like to see some kind of list if I could, through the clerk, of those items that have been referred to this committee.

The Chair: You are quite correct, Mr O'Toole. That order and decorum issue is before the committee still on our agenda of items that remain undone.

Mr O'Toole: Is that going to come up in the next session, after Christmas?

The Chair: I don't think we've made a decision to deal with it in any specific time frame, nor have we had direction from the House leaders to deal with it more urgently, and of course the issue that's before us right now was referred by the government, so it does take priority consideration. But, Mr O'Toole, we will get you that list.

Mrs Pupatello: Just for a start for Mr Clement, since he has agreed to review this and come back with a more refined list of 12, the ones that are immediately apparent that would have to be refined would include your description of what "new taxes" are. I think you should clarify that, given that you yourself aren't sure at this point what the parameters of that might be. You should outline that. You may have all-party agreement, depending on what you choose it to be.

Another is the "not less than 10%." Clearly you recognize the requirements of regionalization in that, so you may choose to refine that now. Again, you may find you have agreement, depending on what your term is.

"Municipalities would be empowered to hold referenda," your point number 5: You should check the existing powers within municipalities now to hold referenda, and I believe that would be refined as well.

Again, your definition and terms of reference for the commission, including the ability to appeal and what that process would be.

Another that's very apparent is number 8, "in the case of a simple question." We need your definition and term of a "simple question." Again, that might refer back to what the commission decides. Regardless, your wording of that would clearly change.

I give you examples of those five that you would review, I think, and refine of your own accord.

The Chair: Thanks, Mrs Pupatello.

It's close to 6 o'clock. Since there I was, I thought, broad agreement among committee members that the subcommittee should meet next to review this again, I would say to you that the subcommittee should meet on January 15, which is the first Wednesday we're back, and that the full committee should meet the following week, on January 22. The committee is adjourned.

The committee adjourned at 1758.