MONTREAL—Canada’s current referendum law was conceived in haste, in the heat of a losing constitutional battle almost 25 years ago. It was not designed to bring plebiscites into the electoral culture of the country. So many of its key sections are obsolete that it would have to be rewritten before Canada could have another nation-wide referendum.

The opposition Conservatives want such a vote to be a pre-condition to the adoption of the new voting system the Liberals promised to put in place in time for the 2019 election.

If one had to sum up the government’s mantra, it would be a referendum on electoral reform if necessary but not necessarily a referendum — with a heavy emphasis on the latter part of the proposition.

But this is one issue that finds Prime Minister Justin Trudeau offside with public opinion. An Ipsos poll conducted for Global News last month pegged support for a referendum on electoral reform at 73 per cent.

And yet, if it came to that, the debate over a referendum could turn out to be more time-consuming and potentially more divisive than the electoral reform discussion itself.

The existing federal referendum law was passed in the spring of 1992 after barely a month of deliberations in the House of Commons. These days it can take that long just to get a motion to set up a committee adopted.

Although it was Brian Mulroney’s Tory government that presented the bill, part of the impetus for it came from the Liberal opposition.

In an interview with the Star this week, Trudeau maintained that a referendum is too blunt an instrument to do justice to complex reforms. There was a time when his party believed otherwise.

As leader of the opposition, Jean Chrétien championed the notion of putting a constitutional package infinitely more complex than any electoral plan could ever be to a national referendum.

The 1992 law was drafted for the specific purpose of consulting Canadians on constitutional changes and it says so in black and white. There are contrary views within the legal community as to whether it could be used in a context other than a vote on a proposed amendment to the Constitution.

On this, both sides are really arguing about the number of angels that could dance on the head of a rusty pin.

In 1992, Canada’s political system still tapped the rich vein of corporate Canada for money. In the Charlottetown referendum campaign, the big banks and the pharmaceutical industry gave big bucks to the Yes camp. Such contributions have since been banned from the federal system. The referendum law is irremediably out-of-synch with 2016 political financing practices.

And 25 years ago, there was no debate as to what constituted a “clear” referendum mandate. Fifty per cent plus one was the accepted figure. That changed after the 1995 Quebec referendum and a Supreme Court reference that suggested the threshold should be higher. Today, there is no consensus among the federal parties as to what constitutes a “clear” majority. The Liberals, under Trudeau, have consistently maintained that it is more than 50 per cent plus one.

The law is also silent on the regional make-up — if any — of a pan-Canadian majority. After a yes vote to the 1992 Charlottetown accord, the amending formula of the Constitution would have kicked in. Thus, even if an overall majority of Canadians had supported the accord, the national total would have had to minimally include a majority of voters in at least seven provinces including Quebec or Ontario for most of its dispositions to be implemented. It is unlikely that a premier would have signed off on a constitutional deal in the face of the opposition of a majority in his or her province.

In a referendum on electoral reform the Constitution would offer little firm guidance. Parliament would have to decide whether the sought-after majority should include majorities in every region of the country. Quebec for one would likely insist on the latter. Other provinces might, too.

Loading... Loading... Loading... Loading... Loading... Loading...

The Conservatives believe the first-past-the-post system serves their party best. In the face of overwhelming popular pressure for a referendum, they figure Trudeau would abandon his bid to change the voting system rather than put it to a pan-Canadian vote. They may well be right. The option of a national referendum is a can of worms that any moderately sane government would think twice before opening.

Chantal Hébert is a national affairs writer. Her column appears Tuesday, Thursday and Saturday.

Read more about: