The Referendum Act, with its severe restrictions on third-party participation and spending, may have been a model of political correctness in the late 1970s when the late premier Lévesque introduced it. Back then, political financing was corrupted by the power of money, giving the wealthy and powerful a disproportionate influence in the political process. Mr. Lévesque's referendum law was all about fairness and equality.
But times have changed. If the referendum law, with its strict insistence on Yes and No umbrellas and its tight spending controls, once served its purpose, it no longer works in a pluralistic society. The rise of special interest groups and the increasing diversity of political opinion demand something else.
Restrictions on third parties now undermine the integrity of the democratic process. They prevent voters from obtaining a full spectrum of information and opinion and they effectively deny the opportunity for all individuals to be heard.
The Supreme Court was asked by former Equality Party leader Robert Libman to determine whether restrictions in the referendum law violate the Charter of Rights and Freedoms and if they do, whether such restrictions constitute "a reasonable limit" under the Charter. In other words, did the Quebec government strike a reasonable balance between individual rights and equity in the democratic process?
The verdict was clear. The court found that while the egalitarian goal of the Quebec law is a "laudatory" one, it goes too far. Mr. Libman had argued that independent individuals and groups who do not wish to, or cannot, join one of the umbrella groups are unjustifiably limited in what they can spend. That's the position Mr. Libman found himself in during the 1992 referendum on the Charlottetown accord when the Yes side was led by Robert Bourassa and the No side by Jacques Parizeau. Mr. Libman disagreed with both.
As currently constituted, the law is absurd. It allows independent individuals and groups almost no opportunity to get their point of view across. About all they can do is spend $600 on renting a meeting hall. The court ruled that third parties should be able to spend and do more, without having to affiliate with one of the umbrella committees.
The question is: how much more should they able to spend? The court did not go as far as some critics of the current system would like. It cautioned that uncontrolled third-party spending can corrupt the process and it said that limits on independent spending must be lower than those imposed on the established committees. That's a reasonable compromise.
There was predictable thundering from the Bouchard government about the federalist bias of the Supreme Court, about yet another imposition on Quebec of the 1982 Constitution Act and about how Mr. Lévesque's great legacy has been sullied.
But the PQ critics did not read the judgement. If they had, they would have noted the telling comment from the Supreme Court justices that "we would have arrived at the same result had the case been resolved on the basis of the Quebec Charter of Rights and Freedoms."
The judges left Quebec enough leeway to amend its law without invoking the dreaded "notwithstanding clause" in the constitution. Quebec should use the opportunity, not to rail about federalism, but to launch a thorough public review of its referendum legislation.