*Editors’ note: This post is part of a series on ‘the Unwritten Constitutional Norms and Principles’*
Constitutional structures generally leave space for institutional innovations that can enhance the democratic process. One such innovation, embraced by a variety of countries around the world, is the deliberative minipublic. Experimentation with incorporating deliberative minipublics into the modern democratic process began in Canada: the world’s first citizens’ assembly (a type of minipublic) took place in British Columbia in 2004, and deliberated on whether the province should adopt a new electoral system. Since then, deliberative minipublics have proliferated around the world, and have even begun to be institutionalised in some jurisdictions. Taking inspiration from the Canadian model, Ireland has emerged as a world leader in the use of citizens’ assemblies in the constitutional and policy reform arenas. Despite its early experimentation with citizens’ assemblies, however, momentum has faded around their use in Canada. In this blog post, I will argue that there is a strong case for revisiting the use of minipublics in Canada as a way of invigorating Canadian democracy and engaging citizens more meaningfully in shaping legal and policy reforms.
Deliberative minipublics generally consist of representative samples of ordinary citizens, chosen by lot, who deliberate together and make proposals for constitutional, legal or policy reform. Modern iterations of deliberative minipublics stem from Dahl’s idea of a “minipopulus”: a random cohort of citizens selected from the wider demos, tasked with deliberating on a particular issue with the assistance of relevant expertise, and producing a reasoned judgment on the best policies to pursue. The output of the “minipopulus”, Dahl argued, would represent the views of the demos, if it had the opportunity to access the best knowledge available and engage in a deliberative process. In this way, the legitimacy of the minipopulus’ views derives from the legitimacy of democracy itself.
Minipublics are different from other democratic institutions. They are composed of unelected citizens who are chosen at random, though minipublics usually also involve an element of stratification to ensure representation of minority groups who may be excluded through pure random selection. While the members lack an electoral mandate, they stand in stark contrast to the tripartite branches of government in terms of their inclusiveness: they are designed to be a microcosm of the broader population. They also carry out their functions in a very different way to the legislature, the executive and the judiciary: by engaging in a structured process of learning, weighing and deliberating together. Democratic deliberation is aimed at making collective decisions through reasoned argument, in an inclusive manner, where the participants prioritise reasons that appeal to the common good rather than individual interests; as Habermas put it, “no force except that of the better argument is exercised.”
Minipublics contribute to democratic legitimacy by facilitating the participation of a representative cross-section of the public, including voices and perspectives that may otherwise be overlooked, and by employing deliberative practices of learning, weighing and discussing; in this way, Elstub and Pomatto argue, they have the potential to forestall or combat democratic decline by enhancing the democratic and deliberative elements of legitimacy in public decision-making. Minipublics’ claim to legitimacy, however, is process dependent; Carolan cautions that the manner in which they are established and carry out their work is vital.
Minipublics in Practice
Grappling with declining levels of civic participation, countries around the world have increasingly experimented with novel methods of incorporating these bodies into the democratic process – described by the OECD as a “deliberative wave”. Citizen bodies have formed a part of significant constitutional reform processes around the world, including the Icelandic constitution-making process of 2010-2013, and Ireland’s 2012 Convention on the Constitution and subsequent series of citizens’ assemblies from 2016 onwards. Perhaps the most cited example in the literature is the Irish citizens’ assembly on abortion, which preceded the country’s watershed referendum in 2018. The recommendations of that assembly ultimately formed the basis of a new legal framework on abortion in Ireland, a striking instance of concrete minipublic impact in a highly significant policy area.
There are also efforts afoot in many countries to institutionalise citizen deliberation, such as the establishment by the parliament of the German-speaking part of Belgium of a permanent Citizens’ Council empowered to initiate citizens’ assemblies, and the Oregon’s Citizens’ Initiative Review, a citizens’ jury which has been incorporated into the state’s ballot initiative process.
The use of minipublics has not been without criticism, however. It has been suggested that these processes can be top-down, with political actors choosing the topic to be considered and having the discretion to ignore any recommendations made. Lafont is critical of the tendency of champions of minipublics to centre deliberation at the micro level at the expense of enhancing deliberation at the macro level, arguing against the dismissal of mass participation by deliberative democrats and noting that actual public opinion should not be ignored in favour of what public opinion would be if everyone had the chance to deliberate under good conditions.
While debate continues about the most appropriate way to deploy minipublics and connect their output to political institutions, most scholars accept in principle the merits of attempting to find novel institutional methods of more meaningfully involving citizens in the democratic process.
Citizens’ assemblies have emerged as the most influential form of minipublic: not only do they generally comprise a large number of participants (in an effort to comprise a truly representative sample of the population), they have also proved capable of effectively “plugging in” to empowered decision-making sites and impacting legal and policy outcomes. The above-mentioned 2004 BC Citizens’ Assembly deliberated on electoral reform and set the model for the subsequent Ontario Citizens’ Assembly on the same subject in 2007. In each case, the Assembly’s recommendations were put to referendum, neither of which passed. While the Canadian model subsequently formed the basis for the Irish approach, and Ireland has since blazed a trail internationally in the consistent use of citizens’ assemblies, citizen deliberation has not become embedded in the constitutional architecture in the same way in Canada.
There are of course important differences between the Irish and Canadian contexts. For one, the Irish Constitution is much easier to amend than the Canadian. Formal amendment of the Canadian Constitution necessitates not only written, but also extra-textual requirements (as noted by Albert, the latter derive from Supreme Court constitutional interpretation and potentially also constitutional convention), with the result that constitutional amendment in Canada is “virtually impossible” to achieve. The Irish Constitution, on the other hand, is comparatively easy to amend, and constitutional referendums are a regular feature of Irish democracy; the country has what Kenny describes as a “referendum culture”.
However, the use of citizens’ assemblies in Canada to deliberate upon proposals for constitutional change in a similar manner to Ireland (even if unlikely to translate into formal constitutional amendments) has the potential to lead to enhanced public debate about changes to the Constitution; to help counter populism; and to amplify the voices of underrepresented groups such as Indigenous peoples and minority language groups.
Citizen deliberation furthermore has an important part to play beyond constitutional reform. A distinction has been drawn between value deliberation – described by Levy as “deliberation over the foundational interests, commitments, principles, ideologies and worldviews that citizens hold”, which would be most closely associated with deliberation of a constitutional nature, and on the other hand applied deliberation, or the technical process of translating those foundational interests into law. Citizen processes need not only be preserved for the former. The Irish experience demonstrates that minipublics are capable of deliberating on complex policy matters, demonstrating their utility beyond the constitutional context: my research on the reform of the Irish law on abortion demonstrates the significant impact of the Citizens’ Assembly in shaping Ireland’s new legislative framework for abortion provision. Indeed, some of the most pressing issues of the day that require urgent action do not require constitutional change to address.
A raft of areas of law in Canada are in need of reform and may benefit from citizen deliberation. The Government has signposted a range of priorities for the recently revived Law Commission of Canada, including topics that are especially suitable for citizen deliberation, such as climate change and rapid technological changes. To take climate change as an example: Canada might look to the experiences of a range of other countries in establishing citizens’ assemblies on just this topic, such as Ireland, Germany, Scotland and France, with varying degrees of impact on policy-making. Minipublics also have the potential to be used creatively in respect of matters such as rapid technological development, through functioning as “anticipatory publics” (as described by MacKenzie and Warren) on topics the public has not yet had an opportunity to form an opinion on. The implications of the rise of AI is one such example. A further example of the potential for citizen deliberation in Canada is in the context of the controversial increase in use of the notwithstanding clause; Mailey and Peach argue in favour of mandating the use of citizens’ juries before governments can invoke the clause in future.
Minipublics can also serve a purpose in areas where elected representatives have a vested interest, such as electoral reform. While the above-mentioned exercises of citizen deliberation in this context in Canada did not result in reforms, this did not amount to a failure of a citizens’ assembly process. Indeed, it has been argued that the citizens’ assemblies in BC and Ontario were strong exercises in deliberative democracy that proved capable of reaching a consensus on a new model. In respect of the Ontario Assembly, LeDuc notes: “After the vote was held approving the final report, the Assembly burst into applause, bringing to a conclusion a highly successful experiment in deliberative democracy.” The lack of coverage of the Assembly’s work, however, meant that the wider public was largely in the dark about these successful deliberations. Combined with a hostile media reaction, a lack of political will to achieve electoral reform and a double threshold for the referendum to pass, the Assembly’s proposal had little hope of success. Electoral reform in Canada nonetheless remains a pressing issue, and the previous attempts at reform serve to highlight the importance of institutional positioning of a minipublic and the need to effectively connect its work both to the macro-public and to the empowered decision-making sites.
Conclusions
In Canada, democracy is under pressure. In addition to headline-grabbing events (such as Ottawa’s “Freedom Convoy” protests, or Ontario’s enactment of legislation reducing the size of Toronto City Council during a municipal election), levels of public trust in the traditional institutions of democracy continue to decline. This is a moment which calls out for democratic renewal.
The perceived failings of the prior Canadian experiments in incorporating deliberation into the democratic process are not a reason to abandon these efforts. The disappointing outcomes of the referendums that followed the processes of deliberation were not attributable to a failure of citizens to come together to learn, discuss and agree on reform; the reasons for failure were many, both legal and political. The participants in those assemblies showed enthusiasm at becoming engaged in shaping their country’s values and proved capable of producing a concrete model of reform.
The prospect of injecting citizen deliberation into the democratic process – in Canada and beyond – raises further exciting questions in the field of constitutional law: what role might ordinary citizens have in instantiating the democratic principle? What demands does the principle of democracy make from an institutional design perspective? Can deliberative minipublics begin to meet these institutional demands? Is the use of minipublics in itself capable of generating new constitutional principles or fleshing out the meaning of existing principles, for instance, citizen deliberation on constitutional change as a critical element of the democratic principle?
There is much to be gained both from a practical and theoretical perspective from a renewed drive to examine the potential for deliberative minipublics in the Canadian context.
Dr Seána Glennon is a Postdoctoral Fellow at the University of Ottawa Faculty of Law.
(Suggested citation: S. Glennon, The Role of Deliberative Minipublics in Enhancing Democracy in Canada’, U.K. Const. L. Blog (22nd May 2024) (available at https://ukconstitutionallaw.org/)