On December 13, 1999 the Government introduced an act to give effect to the
requirement for clarity as set out in the opinion of the Supreme Court of Canada
in the Quebec Secession Reference. The Bill provides for the House of Commons to
determine the clarity of a referendum question on the secession of a province
and sets out some of the factors to be considered in making its determination.
The Bill also provides for the House of Commons to determine, following a
referendum if a clear majority of the population of the province has clearly
expressed a will to cease to be a part of Canada. The Bill also provides that
certain matters must be addressed in negotiations before a constitutional
amendment on secession is proposed by a Minister of the Crown. In February 2000
a Legislative Committee chaired by Deputy Speaker Peter Milliken heard from 39
witnesses and on February 24, 2000 reported the Bill back to the House. Bill
C-20 was adopted by the House on March 15, 2000. The following article looks
at some arguments raised for and against the Bill during Committee hearings.
Stéphane Dion is the federal Minister of Intergovernmental Affairs. He
testified before the Legislative Committee on February 16, 2000. Joseph Facal is
the Quebec Minister of Intergovernmental Affairs. He testified on February 24.
Claude Ryan is former editor of Le Devoir and Leader of the Liberal Party of
Quebec. He testified on February 2. Patrick Monahan is a Professor at Osgoode
Hall Law School in Toronto. He testified on February 21. Gordon Gibson is a
Senior Fellow in Canadian Studies at the Fraser Institute in Vancouver. He
testified on February 2. For the full text of all testimony see the
parliamentary internet http://www.parl.gc.ca.
Stéphane Dion MP: If I had to summarize this bill in a single word,
it would obviously be “clarity”. If I had to come up with a second word, it
would be “reasonable”.
Secession can be negotiated only on the
basis of a clear secession question. It is completely reasonable not to consider
entering into such serious negotiations on the basis of a slight majority. There
needs to be a clear majority. It would also be entirely reasonable to expect
that these negotiations, if they were to be undertaken, would comply with the
constitutional framework of the country in question. That is what the Supreme
Court said, and that is what the clarity bill says. It is the characteristic of
reasonableness in this bill that explains why the efforts of the Quebec
government and the Bloc Québécois to try to arouse emotions and inflame the
debate over this bill have failed. Quebeckers, on the whole, have found it to be
reasonable and they are not afraid of clarity; in fact, they want clarity.
The prospect of dividing up the country
implied in the possibility of secession is already worrisome enough without
allowing for an approach that would be outside the law and that would lack
clarity. It is therefore first and foremost as a Quebecker that I am proud to
be the minister sponsoring this bill, because an attempt at secession done in
confusion outside the legal framework would have very negative effects in
Saskatoon, Winnipeg, Vancouver, Toronto, and Halifax, but the consequences would
be much worse in Tadoussac, Chicoutimi, Montreal, Quebec, and Trois-Rivières.
This bill is pro-Quebec, this bill is
pro-democracy, and this bill is good for all Canadians. One of the reasons that
this bill is reasonable is that it is based on the opinion expressed by the
Supreme Court of Canada on August 20, 1998. It said that in order for there to
be an obligation to negotiate secession, there must be a clear majority
expressed in favour of secession in response to a clear question, and once there
was an obligation to negotiate secession, the negotiations must be carried out
within the constitutional framework, with everything on the table and nothing
decided in advance.
One of the reasons that we need a bill in
addition to the Supreme Court opinion is that the current Quebec government has
refused to commit itself to not holding a referendum and the Premier of Quebec
has refused to commit himself to abiding by the Court’s opinion.
It is entirely reasonable for a modern democratic State not to consider
entering into negotiations on breaking up the country unless there has been a
clear question on secession. (Stéphane
His interpretation is, of course, an
incomplete one. He starts the sentence without finishing it. He says: “They are
obliged to negotiate”. He does not complete the sentence, by adding “where there
is a clear majority based on a clear question and within the constitutional
framework”. The rest of the sentence is in the clarity bill. This concerns you
as members of this House. Why, because it says “they will be obliged to
negotiate”, the “they” involves you.
The Court talked about political actors,
participants in the federation that would have to assess the question and the
majority and, if necessary, negotiate. I am sure that everyone will recognize
that these actors include the House of Commons and the Government of Canada.
In the propaganda that the Quebec government
and the Bloc Québécois have been disseminating widely, they claim that the
federal authorities and those elected in the federal election may not in any way
try to determine whether the question is clear and whether the majority is
clear. Their argument is that here in the House of Commons elected
representatives from Quebec are in the minority.
Two things need to be said in response to
that. We Quebeckers are also Canadians and we have the same rights as other
Canadians. Our federal Parliament cannot walk away from its responsibilities
towards us without ensuring that that is what we want. That is what the Court
told us to do, in any case, and it is what we have a moral obligation to do and
what would happen in any other country. I imagine that the Parliament of a
country would never agree to let one quarter of its population lose its rights
in the country without ensuring that that was what those people wanted.
There is a second thing that must be said as
well. Other Canadians are not strangers to us in Quebec. They are our fellow
citizens. If we had an obligation to negotiate because the will to secede had
been clearly expressed, the negotiations would involve dividing up their
country, since Quebec is part of their country and the loss of Quebec would have
serious consequences for them, in the same way that the loss of Canada would
have serious consequences for us.
They therefore need to ensure that other
Canadian voters, like those in Quebec, who are their fellow citizens, recognize
that there is a clear desire for secession before entering into such serious
Let us talk about clarity. This debate over
clarity was not invented by the Supreme Court opinion or by the clarity bill.
The debate has been going on since the beginning of this whole affair.
In 1980, there was no agreement between Mr.
Lévesque and Mr. Trudeau on what the repercussions of the referendum would be.
Mr. Trudeau had said to Mr. Lévesque during one of his famous speeches in the
referendum campaign. If you knock on the door of sovereignty-association, there
will be no negotiation possible.
Mr. Trudeau was excluding any possibility of
negotiations in 1980. One cannot talk about changing the rules of the game,
since there was no agreement on the rules at that time.
In 1995, just after the referendum, when he
was describing the campaign in the House, Mr. Bouchard expressed indignation at
the fact that, in his opinion, Mr. Chrétien had reserved the right “to not
respect a referendum decision in favour of sovereignty if the yes side won with
a slim majority”.
There was no agreement in 1995. It is wrong
to invent things that do not exist. There has not been any agreement and, after
a yes vote, there would have been no more agreement on what that Yes meant.
Let us start with the clarity of the
question. The Supreme Court tells us, in paragraph 151, that in order for a
question to be clear, it must be clear that there is a will to no longer be part
The way to be sure of the existence of this
will to no longer be part of Canada is to ask a question only on that. If you
ask a question that covers other areas as well, you make it confusing.
Partnership is not the same idea as secession and should not be included in a
question on secession. That is what the clarity bill says, by giving effect to
the court’s opinion.
The second reason that partnership should
not be in the question is that, in addition to being different from secession,
people do not know what this partnership is. They have had 30 years to define
Since 1997, despite all the meetings that
the Bloc Québécois has held, all of them inconclusive, they have not been able
to put any flesh on the skeleton. They also threw in the towel and said that it
would be decided later, during the negotiations. Quebeckers were invited to vote
on something, but no one knew on what. It is easy to understand why they do not
know. How can 25% of the Canadian population break up the country? They come
right back and say: “Guess what, we will have a 50% share in joint
institutions”. But if it is not 50% in joint institutions, if it is less than
50%, the Bloc Québécois should say so. That is no longer independence. If you
have a partner that always holds the majority in every decision, you are still a
minority. It is therefore impossible to be in a partnership when you are an
independent country, unless it is in Europe, where there is a partnership of a
number of countries. But in a dual partnership, it is 50% in joint institutions.
In Canada, there is no support for that idea. The Ontario premier has said that
he did not see why Ontario would count for less than Quebec in this partnership
and why Canada would impose an additional level of government.
Now let us talk about the majority. The
Court said over 13 times that the clarity of any future majority would have to
be assessed. It used the expression “clear majority” 13 times. So this notion is
important, and not something this House could deal with lightly. The assessment
would involve a very serious decision, and the Court tells us not to try to
establish this clear majority in advance.
I quote paragraph 153 of the Court’s
will be for the political actors to determine what
constitutes “a clear majority on a clear question” in the circumstances under
which a future referendum vote may be taken.
This is very wise advice from the Court.
Today, when Canada is united and calm, it would be very difficult to determine
what would be a clear majority in other circumstances, and to put oneself in the
place of politicians dealing with the disruption that would inevitably follow a
The bill provides that, in the event of a
majority in favour of secession, the first actor that would need to assess the
clarity of that majority would be the separatist government itself. The
government would receive the result, determine whether it had a majority, and
then it or its legislative assembly would determine whether to invite other
partners in the federation to negotiate separation. The separatist government
would be responsible for that assessment.
Only after the separatist government had
concluded that a clear majority existed and had invited the other participants
in the federation to negotiate secession would the House of Commons proceed to
make its own assessment. That is the process established by the clarity bill. No
one can seriously claim that the Court placed such emphasis on the notion of a
clear majority only to invite the House of Commons to accept, without further
review, a majority of 50% plus one.
It would be incumbent upon us to assess
clarity for ourselves, and that is not something anyone should question. I am
quite surprised at the line the Quebec government and the Bloc are taking, which
is that the 50%-plus-one rule is sacred, and that to question it under any
circumstances is undemocratic. Let us take a closer look. The Reform Party is
requiring two-thirds of its voters in order to have a dissolution of its party.
The Quebec Civil Code requires a three quarters majority to terminate
co-ownership because once a partnership is dissolved, it cannot be subsequently
resurrected just by voting on it. Who would vote, since the partnership no
The same holds true for a country. After a
No vote, our separatist leaders may well say “See you soon!” or “See you next
time!” after every referendum defeat, and come back with another referendum. In
fact, that is exactly what they are doing—they have announced a third
referendum, with no indication it would be the last.
But after a Yes vote, those who voted No
could not say “See you soon” or “See you next time” if Yes led to separation.
Only a Yes can give rise to an irreversible change that is binding on future
generations. So for this very fundamental reason, there must be a clear majority
before negotiations are undertaken on the possibility of affecting such a
change, to give the action legitimacy that will hold for future generations, and
to ensure that there is sufficient clarity to endure a difficult period of
Indeed, Quebec’s Referendum Act states as
much. The White Paper contains the following passage:
The fact that referenda are a consultation
makes it unnecessary to include provisions about a required majority or a level
of voter participation.
A referendum is a consultation. After a
consultation, the political authorities assess the result and make decisions
accordingly. This is the law of Quebec and the federal law of Canada.
I have raised these arguments many times but
the fact remains that neither the Bloc nor the Quebec government has ever
refuted them. Instead, they have called the Government of Canada undemocratic by
repeating that it made voters unequal.
Equality of voters means that each voice in
worth one unit when the votes are counted. It is up to political authorities to
determine what action to take on the basis of the vote. That is what Quebec’s
Referendum Act says. Perhaps we should ask the Bloc and the separatist
government if this Act is undemocratic as well.
They say that the 50%-plus-one rule is
universal. Aboriginal populations voted in 1995 to stay in Canada by majorities
of over 95%. And yet the separatist leaders say they can ignore such referenda.
So is the 50%-plus-one rule more universal for some people than for others?
At least the Reform Party is coherent. The
Reform Party said if 50% plus one is the rule to get out of Canada, it should be
the rule to stay in Canada. It’s a coherent argument, but it’s a completely
irresponsible one. It’s obvious that for such a tremendous decision, 50% plus
one does not fit.
The Economist joined the many others in saying that secession
“should be carried out only if a clear majority (well over 50%—plus one of the
voters) have freely chosen it.” After all, if 50% plus one is a clear majority,
what would be an unclear majority?
How can one limit the risks of disagreement
on a clear majority? The government proposing secession has only to avoid
holding a referendum until it is guaranteed to win it. Given the means at our
disposal, that guarantee would come from various indicators, such as polls
yielding clear and stable majorities in favour of secession or support for
secession across the political spectrum. Indeed, this is what has happened
elsewhere in the world.
With the exception of colonial situations
which lead to referenda leading to secession, referenda have not been held to
determine whether one half of the population wanted to separate. Indeed, these
referenda have always yielded majorities of over 75%.
So Mr. Bouchard is quite right not to want
to hold a referendum until he is guaranteed to win it. I do not blame him for
that position. However, he must also acknowledge that the wording of the
question ought not to be part of his arsenal of winning conditions. He must not
word a question which may give him a win; the wording of a question must
ascertain what the people want: “Do you want to leave Canada to live in an
independent country, namely Quebec?” That is the question. That is my first
My second point deals with the timing of a
referendum. The Premier alone may decide when to hold one; it is his
prerogative. But the timing of a referendum must not be based on tactical
considerations which would be based on a moment when emotions were running high
in order to get a win. The timing of a referendum must take into account the
interests of everyone involved and it must happen at a time when a clear
majority would vote in favour of separation.
It would be morally wrong for a democracy to
seek a permanent decision to settle a temporary situation. This is not in the
The public interest lies in knowing that the
evening a referendum is held, if unfortunately there is to be another one, a Yes
vote would mean one thing only, which is that Quebec should be an independent
country with its own seat at the UN, as independent countries are entitled to,
distinct from Canada. Anyone disagreeing with this premise must be included in
the No side.
This would be the ideal situation, because
if some people vote yes but do not share that view, it will not be long before
the separatist movement breaks down during negotiations on secession. And if
this majority were to disappear during negotiations, we would all find ourselves
in a useless and dangerous impasse.
I would now like to address the third
section of this short bill, which deals with the legal framework of
The Supreme Court has confirmed that
negotiations on secession would have to take place “within the existing
constitutional framework” (paragraph 149), and would have to respect the
principles identified by the Court (paragraph 90): federalism, democracy,
constitutionalism and the rule of law, and the protection of minorities.
One practical consequence of this is that
the Government of Quebec could not determine on its own what would be negotiable
and what wouldn’t. To quote the court:
It “could not purport to invoke a right of
self-determination such as to dictate the terms of a proposed secession to the
Instead, it would have to negotiate in such
a manner as to address the interests “of the federal government” of Quebec and
the other provinces, and other participants, as well as the rights of all
Canadians both within and outside Quebec”, and of Aboriginals, on all matters,
including division of the debt and the issue of borders. Here again, the clarity
bill is completely in keeping with the Court’s opinion.
The Government of Quebec and the Bloc do not
want borders to be included in the list of issues to be negotiated. On this
point, the Court noted in section 96:
“Nobody seriously suggests that our national
existence, seamless in so many aspects, could be effortlessly separated along
what are now the provincial boundaries of Quebec.”
In a legal opinion commissioned by the Bloc,
Professor Alain Pelet confirmed that the Supreme Court’s opinion included the
issue of borders among the issues that could be negotiated. But there is no
certainty on that point. If nobody makes the request to do so, there would be no
reason to negotiate borders. However, if there is a clear demand to do so, and
if the demand is at least as clear as the demand for secession, it would be very
difficult and probably immoral to ignore the request.
But there’s no guarantee that this demand
would be addressed. As it now stands, the Court said that nothing shall be
determined in advance. What we know is that it is possible that borders may be
redefined within the framework of a separation agreement. The Government of
Quebec cannot hide its head in the sand; only last week, Aboriginal leaders
reiterated that it would have to face up to that issue.
However, the clarity bill in line with the
Court’s opinion, does not reiterate the position that the Aboriginal peoples
living in Quebec would have the right to remain integrated with Canada if they
so desired. There is no guarantee of that.
In 1980 and 1995, Quebec’s Aborigina l
populations indicated their desire to remain in Canada. We know the problem will
probably crop up again. And there may be many other potential bones of
contention. Negotiations on secession necessarily entail serious and real risks
of disagreement, both between governments and within populations. Neither of the
clarity bill nor the Court’s opinion invented nor created these disagreements.
They are part and parcel of any claim to secession. The clarity bill limits the
potential for disagreement as much as possible by insisting on the rule of law,
clarity, deliberation and consultation.
Let us not forget that this bill only
applies to the House of Commons and the Government of Canada. We do not
interfere in the responsibilities of the other political actors in this
federation. It would be for the legislative assembly of the province to decide
on the question. It would be up to the other political actors, including the
other provincial governments and legislative assemblies, to decide the way they
want to assess the majority, the question, their participation in the
negotiations, and so on. We cannot decide for them.
What we are saying to them is the following.
We will take seriously the question, if it’s clear or not; we will take
seriously the majority, if it’s clear or not; we will take seriously our
responsibilities to all Canadians if we have to negotiate; and we will take into
account openly their points of view. It’s up to them. We hope we will work with
the same mind, the same respect for the legal order of Canada.
In my view, the bill establishes clarity as
much as possible given the circumstances. Secession remains a black hole full of
uncertainty. It is important for us to know well in advance that negotiations
would be held if there was clear support for secession, but that no negotiations
would take place if there was no clear support. The House of Commons and the
Government of Canada are clear on that point: this is the basic principle and
negotiations would respect the rule of law if they unfortunately were to take
The Government of Canada has chosen to
clarify the situation at this point, while emotions are not running high and in
the absence of a referendum campaign. This is the right of Canadians. Secession
is a black hole. The clarity bill merely provides us with the best flashlight
available, with the best batteries.
Joseph Facal, MNA : On October 30, 1995, 2,308,360 Quebeckers voted Yes
in answer to the question you now know so well. Today the federal government
would have you—the 301 elected members of the federal Parliament—wield the power
to decree that these 2,308,360 people did not understand the aforementioned
question and that they must therefore be protected from themselves. “Father,
forgive them, for they do not know what they are doing.” That is the Bill C-20
message being sent to Quebeckers.
Thus it is believed this Canadian disorder
may be swept from sight, while ignoring the fact that more Quebeckers voted Yes
than there are voters to be found in Saskatchewan, Manitoba, Newfoundland, Nova
Scotia and Prince Edward Island, all rolled into one. C-20 will not sweep
sovereignty away, nor the idea that Quebec will one day become a country. How
simplistic! Yet as the Government of Quebec stands represented here today, it
acts in the same capacity as previous Quebec governments have done, regardless
of their constitutional options, as a government deriving its legitimacy from
the National Assembly, the sole depository of the Quebec people’s right to
choose their political status by themselves.
Quebec’s existence as a political entity
dates from before the creation of the Canadian federation. Quebec exercised its
right to freely choose its political status when it contributed to the formation
of Canada in 1867. This must always be borne in mind.
By adhering to this federation, the people
of Quebec neither renounced its right to choose another political status nor
sought to subject its destiny for all time to a Parliament of which the majority
of members originate from outside Quebec. Yet clause 1 of Bill C-20—which
indirectly dictates the referendum question—allows a majority of MPs from
outside Quebec to rule that a question is not clear enough to be acted upon,
despite the will of the National Assembly and of the people who, having deemed
the question clear, would have answered Yes to it.
Some will still maintain that the Quebec
National Assembly remains free to ask any question it wishes. Not so! It is not
so because C-20 renders the 1980 and 1995 questions unacceptable.
In clause 2 of the bill, the federal
Parliament invests itself with the power to decide whether the majority obtained
is inadequate, even if the people of Quebec were to accept the results and rally
Finally, clause 3 confers upon the
legislature of any other province an absolute veto on the future of the Quebec
people through the amendment formula contained in a Canadian constitution of
dubious legitimacy, since it was imposed on Quebec and never ratified by a
Quebec government. Three clauses, three schemes for derailing a democratically
Bill C-20 also questions the universally
accepted rule in democracy of 50% plus one, despite the fact that all
referendums held in Canada to date have been based on the very same rule. Canada
has also recognized many countries created as a result of referendums held on
the basis of this rule, which in fact is the standard rule by which the United
Nations operates when it supervises referendums on accession to sovereignty.
Imposing any other rule would be tantamount to giving more weight to a
federalist vote than to a sovereignist vote, which amounts to discrimination on
the basis of political opinion. This would compromise the principle of the
equality of voters.
Bill C-20 states that Quebeckers must be
protected against their government but also against themselves, because they
would be unable to weigh the issues set forth in a referendum question. By the
same token, it becomes more important to take into account the opinion of a
Manitoba or Saskatchewan MP, who would know better than the Quebec electorate
what is clear and what is not.
Bill C-20 is unacceptable for so many reasons: this bill
seeks to subject the people of Quebec to a federal trusteeship; it negates basic
democratic principles; it is an insult to the intelligence of all Quebeckers; it
installs a system of arbitrary power; and lastly, it bears within itself the
seeds of bitter disillusionment for you. (Joseph Facal)
Members of the federal Parliament, do you
realize what a ridiculous situation the authors of C-20 have created for you? Do
you realize that you are on the eve of enshrining a legislative principle by
which the judgment of elected members will be deemed superior to that of those
who elected them?
Bill C-20 is also an insult because it is a
grotesque distortion of the Supreme Court’s opinion. Nowhere in the reference
does the Supreme Court confer upon the federal Parliament the right to oversee
the content of a referendum question authorizing Parliament to rule upon the
clarity even before the National Assembly has adopted the question. Nowhere in
the reference does the Supreme Court give the federal Parliament the right to
impose a question that must expressly exclude any reference to an offer of
partnership. Nowhere does the Supreme Court give authority to the federal
Parliament to determine a posteriori and of its own accord the required
majority. Nowhere does the Supreme Court give authority to the federal
Parliament to unilaterally dictate the content of post-referendum negotiations.
The federal government played with fire when
it made its reference to the Supreme Court. It got burned, because what it got
was an acknowledgment of the fact that the territory of Canada can be divided
based on provincial territories, a recognition of the legitimacy of the
sovereignist option, the creation of an obligation to negotiate on an equal
footing, and an admission that, in the case of bad faith on the part of the
federal government, international recognition of a sovereign Quebec would be
Today, the federal government is asking you,
members of Parliament, to blot out its mistake by rewriting the opinion. The
sponsor of Bill C-20 has also strongly emphasized respect for the rule of law.
Yet the true rule of law precludes resorting to arbitrary power. As it stands,
Bill C-20 is a monument to the use of arbitrary power. It aims to empower the
House of Commons to declare a question unclear on the basis of “any other views
it considers to be relevant”. Whose views are we talking about?
Likewise it would empower you to assess a
requisite majority in light of “any other matters or circumstances that you may
deem relevant”. What are the criteria for relevance? What will the new rules of
the game be if the 50% plus one rule no longer stands? Fifty-five percent, 60%,
65%? Faced with such random guidelines, how are citizens to conduct themselves?
The message that Bill C-20 sends to electors is that votes only count when you
decide to recognize them.
Bill C-20 creates illusions: that the
territory of Quebec would be divisible and that votes may be counted according
to ethnic, linguistic or geographic criteria. This is just plain false.
On the day Quebeckers decide to form a new
country, Bill C-20 will not stand in their way. You are deluding yourselves if
you think otherwise. The Soviet Union tried this in 1991 and the rest is
history. Not only is Bill C-20 unacceptable for Quebec, but it is also
unacceptable for all parties represented in the National Assembly.
The Quebec government does not recognize any
legitimacy on the part of the federal government when it comes to such
interference in Quebeckers’ right to decide for themselves what their future
will be. The National Assembly will adopt the question it wants to adopt. As in
the past, the Quebec people alone will decide what constitutes clarity. The
victorious option will be the one that wins 50% plus one of validly expressed
votes. Who fears Quebeckers’ democratic determination?
I remain firmly convinced that in the wake
of a positive result, voices will resound throughout Canada for respecting
Quebeckers’ decision and the need for negotiations carried out in good faith in
the best interest of all parties.
Claude Ryan: I have always attached the utmost importance to the
defence and promotion of Quebec’s interests, the success of Canadian federalism
and respect for democratic principles. The reason I am before you today is
because Bill C-20 concerns me with regard to those three elements.
From the outset, I must recognize that
preserving unity is a major responsibility of the central power in any federal
system of government. If I express some criticism regarding Bill C-20, it is not
because I deny the federal government any responsibility with regard to the
possible secession of Quebec, but rather because the bill is generally based on
an attitude of distrust and fear which, in my opinion, does not reflect the best
the Canadian spirit has to offer. In the bill, this attitude results in certain
proposals that are highly questionable in light of the federal principle and the
democratic principle and that could poison the relationship between Canada and a
large number of Quebeckers.
As for the requirement for clarity in the
referendum question, clause 1 of the bill seems to go against the federal
principle. Under our system, each level of government is deemed sovereign within
its own jurisdiction. Generally it means that each level of government, as long
as it acts within its own jurisdiction, can be free from interference from the
other level of government.
In the third “whereas” of the bill, the
federal government, in accordance with this principle, recognizes that “the
government of Canada is entitled to consult its population by referendum on any
issue and is entitled to formulate the wording of its referendum question”.
However, it contradicts this statement by including in the bill a clause giving
the Parliament of Canada the power to interfere directly in the referendum
process at a stage where, according to the federal government itself, that
process is under the National Assembly’s jurisdiction.
The authority to determine the clarity of
the question that would be given to the Parliament of Canada would mean it would
obviously interfere with an ongoing referendum campaign. Such interference would
be all the more improper as it might result, even before the vote took place,
even before the people had their say, in a formal order from Parliament to the
federal government not to enter into any negotiations on the result of a
possible referendum, no matter what the result might be.
The bill sets several criteria, two of which
should guide Parliament when determining the clarity of the question. By
enshrining such criteria in an act, Parliament and the federal government would
interfere, at least indirectly, with the wording of the question. This is no
longer true federalism, but a trusteeship system.
From the standpoint of democratic
principles, there is another major problem with clause 1. It could very well be
in fact that a House of Commons’ resolution stating that the question is not
clear enough was approved by a majority of members from outside Quebec, whereas
a majority of members from Quebec would hold the opposite point of view. Thus,
even before the referendum, the federal government would be prohibited by a
majority of members from outside Quebec to enter into any negotiations
whatsoever with the Quebec government the day after a yes vote in a referendum
on sovereignty. Indefensible in terms of democratic principles, the situation
thus created might be untenable in political terms. It might even push Quebec
public opinion in a direction opposite to the one the federal government or
Parliament had intended.
If the National Assembly has the right to consult its population on a
proposal to secede, it must be able to do so free from any constraint or
interference from another parliament. (Claude
Still in political terms, it would be
unrealistic and dangerous for the federal government to have its hands tied by a
resolution from Parliament as to what course of action to follow the day after a
yes vote in a referendum on secession. Indeed, no one can predict with any
certainty what kind of situation would prevail at the time. Instead of having
its hands tied by constraints defined in a totally different context, the
federal government should have enough flexibility to set the proper course of
action in such a situation.
In addition, clause 2 opens the door to a
denial of democracy. It gives Parliament the authority to determine, the day
after a yes vote in a referendum on sovereignty, the validity of the result, and
I see nothing wrong with that. However, the bill goes on to state that
Parliament shall take into account the size of the majority of valid votes cast,
the percentage of eligible voters voting in the referendum, and any other
matters or circumstances it considers to be relevant.
The first criterion is self-evident.
However, the other two might allow Parliament to interpret the result in a
manner that might negate or weaken the scope of a majority result in favour of
secession. Without saying so explicitly in the bill, the federal government
maintains, as we all know, that a majority of 50%-plus-one in favour of
secession would not be sufficient for it to find the result acceptable. This
position per se is not unreasonable. Indeed, there are in Canada many exceptions
to the rule of the arithmetical equality of the vote which are not considered a
breach of democratic principles. For instance, currently the Party Québecois
holds the absolute majority of seats in the National Assembly, but it only got
43% of the votes in the 1998 elections. The division of the electoral map
results too in many distortions with regard to the rule of the arithmetical
equality of the vote. The fact that such distortion does not create any major
rift is due to the existence of a consensus among the population and the major
players to the effect that the practical benefits found in our system of
representation, however imperfect it might be, far outweigh the contradictions
In this case, we are dealing with a
referendum, not an election. If my memory serves me right, the 50% plus one rule
has always been applied to the result of any referendum held until now. In view
of what I have just said, one might rightly argue that it should be changed in
the case of a referendum on secession. However, the Parliament of Canada would
be ill-advised to try to unilaterally impose its point of view on this matter
before a referendum. As long as it is acting within its own jurisdiction, it is
up to the Quebec National Assembly to make such a decision. If one wants to
change this particular rule, action should be taken at this level, either
through negotiation, or through pressure on the public opinion. It would be just
as ill-advised for Parliament and the federal government to take it upon
themselves to change this voting rule unilaterally after a referendum. If it is
reluctant to do it before, it certainly should not do it after, for obvious
reasons: there would be two different sets of rules, at two different stages of
the game, which would be a total contradiction in itself. This is precisely what
this bill intimates.
In conclusion, I wish that any provision
that could lead to the unwarranted interference of the Parliament of Canada in
the referendum process, and the unilateral imposition of a new rule to interpret
the referendum result, be removed from the bill. However, I would find it quite
appropriate for Parliament to demand of the federal government, by law if it so
desires, that, in the event of a yes vote in a referendum on sovereignty, it
promptly convenes a meeting of Members of Parliament, provincial and territorial
premiers and aboriginal leaders to consider the proper course of action.
Finally, I submit that rather than
multiplying confrontations which drive the parties further apart instead of
bringing them closer, and which help create a distorted image of democracy in
Quebec, it would be more constructive for the federal government and Parliament
to take advantage of the relative lull we are currently enjoying to put the
renewal of Canadian federalism back on the agenda in keeping with the many
requests by Quebec and the other partners in the federation.
Patrick Monahan I want to deal with the following issue that has
already been raised by Mr. Ryan and other witnesses: is the principle of Bill
C-20, namely the principle that the House of Commons should pronounce on the
clarity of the question and should also pronounce on the majority obtained in a
referendum, appropriate in a federal society?
Mr. Ryan suggested this was contrary to the
federal principle, because the matter of a referendum in Quebec on sovereignty
is a matter of exclusive provincial jurisdiction, and it is not appropriate for
the federal government to interfere in a matter of provincial jurisdiction;
therefore this bill is a violation of the federal principle.
Let me say if the referendum question in
issue were dealing with a matter in exclusive provincial jurisdiction, I would
100% agree with those comments. That is to say, if the Province of Quebec wishes
to hold a referendum on a matter falling within exclusive provincial
jurisdiction—such as, for example, whether to increase or reduce taxes at the
provincial level in Quebec, or whether to amalgamate certain municipalities or
not in the province of Quebec—then the House of Commons, in my view, has no
business pronouncing on the clarity of such a question. That is a matter for the
Quebec National Assembly to determine.
The question, however, is whether a question
dealing with the secession of a province from Canada deals with a matter within
the exclusive jurisdiction of a province under the Constitution. I would have
thought, that the answer to that is no.
As the Supreme Court of Canada clearly
stated in its decision on the reference regarding the secession of Quebec is
that secession implicates the interests of all Canadians, it implicates the
interests of the Government of Canada, and it implicates the interests of other
provinces, who are equal partners along with Quebec in Confederation. It
implicates the interests of aboriginal peoples, who have constitutionally
protected rights under our Constitution.
Therefore, it is not a matter of exclusive
provincial jurisdiction. It is in fact a matter of interest to Canada as a
whole, as well as to the other provinces, and it is therefore quite appropriate
in those circumstances—and indeed, as the Supreme Court of Canada said, it is
necessary—for the federal political actors, including the House of Commons and
the Government of Canada, to pronounce themselves on issues such as the clarity
of the question and whether a clear majority has been obtained.
Indeed, if you look at the Supreme Court of
Canada judgment, you will see that the Court makes that quite explicit. It says
there is an obligation on political actors and it defines those political actors
as not simply being the Province of Quebec. It talks about the provinces and the
federal government participating in negotiations. It says there is an obligation
on those political actors to decide whether a question is clear and to decide
whether a majority is clear.
The Supreme Court of Canada says that is
something that must be decided at the political level, not at the legal level.
It does not say those are issues for one political actor to determine, namely
the Province of Quebec. It says that is a matter for political actors to
determine, these political actors in Canada as a whole.
Indeed, it seems to me that in his own
remarks todayMr. Ryan in fact confirmed that this is not a matter of exclusive
provincial jurisdiction. He said that after a referendum, it would be
appropriate for the Government of Canada to respond to whether there had been a
clear question and whether there was a clear majority. That can only be because
it is not a matter of exclusive provincial jurisdiction.
Let us go back to the issue about raising or
lowering provincial income taxes in Quebec. The Government of Canada would have
no more business to pronounce on the clarity of the question after a referendum
on provincial income taxes than it did before, because that is a matter of
provincial jurisdiction. So the argument that was raised earlier, it seems to me
confirms the opposite of the proposition he put forward, which is that it is not
a matter of exclusive provincial jurisdiction; it is a matter of interest to
Canada as a whole.
What, then, of this argument that although
it is appropriate for the House of Commons to pronounce on a question and to
pronounce on the majority, this should only happen after the fact rather than
before? It seems to me that this again does not withstand scrutiny.
First of all, if the House of Commons as a
political actor and if the Government of Canada as a political actor have the
right to make a determination independently as to the clarity of a question and
the clarity of a majority, then surely they also have the discretion to
determine when they are going to make that determination. The determination of
whether it’s in advance of the referendum or after is something for the
Government of Canada to determine in its discretion and for the House of Commons
to determine in its discretion. As the court said, it is an independent judgment
to be exercised.
In other words, once you acknowledge that
there is an independent discretion to be exercised, then the decision as to the
timing of that discretion—that is to say the timing of when the House of Commons
would pronounce—is a matter for the House of Commons to determine and not
exclusively after the fact.
Finally, it seems to me that it is entirely
appropriate for the House of Commons to make this pronouncement, because this
permits the opposition parties, as well as other members of the House, to
participate in a debate on the clarity of the question. It is not a matter to be
determined solely by the government in the secrecy of the cabinet room. There’s
a debate required in Parliament on the clarity of the question, just as there
will be debate in the Quebec National Assembly on the clarity of the question
and a pronouncement made in the Quebec National Assembly on that issue.
Again, we do not need to wait until after
the referendum has been held to make a determination as to the clarity of that
question, because the wording of the question will be known. Indeed, as happened
in both 1980 and 1995, the view expressed by the opposition party in the Quebec
National Assembly was that the question was not clear.
It seems to me that this bill is entirely consistent with the federal
principle. It is a good-faith attempt, in my view, to give expression to the
judgment of the Supreme Court of Canada. (Patrick
I think the bill is an appropriate bill,
and indeed a necessary one. I would simply say that I believe it enhances
democracy to have a pronouncement in advance of a referendum on the clarity of a
question and not to wait until after the fact.
In other words, if the Prime Minister and
the government and the members of the House of Commons have a view before a
referendum as to whether the question is clear, surely democracy suggests that
this view should be communicated to the electors in Quebec, who will have an
opportunity, therefore, to have in advance of the referendum an understanding of
the views of other participants in Canada on this important issue.
Gordon Gibson: I begin with the presumption that this bill is
well-intentioned, intended to be for the advantage of Canada and on the surface
it is unobjectionable and even marginally helpful. It is also unquestionably
popular in the Rest of Canada and therefore very difficult for politicians from
the Rest of Canada to oppose.
But on closer examination, and as with most
things constitutional, I believe that this bill, if passed, will provide a
classic example of the law of unintended consequences, most of them negative.
Specifically, in my view, this bill is unnecessary, will be ineffective in the
real world, increases dangers of miscalculation by Quebec voters, stands as an
excuse for failure to take genuinely constructive action on the unity file, is
polarizing, and, for the first time, provides for separation of a province in
law with dangerous potential consequences. In consequence, and after arguing
the above case, my advice is simply to declare this a useful debate and let the
First, the bill is unnecessary. It adds
nothing useful to the Supreme Court decision, and it clearly adds nothing to the
existing powers of Parliament.
Second, the bill will be ineffective in the
real world. I ask you to imagine that this bill had been law at the time of the
referendum in 1995. Imagine that the referendum has passed by 50% plus 1 and you
are Paul Martin telling a New York banker on the phone at midnight, when the
votes are counted, that there is no problem, we have a Clarity Act.
Imagine the politely stifled giggle at the other end and the cry of “sell the
loonie!” as the phone is hung up. In other words, 50% plus 1 is important, no
matter what this bill says.
Third, the Act increases the dangers of
miscalculation by Quebec voters. I have argued to you that 50% plus 1 on any
sovereignty-tinged motion is an item that is important and that changes the
world. Ask yourself about the strike-vote scenario. This bill will make it
easier for the average Quebec voter to say never mind, the federal government
will make sure as a result of the Clarity Act that nothing happens, so I
can afford to support my negotiators by giving them a strike vote. And yet, I
argue that at 50% plus 1 the black hole opens, and it is more likely to open
with the comfort of Bill C-20.
Fourth, the bill stands as an excuse for
failure to take genuinely constructive action on a renewed federation. Several
witnesses before this committee have deplored the lack of a plan A (reform of
the federation). Every poll for a generation has shown that this is what
two-thirds of Quebeckers want, and I have to ask, why cannot Quebeckers – and
British Columbians, for that matter – hear some dialogue on plan A? The
intransigent stand of Ottawa on plan A is boxing in the Liberal Party of Quebec,
and it is boxing in federalist nationalists. It is even boxing in some of those
sovereigntists who would just as soon see a renewed federation. Why does this
kind of dialogue have to wait. Why cannot it be brought forward from this
Fifth, the bill is polarizing, in two ways.
It is polarising the Rest of Canada versus Quebec and it is polarizing inside
Quebec, with the plan B folks versus the sovereigntist folks. Both
polarization’s, in my view, harm Canada.
I would like to define polarization, because
in British Columbia we have had polarized politics since 1933 with so-called
free enterprise versus so-called socialism. In this kind of atmosphere, the
middle ground is frozen out, moderate options are denied, and as the sides
change from one extreme to another, you get a serious and recurring policy
lurch, which is not a good way to run a government. There’s a concentration on
win-lose, not on win-win.
When one side gets in, the argument goes
something like this. There was what we called The Coalition in British Columbia
during the 1940s. The coalition was the Liberals and the Conservatives. They
became extremely arrogant as a political party. They were set up to keep the NDP
out and they won by massive margins. My old boss, Art Lang, with whom I first
came to Ottawa, used to tell this story. There was a Coalition minister who
would get up on the stage during election campaigns and say, “The issue is
simple. You will have us or you will have worse.” That’s what you get in
polarised politics. Does that sound like “You will have plan B or you’ll have
worse”? I think it does.
So once again, the middle ground, which is
co-operation, gets frozen out. Inside Quebec, the polarisation is plan B versus
sovereignty. It is a dilemma for federalists. I have visited Quebec three times,
at some length, since this bill was introduced. The federalists do not dare
propose constructive change in the federation for fear of rejection and
therefore a loss of credibility. It is a dilemma for sovereigntist nationalists
who do not dare relinquish the only real lever they have and it’s a dilemma for
both in the sense of not daring to co-operate.
I hope that all of this friction is what I
call an unintended consequence, because any measure that unnecessarily sets one
Canadian against another is bad, and that surely can’t be intended – but the
above polarization is a real and observable phenomenon already.
My final point is that the bill, for the
first time, provides for secession in the law of Canada, with dangerous
potential consequences. What is lawful becomes respectable. During my lifetime,
the following were all illegal: abortion, gambling, homosexuality, and Sunday
movies. The first three were not only illegal, they were seriously frowned upon.
All were legalised. All became mainstream and respectable.
Was the law to some extent following
society? Yes. But did change in the law accelerate the trend to respectability?
Without doubt. And Bill C-20, I say, will help to make notions of secession
respectable outside Quebec.
British Columbia has a small secessionist
movement. At last polling, about 15% thought the province should consider the
secessionist option. This is consistent with 130 years of British Columbia
history. The Nova Scotia legislature did vote once for secession. The British
Columbia legislature did so twice.
British Columbians love Canada, but they
don’t like Ottawa. On virtually every file where the national capital is
involved it is considered part of the problem, not part of the solution. Ottawa
only does four important things in British Columbia. First, Ottawa extracts
about $20.5 billion annually and sends about $16 billion back, including paying
our share of the military and embassies and so on. This is a net loss of about
4% of our GDP from a province whose GDP per capita has fallen to only 95% of the
Canadian average. We are no longer a have province.
Bill C-20 adds nothing useful to Canada. On the other side of the
ledger, it gives some a false sense of security. It polarizes and thereby
poisons the civil dialogue. It sets free unpredictable forces outside of Quebec
that may return to haunt us. This is a bill best forgotten. (Gordon
Financials aside, Ottawa operates three
major programs in British Columbia: aboriginal, fishery, and immigration. All
are disasters. And of course, under our current parliamentary structure, British
Columbia has virtually no clout in Ottawa as long as we are fractious enough to
elect opposition members. Now, notwithstanding our view of Ottawa, British
Columbians love Canada, but those ties, I suggest to you, are ties of sentiment
and inertia, not practicality. British Columbia could afford independence far
more easily than could Quebec. The Clarity Act will apply as much to
British Columbia as to Quebec, but in British Columbia clarity as to wording
would be no issue.
Bill C-20 adds nothing to Canada, not even
in remote theory, but it subtracts something. It makes separation lawful and
therefore puts it on the road to respectability. When you pass this bill, as I
assume you will do, you set a time bomb ticking on Canada’s west coast that we
will all have to try to control – but why do you want to start the clock on the
respectability of separation?