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Bob Biter · 04-19-2005, 04:49 PM

Based on the thoughts and opinions of other members posting on the Canada Board, I've decided to start a thread on Quebec politics, and chose to include "separatism" in the title, since I will begin with this issue.

I'd like to say that my initial comment in the "Questions for Canadians" thread, which said that "Chretien passed a law indicating that a 75% majority would be needed in order for a "yes" vote for separation to be considered" was wrong. I was not stating fact, but rather second-hand information, and for this I apoligize. However, after googling for any details about such a law, I did find information on the Clarity Act (based on Bill C-20), passed in 2000 by the Senate:

http://www.canadianlawsite.com/clarity-act.htm

Quote:

Clarity Act
Ottawa Spells out Rules of Separation

The Clarity Act became law in June, 2000.

On December 13, 1999, the clarity bill (C-20) was tabled for first reading in the House of Commons.
It was passed by the House on March 15, 2000,
and by the Senate, in its final version, on June 29, 2000.

Background on the Clarity Act

This legislation was designed to give effect to the opinion in the
Quebec Secession Reference rendered by the Supreme Court of Canada on August 20, 1998.

On September 30, 1996, the Attorney General of Canada referred three questions pertaining to Quebec secession to the Supreme Court of Canada.
Under the Constitution of Canada, can the National Assembly, legislature, or government of Quebec effect the secession of Quebec from Canada unilaterally?

Does international law give the National Assembly, legislature, or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

In the event of a conflict between domestic and international law on the right of the National Assembly, legislature, or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

On August 20, 1998, the Supreme Court answered these questions by issuing an opinion. The Supreme Court of Canada concluded that the National Assembly, legislature or government of Quebec do not have, either under Canadian law or international law, the right to effect the secession of Quebec from Canada unilaterally. However, the court also emphasized that the rest of Canada would have a political obligation to negotiate Quebec's separation if a clear majority of that province's population voted in favour of it.

Jean Chretien Most Proud of Clarity Act.

In a June, 2003 interview with La Presse Jean Chretien said that the Clarity Act is one of the things in his political career of which he is most proud.

Text of the Clarity Act

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

[Assented to 29th June, 2000]

Preamble
WHEREAS the Supreme Court of Canada has confirmed that there is no right, under international law or under the Constitution of Canada, for the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally;

WHEREAS any proposal relating to the break-up of a democratic state is a matter of the utmost gravity and is of fundamental importance to all of its citizens;

WHEREAS the government of any province of Canada is entitled to consult its population by referendum on any issue and is entitled to formulate the wording of its referendum question;

WHEREAS the Supreme Court of Canada has determined that the result of a referendum on the secession of a province from Canada must be free of ambiguity both in terms of the question asked and in terms of the support it achieves if that result is to be taken as an expression of the democratic will that would give rise to an obligation to enter into negotiations that might lead to secession;

WHEREAS the Supreme Court of Canada has stated that democracy means more than simple majority rule, that a clear majority in favour of secession would be required to create an obligation to negotiate secession, and that a qualitative evaluation is required to determine whether a clear majority in favour of secession exists in the circumstances;

WHEREAS the Supreme Court of Canada has confirmed that, in Canada, the secession of a province, to be lawful, would require an amendment to the Constitution of Canada, that such an amendment would perforce require negotiations in relation to secession involving at least the governments of all of the provinces and the Government of Canada, and that those negotiations would be governed by the principles of federalism, democracy, constitutionalism and the rule of law, and the protection of minorities;

WHEREAS, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority in a referendum held in a province on secession, the House of Commons, as the only political institution elected to represent all Canadians, has an important role in identifying what constitutes a clear question and a clear majority sufficient for the Government of Canada to enter into negotiations in relation to the secession of a province from Canada;

AND WHEREAS it is incumbent on the Government of Canada not to enter into negotiations that might lead to the secession of a province from Canada, and that could consequently entail the termination of citizenship and other rights that Canadian citizens resident in the province enjoy as full participants in Canada, unless the population of that province has clearly expressed its democratic will that the province secede from Canada;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

House of Commons to consider question
1. (1) The House of Commons shall, within thirty days after the government of a province tables in its legislative assembly or otherwise officially releases the question that it intends to submit to its voters in a referendum relating to the proposed secession of the province from Canada, consider the question and, by resolution, set out its determination on whether the question is clear.

Extension of time
(2) Where the thirty days referred to in subsection (1) occur, in whole or in part, during a general election of members to serve in the House of Commons, the thirty days shall be extended by an additional forty days.

Considerations
(3) In considering the clarity of a referendum question, the House of Commons shall consider whether the question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state.

Where no clear expression of will
(4) For the purpose of subsection (3), a clear expression of the will of the population of a province that the province cease to be part of Canada could not result from

(a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that province on whether the province should cease to be part of Canada; or

(b) a referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada.

Other views to be considered
(5) In considering the clarity of a referendum question, the House of Commons shall take into account the views of all political parties represented in the legislative assembly of the province whose government is proposing the referendum on secession, any formal statements or resolutions by the government or legislative assembly of any province or territory of Canada, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of Canada, especially those in the province whose government is proposing the referendum on secession, and any other views it considers to be relevant.

No negotiations if question not clear
(6) The Government of Canada shall not enter into negotiations on the terms on which a province might cease to be part of Canada if the House of Commons determines, pursuant to this section, that a referendum question is not clear and, for that reason, would not result in a clear expression of the will of the population of that province on whether the province should cease to be part of Canada.

House of Commons to consider whether there is a clear will to secede
2. (1) Where the government of a province, following a referendum relating to the secession of the province from Canada, seeks to enter into negotiations on the terms on which that province might cease to be part of Canada, the House of Commons shall, except where it has determined pursuant to section 1 that a referendum question is not clear, consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada.

Factors for House of Commons to take into account
(2) In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account

(a) the size of the majority of valid votes cast in favour of the secessionist option;

(b) the percentage of eligible voters voting in the referendum; and

(c) any other matters or circumstances it considers to be relevant.

Other views to be considered
(3) In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account the views of all political parties represented in the legislative assembly of the province whose government proposed the referendum on secession, any formal statements or resolutions by the government or legislative assembly of any province or territory of Canada, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of Canada, especially those in the province whose government proposed the referendum on secession, and any other views it considers to be relevant.

Constitutional amendments
3. (1) It is recognized that there is no right under the Constitution of Canada to effect the secession of a province from Canada unilaterally and that, therefore, an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces and the Government of Canada.

Limitation
(2) No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in its negotiations, the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights.

After reading this, I realised that my "75%" figure might not be totally out of place. One would think a certain percentage would be set to indicate 'a clear will', but the Clarity Act mentions no such thing. Basically, the Act is saying that it is illegal for Quebec to secede on its own accord; that the rest of Canada would have to "allow" it to go. After further searching, I found the following about Bill C-20, from a separatist's point of view:

Quote:

Brief of Jean-François Lisée

At the Legislative committee of the House of Commons examining
bill C-20 on Québec’s secession referendum
Tuesday February 22, 2000

Mr President, Members of Parliament,

I have chosen today to speak primarily to the MPs from the other Canadian provinces, who have come here in good faith, who are practitioners of democracy. They, and their constituents, have been led to believe that this bill is democratic in the sense that it would clarify the rules of democracy for one of the most difficult experiences that a democratic country can undergo: the decision by one of its parts to seek independence.

Now, obviously I am in favour of Quebec independence. And because of that, some of you may decide to disregard each and every point I will try to make before you. I cannot help this. But let me say that whatever you may think of the sovereignist cause, its arguments, strategy or tactics, the fact remains that they have all revolved around the notion that this objective of ours can only be achieved through democratic means. So it is as a "small d" democrat that I want to talk to you today.

Bill C-20 is extremely deceitful to you, members of this Parliament. It purports to recognise Quebeckers’ right to secede from Canada - and so it appears to be forward-looking - but then it sets a number of traps which render that right simply unachievable.

Let me simply walk you through three of the many steps in the process that you are asked to approve and defend.

First, the question:
If this bill becomes law, you will be legally forbidden to even consider the results of a Yes vote from Quebec of any magnitude (51%, 66%, 75%, even 99%) if that Yes is given to one of two options that the National Assembly would have decided to put on the ballot or if the question leads, in one sweep, to two results (independence and an offer of any kind of new relationship with Canada). You would also be forbidden to consider such a Yes if the question includes a mandate to negotiate what it proposes to achieve, or even mentions the notion of some new accommodation between a sovereign Quebec and its neighbour Canada.

So this bill tells Quebeckers that if they wish to propose to their neighbours an agreement of the kind that exist between European nations, this House won't even listen to them. It says that if Quebeckers vote on secession but state clearly that they want to negotiate its terms - which is what we understood the Supreme Court has told us to do - this Parliament will turn its back. And if Quebeckers are asked to choose between, say, secession and the current constitutional order, then whatever their vote, whatever the majority, you will be forbidden to discuss the result or to act on it.

In fact, if this law had been inforced in 1980 or 1995, and if the Yes had garnered 99% of the vote, it would have been illegal for the Canadian parliament to consider the result. Obviously, the law would then have been amended. Which proves it is a bad law.

Now, aside from the fact that this attitude is rather close-minded towards Canada’s most important minority and its attempt to redefine its relationship with the rest of the country, it actually contradicts recent Canadian history and current Canadian foreign policy.

Fifty years ago Newfoundland came into Canada following a referendum that presented two options, and 52% of Newfoundlanders chose the Canadian option. Now you might say that merging with a country and seceding from a country are two entirely different things. Canada’s Supreme court doesn’t think so. It thinks coming in and getting out have the same weight in a people’s history. In paragraph 126 of its ruling, the Court quotes approvingly the United Nations’ Declaration on Friendly Relations which states that "[t]he establishment of a sovereign and independent State, the free association or integration with an independent State (..) constitute modes of implementing the right of self-determination by that people." Newfoundland was not, in 1949, an oppressed colony, as Quebec is not in 2000. So their situation is entirely similar, according to the logic of UN and of the highest court in the land.

Let’s leave legal arguments aside and simply ask this question: do you think that a referendum whose aim would be to merge your country, Canada, with the United States would be any less momentous a decision than a referendum to let Quebec go? Should it be any easier or any tougher ?

According to the Chretien’s government logic, to merge Canada into the US, 50% plus one would suffice. It was enough for Newfoundland, whose 52% vote, on a two-option question, was deemed by prime minister Mackenzie King to be "a clear and unambiguous majority". And so it was.

But if this great debate of Joey Smallwood's were to take place today, with a legislation similar to that which you are being asked to approve, you would be legally bound to turn a deaf ear to Newfoundlander’s wish to become Canadians.

During the past decade and even as we speak, the United Nations has been organising referendums on independence in three provinces: Eritrea, East Timor and, this year, Western Sahara.

In the two last cases, the UN-organised referendums put two options squarely on the ballot. There is not a shred of evidence that Canada’s very able diplomats at the UN, including at the Security council where these things are debated, voiced any objection to the two option proposals. If they did, they were rebuffed.

And we are now in a situation where members of our armed forces have been put in harm’s way in East Timor to defend a democratic decision which, had it been taken on Canadian soil, by Canadian citizens, would be deemed illegal under this bill. This situation could be repeated in Western Sahara later this year. Canadian observers had also been dispatched in East Timor to help a process that rendered any notion of partition of the new province explicitly impossible: the UN brought all the ballot boxes in the capital, made one giant tally, purposely refused to publish local results, for the sole purpose of forestalling any attempt at partition of the seceding province. The US, with the help of Canada, is there consistent with recent and current international practice. The only instances where the international community accepted partition in recent history was when brutes imposed it in blood. But in Canada today, the Canadian government is, on the record, in favour of partition and framed bill C-20 accordingly. The official opposition is also on the record in favour of partition, which makes the Canadian parliament a shameful loner in international law and practices, and in contradiction with its own international practices.

Two options and a rejection of partition. Fine and worth dying for at the UN. Illegal in this chamber and in this country.

Canada also had no problem recognising votes taken in Croatia and Macedonia in the nineties asking, in a single question, for both independence and some form of alliance with neighbouring states - just what the Quebec government advocates. It’s OK for the Balkans, it’s forbidden in Canada.

Second, the answer:
Now the bill is clear on one point: Canadian MPs will be allowed to open their ears - and minds - if Quebeckers vote on a question that states clearly that a yes would mean that Quebec actually leaves the Canadian federation and becomes an independent state.

So that should settle it. If that is the question, and if a majority of Quebeckers say yes, then they said yes to leaving Canada and becoming an independent state.

Why is it then, that in a later section, the bill says that if this occurs, this House should examine whether or not a clear majority of Quebeckers has said that it "wants" Quebec to leave Canada. Why is there room for interpretation ? Either this parliament believes 50% plus one is the rule, or it doesn’t. If it doesn’t, then it should have the courage to set another bar and live with the consequences in Québec and in the world.

But that's not the factor at play here. What's at play is not the notion of what a clear numerical majority is. The factor at play in this bill in much more troubling.

The key word in the bill is "want", in French, the word "veut". After a 50% plus something vote, members of this parliament will be asked to judge whether or not Quebeckers "meant" their vote. You see, some members of the Canadian government believe that Quebeckers are very tricky people indeed. Quebec voters could go to the ballot box, vote Yes to a crystal clear question on secession and on leaving Canada, but still "want" this vote to act as a catalyst for making changes inside the federation. They are willing to risk separation in the hope that it will lead to a new deal within Canada. That’s what pollsters call "strategic voting".

A lot of federal tax dollars have been spent examining this phenomenon. We also know that, in Quebec, of those who vote No to independence, one in five hope and want Quebec to become independent one day - but not this year, or not with this premier, or not given the state of the economy. Very few tax dollars have been spent polling these rather embarrassing No voters.

Yet this is the kind of personal rationale that voters have the right to hold, in the privacy of the polling booth, in any important election, referendum or in polls. What is new with bill C-20 is that a democratic western government tables a bill that will enable it to second-guess the electorate. It there is a majority of Yes, you will be asked to get inside the minds of Quebeckers, to conclude that they didn’t mean it -- however clear the question and the majority.

And this will be the basis of rejecting a Yes vote of 50 plus one, or 55, or maybe even 60% -- if pollsters tell you, as they probably will, that 10% of the Yes vote is strategic voting.

This is simply the first Big Brother legislation in the history of democracy. Pierre Trudeau spent a lot of energy getting this Parliament out of Canada’s bedrooms. But his successors want you to get into Quebeckers’ minds. I say: don’t do it. Don't go there. It is not only anti democratic and unheard of, it would make this Parliament an object of denunciation and ridicule in democratic circles around the world.

Not even the Soviet Union, in its own legislation trying to forestall the independence of its provinces, tried this ploy. It had set a difficult bar: 66%, and stuck to it. It was disregarded by history. What you are being asked to do is much worse: you, who have a very deep commitment to the unity of this country, are being asked to let the vote take place and then to state whether or not the result seems sufficient, to render an arbitrary judgement that would have the effect of approving the very thing you've fought all your life to avoid : the division of Canada. You would be put in an impossible position.

Thinking this through, a hockey metaphor came to mind: it is as though in a game for the Stanley Cup between Boston and Toronto, the Bruins’ captain was not only named referee, but was the one who decided, after the fact, whether Toronto’s goals were valid. Imagine the conflict of interest. The pressure from team mates, from the fans. But that comes nowhere near what you would be asked to do.

The democrats among you who would be principled enough to want to respect the decision of a majority of Quebeckers, however much you disapprove of it, would in this devious contraption be exposed to political and constituent pressure to use your arbitrary power to deny that a 52%, 56%, 62% Quebec vote is sufficient for self-determination. There will be political opponents in your ridings, editorials in the National Post, demonstrations by Alliance Quebec urging you on to step on principle and to uphold this country’s indivisibility, whatever the results of the vote. This bill is thus an enemy of ethics and good government. It is a democrats’ nightmare.

50% plus one. Canada’s foreign policy has approved this explicit rule and has helped implement it in the last two referendums organized by the UN and in the one about to take place in the Sahara. Why is this rule good enough abroad but not good enough for Quebeckers?

Third: implementing the agreement
Now let us say that we have gone through all these hoops unscathed - and time is too short to discuss them all in this presentation. I will be glad to touch on others during the question period.

Let's say there was a clear question, a clear answer, let's say negotiations took place, an agreement was reached and signed in principle by representatives of all the negotiators including, of course Quebec, and the Canadian government.

What does the bill say at this point: it sets a final and fatal hurdle. According to the bill, the agreement cannot be implemented without an amendment to the constitution of Canada. Let’s call it the "Quebec secession amendment". The bill makes no special provision for such a momentous event, so it legally refers to the current law of the land, to the current mode of amending the constitution.

It may have come to your attention that, in 1990, this mode enabled Mr Clyde Wells and Mr Elijah Harper to, in effect, derail the amendments that would have implemented another signed deal, the Meech Lake accord. This accord was highly significant, but much less so - I’m sure you will agree - than our "Quebec secession amendment" would be.

And since then, the process has been further complicated by the fact that in Ontario, Alberta and British Columbia, the legislatures are forbidden to vote on such amendments without having first gotten the blessing of their voters through their own referendums.

Which means that in these three provinces at least, there will be a referendum campaign on the "Quebec secession amendment". There will be a Yes side. There will be a No side.

So if the Canadian government, with the support of this House, has negotiated, signed a deal and adopted in principle the secession amendment, how many of you will campaign for the Yes side in Kelowna, Edmonton and Missassauga ? Let’s have a show of hands!

How many ? Anyone? Seems to me there won’t be anyone on the Yes side. I don’t blame you. That’s called self preservation, an important attitude in politics.

On the face of it, this proposal is nonsensical. Again, the Soviet Union’s referendum law gave its central parliament a veto power over the provinces' wish to become independent, as this bill does. And history disregarded it. But Mikael Gorbatchev was wise enough not to devise a process as blatantly inapplicable as this one.

I am happy to report that sanity does exist in the Canadian government. Justice minister Anne McLellan, in a famous interview given to the Toronto Star on the eve of the Supreme court’s hearings on the question, stated the obvious: If Quebec were to clearly say yes to independence, she explained, quote "one would be faced with an extraordinary set of circumstances not comprehended, in our opinion, within the existing constitutional framework", she said. "One would probably acknowledge the extraordinary nature (of the event) and determine what process would be pursued at that point", she added. Unquote

This is just simple common sense. She has never been allowed to repeat it since. Obviously, she lost the battle to get her idea into the bill. This fact bears repeating: the fingerprints of Canada’s Justice minister are not on this crucial section of this bill.

For good reason. This is not a common sense bill. This is a bill that, under the guise of recognising a right to secession, essentially hinders that right irreparably. It does more. It makes a mockery of one of Canada’s greatest assets: its reputation as a beacon of democracy. It tries to fool you, members of Parliament, into putting yourselves in untenable positions.

It is drawing on your patriotism and your willingness to fight the next referendum battle on a level playing field, but then it twists those virtues and, in a kind of bait and switch manoeuvre, tries to get you to basically - I’m very sorry to say it - to dishonour this democratic assembly and put your personal ethics and principles at very great risk.

I know that some of you will want to amend this bill to edge it closer to what a democrat could live with. That would be a gigantic task. The whole thing was conceived, not only in clear contradiction of many of the Supreme court’s recommendations, but in fact in order to do the job that the Court refused to do, meaning make it impossible for Quebec to become sovereign. In this process, the integrity of MPs is viewed by the framers of this bill as just so much collateral damage.

Thank you

Now, while I'm personally against separation, I found that Mr. Lisee's presentation raised some valid points, especially concerning the role other provinces would play in Quebec's decision to separate. I believe that a clear percentage should be set and respected. Even if it were high (80% and up) I would expect Canada to step aside and let Quebec go if the required amount of voters was met. Of course, the new nation would have to pay its share of the national debt, but then no more money would be sent to Quebec to support its 'distinct' status, which I believe would please the rest of Canada a great deal.

So, what do you think? Do you believe Canada should let Quebec go after a "yes" victory based on a fixed percentage? If so, what percentage would you deem appropriate? Should the rest of Canada vote on amendments or otherwise decide whether or not Quebecers really meant to separate, no matter what percentage the "yes" side achieved?