A brief concerning Bill C-20
I propose to contribute to the discussion of Quebecs Bill 99 1 by providing a critique of Canadas Bill C-20 2 in the context of the Supreme Courts opinion 3. I shall concentrate my attention first and foremost on the major discrepancies that exist between the federal bill and the Judgment of the Supreme Court. In doing so, I provide an argument in favour of enacting the Bill tabled by the government of Quebec in the National Assembly. 4
Before going any further, however, I should like to explain at this point the use that I intend to make of the Judgment of the Supreme Court. I have said that in this brief it is a question of determining the discrepancy that exists between Bill C-20 and the Judgment of the Supreme Court. However, I should point out at the outset of my brief that I shall not attempt to consider the manner in which Quebec could comply in any way whatsoever with that Judgment. Quebec does not have any obligation to comply with the judgments of the Supreme Court that relate to the constitutional system established in 1982 because Quebec does not recognize the legitimacy of the constitutional system that the federal government and the other nine provinces imposed on this country in that year. Quebecs signature cannot be found at the bottom of the document that is supposed to set out the fundamental law of the country. However, the rest of Canada is legally bound by the constitutional system that it imposed on Quebec. As a result, it is also morally bound by the judgments that might be rendered by the Supreme Court on the subject even though the Judgment itself is not an executory judgments. That is the reason why it is important to pay particular attention to the discrepancies that exist between the bill tabled in Parliament and the Judgment of the Supreme Court.
The discrepancies noted provide an indirect justification for the approach taken by Quebec. In the face of the unilateral action taken by the federal government in appropriating to itself the statements of the nine judges as it distorted them, it is important that we respond by passing a bill that would make it possible for Quebec to assert its collective rights.
Since I expect to make liberal use of the document produced by the Supreme Court (which I shall refer to hereinafter as the Judgment), I should also like to explain at the very outset that I view this document as being a political document and that it will have to be interpreted in that light. Without getting lost in considerations that could well take me too far away from my central thesis, I should like to explain myself so that no one will view my intervention as an implied recognition of the authority of the Supreme Court with respect to the interpretation of the constitutional system of 1982. Quebec does not recognize the constitutional system of 1982 as having any legitimacy.
1. First of all, although its views are first and foremost legal in nature, the document is at its very deepest core a political statement the specific purpose of which was to restore the legitimacy of the Court by once again giving it the status of an impartial adjudicator that is above and distant from the fray. The relative neutrality of the document does not prove that the Court is impartial. On the contrary; in the political context of 1998, in fact, its very neutrality is indicative of a political desire to find a certain legitimacy again that would restore its authority, particularly with respect to Quebec. It needs to be noted, in fact, that the Judgment was produced in the context of the period following the referendum of 1995, in which the sovereigntists had obtained the support of 49.4 per cent of the provinces population.
2. The document issued by the nine judges is also a political document because of the way in which the judges were able to answer the first question in the way that the federal government hoped they would. Can Quebec unilaterally declare itself sovereign on the basis of the Canadian constitutional system? In one sense, the actual text of the Judgment describes in detail how it is possible to provide an affirmative answer to this question since Quebec could, at the conclusion of fruitless negotiations in which the federal government and the provinces displayed their bad faith, declare its sovereignty without the consent of Canada, and in this way succeed in attaining the status of a sovereign state. This was the detailed answer given by the Court even though officially its answer to the first question was in the negative. It answered No, Quebec may not unilaterally declare itself sovereign in the context of the Canadian constitutional system. How does the Court succeed in this feat of legerdemain? It does so by opting to interpret the expression unilaterally a posteriori as meaning without prior negotiations with the other provinces and with the federal government and not, as would normally have been the case, as meaning without the consent of the other party (par. 86).
This unusual reading is all the more surprising when it is realized that it does not in any way reflect the objectives of the Parti Québécois. Bill No. 1 5 referred to negotiations that could continue for a whole year. In fact, the sovereigntists have always referred to their desire to negotiate and they have certainly also considered the possibility of quickly having to break off the negotiations in the event that they encounter a refusal to negotiate on the part of the federal government, but the desire to negotiate the conditions of Quebecs attainment of sovereignty have clearly been expressed.
Furthermore, counsel for the federal government never suggested that the sovereigntists did not have any intention to negotiate. The submissions of Maître Yves Fortier for the Attorney General of Canada leave no room for doubt in this regard.
In short, the Court had no reason to assume that this was the meaning of the question that it had been asked. However, assuming that it had wanted to know more about the interpretation to be given to the adjective unilateral, it could have put the question directly to counsel for the federal government and have asked them whether the expression unilateral was to be understood as meaning without prior negotiations but it did not do so. If it chose to apply an unusual interpretation of the expression unilateral, it no doubt did so in order to be able to answer the question in the manner in which the federal government hoped it would be answered. According to the Court, Quebec may not declare itself sovereign in accordance with the Canadian constitutional system without prior negotiations. In answering this question as it did, it gave the impression that it was answering in the way the federal government wanted but in fact it was giving an obvious answer to an obvious question since the sovereigntists have always admitted that they had a moral duty to negotiate the conditions for the provinces attainment of sovereignty, in particular by negotiating the division of assets and liabilities and by negotiating an offer of political and economic partnership. In addition, they constantly came up against federal opponents who openly announced their intention not to negotiate, contradicting sovereigntists statements that there was indeed an obligation to do so.
So we found ourselves in a paradoxical situation: the federal mandarins brandished the answer to the first question as if to teach sovereigntists a lesson, whereas the real lesson in the Judgment was the real obligation to negotiate that the federal government had always refused to admit.
From the point of view of the sovereigntists, the truly surprising thing will be their realization that the Court recognized that Quebec could under certain circumstances proceed to make a unilateral declaration (in the usual sense of the term) while complying with the fundamental principles underlying the Canadian constitutional system. In fact, all the sovereigntists had predicted a negative answer to the first question and it goes without saying that the federal government was also taking a negative answer for granted. However, the Court came down on the side of a willingness to accept the legitimacy of Quebecs attainment of sovereignty following a display of intransigence by the other members of Confederation. It recognized that in such a situation Quebec could declare itself sovereign unilaterally and succeed in obtaining the support of the international community. This detailed argument was noted at once by the government of Quebec and the premier of the province, Lucien Bouchard, succeeded in making this abundantly clear on the occasion of a major televised speech only a few hours after the Judgment was issued and what he said has not been refuted since that time.
However, it is necessary to recognize the political nature of the unusual interpretation put forward by the Court of the expression unilateral. This ruse must not be consigned to oblivion. To the best of my knowledge, the restrictive and surprising nature of this definition proposed by the Court has been pointed out only by Jacques Parizeau. 6 The reason why this unusual approach taken by the Court received little comment was perhaps the fact that it was in the interests of both sides to keep silent on the subject. Above all, the sovereigntists wished to stress the real and detailed message of the Judgment since that was in their favour. The federalists, on the other hand, wanted above all to hide the reductive use of the expression in order not to undermine their own case because the official answer set out by the Court appeared to take their side.
3. I have not touched upon all the political aspects of the document. I could refer to the use made by the judges of the four principles underlying the constitutional system (par. 49-82). These principles were relied upon in order to limit the process of attaining sovereignty (par. 83-105) and the Court remained neutral on the possibility of using the amending formula (par. 84 and 105) provided for under the 1982 constitutional order. If the judges did not explicitly wish to impose the amending formula set out in the Constitution, this was no doubt the case because this was a rule that had been imposed on Quebec. An explosive situation would have been created if the Court had forced Quebec to submit to an amending formula that had been imposed upon it without its consent. The nine judges accordingly attempted to overcome this problem by relying on the principles underlying the constitutional system. Here again we are looking at a political ruse. It was a question of providing yardsticks for the process of attaining sovereignty without relying on the provisions whose legitimacy had been judged to be somewhat problematic.
4. The nine judges felt that a constitutional change such as the secession of a province required the existence of two majorities, one in Canada and the other in the province in question. The Court wrote: The negotiation process precipitated by a decision of a clear majority of the population of Quebec on a clear question to pursue secession would require the reconciliation of various rights and obligations by the representatives of two legitimate majorities, namely, the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be. There can be no suggestion that either of these majorities "trumps" the other.(par. 93, see also 152) Some people might be tempted to see in this view the implicit recognition of the Canadian duality. However, it seems clear that this double majority would apply just as clearly to any other province in the same situation. Furthermore, and this is even more serious, the Court discovered the importance of the need to admit the principle of the double majority in the political context of Quebecs attainment of sovereignty. However, the Court does not appear to have considered it appropriate to defend this principle when the Constitution was patriated in 1982.
5. The Court denounced the principle of effectivity (par. 106-108 and 140-146) but failed to talk about it in the context of a unilateral declaration that would have followed a display of intransigence by the federal government or the provinces. An attempt to provide effective control of the territory, according to the Court, can lead to the attainment of sovereignty and to the recognition of the province in question by the international community but this does not necessarily make the process of which we are speaking legal (par. 144). The Court compares this to the situation of a squatter who might eventually succeed in earning the right to remain in the dwelling that he or she is occupying. However, this does not make the act of the squatter any less illegal (par. 146). In the same way, the judges maintained that the effective control of the territory can lead to its international recognition as a sovereign state. However, this does not make the action taken any less illegal because it can be taken without any prior negotiations. The Court seems to refute the principle of effectivity in its comments to the amicus curiae, but it discusses them solely within the context of their being raised as part of a process that is illegal in domestic law. It wrongly defines the principle of effectivity as proclaiming that an illegal act may eventually acquire legal status if, as a matter of empirical fact, it is recognized on the international plane. (par. 146)
The effective control of the territory may not be legal. Of that there is no doubt, but it does not necessarily make it illegal either because that can be done within the context of negotiations that are broken off following a display of intransigence by the federal government. The principle of effectivity cannot legitimately be relied upon when the process of negotiations cannot be continued in accordance with the existing constitutional system. The principle of effectivity can be exploited in a way that is perfectly legal if the political actors on the federal side display intransigence in the negotiations. In such a case, Quebec can perfectly lawfully attempt to attain its sovereignty de facto by exercising effective control over its territory. The process can no longer be described as illegal in domestic law in this case since, hypothetically, Quebec would have been the only party to behave in accordance with the principles underlying the Canadian Constitution. The Court recognizes this fact in its Judgment but it does not show this in the passages in which there is a question of the principle of effectivity and it then gives the impression that it is refuting this doctrine whereas that particular doctrine may in certain situations be applied in a perfectly legal way.
Just as Quebec can legally declare sovereignty unilaterally (without the consent of the other party), it can legally apply the principle of effectivity. When we explore the details of the argument used by the nine judges, it is clear that the judgment recognizes that. But officially, the Court criticizes the principle of a unilateral declaration (without negotiation) and it criticizes the effectivity principle by saying it has no legal status. This duplicity in the judgment betrays the political precautions which are taken to recognize Quebecs moral right to decide its own future.
6. The Court does not hesitate to speak about the Canadian nation but, on the other hand, it hesitates to speak about the existence of a Quebec nation (par. 125). It could be assumed that this does not change anything with respect to the essence of the judgement, as the nine judges claim. However, the situation is very different if the rules stated concern the withdrawal of one of the ten provinces from the federation or if they concern only the people of Quebec. A federal state consisting of ten provinces is without a doubt more tempted to impose very strict rules when it is a case of considering the possibility of an act that could be performed by any one of the ten provinces. If the only possibility to be considered were that of the attainment of sovereignty by the people of Quebec and this by the province of Quebec, the situation could then be very different because the other nine provinces, for their part, could not rely on these rules. Furthermore, in dealing with the case of Quebec as if it were merely a province like all the others, the Court repeats the principle of the equality of the provinces, which is tantamount to denying the particular status of Quebec within the federation. In this way, the Court indirectly helps to deny the existence of the Quebec people.
7. Finally, mention could be made of the fragmentary and biased reading of the history of Canadian federalism that is contained in the document. The judges paid particular attention not to draw attention to the constitutional sleight of hand that led to patriation in 1982. Indeed, the Court took the opportunity to state that the legality of the constitutional system is neither challenged nor assailable (par. 32). However, it failed to mention that, according to all of the political classes in Quebec, the illegitimacy of this constitutional system is also neither challenged nor assailable. Constitutionally, a block of granite fell on Quebecers in 1982. But since the illegitimacy of this constitutional order is so obvious, it could be said that the granite is falling to pieces. The effectivity of the constitutional order is tainted by illegitimacy.
In this context, when the judges say that the Canadian constitutional system is in effect in Quebec, they are simply trying to safeguard the effective control by the federal state of Quebecs territory. The Court is, in short, itself applying the principle of effectivity that it criticizes when it envisages the possibility that this doctrine might be applied by Quebec.
It might of course be retorted that the Court is questioning the application of the principle of effectivity in the context of an extra-legal undertaking in which Quebec might engage, while the constitutional system of 1982 did not come into effect in an extra-legal context. But it did come into effect in the context of a violation of what had been perceived by all of Quebecs political actors as a constitutional convention under which Quebec had a right of veto. If there had been respect for what was to all appearances a constitutional convention, the current constitutional system would never have come into effect. At the time, the Court chose to rule that such a convention did not exist. In so doing, it helped once again to safeguard the effective control by the federal state of Quebecs territory.
But once again it could be retorted that a major difference exists between the two situations. Suppose that the Court had recognized the existence of such a convention. If Quebec had undertaken, by a unilateral declaration (without preliminary negotiations), the effective control of its own territory, it would then have been violating the principles underlying the Canadian constitutional system. Now, these underlying principles do not have the same legal status as constitutional conventions. Constitutional principles have a legal value as important as the explicit provisions in the Canadian constitution, while constitutional conventions are less important.
But this difference in the legal status of underlying principles and constitutional conventions is not a truth carved in stone. On the contrary -- it is the result of an innovation that emerged from the Judgment handed down by the Court. Before this Judgment, the underlying principles had never been given a status equivalent to the explicit provisions of the constitutional text. The Court decided on the occasion of its Judgment to interpret in these terms the relationship among the explicit provisions of the constitution, the underlying principles and constitutional conventions. According to the nine judges, the underlying principles and the explicit provisions now have equivalent importance, and both are more important than constitutional conventions.
These changes in the interpretation of the Canadian constitutional system were made for political reasons, with a view to strengthening that system. This is our first conclusion. The second is that there is perhaps not a great deal of difference between the coming into effect of a (Canadian) constitutional system that violates what was to all appearances a constitutional convention, and the coming into effect of a (Quebec) constitutional system that violates a Canadian constitutional system that is illegitimate because it was imposed without Quebecs consent, especially if it occurs after a fruitless attempt to negotiate with the Canadian government. By declaring its sovereignty after fruitless negotiations, Quebec would simply be paying the federal government back in its own coin.
Those are some of the omissions and tendentious statements to be found in the document. If I have been very careful to explain at length in my introduction the major reservations that I have with respect to the document issued by the Supreme Court, I did so in order to be clearly understood in what I say in the rest of this document. I am not seeking to comply with the Judgment of the Court and I do not wish to recognize the legitimacy of the constitutional system of 1982. At the very most, I wish to question Bill C-20 in light of the respect for the Judgment of the Court that the federal government itself claims to have.
Let us start with some general comments on Bill C-20. After that will come three sections devoted to the discussion of specific themes, but for the moment I would like simply to speak of the Bill in general terms. It may seem surprising to see so much effort devoted to such an obvious exercise. Why, after all, go to such trouble to demonstrate that Bill C-20 flies in the face of the Supreme Court Judgment? First of all, it must be noted that the Bill is presented expressly as giv[ing] effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference. Furthermore, eminent constitutional experts have claimed that the Bill fully reflects the Judgment. 7 And lastly, the consensus of opinion in English Canada supports the Bill. People have not fully grasped the serious implications of the federal governments action. These are the reasons that have led me to examine Bill C-20 in detail and demonstrate the respects in which it diverges from the Judgment.
(1) Bill C-20 is the result of an attempt by the federal government to impose a legal framework that it was unable to obtain from the Court itself. The Court referred the discussion on the clarity of the question and the majority back to the political arena, while the federal government is trying to wrap a legal straitjacket around Quebecs attempts to move forward. Ottawa is trying to judicialize what should be political, while the Court was trying to leave the issues of referendum clarity in the hands of the politicians.
(2) This legal framework is being imposed unilaterally by the federal government, an approach that runs counter to the Judgments general attitude on the obligation to negotiate.
(3) Among other things, the framework violates the principal of self-determination for the Quebec people, 8 since it entails imposing in advance rules about what question can be put. Quebec is not being left to formulate the question itself, in that Ottawa reserves the right to intervene on the clarity of the question before the National Assembly has completed its deliberations on the matter. This is what makes Bill C-20 a violation of Quebecs right to self-determination. The text of the Judgment can on the contrary be interpreted as a recognition of the conditions for the exercise of Quebecs right to self-determination.
(4) The Bill is Ottawas way of trying to appear tough and inflexible, so that it can influence Quebec public opinion through fear. This is not a new strategy: it had already been announced by the Minister sponsoring the Bill, the Honourable Stéphane Dion. The best way to force Quebeckers to change their minds, apparently, is to make them suffer after a vote in favour of sovereignty. It is this desire to make Quebeckers suffer that is set out in black and white in the text of Bill. Well aware that Quebeckers will not commit themselves to action that could lead to chaos, the federal government is striving at all costs to provoke the sovereigntists into doing something confrontational. This is entirely foreign to the prescriptions in the text of Judgment. The nine judges recognized that the negotiations would be difficult, but their aim was to provide a legal framework making it possible to shape a process based on the obligation to negotiate rather than on confrontation.
(5) Bill C-20 is thus an attempt to multiply the obstacles in the sovereigntists path. The majority must be bigger, the referendum question must speak refer to a radical break, and the consent of all the provinces must be obtained. Ottawa reserves the right to consult other interested parties, and an obligation to renegotiate borders, with a view to partitioning Quebecs territory, is announced off the top. For the most part, these are obstacles invented out of whole cloth by the federal government; they are not to be found in the text of the Judgment.
(6) Generally speaking, Bill C-20 betrays the federal governments desire to evade its obligation to negotiate, as required by the Court. The obstacles mentioned above are just so many opportunities to fend off negotiations until they become impracticable and uncertain. And yet the obligation to negotiate arises, according to the Court, from the principles of federalism and democracy (par. 88).
(7) The clarity requirement is above all the concern of the Quebec government, the Quebec Legislature, and the National Assembly. The federal governments primary obligation is to negotiate. Here the federal government is seeking to reverse the order of things by intervening on clarity in order to evade the obligation to negotiate. 9
(8) Ottawa claims to be giving the Quebec government a lesson in democracy. But Quebec is already more democratic than Canada. In Quebec, important constitutional changes are decided by referendum, while in Canada they are forced through from above without consultation by referendum, unless a Canadian referendum can be substituted for a Quebec referendum on sovereignty, as was the case with the 1992 referendum on the Charlottetown Accord. Quebec can also boast of having referendum legislation that makes it possible to neutralize the power of big money, as the Supreme Court has recognized. The same cannot be said for Canada -- it did not even deign to respect Quebecs Referendum Act during the two referendums on sovereignty. Lastly, Quebec has legislation on financing for political parties, which the Bloc Québécois has recommended in vain at the federal level. This legislation is designed to limit the amounts contributed to political parties, in order to limit financial lobbying.
(9) Through its Bill C-20, the federal government is endowing itself with a right of veto over the decision by the Quebec people. It wants a power of disallowance. 10 It wants to make the Quebec people wards of Ottawa, neither more nor less. 11
(10) By intervening as it is proposing to do while the National Assembly is deliberating the content of the referendum question, the federal government is not even treating the Quebec government like a provincial government; it is violating the federalism principle defended by the Court (par. 88). 12
(11) Bill C-20 is contrary to the clarity objective recommended by the Court. There may well be doubts as to the constitutionality of a clause on the clarity of the majority as it appears in Bill C-20. The clause is so ambiguous that it can be described as tainted by a constitutional defect. 13
(12) The federal government, through its mouthpiece the Honourable Stéphane Dion, claims that the Bill regulates the actions of the federal government, not the Quebec government; but when Quebecs Minister for Canadian Intergovernmental Affairs, the Honourable Joseph Facal, announced on the occasion of his appearance before the legislative committee considering Bill C-20 that Quebec plans to go ahead regardless of Bill C-20, Mr Dion objected on the grounds that the Quebec government could not evade the requirements of Bill C-20. In so doing he made it obvious that the federal governments intention is indeed to regulate the actions of the Quebec government. As journalist Michel Venne has pointed out, the Ministers contradictions are blatant. 14
A great number of intellectuals in English Canada support the federal governments initiative. 15 They are delighted to see Ottawa finally committing itself to an aggressive policy of nation building that stops at nothing to assert itself. These intellectuals appear to see nothing wrong with the discretionary power that Bill C-20 gives the federal government to evaluate the required majority. 16 They have nothing to say against the ban on a referendum question that accurately reflects the evolution of Quebec nationalism. They have nothing to say against legislation containing a free-floating threat of partition. These intellectuals will have to shoulder historical responsibility for failing to criticize the federal governments authoritarianism. This authoritarianism resembles the kind that Gorbachev attempted to impose to prevent the Baltic states from regaining their political independence, as well as the kind displayed by Israels Knesset which, under the influence of the Likud Party, is demanding an expanded majority for any referendum on a peace plan with Syria. 17
Finally, it should be noted that the substance of the Bill exactly reflects the anti-democratic procedure that led to its passage. The federal government tabled the Bill just before the Christmas holidays in December 1999, invoked closure at each stage of the process and refused to strike a parliamentary committee that could travel. The guillotine on debate after consideration of the Bill at Second Reading drew a unanimous reaction from all four opposition parties in the House of Commons -- they walked out of the House when the vote was held.
The government limited the number of witnesses to just 45 during the committee hearings, and allowed each of them just 10 minutes to speak. Note the irony of the situation: the government places a strict limit on the number of consultations held before Bill C-20 can be passed, while Bill C-20 demands interminable consultations for the process of Quebecs accession to sovereignty. Not that it matters, but what were the recommendations made during the few days of deliberations by this legislative committee? A majority of the people who appeared recommended that the Bill be withdrawn.
The Bill was passed despite its rejection by two-thirds of the MPs from Quebec, despite the opposition of all three political parties in Quebecs National Assembly, and despite the opposition of a majority of Quebeckers (over 60% of the population). Quebec civil society is against the Bill virtually unanimously.
The federal government also tried to limit the number of amendments that could be submitted by the opposition at Third Reading. Such a storm of protest ensued that the government retreated, trying instead to impose ad hoc procedural rules.
How could the government try to pass a Bill that set new requirements for an expanded majority, when such a large majority opposes the Bill? The sponsoring Minister, the Honourable Stéphane Dion, claims that his Bill can be an exception to the acknowledged democratic rules in other cases, because it is designed to define those very rules. This argument is obviously entirely fallacious. For the Act to be even minimally credible, the Minister should have preached by example. If the federal government applied the standards that it is attempting to impose on the people of Quebec, it would have to repeal this legislation immediately. By trying to exempt it from the rules of democracy, the Minister reveals the authoritarian nature of the federal action. The federal government claims to be acting on democratic principles, but in fact it is letting itself be carried away by irrational animus.
1. The majority required
Bill C-20 clearly leads one to believe that the majority required in a referendum cannot be an absolute majority. In fact, the federal government states that it will take into consideration "the size of the majority of votes validly cast in favour of the proposal to secede". In other words, it is necessary for a major difference to exist between the number of votes for the YES side and votes for the NO side. This is tantamount to denying the absolute majority rule. Can the federal government claim that it is complying with the opinion of the Court if it requires more than an absolute majority?
(1) According to the federalists, the Court speaks of a clear majority and not of an absolute majority. If it had wished to refer to an absolute majority, it would have used this expression and not that of a clear majority. However, this implacable reasoning is not applied to the reverse conclusion. Nor did the Court make any mention of an enhanced or qualified majority. If the Court had wished to speak of a qualified or enhanced majority, would it not in fact have used those expressions? Must not that the reasoning used to discredit the interpretation to the effect that the concept of a clear majority refers to an absolute majority be used to refute the view that the expression "clear" means "enhanced" or "qualified"? It is clear that the Court did not use the words "clear majority" to mean "qualified majority". Consequently, the federal supporters cannot claim that they are acting in accordance with what the Court said when they say that a qualified majority is required.
(2) However, is it not possible to say the same thing with respect to the interpretation advanced by the government of Quebec, which claims, for its part, that the text of the opinion is consistent with the principle of an absolute majority? To answer this question, we must consider what might have led the Court to talk about a "clear" majority. In the event that this expression cannot mean "enhanced" or "absolute", what are we to understand? According to the constitutional lawyer Henri Brun 18, the problem of the clarity of the referendum result goes back to the question as to whether an absolute majority is real or apparent. Moreover, this view is shared by the constitutional lawyer Alain Pellet. 19 In speaking of a clear majority, the judges did not contradict the principle of an absolute majority but they pose the problem as to whether it is a real or an apparent absolute majority. If, for example, there had been a greater number of spoiled ballots in certain specific ridings, the absolute majority would have been dubious. If the voter turnout had been low, once again it might be possible to question the existence of an absolute majority from a qualitative point of view. Finally, an absolute majority may be merely apparent because it is an absolute majority in response to a question that is not clear. In all these cases, clarity does not run counter to the interpretation of the principle of democracy based on an absolute majority.
3. The nine judges must certainly know that it is inconsistent to adopt unilaterally another rule than the absolute majority rule if no provision to this effect is included in the Constitution. It is impossible to adopt different rules for joining or leaving a country unless this has been explicitly stated in the text of the Constitution. If Newfoundland entered Confederation with only 52% of the votes cast, it must be accepted that Quebec should be able to withdraw with a similar result. It is also inconsistent to adopt rules for the NO side that are different from those applying to the YES side. The NO side won in the referendum of 1995 with only 50.6% of the votes cast. The same rules should accordingly be adopted for the YES side. It is also inconsistent to adopt rules in three consecutive referendums in Quebec and then to suggest that they be amended in the event of a future referendum. These ruses bear witness to an anti -democratic attitude and it is also inconsistent to require a qualified majority on the pretext that a majority vote simply does not carry sufficient political weight when this is tantamount to giving the minority vote a political weight that is even greater. In fact, it is not possible to ensure that the minority wins simply by arguing that the majority is just not sufficient. In addition, it is inconsistent to adopt a rule requiring an absolute majority that is valid for all other questions but to propose a qualified majority rule when the question relates to the sovereignty of a province.
However, can an absolute majority of votes cast by all eligible voters be required? This option cannot be adopted either, unless it is imposed on both the YES and NO sides. If it applies only to the sovereigntist side, citizens cannot really abstain because authorities would then choose to interpret their abstention as a vote for the NO side. And since it is ultimately impossible to abstain or spoil one's ballot without being considered as voting against the sovereigntist proposal, one may well wonder whether this referendum "rule" is constitutional.
4. The only instance where the Court states its opinion on the meaning to be given to the words "clear majority" confirms Henri Brun's interpretation. The Court explains that it is using this particular expression in a qualitative sense (par. 87). It is therefore not using it in the quantitative sense. It in fact specifically states: "In this context, we refer to a 'clear' majority as a qualitative evaluation. The referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves."
In the recitals of Bill C-20, the federal government recognizes in fact "that a clear majority in favour of secession would be necessary for an obligation to arise to negotiate secession and that a clear majority in the qualitative sense will be required, in the circumstances, the existence of which needs to be established". However, it does not hesitate to adopt a quantitative interpretation in Bill C-20 to the extent that the number of votes must, in its view, be more than an absolute majority.
However, one could argue that the notion of clarity has a qualitative meaning only "in this context", that is to say in the specific context of paragraph 87, whereas the expression "clear majority" could have a quantitative sense in other contexts. I do not believe this interpretation is acceptable. However, even under this assumption, the expression may still mean "real absolute majority" if the process is not undermined by irregularities in ballot-counting, and if a majority is obtained in response to a clear question, one may argue that the absolute majority is real for reasons related to the quality of the ballots cast. If voter turnout is normal (say 70% or more) and very large segments of the electorate have not refrained from voting, it might perhaps then be said that a real absolute majority has been achieved, this time for reasons related to the number of persons who have actually voted. I do not know whether this argument should be accepted. However, even if it were, the conditions of an actual absolute majority, as opposed to an apparent absolute majority, would have to be clarified. Only one conclusion is therefore possible. It is impossible to interpret the Court's prescriptions as a justification for imposing an enhanced majority rule.
A number of commentators have noted and repeated that the Court would not have used the words "clear majority" as often as it did if it had not wanted to indicate that an absolute majority was insufficient. The federalists have repeated on many occasions that the imposition of a qualified majority was a reflection of the proposals put forward by the Court. For example, the federal government contended for months that the Supreme Court had referred to an enhanced majority. However, the passage concerning an "enhanced majority" (par. 77) concerns the majority required in order to pass amendments to the Constitution of Canada, not that needed in a referendum in Quebec. Furthermore, the Court is attempting in this passage to reconcile the democratic principle with the other principles underlying the constitutional order, not to interpret the democratic principle as such.
We have just seen that the federal government's interpretation is incorrect. Nowhere in the text of the opinion can we find any suggestion that an absolute majority of votes for the YES side is insufficient in the Court's view. Why does the government persist in its incorrect interpretation of the Supreme Court's opinion? Isn't the government being irresponsible in doing so?
5. However, the federalists have a fallback position. Where they maintain that the bill is in accordance with the Court's opinion, they are relying on the comments in the opinion itself which suggest that the interpretation of what constitutes a clear majority must be left to the political actors (par. 100-102). This is precisely what the federal government is doing. It is assuming its responsibility by enacting legislation concerning clarity.
However, let us take a closer look at what the "political actors" have to say. Quebec's three main political parties (Parti Québécois, Liberal Party and Action Démocratique du Québec), which represent 99% of the population, contend that the absolute majority rule is the only acceptable rule. Need there be a broader consensus on this question?
However, perhaps our examination should not be confined to the political actors at the provincial level. Let us turn then to the federal arena. The four federal opposition parties (Reform, BQ, PC and NDP), which represent 62% of the population of Canada, support the same principle. They very openly support the absolute majority rule, which, in their view, is the only possible interpretation of the democratic principle. Thus we can say that there is a genuine consensus on this question. The only notable exception is that of the party in power, the Liberal Party of Canada (although a number of Liberal members have said they were uncomfortable with this aspect of the legislation).
The Canadian political actors have moreover always accepted this rule. In the 1949 referendum on Newfoundland's entry into Confederation, 52% of ballots cast were in favour of the association with Canada. The referendums of 1980, 1992 and 1995 held in Quebec or Canada were conducted in accordance with the absolute majority rule. If we are to rely on the political actors, we must conclude that they wholeheartedly concur with the Supreme Court that the absolute majority rule should not be violated.
However, let us not only consider the political actors on the Canadian scene. Let us consider whether the absolute majority rule is recognized internationally. It would appear in any case that it is recognized by the United Nations, which applied it in the context of Eritrea and East Timor and will apply it to the referendum to be held in Western Sahara.
The absolute majority rule is also applied in the same way across Europe. It would be recognized by all political actors in Great Britain if Scotland were to vote in a referendum on sovereignty. It was also applied in the deliberations on the Maastricht Agreement. France ratified the accord with only 51.4% of ballots cast in 1991. In Denmark, 50.7% of voters voted NO on the same subject in 1992. That same year in Switzerland, 50.3% of voters rejected Swiss membership in the European economic area. Sweden held a referendum concerning its entry into Europe in 1994 and only 52.2% voted in favour. Also in 1994, 52.2% of Norwegian voters voted not to join the European Union.
In short, in the minds of the political actors on the Quebec, federal and international scenes, the absolute majority rule applies. The political actors have thus made their choice, and those who do not apply this rule are engaged in undemocratic action.
6. In any case, there is something wrong in the federal government's actions. It is hard to believe that they were approved by the nine judges. Did the Court suggest that the federal government could proceed unilaterally to enact, several months ahead of time, legislation that would give it a discretionary power with respect to the percentage that would be required? Could the clarification by the political authorities of the majority that would be required mean in the eyes of the Court that the federal government may unilaterally enact a statute that does not set out a precise figure but requires the federal government to interpret what would be an acceptable percentage in any way it sees fit? By leaving to the political authorities the task of deciding what exactly constitutes a clear majority, did the Court really wish to give its approval to a process that could authorize the federal government to decree unilaterally that an absolute majority was not enough?
No doubt the Court did not wish to rule out the possibility of an agreement being reached by the various politicians that would make it possible to amend the rules as the process itself was actually unfolding. After all, if the partners succeeded in reaching agreement, the rules could include all manner of provisions and these would then acquire the status of rules that would have to be complied with. The Court did not wish to rule out this possibility but it did not give its approval to a process leading to the rejection of the only valid and possible interpretation of the democratic principle, a rejection which furthermore would go against the position defended by all the other political actors.
It would be surprising if the Court had given its approval to a unilateral process on the part of the federal government that would have had the effect of giving it a power of repudiation with respect to the required majority without having to provide any further explanation of the percentage figure that would be acceptable. The general spirit animating the opinion is the desire to calm things down, to avoid an escalation of the conflict and to provide guides for the process leading to sovereignty resulting from the parties' obligation to negotiate. As a result, the Court would condemn a unilateral process, which provides support for Plan B and makes a mockery of any attempt to negotiate.
7. In the vast majority of countries, regardless of the question asked, referendums as a rule require an absolute majority and not a qualified (enhanced) majority rule. The only notable exceptions are cases in which voters represent regions or states with significant differences in numbers of inhabitants, cases where electors are asked to vote on the dissolution of the entity to which they belong, or where a rule has expressly been provided for in the Constitution.
The enhanced majority rule applies only where voters represent regions or states which differ significantly in their numbers of inhabitants. However, the situation is completely different where all inhabitants vote. In this case, it is normal to require an absolute majority.
The absolute majority rule is the only acceptable rule, unless the parties concerned enter into an express agreement on another rule. Reference is sometimes made to the example of Saint Kitts and Nevis, but that rare instance is merely an exception that confirms the rule. Besides which, the principle of a qualified majority is entrenched in the constitution of Saint Kitts and Nevis. That is not the case in Canada and, in the circumstances, it is the absolute majority rule that must prevail.
Lastly, it is understandable that a special rule should apply in the case of Saint Kitts and Nevis, a country with a population of barely 40,000 inhabitants. A decision to secede made by a portion of the population in one of the two constituent entities would have the effect of dissolving the country as a whole. It is natural in this case to require more than an absolute majority. However, the situation is quite different in Quebec. This is more a case of disaffiliation because Canada can continue to exist without Quebec, particularly if it accepts sovereigntists' offer of partnership.
This then is another reason why the Court refrained from imposing a qualified majority rule in a referendum on Quebec sovereignty, a referendum involving all citizens, not regional representatives. This vote concerns the disaffiliation of a province from Canada, not the dissolution of the country. Lastly, the Constitution of Canada contains no clauses concerning qualified majorities.
8. In the western democracies, majorities are never overwhelming. The countries that have lengthy experience of democracy can agree to operate with the absolute majority rule. The fact that the losers accept the will of a narrow majority prove that they are accustomed to life in a democracy. It is only in the very young democracies that overwhelming majorities are required. The Supreme Court knows this and it is undoubtedly a factor that weighed in the balance when the Court considered the matter of the majority. Minister Dion often cites overwhelming majorities obtained in votes concerning secession to justify imposing a qualified majority rule. However, these examples rarely serve his cause because they mostly concern very young democracies, which operate to a very large degree on the basis of a unanimity rarely seen in developed democracies. And in any case, referendums won with very large majorities were nevertheless all governed by the absolute majority rule.
9. If something other than an absolute majority is suggested, one is soon faced with other individuals who also have their own idea of what is an appropriate majority. In order to ensure that democracy is not made subject to subjective assessments of this kind, people stick to the principle of an absolute majority. It is, moreover, in order to avoid falling into this obvious trap that the federal government has been forced to be vague with respect to the percentage required. This shows that in avoiding the absolute majority rule, the federal government has lost all sense of clarity. The absolute majority rule is a clear rule. The vague rule that the federal government is now attempting to impose is not very clear. The only thing that is clear is that the federal government is seizing this opportunity to arrogate a discretionary power to itself. In this sense, the federal government is committing an unconstitutional act because it is not acting on the requirement for clarity recommended by the Court.
10. As we shall see in the next section, the Court stresses other principles than the principle of democracy (par. 91). It is true that the democratic principle alone is not sufficient to guarantee that Quebec will be able to attain its sovereignty. In one sense, therefore, it is possible to maintain that it is not enough merely to obtain an absolute majority of the votes in order to achieve independence. Although this rule is the only interpretation that can be given to the democratic principle, it must be recognized that other principles must also come into play in the process. However, we should not confuse the debate on the interpretation to be given to the democratic principle (the absolute majority rule) and the debate on the issue as to whether this principle alone will be sufficient for Quebec to attain its sovereignty. When it is realized that the referendum process is not guided solely by the absolute majority rule, then there is no reason not to accept this rule.
11. There are many examples of referendums in which narrow majorities were recognized as being sufficient for victory. I have noted above examples of referendums held to ratify the Maastricht Agreement. Can it be claimed that it is impossible to compare support for or against membership in a supranational organization such as that provided for in the Maastricht agreement with support for or against sovereignty accompanied by an offer of partnership? What is the difference? Canada is a multinational federation and the sovereigntists propose a rearrangement of relations with this supranational entity that might lead to a structure that in some respects resembles that provided for in the Maastricht Agreement. The Maastricht question asked citizens whether they wanted their country, while remaining sovereign, to enter into a political and economic union that complied with the principles of subsidiarity. The Quebec referendum question asks citizens whether they want their state to become sovereign after proposing an economic and political union with Canada. What is the difference? But here we are touching upon a second point that I wish to discuss in this brief, namely the clear question.
12. Before addressing the clear question, I wish to say a few words on the clear majority. Minister Dion has given another argument to justify the need for an enhanced (or "qualified") majority. He contends that there is a major difference between the two options which justifies imposing an additional constraint on the YES side. The reason is that a vote in favour of sovereignty would be irreversible, whereas a vote against it could not prevent future attempts at sovereignty.
We would note, however, that the Minister's insistence on the irreversible nature of the sovereignty process is only equalled by his desire to change Quebeckers' minds by making them suffer once they have voted in favour of sovereignty. He predicts disaster, dramatizes about the irreversible nature of the process conducted without majority support, but every effort will be made to turn Quebeckers back once that majority has been achieved. Bill C-20 states that the stumbling blocks will be many, the consultations endless, that the negotiations will focus in particular on the redrawing of borders and that sovereignty will require the other provinces' agreement. The federal government is announcing a long list of obstacles in the hope that it can put an end to the process and thus help change Quebeckers' minds. Consequently, can the Honourable Stéphane Dion be given any credibility whatever when he tells us that sovereignty is irreversible?
The actual experiences with economic and political partnership (Canada/Quebec), multinational federalism (Belgium) and supranational union (European Union) are in their early stages. We therefore cannot predict the political behaviour of the peoples involved in these multinational and supranational entities. Will separations always be final? In acting as though he can predict what will happen, Mr. Dion is giving an opinion on something he knows nothing about, which betrays an obvious desire to scare Quebeckers.
But why does he think there is something absolutely irreversible about a YES vote for sovereignty? The reason is that Quebec would thus become a country completely independent of Canada and that relations between the two countries would be similar to those between any other two countries. In this perspective, how can anyone imagine the possibility of taking a step backward? But is this in fact what Quebec sovereigntists are advocating? Do they propose to transform relations between Quebec and Canada into relations similar to those between two completely independent countries?
Does the political independence advocated by the Parti Québécois and the Bloc Québécois mean a final break in the privileged relations between these two entities? Since its inception, the sovereigntist movement has promoted sovereignty-association, then sovereignty with an offer of political and economic partnership. Sovereigntists want political independence for Quebec, but like most other countries in the world, they also want privileged relations with other countries: with France and other Francophone countries, with the United States and other American countries (through NAFTA) and with Canada through an economic and political partnership union.
However, should this option be adopted and should Canadian subscribe to it, since, contrary to what is usually suggested, the principle of an economic and political union from sea to sea is designed in part to accommodate Canadians' need to preserve a certain unity, could it then be said that Quebec sovereignty is irreversible? As a sovereigntist, I would undoubtedly oppose any transformation of the union which would once again strengthen federal ties to the point of rebuilding a federal state similar in part to the present one, but I cannot say what decisions future generations will make.
In short, Minister Dion's argument that Quebec sovereignty is irreversible does not hold if the offer of partnership is seriously considered. The Minister still paints an exaggerated picture of partnership which then enables him to dispose of it easily because he suggests it reveals Quebeckers' desire to have their cake and eat it too, whereas this offer in fact accommodates Canadians' desire to preserve a certain political and economic unity from sea to sea. This is thus another reason to dismiss the argument that a YES vote for sovereignty must be achieved through an enhanced majority.
2. The clear question
I now come to another aspect of Bill C-20, the clear question. This discussion will reveal the federal government's intransigence on the clarity of the question. For federalists, the choice is between the status quo and independence, which would cut us off from the rest of the world. However, the vast majority of Quebeckers are opposed to radical solutions of this type. Today, states are no longer completely independent nation-states. States agree to assign a portion of their sovereignty to independent supranational bodies and increasingly to recognize the rights of minorities living within their borders. Sovereignty is thus lost at the upper end (to supranational bodies) or at the lower end (to national minorities or regional independence). Quebec is part of this trend because it is increasingly open to free trade, la Francophonie and partnership and because it takes into account the vested rights of Quebec's Anglophones and Aboriginal peoples. In short, in a context of globalization, the states' loss of sovereignty and openness to cultural diversity, Quebeckers' "ambivalence" appears to be increasingly justified since it reflects the direction taken by the international community.
However, this is not what federalists mean. They mean take it or leave it. Canadians, they say, will no longer allow themselves to be fooled by the knife-at-the-throat strategy. There will be no more constitutional reforms that finally address the existence of the Quebec people and its traditional demands. Quebec is a province like any other and must accept Canada as it is. Otherwise, it must become an independent country and not hope for a partnership with Canada. This view reveals a traditional and obsolete conception of the nation-state (Canadian before "separation" or Québécois after "separation") through which the federal government wishes to confuse the issue. In fact, Canada is quite aware that the international community is increasingly open to the idea of creating supranational ties between sovereign states, but it especially does not want to let on because it wants to give Quebeckers the impression that the sovereigntist path is part of an outmoded trend.
The truth is that Canada fears this idea of partnership like the plague, and the question we should ask, "Why?". The answer is that this offer could well draw the international community's sympathy for Quebec and facilitate Quebec sovereignty. Since this is foreseeable, if negotiations bog down and Canada remains intransigent, Quebec can more easily obtain the international community's support if it has demonstrated its good faith during the negotiations. The offer of partnership reflects an outreach policy that would prove Quebeckers' open-mindedness. The federal government strategy is thus to try to block this path in order to force Quebec to adopt a spiteful and intransigent position.
In any case, the federal government's argument states that the referendum question would not enable the population of the province to declare clearly that it no longer wants to belong to Canada if: (a) "it 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"; and (b) it "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".
The question would not be clear if, in addition to proposing that Quebec become a sovereign state, it proposed to make an offer of economic and political partnership with Canada. But how can it be claimed that the reference to Quebec sovereignty is obscure merely because privileged partnership relations are being proposed? The federal government feels that the very reference to partnership in the referendum question undermines the clarity of that question. Results from a survey conducted in 1997 apparently indicated that, of the 46% of voters prepared to vote for sovereignty, nearly one-third (that is 13% of the population) believed at the time that a vote for sovereignty meant that Quebec would still be a province of Canada. These poll results were analyzed by Jean-Marc Léger, who explained the reasons why a number of Quebeckers reacted in this way. Many understood the question perfectly and were prepared to vote in favour of Quebec sovereignty, but nevertheless thought that a YES vote would lead to a thorough reform of federalism, based on the knife-to-the-throat strategy (5%). Others believed that elected MPs from Quebec would sit on supranational bodies, and that is why they answered that Quebec MPs would still sit in the House of Commons (another 5%). Only a limited number of respondents actually believed that sovereignty/partnership meant that Quebec would remain part of Canada (3%). 20 Consequently, it is false to suggest that the 1995 referendum question misled Quebec voters.
In attempting, from the outset, to block a referendum question that would include a reference to partnership, the federal government is countering the sovereigntist approach of 30 years ago, thus attempting to confine sovereigntists in a position of identity withdrawal and resentment, thus denying sovereignty's resolutely modern characteristics. But what does the Supreme Court recommend regarding the referendum question?
1. Nowhere in its opinion does the Supreme Court give any indication that the referendum question should focus solely on secession. Nowhere can it be read that the referendum question should exclude all references to partnership. The Court calls for a clear question on secession. However, all reasonable political actors will recognize that a question on the creation of a sovereign state is a question that concerns secession, and every reasonable political actor will admit that it is possible to ask a clear question involving partnership. Consequently, one can ask a clear question on sovereignty with an offer of partnership.
Even Patrick Monahan, who is Minister Dion's advisor, admits that the federal government cannot prevent Quebec from asking a question which includes a reference to partnership. 21 The requirements of clarity set by Bill C-20, in his view, vastly exceed the prescriptions of the Supreme Court opinion. He admits that a referendum question may include a reference to political and economic partnership and still be clear.
2. In the Court's view, "it would be naïve to expect that the substantive goal of secession could readily be distinguished from the practical details of secession. The devil would be in the details." (par. 91) However, this is precisely what the partnership proposal does: it closely links the question of Quebec sovereignty to the practical details involved in its realization.
3. According to the Court, the negotiations that followed a YES vote on sovereignty would have to address "the potential act of secession as well as its possible terms" (par. 151). However, in the partnership proposal, sovereigntists are proposing precisely to address the possible terms that would have to follow from Quebec's accession to sovereignty. If they chose to ask a referendum question on secession and its eventual conditions, their approach would thus be perfectly consistent with the Court's recommendations. In attempting to prevent them from doing so, the federal government will thus clearly violate the Court's prescriptions.
4. The Supreme Court addresses on a fairly large number of issues that would have to be subject to the negotiations on Quebec's accession to sovereignty. It contends that compliance with the democratic principle is not sufficient to enable Quebec to become sovereign. Even if the absolute majority rule is the only valid interpretation of the democratic principle, that principle is not sufficient. This Supreme Court contends that, in addition to the democratic principle, the principles of protection for minorities, rule of law and constitutionalism, as well as federalism, must also be met. (par. 90 and 91)
The Court further writes: "The democracy principles, as we have emphasized, cannot be invoked to trump the principles of federalism and rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole." (par. 91)
It specifically states that the negotiations must be conducted "in conformity with constitutional principles and values". (par. 95, 151) The Court thus associates sovereignty very closely with compliance with these other principles. However, sovereigntists do not need the Supreme Court to dictate to it morally responsible behaviour. Their concern to consider the interests of minorities, Aboriginal peoples, the other provinces and Canadians is not dictated by a constitutional principle, but rather by their sense of moral responsibility and is reflected in an offer of partnership.
The principle of protection for minorities, the principle of federalism and rule of law can be taken into account by establishing a partnership in which they are addressed. Quebec is not in any way compelled to submit to the Court's opinion in order to comply with these principles. All these matters are already addressed in its offer of partnership. A question that concerns Quebec sovereignty but also includes an offer of partnership is consistent with the proposals stated by the Supreme Court.
5. The Court ruled that any negotiations following a YES vote on sovereignty should give rise to an obligation to negotiate the conditions of secession (an obligation which arises from the democratic principle), but it also insisted on the need to address in those negotiations economic union (par. 42 and 96), the debt (par. 96), the federal government and Quebec (par. 92), linguistic and cultural minorities (par. 80), the interests of the provinces (par. 96) and Aboriginal peoples (par. 139). However, the partnership proposal will take into account economic union, the rights of linguistic and cultural minorities, the rights of Aboriginal peoples, the interests of the provinces, of Canada and of Quebec. The partnership proposal addresses all this and that is why it occupies a central position in the sovereigntist platform.
6. Of course, the opinion cannot be construed as stating any kind of obligation to agree on a specific partnership model, be it economic union, sectoral political partnerships or a confederal model with supranational institutions. There is no obligation to negotiate a specific partnership structure. In the minds of some, however, the partnership concept refers precisely to such political structures. In this sense, "partnership" means a set of common institutions. In this sense of the term, it simply cannot be concluded that there is an obligation to negotiate partnership. However, the word may also be understood as referring to joint action based on shared principles. Viewed in this way, the partnership proposal includes a reference to sharing a common debt, a common currency, a common market, a customs union and various agreements between the two countries respecting Aboriginal peoples and national minorities, whether or not those agreements result in common political structures. In this sense of the term "partnership", it may be claimed that the Supreme Court has affirmed an obligation to negotiate all aspects that might be included in an offer of partnership.
Does the Court review these topics for discussion as relevant in the context of Quebec sovereignty? The Court states not only that they are relevant, but that there is also a constitutional obligation to negotiate these potential conditions, an obligation that stems from the four underlying principles. In wishing to exclude most of these issues from the referendum question, the federal government is attempting to avoid its obligation to negotiate the potential conditions of sovereignty. In this respect, the federal government's position is unconstitutional. 22
Canada and Quebec would have an obligation to negotiate considering the interests of all parties. However, the sovereigntist movement has always wanted to negotiate the terms of an association or partnership with Canada which takes into account the vested interests of national minorities and Aboriginal peoples as well as the economic union in which Quebec and Canada are already engaged.
7. The federal government wants Quebec to exclude any reference to partnership from the referendum question in order to force it to adopt a radically intransigent or spiteful position. The offer of partnership scares the federal government because it confers an image of respectability on the sovereigntist movement. This aura of respectability must therefore be removed on the grounds of clarity. The difference between the Court's attitude and that of the federal government could not be clearer. The Court is seeking to avoid a sudden break and to set guidelines for the sovereignty process by asking the negotiators to take into account the ties that have been developed over the country's long history. The federal government, on the other hand, is attempting to emphasize the break-up, the radical break, separation.
8. It should be admitted that a more radical question on complete and final separation between Quebec and Canada would be clearer, but this does not mean that, to be clearer, the question must be more radical. A less radical, but equally clear question can also be asked. A very moderate question could even be asked and still be clear. The 1995 question was this kind of question, both clear and moderate. From a reading of that question, certain aspects may seem obscure, but these are the passages in which the framers refer to Bill 1 and the agreement of June 12, 1995. Although these references to existing instruments appear to complicate the meaning of the question asked, they in fact help make it clearer since they shed further light on the sovereigntist approach. The Supreme Court moreover does not demand that the question asked force Quebec to choose between two radically opposed options: Canada as it is or full, complete and final independence without any partnership ties.
9. According to most constitutional experts, the Court recognizes that every province that so wishes has a right to ask referendum questions on subjects of its choice. In all cases, if the question is clear and the result is clear, there will be an obligation to negotiate. The provinces may, if they wish, ask their constituents referendum questions on a host of topics. This view was moreover confirmed in the brief by Andrée Lajoie. 23 There would also be an obligation to negotiate as a result of an exercise of this kind. The obligation to negotiate does not apply solely in a case where a province asks a question on "secession". The provinces may ask all kinds of referendum questions. Consequently, if Quebec asks a question on sovereignty which includes an offer of partnership, the federal government will have an obligation to negotiate because this obligation, in the Court's view, arises from the democratic principle, which is a principle underlying the Canadian constitutional order.
10. But doesn't the federal government have a right to take part in wording the question? Can it not intervene in the democratic process right now? Isn't it one of the political actors referred to by the Court? I will answer all three of these questions simultaneously.
(i) The case of Great Britain is often raised in support of the suggestion that the federal government should have a say on the question asked. The British government drafted the question on the devolution of powers to Scotland. However, it is forgotten that Great Britain is not a federation and that Scotland did not even have a responsible government capable of legislating on this question. The referendum moreover concerned the creation of just such a responsible government. If, in the relatively near future, the Scottish Parliament decided to submit a referendum question to the Scottish people on Scotland's accession to sovereignty, it would be surprising if it allowed the British government to word the question. Where a people decides on its future, it exercises its right to self-determination and the wording of the question is part of that exercise. Other peoples have no business intervening in the process and, if they do so, they violate this right to self-determination.
(ii) Of course, Mr. Dion states that this bill does not provide a framework for the Quebec referendum process, but rather for the federal government's action. However, this structure entails a right of disallowance. In short, the federal government is securing the elbow room to do what it wants. In seeking to adopt this bill now, it wants its action to influence the course of affairs, and, in this way, it is interfering in the Quebec referendum process.
(iii) The federal government is of course concerned by the referendum process. No one could claim that it is not a political actor concerned by what will happen when Quebec begins a referendum process. However, by choosing to intervene now by legislating, the federal government is doing more than that. It is interfering in the Quebec people's democratic process. If the federal government respected the democratic process in Quebec and intended to honour Quebec's right to self-determination, it would not have acted as it has. Its refusal to recognize Quebec's right to self-determination and consequent need for autonomy are the underlying reasons for the rising nationalist movement in Quebec. By refusing once again to respect the Quebec people's right to self-determination, the federal government is recreating the cause of the Canadian problem.
Canadians may of course prefer to shoot themselves in the foot and reject this offer of partnership. In such circumstances, Quebec would continue on its way and establish privileged partnership relations with other countries. In any case, Quebeckers would move away from the old model of the autocratic, protectionist nation state and refuse to withdraw within its own community.
3.- Negotiating borders
If Bill C-20 is passed, the federal government will have an obligation to negotiate the borders of a sovereign Quebec. The federal government's bill states: "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."
1. But does the Supreme Court claim that the negotiations will have to focus on the province's borders? This issue is addressed in two passages of the opinion, in paragraphs 96 and 139. The nine judges provide a long list of factors that must be addressed in the discussions. Among the topics for debate, the Court mentions borders, but specifies that this is a question that was raised before the nine judges. (par. 96) Unlike the other questions, which are mentioned as mandatory subjects of the negotiations, the question of borders is considered only as an application from a third party. It therefore cannot be concluded that the Court is asking that this issue be addressed in the negotiations.
2. However, the Court adds further on: "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." (par. 96) Is this an express recommendation that borders be discussed? The Court contends that it will be difficult to "separate" our national existence without changing Quebec's borders. It finds that the preservation of the present borders could not be assured without efforts being made in that direction. To conclude from this that the Court expressly recommends that the borders of a sovereign Quebec be negotiated is a logical leap that the federal government has attempted to make, but which has no basis in the opinion.
Nowhere does the Court state that Quebec's borders should be negotiated. It attributes this request to other interveners and states that it will be difficult to maintain the present borders. In its bill, however, the federal government wants the borders issue to be part of the negotiations. It wants to include an obligation to negotiate borders in this legislation and to compel all future negotiators speaking on behalf of the federal government to place this issue on the agenda for debate. The federal bill goes further than the text of the opinion, which the federal government incorrectly interprets, while claiming to comply with it.
3. However, another passage from the opinion might seem to prove the federal government's prophets of gloom. The nine judges write: "We would not wish to leave this aspect of our answer to Question 2 without acknowledging the importance of the submissions made to us respecting the rights and concerns of aboriginal peoples in the event of a unilateral secession, as well as the appropriate means of defining the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by aboriginal peoples. However, the concern of aboriginal peoples is precipitated by the asserted right of Quebec to unilateral secession. In light of our finding that there is no such right applicable to the population of Quebec, either under the Constitution of Canada or at international law, but that on the contrary a clear democratic expression of support for secession would lead under the Constitution to negotiations in which aboriginal interests would be taken into account, it becomes unnecessary to explore further the concerns of the aboriginal peoples in this Reference." (par. 139) 24
This passage could be interpreted in two different ways. In the first interpretation, it might be believed that, in the judges' view, the problem of drawing the borders of a sovereign Quebec is one that arises in the context of a unilateral declaration made without negotiations. In the case of a violation of Canada's territorial integrity which did not proceed in accordance with the underlying principles of the constitutional order, the question would arise as to whether Aboriginal peoples could not also act in the same way toward Quebec. If the Quebec approach is based on the principle of a referendum majority, it is unclear why Aboriginal peoples could not do the same. However, since this alternative is ruled out and there would be an obligation to negotiate in compliance with the various underlying constitutional principles, the interests of Aboriginal peoples would be addressed and the question as to whether Aboriginal peoples may violate Quebec's territorial integrity need not be raised.
I find this a seductive interpretation because it genuinely respects the symmetry between the situation of Aboriginal peoples and that of Quebec. In the same way as Quebec relies on unsatisfied traditional demands to legitimize its sovereigntist action, the Aboriginal peoples could also justify a violation of Quebec's territorial integrity if their traditional demands were not met. However, since negotiations would have to take place following a vote for Quebec sovereignty, the Quebec government would have no other choice but to consider the traditional demands of Aboriginal peoples. And if it did so, the Aboriginal peoples could not legitimately violate Quebec's territorial integrity. It is often said that, if Canada is divisible, so is Quebec. However, if one truly wishes to preserve the symmetry between the two situations, the two cases must be viewed from a political perspective and the legitimacy of these actions must be considered on the basis of satisfaction of traditional demands.
With respect to the satisfaction of Aboriginal peoples' traditional demands, we may refer to the report of the Royal Commission chaired by René Dussault and Georges Erasmus. 25 The authors of this report discuss the creation of a third order of government, but nowhere allude to the possibility that Aboriginal peoples might violate Canada's territorial integrity. Consequently, the same should apply in the case of Quebec. If Quebec responds favourably to the traditional demands of Aboriginal peoples, the latter will not be morally justified in taking such serious action as violating the territorial integrity of Quebec.
To date, the Dussault-Erasmus report has, to all intents and purposes, remained a dead letter in Canada. The Canadian government has not undertaken to create a third order of government. Despite this resistance to change, the question of the Aboriginal peoples' right to violate the territorial integrity of Canada is not even considered a reasonable possibility. However, a number of observers are inclined to consider it so in the case of Quebec, even if Quebec responds favourably to their traditional demands. This view of the matter betrays a double standard.
However, there is a second possible interpretation of this passage. Aboriginal peoples in Quebec's far north have rights and concerns. They are concerned about the idea of having new international boundaries imposed without their consent. They also apparently have an interest in seeing those borders altered if Quebec becomes sovereign. They hope to be reattached to Canada and ultimately want to exercise a right of association with the state of their choice. The Court answers in this instance that the obligation to negotiate will force Quebec to consider their interest in being reattached to Canada.
For the purposes of this discussion, I will take it for granted that the second interpretation is the correct one. I will suppose that, in the Court's view, Aboriginal peoples may have an interest in Quebec's borders being altered and may, if they wish, assert that interest during the negotiations.
Even if this interpretation is adopted, must it be concluded that, in the Court's view, there is an obligation to negotiate a redefinition of Quebec's borders? In paragraph 139, the Court invokes nothing more than the possibility of negotiations on the subject demanded by Aboriginal peoples, not an obligation to negotiate a redefinition of borders. The Court assures Aboriginal peoples that, since negotiations would take place, their interests would be addressed at that time. It does not rule on the nature of Aboriginal peoples' interests. It contends only that their interests would be taken into consideration in the negotiations. If those interests included their desire to be reattached to Canada, they would then be able to assert their interests during the negotiations. However, the government has gone much further since it will have an obligation to put the issue of redefining Quebec's borders on the bargaining table.
Consequently, even if, for discussion purposes, we allow a tough interpretation of paragraph 139, it cannot be concluded that this paragraph raises anything more than the possibility that the issue of redefining borders may be part of the negotiations; it does not create an obligation for the federal government to undertake negotiations on the subject.
4. This moreover is the interpretation defended by Alain Pellet in the brief he produced for the Bloc Québécois. According to Mr. Pellet, the opinion cannot be interpreted as giving rise to any obligation whatever to negotiate a redefinition of Quebec's borders. At most, it can be said that the Court recognizes the possibility of negotiations on the subject. We must conclude that the federal government is exceeding the Supreme Court's instructions in wishing to pass legislation imposing a statutory obligation to negotiate Quebec's borders.
5. In the same brief, Mr. Pellet says that he will once again repeat the opinion provided by the five legal experts to the commission on sovereignty. 26 The authors of that report contended that Quebec's borders were preserved prior to sovereignty by the Canadian Constitution and that they would be maintained after sovereignty under international law. Between the two, Quebec's borders could not be altered without its consent. There is a loophole in the law making it possible to derogate from this procedure. The obligation which the federal government wishes to make to renegotiate Quebec's borders will thus go against the current practice of international law.
The claim can even be made that the Court goes so far as to say that Quebec's future borders will coincide with the province's current borders. In paragraph 83, the Court writes: "Secession typically takes the form of a territorial unit seeking to withdraw from the federation". There is thus no reason why Quebec secession should mean anything other than what it typically means.
6. The federal bill will violate the principle of uti possidetis juris which is increasingly becoming an international rule for administering the succession of states. Under this principle, a new state retains the borders it had prior to the succession of states. The International Court of Justice has held that the borders of Burkina-Fasso and Mali should remain as they were following decolonization. In the case of states resulting from decolonization, there can even be said to be a logical link between the right to self-determination of a people and the principle of uti possidetis. 27 Since, for the United Nations, a people is defined in accordance with territorial criteria, conferring a right to self-determination on that people means recognizing that its territorial boundaries will be those it enjoyed prior to decolonization.
However, even outside the decolonization process, the rule of uti possidetis has been applied in a number of other cases, in particular in those of the Soviet Union, Czechoslovakia and Yugoslavia. The principle has now come to be observed in extreme cases such as that of Bosnia. The principle has again been upheld in the case of Kosovo. In view of such numerous applications of the principle around the world, how can an obligation to renegotiate Quebec's borders be justified? This measure sets a dangerous precedent and it is not surprising to see that the Supreme Court did not want it to be a required subject of negotiations.
7. In proposing that borders be renegotiated, the federal government also wants to stimulate the Anglo-Quebec partitionist movement. The idea is less to support the movement as such than to make the public believe that the partition of Montreal is a distinct possibility. In the context of Bill C-20, a fear-mongering policy is obviously in effect. It indicates the beginnings of a strategy that reflects a desire to make Quebec suffer should it secede. The Supreme Court undoubtedly does not want to add to this fear-mongering policy, and that is why it carefully avoided discussing any obligation to redraw borders, particularly in the context of the Anglo-Montreal partitionist movement.
8. Of course, in the negotiations following a YES vote, border posts and maritime borders will have to be negotiated. All parties agree on this point. However, they also agree that this is not what the federal government is referring to as it legislates an obligation to negotiate Quebec's borders.
9. The fact that a number of Aboriginal peoples (Cree, Inuit, Micmac and Mohawk) live in both territories, Quebec and Canada, of course cannot be ignored. This is a reason to conclude that a partnership agreement addressing the interests of these peoples is necessary. The free movement of these peoples over both territories must be guaranteed. In the negotiations, the parties could also agree to implement the recommendations of the Dussault-Erasmus Commission in order to introduce a third order of government. While waiting for this process to be completed and for the fiduciary obligation to be replaced by an independent public government, Quebec and Canada could also assume a joint fiduciary obligation toward the Aboriginal peoples that live in the two territories.
Quebec will not be able to shirk its responsibility to directly negotiate with Aboriginal peoples the conditions for their cohabitation within a sovereign Quebec. In particular, Quebec will have to introduce proposals equivalent to sections 25 and 35 of Canada's Constitution in the constitution of a sovereign Quebec. It will also have to undertake to honour these peoples' Aboriginal rights and strive to define them rather than extinguish them when negotiating self-government agreements.
10. The Court also knows that the Inuit and Cree peoples of Quebec's High North expressly waived their rights when they signed the James and Northern Quebec Agreement. 28 This Agreement was signed by the governments of Quebec and Canada. There is therefore no legal foundation on which the Aboriginal peoples of Quebec's High North may violate Quebec's territorial integrity and exercise a right of association with Canada.
The federal government has strayed quite far from the instructions stated in the Supreme Court's opinion. First of all, it generally raises barriers which are not set out in that opinion. Second, it tries to avoid its obligation to negotiate, as prescribed by the Court. Third, it violates the principle of federalism by interfering in the debate on the choice of question. Fourth, it proposes an ambiguous qualified majority rule which does not meet the requirement of clarity. Fifth, contrary to the Supreme Court opinion, the federal government sets a requirement greater than an absolute majority of votes for there to be a YES vote in favour of sovereignty. In so doing, it is isolating itself from all political actors. Sixth, it seeks to make sovereignty take the form of a radical process leading to complete independence and the severing of all ties with Canada. This is also inconsistent with the Supreme Court's recommendation that there be a process in which the interests of both sides are considered. Seventh, and lastly, the federal government seeks to stir up fears by fanning the partitionist flames. However, as seen above, the Supreme Court imposes no obligation to negotiate Quebec's borders.
Mr. Dion occasionally invokes the unique nature of Quebec's situation in support of the federal government's present action. Quebec sovereignty, he says, is a unique case among established modern democracies. However, he also fails to say that imposing a constitutional order on a people, despite the virtually unanimous opposition of its National Assembly, is also a unique case among western democracies.
Quebec admits that its action cannot be based solely on the democratic principle, but it claims that the only possible interpretation of the democratic principle is the absolute majority rule. Quebec also admits that its action cannot be based solely on the democratic principle. The sovereigntist approach must be guided by other principles and take into account the interests of all parties, in particular those of the linguistic and cultural majorities and Aboriginal peoples. It must also lead to an obligation for both parties to negotiate considering the interests of Quebeckers and Canadians.
However, the federal government's current action is inconsistent with the instructions stated in the opinion. Unlike the Supreme Court, the federal government is demanding more than an absolute majority of votes. It has adopted this position because it views accession of sovereignty as a radical process leading to full independence and a severing of all ties with the Canadian state. However, this also goes against the sovereigntist approach and contradicts the recommendations of the Supreme Court, which, on the contrary, suggests a process in which the interests of both parties would be taken into consideration. Lastly, the federal government is seeking to raise fears by fanning the flames of partitionism. As seen above, however, the Supreme Court has imposed no obligation to negotiate Quebec's borders. This obligation is all the more groundless since Quebec proposes to maintain economic and political ties with Canada.
The discussion of Quebec's borders is inappropriate and odious in itself, when one realizes how dangerous partitionist undertakings are. But they are even less justified if Quebec proposes to maintain partnership ties with Canada. Viewed from this standpoint, the process of accession to sovereignty appears to be not an irreversible process resulting in two radically independent states, but rather a profound change in relations between two states. When sovereignty is viewed in this way, it becomes pointless to propose a change to the ground rules. The absolute majority rule remains the only valid rule because there are other ways of accommodating minority interests.
In view of this federal action, which is illegitimate since it cannot be based on the Supreme Court's opinion, it is important that the Quebec government react quickly by passing Bill 99. This bill must be supported by all Quebeckers, both federalist and sovereigntist. The federal bill must be opposed by legislation that reaffirms the Quebec government's prerogatives. Sovereigntists are right to be angered by Bill C-20. However, federalists who rejoice at the legislation may eventually be even more angry if the trend continues. A consensus is forming in Quebec to offset the Canadian consensus in favour of the bill. If the gulf widens and the crisis deepens, federalists backing Bill C-20 will turn against those they now praise because they will have caused the crisis. Disagreement over the referendum rules is no longer a disagreement among Quebeckers. It is becoming a disagreement between Quebeckers and Canadians. Before it is too late, it is important that Quebec and Canadian federalists call for the withdrawal of this bill. Sovereigntists and federalists, Quebeckers and Canadians, must understand that this debate ultimately concerns the quality of our democratic life.
1. Bill 99, An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec state, Quebec Official Publisher, 1999.
2. Bill C-20, 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, House of Commons of Canada, 1999.
3. Quebec Secession Reference, Supreme Court of Canada, August 20, 1998.
4. For a detailed argument for Bill 99, see Le Pari de la liberté, a brief by the Bloc Québécois in connection with the bill on the exercise of the fundamental rights and prerogatives of the Québec people and the Québec state, presented to the Committee on Institutions of the National Assembly of Quebec, January 31, 2000.
5. Bill 1, an act respecting the future of Quebec, Quebec Official Publisher, 1995.
6. Jacques Parizeau, Lettre ouverte aux juges de la Cour suprême, Montreal, VLB Éditeur, 1998, p.7.
7. Peter Hogg, Patrick Monahan, Jacques Frémont and Gil Rémillard, for example, have all made this claim.
8. See Jacques Juillard, Pour que le Québec ... reste libre!, Nouvel Observateur, March 2000, p.27.
9. Henri Brun, Le projet de loi C-20 est anti-constitutionnel, Le Devoir, February 22 or 23, 2000.
10. Daniel Turp, The Undemocratic Nature of the Clarity Act: A Petition for the Withdrawal of Bill C-20, Canadian Political Science Students Association, McGill University, January 21, 2000.
11. See Claude Ryan, Brief on Bill C-20, (to be reprinted by the C.D. Howe Institute). It was Mr Ryan himself who spoke of the wardship that the federal government was attempting to impose with Bill C-20.
12. This point was also stressed by Claude Ryan in the brief that he read to the legislative committee on Bill C-20.
13. This criticism was made by Patrice Garant. See La clarté référendaire, Sillery, February 17, 2000.
14. Michel Venne, C-20, arbitraire et vulnérable, Le Devoir, Monday, February 28, 2000.
15. A significant exception to this rule was provided by a group of 150 leftwing intellectuals in English Canada led by Gary Kinsman.
16. See, however, the testimony given on February 22, 2000, by Roger Gibbins, President of the Canada West Foundation, to the legislative committee on Bill C-20. Gibbins stressed the problematic nature of this discretionary power.
17. See Le Monde, Friday, March 3, 2000, p.3.
18. Henri Brun, Avis juridique concernant la notion de majorité dans le Renvoi relatif à la sécession du Québec, November 17, 1999.
19. Alain Pellet, Avis sommaire sur le projet de loi donnant effet à l'exigence de clarté formulée par la Cour suprême du Canada dans son avis sur le Renvoi sur la sécession du Québec, December 13, 1999.
20. See, for a discussion, Jean-François Lisée, Sortie de secours, Montréal, Boréal, 2000, p. 266.
21. Patrick J Monahan, "Doing the Rules An Assessment of the Federal Clarity Act in Light of the Quebec Secession Reference". CD Howe Institute (Commentary 135).
22. Jean-François Lisée has also noted the link between the obligation to negotiate the potential conditions and the offer of partnership. For this reason, he proposes a referendum question in which the reference to partnership and to the relevant passages of the Supreme Court's opinion would appear in the preamble to the question. See Sortie de secours, pp. 230-231.
23. Andrée Lajoie, Avis juridique : Le sens de l'expression question claire dans le Renvoi relatif à la sécession du Québec, 7 décembre 1999.
24. It should be noted that the Court is mistaken when it speaks of the right invoked by Quebec to secede unilaterally. In the sense in which it uses the expression, this means that Quebec invokes the right to secede without prior negotiations. This is an incorrect interpretation which insults the sovereigntist approach as it has been expressed since the sovereignty-association movement was established.
25. See, for example, the abridged version of the report entitled People to People, Nation to Nation: Highlights of the Report of the Royal Commission on Aboriginal Peoples, Minister of Supply and Services, 1996.
26. Thomas M. Francz, Rosalyn Higgins, Alain Pellet, Malcom N. Shaw and Christian Tomuschat, L'intégrité territoriale du Québec dans l'hypothèse de l'accession à la souveraineté, Commission sur l'accession du Québec à la souveraineté, 1991.
27. Olivier Corten, "Droit des peuples à disposer deux-mêmes et Uti possidetis: deux faces dune même médaille?" in Olivier Corten, Barbara Delcourt, Pierre Klein and Nicolas Levrat (eds), Démembrement dÉtats et délimitations territoriales : luti possidetis en question(s), Brussels, Éditions Bruylant, 1999, pp. 403-435. In the case of Canada, there is no logical connection between the right to self-determination and uti possidetis. However, since Canada has agreed on a number of occasions to allow self-determination to be exercised by the inhabitants of Quebec, it should logically recognize Quebec's borders following secession.
28. Paragraph 2.1 of the James Bay Agreement reads as follows: "In consideration of the rights and benefits hereby granted to the Cree of James Bay and the Inuit of Quebec, the Cree of James Bay and the Inuit of Quebec hereby assign, waive, abandon and convey all their Aboriginal claims, rights, titles and interests respecting the lands in the territory of Quebec, and Quebec and Canada accept this assignment."