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Notes for an address by the
President of the Privy Council and
Minister of Intergovernmental Affairs
the Honourable Stéphane Dion
before the
Special
Senate Committee on Bill C-20
The Senate
Ottawa, Ontario
May 29, 2000
Check against delivery
Honourable Senators, I could not give a better description than some of you
already have of the rationale for Bill C-20, which gives effect to the
requirement for clarity set out by the Supreme Court of Canada in its opinion of
August 20, 1998, in the Reference re Quebec Secession. As
Senator Lise Bacon so aptly put it on April 11, the object is to
ensure "that the rights of every Canadian are respected."
All Canadians have the right to continue to belong fully to Canada, unless the
voters of their province have clearly expressed their will to cease to be part
of Canada. Only in the presence of such a clear will to secede does a legal
obligation exist to undertake constitutional negotiations "on the terms
on which a province could cease to be part of Canada." (s. 2(4)).
This fundamental right that Canadians have to Canada was confirmed by the
Supreme Court's opinion of August 20, 1998. The Court stated that
this right cannot legally be taken away from Canadians through
a unilateral declaration by the government or the legislative assembly of their
province. Under no circumstances, whether under international law or Canadian
law, does a right to unilateral secession exist in a democracy like Canada.
The Clarity Bill gives effect to the opinion of the Court only with respect to
the obligations incumbent upon the Government of Canada. Indeed, the Bill states
the obvious: the Government of Canada must not enter into negotiations on
secession in the absence of clear support for secession.
In approving this Bill, the Senate would make it possible to establish a
framework that would prevent any federal government from entering into
negotiations following a referendum on secession, unless a clear majority of the
voters of a province had expressed their will to secede, in response to a clear
question. The question would have to make clear that the province would actually
cease to be part of Canada and it would not simply be a mere desire to explore
such a possibility. It could not obscure the issue by mixing independence with
other questions, such as political or economic association, or partnership. In
other words, Bill C-20 articulates, in a manner that is completely consistent
with the Court's opinion, both guidelines and procedures for establishing
clarity.
Honourable Senators, for several weeks now you have been debating the Clarity
Bill, and thus Canadians' right to Canada. Your deliberations have been inspired
by the demanding quest for democracy and justice that so characterizes our
country.
Thanks to your support, the Clarity Bill is now at the committee stage. But
a number of you have expressed some concerns, which I feel can be categorized
within four fundamental questions:
First, is Canada indivisible?
Second, what is the legal import of the Supreme Court's opinion of August
20, 1998?
Are we bound to respect it, given that it is an opinion rather than an
ordinary
judgment?
Third, is the Clarity Bill relevant, given that the Government of Quebec says
that it
will not heed it?
Fourth, does the Bill allow the Senate to play its role?
With your permission, I shall proceed to give the Government's answer to these
four questions, in that order.
1. Is Canada indivisible?
I understand the deep attachment to our country that makes us hope it will never
have to be divided. I share it as well. But the fact is that Canada is not
indivisible from a legal standpoint. The Supreme Court has confirmed that.
Essentially, the Supreme Court has confirmed that Canada is divisible, but not
in any which way. Secession is legally possible only on condition that it be
effected within the framework of the constitutional amending process. As the
Court noted: "The fact that those changes would be profound, or that
they would purport to have a significance with respect to international law,
does not negate their nature as amendments to the Constitution of Canada."
(par. 84)
Anyone who intends to respect the Supreme Court's opinion, as I am sure
Senator Joyal does, must acknowledge that Canada is divisible. Otherwise,
the Court would not have confirmed the position of the Government of Canada that
secession could be effected by an amendment to the Constitution. Nor would it
have concluded that there would be an obligation to enter into negotiations on
secession in the event of clear support for secession.
But in addition to the legal aspect, let us consider the moral aspect. Is it
really possible for a democratic state to retain a population that would clearly
want to leave? I know that in Canada there is not a single major political party
that has said it wants to keep Quebecers in Canada against their clearly
expressed will.
If we Canadians acknowledge that our country is divisible, it is not because we
feel that our citizenship carries with it any fewer values than that of other
countries. On the contrary, we value the fact that we belong to Canada so highly
that we find it inconceivable that our belonging could be based on anything
other than voluntary adherence. Our political culture leads us to conclude that
our country makes sense only if based on mutual consent.
As the Honourable Allan Rock, then Attorney General of Canada, stated in
the House of Commons on September 26, 1996 in setting out the reasons
for the reference to the Supreme Court: "The leading political
figures of all the provinces and indeed the Canadian public have long agreed
that this country will not be held together against the clear will of Quebecers."
"In a situation like that," stated the Right Honourable
Jean Chrétien on December 7, 1997, "there would be
negotiations with the federal government, no doubt about it."
[translation] (Le Soleil, 08-12-1997). Already, in the early 1970's, he
had stated: "If we don't win, we will respect the wishes of
Quebecers and we will accept secession." [translation] (Quoted in Dans
la fosse aux lions, 1985, p. 140)
Commenting on Bill C-20 on March 15, the Honourable Peter Lougheed, former
Premier of Alberta, wrote: "I have long argued for federal legislation
involving the Quebec referendum question precisely along the lines of Bill C-20."
(Calgary Herald, 15-03-2000) So Mr. Lougheed is not
advocating Canada's indivisibility. Rather, he supports a model that excludes
any negotiation of secession in confusion.
A statement I made some two and a half years before the Supreme Court's opinion
shows the extent to which the Government of Canada's position has been
consistent with the August 20, 1998 conclusion of the Court: "In
the unfortunate event that Quebec were to vote with a solid majority on a clear
question in favour of secession, I believe the rest of Canada would have a moral
obligation to negotiate the division of territory." [translation] (Le
Soleil, 27-01-1996)
In short, from both a legal and a moral viewpoint, one cannot say that Canada is
indivisible. But its divisibility would be acceptable only under conditions of
justice and clarity. That is why no absolute right exists for a province to
secede from Canada. What exists instead is an obligation to undertake
negotiations on secession, but only if there were a clear will of a population
of a province to secede and only within the legal framework of our Constitution.
That is the state of the law, and that is what our political culture calls for.
2. The legal import of the
Court's opinion
But must this opinion by the Court be respected? The Government of Canada's
answer is yes.
Some of you have suggested that the Government of Canada should simply ignore
the Supreme Court's opinion in the Quebec Secession Reference since it
is an advisory opinion and not a binding judgment. That whatever the Court said,
the Government of Canada is under no obligation to undertake negotiations on
secession even if there were clear support for secession. That whatever the
Court said, Canada is indivisible.
Some think that what is needed is a federal law that, unlike C-20, would set a
majority threshold even though the Court's opinion stipulates that "a
clear majority on a clear question" must be determined "in
the circumstances under which a future referendum vote may be taken"
(par. 153). In a statement made on March 29, Senator Lynch-Staunton,
for example, declared that the Bill should establish the requirement of "a
minimum of two thirds of eligible voters." Some would want a law that
would specify the constitutional amendment applicable to a secession, even
though, according to the Court, "each option would require us to assume
the existence of facts that at this stage are unknown"
(par. 105).
"Fortunately, the Court's view is only an opinion,"
stated Senator Kinsella last April 4.
I believe that Senator Oliver answered this well on April 6 when he stated
that: "[...] modern governments treat reference decisions in the
same way they would any other court judgment. Moreover, the wisdom of the
Supreme Court of Canada on this vital matter should be followed."
What the justices assert in the exercise of their duties must be given the
greatest possible weight. In 1998, the Chief Justice of the Supreme Court of
Canada, the Right Honourable Antonio Lamer, wrote in the Reference
re Provincial Court Judges ([1998] 1 S.C.R. 3) that "this Court's
opinion will be of highly persuasive weight" and "is binding
on the courts."
The fact is that an opinion rendered by the Supreme Court in a reference is, for
all practical purposes, binding on the lower courts.1 As Dean Peter
Hogg has written: "In practice, reference opinions are treated in the
same way as other judicial opinions." 2 Professors Henri
Brun and Guy Tremblay stressed that, "the opinion"
[translation] expressed in a reference "is in reality a true judgment."
[translation] 3 The same view has been expressed by Professors
François Chevrette and Herbert Marx : "Advisory opinions
have the value of a precedent in practice, if not in theory."
[translation] 4 Professor Patrick Monahan for his part notes that
these advisory opinions "have always been treated as binding by the
federal and provincial governments." 5
So in practice, an advisory opinion rendered by the Supreme Court of Canada in a
reference has the same legal import as any judgment of that Court. A decision of
a government that ran counter to such an opinion would almost certainly be
successfully challenged in the courts. As the Premier of Quebec himself
said on October 21, 1999: "When the Supreme Court has spoken
on a question of law, one is bound to follow its decision."
[translation]
The Supreme Court's opinion of August 20, 1998, applies to all
constitutional actors in Canada. The Government of Canada stated its intention
to respect it fully in its entirety. While it is unfortunate that the Quebec
government has not chosen to do the same, this does not change the fact that the
opinion has legal consequences for both governments.
3. The relevance of the
Clarity Bill
To date, the Government of Quebec has declared that it would ignore the Clarity Act
and would not respect the Supreme Court's opinion. It maintains that a
majority for the Yes side, however small, in response to a question as unclear
as that asked in 1995, referring to sovereignty with an offer of partnership,
would oblige the Government of Canada to agree to secession. "C-20
couldn't do anything to stop that," [translation] my counterpart in
the Government of Quebec, the Minister for Canadian Intergovernmental Affairs,
Mr. Joseph Facal, said on May 2.
Also, some Senators have expressed scepticism about the relevance of
Bill C-20. For example, Senator Rivest stated on March 23 that, "[t]he
Parti Québécois, regardless of this Bill, will continue to promote
sovereignty-association."
It is true that the Clarity Bill, as Senator Rivest himself acknowledges, does
not in any way infringe on the prerogatives of the Quebec National Assembly and
leaves it free to determine the wording of any question it might want to ask in
a provincial referendum. The Clarity Bill does not set guidelines for a
provincial referendum; it sets guidelines for the Government of Canada. It
prohibits the Government of Canada from undertaking negotiations on secession
unless there is clear support for secession. It would be impossible to conclude
that such clear support existed on the basis of such an unclear question as that
in the 1995 referendum. Bill C-20 states that if there is no clarity then there
is no negotiation. And if there is no negotiation, there is no secession.
To this, some Senators respond that a separatist government could simply declare
independence unilaterally and, through this means, obtain international
recognition. Doesn't the Supreme Court itself in its opinion, Senator Beaudoin
argued on April 10, contemplate the possibility of secession "may
come about illegally, indirectly, I can put it that way, and based on
international recognition"?
So, does this mean that the Clarity Bill is useless? Shouldn't we resign
ourselves to working according to the unclear rules decreed by the PQ
government, while disregarding the right Quebecers have to Canada? Senator
Kinsella, in a statement that he made on March 30, asked the following
question: "The Court has told us, in black and white, that a UDI
secession is still a possibility. If it is still a possibility, then of what
benefit is this law?" A rather curious line of reasoning, tantamount
to saying that since it's always possible to break the law, there's no point in
having any laws at all. There is no reason to take on such an attitude of
resignation that is so contrary to the rights and interests of citizens.
One must realize the extent to which, in a democratic country such as Canada, a
unilateral declaration of independence would be not only incompatible with
constitutional law and international law, but would also be impossible in
practice. Such a move would be irresponsible, inapplicable, and doomed to
failure.
C-20 will apply in practice, while a unilateral declaration of independence
would not. Let me explain why.
To be sure, the Court cannot rule out a priori the possibility of a
separatist government being so irresponsible as to act in a way that is "contrary
to the rule of law" (par. 108) by attempting unilateral
secession. But the Court clearly established that such a unilateral move would
have no basis either in international law or under Canada's Constitution. The
secession of a province would require a constitutional amendment (par. 97),
"which perforce requires negotiation" (par. 84), "principled
negotiation with other participants in Confederation within the existing
constitutional framework" (par. 149). An attempt at unilateral
secession would not be "under colour of a legal right"
(par. 144), and would take place in a context in which Canada would be
entitled "to the protection under international law of its territorial
integrity" (par. 130).
This means that the government of a province does not have the right to
unilaterally proclaim itself the government of an independent state. Such a
right is not recognized either under Canadian constitutional law or
international law. It has no such right: not before or not during negotiations,
nor would it have any more right to do so should negotiations break down
(par. 97). If it did try to proclaim independence unilaterally, with all
the risks that such an action would entail, it would not be "under
colour of a legal right".
The fact is that Quebec's secessionist leaders are continually invoking
imaginary "rights": the right to act unilaterally, to use artifice and
ambiguity to conjure up majority support for an option when that support is
simply not there, to refuse to take into account either Quebecers'
constitutional rights as Canadians or the rights of other Canadians, and to
ignore the authority of the courts and even the very foundations of the rule of
law.
So we need to ask Mr. Bouchard's government how, in the absence of a legal
right, it could unilaterally take Canada away from millions of Quebecers who
would want to keep it and would be entitled to keep it? How could that
government obtain respect for its own authority if it had placed itself outside
the law? We need to ask it some very practical questions about what would happen
after it had unilaterally declared itself to be the government of an independent
state. For example:
- How could a government that proclaimed itself to be independent prevent the
province's citizens from continuing to avail themselves of the financial
assistance and the services provided by federal institutions, when it would not
have the financial and human resources to provide them itself?
- How could that government unilaterally collect deductions at source for
federal income tax or employment insurance, excise tax and customs duties,
payment of operating licences, fees of all kinds and various levies for the
exercise of countless economic and professional activities, when the Courts
would consider this to be illegal?
- And how could it be imagined for an instant that a provincial government could
absorb thousands and thousands of employees of the federal public service and
Crown corporations without the active cooperation of the federal government? How
could they be integrated without an agreement on transferring pension plans, for
example?
To be effective, unilateral secession require the expulsion of the federal
authority from the province's territory. It would require the extinguishment,
against its will and the will of millions of citizens, of all of its
constitutional responsibilities toward the citizens living in that province. A
provincial government has neither the legal means nor the political means to
proceed with such an expulsion, such an extinguishment. In a democracy,
secession cannot be effected through expulsion; it can result only from
negotiation.
If the Government of Canada believed it was duty-bound to refuse to negotiate
and to continue to peacefully exercise its constitutional responsibilities, it
would be because: 1) Quebec voters had not clearly indicated their desire to
renounce Canada in order to make their province an independent state;
2) secession had not been duly negotiated; and 3) the Government of Canada
could not ratify an illegal and unconstitutional act.
These are three perfectly reasonable considerations, which are in keeping with
the Supreme Court's opinion, and which would certainly be seen as such by the
international community. Under such circumstances, a provincial government that
unilaterally proclaimed independence would surely not obtain international
recognition. Such recognition would be entirely inconsistent with state
practice.
The Supreme Court has made a prudent and realistic assessment of the role of the
international community (par. 103). It makes the obvious points that: 1)
there would have to be clear support for secession within Quebec, 2) the
Government of Quebec would have to respect the constitutional principles of
federalism, democracy, constitutionalism and the rule of law, and respect for
minorities, during the negotiations, and 3) the Quebec government would need to
encounter unjustified intransigence on the part of other participants for it to
be more "likely" to have a chance to be recognized, in the
Court's words.
We can understand this prudence by the Court in light of the international
community's extreme reluctance to recognize unilateral secessions. Since the end
of World War II, a recognized right to secession has existed within the colonial
context. Outside that context, no political entity has ever been admitted to the
United Nations against the will of the government of the state from which
it wished to separate. There is, unfortunately, no shortage of populations in
the world that are almost unanimous in their desire for independence, that are
victims of unimaginable treatment by the states to which they belong or that are
subject to military occupation, and yet that do not succeed in obtaining
international recognition as independent states.
The reason state practice is so reluctant to recognize unilateral declarations
of independence is undoubtedly because it would be very difficult to determine
on whom the right to secession would be conferred; because such a right would
have dramatic consequences for the international community - with more than
3,000 groups in the world that are conscious of a collective identity; and
because the creation of each new state would risk creating minorities within
that state that would in turn claim their independence. More fundamentally, a
philosophy of democracy that was based on the logic of secession would incite
groups to separate rather than to try to understand and accommodate one another.
And so our fellow citizens who opt for Quebec's secession ought not to count on
international recognition exercised against the will of the Canadian state.
Instead, they should count on the integrity of Canadians. They should count on
the values of tolerance that we all share in Canada, and which would be more
necessary than ever if we had to conduct those painful and difficult
negotiations. And therein lies an important contradiction in the secessionist
movement: since we Canadians are such open and tolerant people, why should we
separate?
The negotiation of the breakup of a modern democratic state would be a mammoth
undertaking, a source "of considerable upheaval and uncertainty,"
in the Court's words (par. 96), not because of bad faith attributed by the
parties to one another, but because it would be very difficult to break such
close-knit ties forged over some 133 years of democratic life together.
Such an operation would certainly necessitate respect for the law and clarity.
4. The role of the Senate
Because of the concerns expressed by a number of Senators, Senators Pitfield,
Taylor, Joyal, Kinsella and others, I want to set out why I am convinced that
the Clarity Bill respects fully the role of the Senate in our parliamentary
system. That is the conviction of the Prime Minister and of the whole
government. In this respect, as in all others, Bill C-20 complies with Canada's
Constitution. The most eminent constitutional experts confirmed that before the
Legislative Committee of the House of Commons on Bill C-20.
For example, Dean Peter Hogg considers that "the Clarity Bill is
consistent with Canadian constitutional law, and in particular with the ruling
of the Supreme Court of Canada in the Secession Reference." (testimony
presented to the Legislative Committee of the House of Commons,
February 22, 2000)
It is totally appropriate that the Clarity Bill not confer on the Senate the
same role it confers on the House of Commons. The reasons for this have been
well explained by some of you, including Senator Boudreau. I would like to
outline them in my own words.
We need to ask what would happen in the absence of the Clarity Bill. The
Government of Canada could then decide on its own how to respond to a provincial
government that asked it to negotiate secession. There is no legal obligation,
and it is not the political practice, for the Government to consult Parliament -
or to hold a national referendum as Senator Joyal has suggested - prior to
entering into constitutional negotiations. Nor do such obligations exist for a
constitutional negotiation on secession. The Supreme Court stated in the Quebec
Secession Reference that: "The federalism principle, in
conjunction with the democratic principle, dictates that the clear repudiation
of the existing constitutional order and the clear expression of the desire to
pursue secession by the population of a province would give rise to a reciprocal
obligation on all parties to Confederation to negotiate constitutional changes
to respond to that desire." (par. 88)
If there were an additional constitutional requirement for the Government of
Canada to consult Parliament or to hold a national referendum before entering
into such negotiations on secession, then that requirement would have been
identified prominently by the Court. It was not.
Instead, the Court confirmed that, while it is always open to the elected
representatives to seek the views of citizens in a referendum, "[i]n
Canada, the initiative for constitutional amendment is the responsibility of
democratically elected representatives of the participants in
Confederation." (par. 88)
Consequently, in the absence of the Clarity Bill, the Government of Canada is
not required to consult either the House of Commons or the Senate prior to
entering into negotiations on any constitutional matter, including secession.
But, whereas the Senate would have no recourse if it objected to such
negotiations, the House of Commons would: it could defeat the government through
a vote of non-confidence. Consequently, a House of Commons that disapproved of a
decision to enter into constitutional negotiations currently has the power to
put an end to those negotiations.
The Senate has no such power to prevent constitutional negotiations from taking
place or to put an end to them, since it lacks the power to defeat the
Government on a vote of non-confidence. As the late Senator Eugene Forsey
explained, under our system of responsible government, Cabinet, the ministers
are "[...] responsible, answerable, and accountable to the House of
Commons [...]" 6. The constitutional principle of
responsible government leads to very different duties and roles for the two
Houses of Parliament. The Supreme Court, for its part, has recognized
responsible government as one of the pillars of Canadian constitutional
democracy (par. 65).
The Clarity Bill is in the spirit of the current constitutional relations
between the Government and Parliament. In fact, it recognizes the serious impact
of a decision to enter into negotiations on secession and, for that reason, it
requires the Government of Canada to ensure, prior to entering such
negotiations, that it has the confidence of the House of Commons.
Moreover the Bill creates an obligation for the House of Commons to take into
account any formal statements or resolutions by the Senate with respect to the
clarity of the question and majority. Such an obligation will exist only if the
Bill is enacted.
In assigning different roles to the Senate and the House of Commons, the Clarity
Bill in no way creates a precedent. At times the two Chambers do not have the
same role to play, and for excellent reasons.
The Senate cannot initiate money bills. It cannot bring down Governments. It
does not have a say on all House of Commons resolutions. A number of laws confer
specific responsibilities on the House of Commons alone. And the Senate does not
have a full veto in constitutional amendments.
Let us consider the latter point. If the Senate can delay, but not defeat, a
constitutional amendment, there is a reason. The Senate's normal roles of sober
second thought and of protecting regional interests are met in part in other
ways through our procedures for amending the Constitution. The majorities
required for most amendments establish high thresholds that ensure due
deliberation. Provincial legislative assemblies, in the approval of
constitutional amendments, have the ability to protect provincial interests
directly.
With respect to the decision to enter into constitutional negotiations on
secession, it is clear that the provinces would have an independent role in
assessing clarity. Thus, provinces would directly protect their interests in
deciding whether to enter into negotiations on secession.
Were Bill C-20 to give the Senate a decisive role in assessing clarity, this
would in practice give it a veto over a constitutional amendment to bring about
secession. This would bestow on the Senate an additional power to veto a
constitutional amendment, a power that it does not currently possess under our
Parliamentary system. There is nothing in the Quebec Secession Reference
to indicate that the Supreme Court of Canada intended to effect a restructuring
of the respective roles of the two Chambers.
In short, Bill C-20 is entirely consistent with Canada's constitution and our
Parliamentary traditions in providing a determining role for the House of
Commons and in obliging it to take into consideration any official declaration
made by the Senate in respect of assessing clarity.
Conclusion
I can summarize the Government of Canada's point of view as to the pertinence of
the Clarity Act in two propositions:
First, in a democratic country such as Canada, secession is acceptable only in
clarity and legality, meaning only if the voters of a province clearly want it
and only if it is negotiated within the constitutional framework.
Second, a democratic country such as Canada has the right, the duty and the
peaceful means to ensure that a unilateral secession would not occur, because it
would be too contrary to the interests and rights of all its citizens,
especially those living in the affected province.
These are the two propositions, or two convictions, of the Government of Canada
that I now submit for discussion, along with any other aspects you may wish to
raise.
Honourable Senators, I end all my speeches on the Clarity Bill by reiterating
this other profound conviction of the Government of Canada: clarity is the ally
of Canadian unity, confusion or ambiguity are not. And for one simple reason:
with a clear question, we Quebecers will always answer that we want to stay in
Canada. We have contributed too much to this country, we want too much to
improve it further, for us to turn our backs on it.
If you choose to vote in favour of the Clarity Bill, you strengthen the unity of
our country. For clarity highlights the will of Quebecers to be both Quebecers
and Canadians, rather than Quebecers without Canada.
And so, in Senator Bacon's words, you will ensure "that the rights of
every Canadian are respected." You will do so by voting for a law that
respects the rights of all Canadians, the opinion of the Supreme Court of
Canada, and our parliamentary system.
1. Barry Strayer, The Canadian
Constitution and the Courts, 3rd edition, 1988, p. 332.
2. Peter Hogg, Constitutional
Law of Canada, 4th edition, 1997, p. 8.6(d).
3. Henri Brun and Guy Tremblay, Droit constitutionnel,
3rd edition, 1997, p. 780.
4. François Chevrette and
Herbert Marx, Droit constitutionnel: notes et jurisprudence,
1982, p. 181.
5. Patrick Monahan, Constitutional
Law, 1997, p. 115.
6. Eugene Forsey, How Canadians
Govern Themselves, 4th edition, 1997, p. 6.
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