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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
June 19, 2000
Check against delivery
The Clarity Bill guarantees to Canadians that their federal government will
never enter into negotiations on the secession of a province in the absence of
clear support for secession by the voters of that province. Canadians have a
right to that essential guarantee. Honourable Senators, you have the opportunity
to give them that guarantee by voting for Bill C-20.
Since my appearance before your Committee on May 29, you have
cross-examined with admirable assiduity 20 other witnesses. In light of their
testimony, I am more convinced than ever of the relevance and necessity of the
Clarity Bill.
My conviction stems from two principles that were well defined by the Supreme
Court of Canada in its opinion of August 20, 1998 and that
constitute the foundation of Bill C-20: clarity (s. 1 and s. 2)
and legality (s. 3).
Allow me to examine these two principles before addressing the role of the
Senate and conclude on your debate on the concept of indivisibility.
1. Clarity
The Government of Canada cannot enter into negotiations on secession in the
absence of clear support for secession. This point is self-evident and has been
supported by all of the witnesses you have heard, with the exception of
Professor Lachapelle. Mr. Ryan, for example, who reiterated to you that the
questions in the referenda of 1980 and 1995 were not clear, in no way contests
the Government of Canada's right not to negotiate in the absence of clear
support.
What he would like, however - and Professor Garant has expressed a similar
opinion - is that the House of Commons abstain from expressing itself on
the clarity of the question by way of resolution before the referendum result is
known. Mr. Ryan believes that such a resolution would constitute
interference in a provincial referendum and would be incompatible with the
spirit of federalism.
I am convinced that the opposite is true. My conviction is that in no federation
in the world would it be thought unacceptable for the elected representatives to
the federal parliament to express themselves on the clarity of a referendum
question that challenged the unity of the country.
A referendum on secession held by the government of a province is provincial,
but it concerns the abolition of all federal jurisdictions in the province,
indeed the abolition of the country itself, in relation to the province.
Let's suppose a somewhat opposite situation. Let us imagine that it was the
federal government that was to undertake to extinguish by referendum the
constitutional responsibilities of the provincial legislatures. More
specifically, let us ask ourselves what would happen if the Prime Minister
of Canada announced a Canada-wide referendum on the following question: "Do you
agree to the abolition of the provinces following an offer of political and
economic partnership?" No one, I am sure, would contest the right of
the provincial legislative assemblies to express themselves immediately on such
an initiative, including on the clarity of the question, through resolutions. No
one would say that such resolutions would be interference in a federal
referendum and contrary to the spirit of federalism.
The House of Commons has every right to express itself by resolution on the
clarity of the question, after taking into consideration the viewpoints that
would be expressed by the Senate and other political actors, but before voters
of the province concerned go to the polls. The voters would be entitled to that
information.
Such information would greatly help the cause of Canadian unity. With a clear
question on secession, Quebecers would answer that they do not want to renounce
Canada, that they are attached to it. If the question were unclear as in the two
previous referendums on secession, the unequivocal affirmation by the House of
Commons that Canada cannot be broken apart in confusion would help greatly to
clarify the issue of secession. That is what Professor Pinard has well explained
to you in his testimony.
2. Legality
The Clarity Bill gives "effect to the requirement for clarity as set
out in the opinion of the Supreme Court of Canada in the Quebec Secession
Reference."
I am sure that we all agree now, after hearing the legal scholars who have
testified before this Committee, that this opinion by the Court must be
respected. As Professor Magnet told you: "[...] [the Quebec Secession
Reference opinion] has the same precedential value as the products of a
court giving reasons for opinion in ordinary litigation."
This opinion by the Court was a great victory for Canadian unity and for
democracy, because it confirmed that no right to secession exists in a democracy
such as Canada. Secession is not a right, but that is not to say however that
the population of a province should be kept in Canada against its clearly
expressed will. To effect a secession legally in Canada, an amendment to the
Constitution would be necessary (par. 97), "which perforce
requires negotiation" (par. 84), "principled negotiation
with other participants in Confederation within the existing constitutional
framework" (par. 149). The principles referred to are federalism,
democracy, constitutionalism and the rule of law, and protection of minorities.
"No one can predict the course that such negotiations might take,"
the Court warned (par. 96).
And it added that: "In the circumstances, negotiations following such a
referendum would undoubtedly be difficult. While the negotiators would have to
contemplate the possibility of secession, there would be no absolute legal
entitlement to it and no assumption that an agreement reconciling all relevant
rights and obligations would actually be reached." The only certainty
would be that "[u]nder the Constitution, secession requires that an
amendment be negotiated." (par. 97)
Subsection 3. (1) of the Clarity Bill confirms that "an
amendment to the Constitution of Canada would be required for any province to
secede from Canada, which in turn would require negotiations."
The Court did not rule on the extremely complex mechanism for such difficult and
uncertain negotiations. Nor did it determine the constitutional amending
procedure that would apply to secession. Let's take a look at those different
elements.
Who would negotiate?
It is not up to a federal law to determine who would negotiate. That is why
subsection 3. (1) of the Clarity Bill states that such
negotiations would involve "at least" the governments of all
of the provinces and of Canada. Here again, C-20 is completely in accordance
with the Court's opinion.
Indeed, the Court named the political actors that would have an obligation to
negotiate if a clear will to secede were expressed, namely the federal
government and the governments of the provinces (par. 88). Other political
actors, such as representatives of linguistic minorities, might participate, but
there would be no obligation for them to do so.
Subsection 35.1 of the Constitution Act, 1982 provides that a
constitutional conference be held with the representatives of the Aboriginal
peoples on any constitutional amendment that would affect any
of the provisions of the Constitution that relate specifically to the Aboriginal
peoples of Canada. Grand Chief Moses and Chief Gauthier have expressed
their concerns to you, but the National Chief of the Assembly of First Nations,
Mr. Fontaine, reiterated to you that: "[The AFN is] satisfied
that the constitutional record requiring our participation is clear so that we
will not be the cause of the failure of Bill C-20."
How would each party establish
its negotiating position?
Each government, each political actor, would have to determine for itself how it
would proceed. The governments and legislative assemblies of the provinces would
make their own assessment as to whether there were clear support for secession.
If they determined there was, they would establish their own negotiating
positions. According to the Court, the negotiations would address "the
potential act of secession as well as its possible terms should in fact
secession proceed." (par. 151)
Each participant to the negotiations could choose to consult its population in
its own way. While there is no requirement in our Constitution for a referendum
to be held, it would be open to constitutional actors to consult voters at any
stage of the process to ascertain their views.
However, it would be unprecedented for a Government of Canada to hold a national
referendum before entering into constitutional negotiations in the way
that Professor Howse has suggested. Professor Howse is incorrect in
asserting that The Quebec Secession Reference opinion requires that
such a referendum be held. As the Supreme Court noted: "In Canada, the
initiative for constitutional amendment is the responsibility of democratically
elected representatives of the participants in Confederation. Those
representatives may, of course, take their cue from a referendum, but in legal
terms, constitution-making in Canada, as in many countries, is undertaken by the
democratically elected representatives of the people." (par. 88)
None of the other experts appearing before the Committee supported
Professor Howse's view that there is a legal obligation to hold a national
referendum to obtain a mandate to enter into negotiations on secession. For
example, Dean Hogg stated: "Referendums are not a necessary part
of the amending procedures in Part V of the Constitution Act, 1982,
and, as I said before, the Supreme Court of Canada has made it clear that
those amending procedures extend to all conceivable changes in the Constitution,
including the secession of a province."
Which constitutional amending
procedure would apply?
In accordance with the Court's opinion, C-20 establishes that the secession of a
province would require a constitutional amendment, but it does not specify which
amending procedure would apply. As the Supreme Court stated, "each
option would require us to assume the existence of facts that at this stage are
unknown." (par. 105)
On this point, I fully share the opinion expressed before you by Professor
Monahan that the real difficulty would lie not in identifying the constitutional
amending procedure by which an agreement on separation could be ratified. The
main difficulty would be to negotiate such an agreement on separation. In
Professor Monahan's words: "What we will need in any event would be a
substantial consensus. If we are to achieve that, then it will not make much
difference whether we are at section 38 or section 41. If we achieve
that consensus, the amendment will go through. If we do not have substantial
consensus, then we will not have a constitutional amendment."
The negotiation of the break-up of a modern democratic state such as Canada,
while respecting the rights of all, would be an unprecedented and mammoth
undertaking fraught with pitfalls, the scope of which we cannot measure.
In such circumstances, it would be most desirable for the governments to reach
agreement on all these extremely difficult issues: the clarity of the support
for secession, the negotiating positions, the list of participants, the
consultations needed with citizens, and the balance among the constitutional
principles that would have to be respected. But a federal law cannot dictate
such agreements in advance.
The provinces would be free to determine their negotiating positions and their
procedures for consultation. The Clarity Bill sets guidelines only for the
Government of Canada. But in so doing, C-20 already accomplishes a great deal.
Precisely because an attempt at secession would be an extremely serious event,
fraught with uncertainty, it would be important for governments to set an
example to citizens by scrupulously respecting the law. The Government of Canada
commits itself to doing so. C-20, if it becomes law, if the Senate supports
it, will give Canadians that firm guarantee.
3. The role of the Senate
C-20 provides that the House of Commons would determine the clarity of the
question and, if required, of the majority. Any resolution or official statement
by the Senate would be taken into consideration.
The Government of Canada is convinced that these provisions of C-20, like the
whole bill, are completely constitutional and appropriate.
The attribution of a different role to the House of Commons is based on the fact
that only the House of Commons can, by a vote of non-confidence, prevent the
government from entering into constitutional negotiations or interrupt such
constitutional negotiations. Since the Senate does not have this power, it would
be inappropriate for the Clarity Bill to grant it.
As Dean Hogg ably noted: "[...] the powers that the Constitution of
Canada does give to the Senate are not touched by this Bill." Or as
Professor Monahan put it: "[...] it [bill C-20] does not infringe on
the historic prerogatives, privileges or powers of this institution of which
honourable senators are a part." In a similar vein, Professor Magnet
stated that: "[...] the constitutional powers of the Senate remain
undiminished. It [the bill] does not change its constitutional role [...]"
The bill can assign to the House of Commons alone the responsibility to
determine the clarity of the question and of the majority. Dean Hogg pointed out
that: "[...] the Parliament of Canada has the power to delegate
decision-making powers to any body or person that it chooses. [...] can the
House of Commons be made the recipient of delegated power? I can see no reason
why the House of Commons could not be."
In summary, we can all conclude, together with Professor Monahan, that: "Thus,
you do not bring any dishonour to the institution and to the traditions of the
body of the Senate by agreeing to Bill C-20."
Conclusion
If Canada is not indivisible from a legal standpoint, its break-up would
nevertheless be very difficult to achieve. This difficulty does not stem from
ill will. It does not stem from some desire to keep a province against the
clearly expressed will of its population. There is no support in Canada for
taking such an approach, one so contrary to our political culture, as Professor
Gibbins, among others, expressed so well when referring specifically to Western
Canadians: "We passionately hope that it turns out one way, but if
Quebecers decide in their own wisdom to move in a different way, then, at that
point, you would not see a strong sentiment in the West to say that we must keep
the country together no matter what."
No, the fundamental difficulty would stem from the very nature of the exercise
itself, which would consist of picking and choosing from among one's fellow
citizens, deciding whom one wanted to keep and whom one wanted to turn into
foreigners, and all this while respecting the rights of all. It is no accident
that such an attempt at break-up has never been successfully achieved to date in
a modern and well established democracy.
Canada's unity is based on Canadians' will to stay together. The requirement for
clarity, as established by the Supreme Court, and to which Bill C-20 gives
effect, highlights our will to stay together, within Canada. For all of us,
including the separatist leaders, know that with a clear question, Quebecers
would express their desire to stay in Canada.
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