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Notes
for an address by the
President of the Privy Council and
Minister of Intergovernmental Affairs
the Honourable Stéphane Dion
on the third reading of Bill C-20
House of Commons
Ottawa, Ontario
March 15, 2000
Mr Speaker,
Now that the House of Commons
has reached the last stage of its work on Bill C-20, I would like to take this opportunity
to recognize the important work done by members of the Legislative Committee and the
witnesses who contributed to the examination of this bill which is fundamental to the
rights of Canadians. I would also like to take this opportunity to salute the vision of
the Prime Minister of Canada, whose sense of duty has given Canadians this essential
guarantee of their rights.
Every citizen of this country
will be guaranteed two fundamental rights if, as it is desirable, the House of Commons and
the Senate pass Bill C-20, the Clarity Act.
First, every Canadian will have
the guarantee that the Government of Canada will never enter into negotiations on the
separation of a province unless the population of that province has clearly expressed its
will to cease to be part of Canada.
Second, the Clarity Act
will guarantee to all Canadians that any such negotiations on secession, should they
occur, would take place within the Canadian constitutional framework, respecting the
principles identified by the Supreme Court: democracy, federalism, constitutionalism and
the rule of law, and respect for minority rights.
The Clarity Act will
protect the rights and interests of all Canadians, but especially Quebecers, because it is
in Quebec that the provincial government is contemplating a secession attempt in an
atmosphere of confusion and outside the legal framework. Quebecers want no part of that
disturbing prospect. The Clarity Act is pro-Quebec and pro-democracy.
1. Compliance with the Supreme Court's opinion
The Government of Canada is
convinced that C-20 complies fully with the Supreme Court's opinion. Renowned legal
scholars testified to that effect before the Committee, including Dean Yves-Marie
Morissette, former Quebec Justice Minister Gil Rémillard, and Dean Peter Hogg,
who stated: "Bill C-20 is completely consistent with the Supreme Court's judgment and
I think it would be difficult to both support the decision of the Court and reject the
Bill."
The government is also convinced
that C-20 ensures that the House of Commons and the Government of Canada fulfill their
obligations, without infringing in any way on those of the provinces.
It is noteworthy that no sitting
provincial premier, with the exception of Quebec's, has criticized the Clarity Act.
Before the Legislative Committee, in addition to Mr. Rémillard, who stated that
[TRANSLATION] "this bill respects Quebec's jurisdiction," another former
minister of the Government of Quebec, Mr. Claude Castonguay, stated:
[TRANSLATION] "I have not seen anything in this bill (C-20) that limits the
jurisdiction of Quebec's National Assembly, nor Quebecers' right to decide on their own
future."
Former Ontario Premier Bob Rae
stated: "I'm perfectly satisfied that the level of consultation that's provided for
in the Clarity bill is certainly adequate and nothing in the Clarity bill takes away from
the jurisdiction of any province." And we have all read in today's Calgary Herald,
the same unequivocal support for C-20 by another former premier, of another province and
another political allegiance, Mr Peter Lougheed.
Nevertheless, it will be
recalled that some witnesses, including Mr Claude Ryan, told the Committee that even if
the federal government has the right, if not the duty, to assess the clarity of support
for secession and to conduct itself accordingly, the House of Commons would not have the
right to make a determination as to the clarity of the question before the referendum
result were known. The Honourable Member for Beauharnois-Salaberry, the Bloc's
intergovernmental affairs critic, also shares this opinion.
In point of fact, however, as
Professor Patrick Monahan has noted, if it is legal and legitimate for the House of
Commons to express its opinion on clarity after the referendum, it is hard to see how it
would be unable to do so beforehand.
Moreover, in purely practical
terms, it is hard to imagine how the House of Commons and the Government of Canada could
go through the whole referendum campaign without ever answering the simple question: Do
you think the question is clear? Voters would press them for an answer, and rightly so.
They would have the right to know.
2. The clarity of the question
[TRANSLATION] "We don't
need to dress it up with a partnership." "These institutions are just nonsense,
it's just window dressing to sell it [the option] to people. I think we have to be
straight with people if we want to sell our option." These calls for straight talk,
Mr Speaker, were made by PQ youth members at their meeting at the beginning of this
month.
It should be acknowledged by
everyone that the question in 1995 lacked in clarity, and that it could not lead to any
negotiations as worded. Anyone who still has any doubts on this would do well to consult
the document submitted to the Legislative Committee by Professor Maurice Pinard. It
contains abundant evidence that the 1995 question gave rise to a great deal of confusion.
To give just one example: [TRANSLATION] "In 1995, only around 50% of voters knew that
[sovereignty-partnership] was divisible. The rest believed that there would be no
sovereignty without partnership at the same time," Professor Pinard told the
Legislative Committee.
The separatist leaders would do
better to aim for maximum clarity. So why is it so difficult to acknowledge that only a
question on secession can give rise to negotiations on secession? With clarity, everyone
wins.
3. The clarity of the majority
In Canadian federal law as in
Quebec law, a referendum is a consultation whose results must be evaluated by the
political authorities. There is no legal majority threshold at which point a referendum
would lose its consultative nature to become a decisive one binding governments.
The separatist leaders accept
this rule of law for municipal referenda, for example, or for referenda held by Aboriginal
peoples, but they do not accept it for a referendum on the secession of Quebec. They say
it is undemocratic to challenge the threshold of 50% + 1 in determining whether
a majority is sufficiently clear to trigger negotiations on secession.
I do not think that anyone can
question Mr Ed Broadbent's deep-rooted commitment to democracy. He is devoting
his life to it. And this is what he had to say to the Legislative Committee: "It
would be misleading in my view to describe democracy as simply a system in which all
decisions are reached on a 50% plus one basis. In fact I would argue that [...] the
more serious decisions require much more than 50% plus one, and some require
unanimity."
So will the separatist leaders
say that Mr Broadbent is undemocratic?
Mr. Claude Ryan reiterated to
the Committee his preference for a minimum threshold of 50% + 1 of all
registered voters. Will they call him undemocratic as well?
In addition to Mr Ryan,
three of the experts who appeared before the Committee were of the opinion that no
negotiations on secession could be entered upon without a minimum 50% + 1 of
registered voters expressing their will to secede: Brian Crowley,
Patrick Monahan and Yves-Marie Morissette, as well as Professor
Patrice Garant, who stated as much in an article in Le Devoir. As for
Professor Michel Lebel, he suggests a minimum threshold of two thirds of the ballots
cast. The representatives of the Groupe des cent stated that [TRANSLATION]
"in the absence of a broad consensus, we feel that the initiative [of secession] is
doomed to failure."
As everyone knows, the Clarity
Act does not set a threshold. It provides that the majority would be the subject of a
qualitative assessment following a referendum. In actual fact, it is very difficult to set
a minimum threshold in advance that would guarantee a clear majority in all circumstances.
Indeed, setting a threshold in advance would likely be contrary to the spirit of the
Supreme Court's opinion. As Dean Hogg told the Committee: "I just don't think there
is a constitutional basis for doing that and that's why fidelity to the court's judgment
requires us now to wait until after the referendum."
Not setting a threshold in
advance is consistent with our law and with Canadian tradition regarding referenda. As
Professor Guy Lachapelle acknowledged to the Committee, [TRANSLATION]
"Historically, the federal government has never, never, in any referendum, recognized
50% + 1 as the rule prior to a referendum." Professor Wayne Norman
also noted that fact. Far from being a change of the rules, C-20 conforms to Canadian
practice.
For example, the Government of
Canada did not commit itself in advance to accepting Newfoundland as a province of Canada
on the basis of a 50% + 1 majority in the 1948 referendum. Instead, the
Government of Canada proceeded exactly as provided for in Bill C-20: it waited for the
referendum result before it came to a decision.
And what about international
practice, including the United Nations, the separatist leaders ask. Again, I must
reiterate that the UN generally supervises referenda held in the context of
decolonization, in which the UN recognizes a right to independence and expresses a strong
preference for this political solution. As Professor Jean-Pierre Derriennic so
eloquently told the Legislative Committee: [TRANSLATION] "Civilized state practice in
the second half of the 20th century has been that the principle of self-determination
gives the right to found a new state in the case of people living under a political power
which refuses them genuine citizenship, a situation experienced by inhabitants of
colonies."
Other than in cases of
decolonization, the UN has shown no sympathy for secession whatsoever, and has even
opposed it completely, as in the case of Katanga. It does not make secession a right, and
certainly not a right that can be exercised on the fragile basis of 50% + 1 of
the ballots cast in a referendum held only in the territory where secession would take
place. To believe that the Government of Quebec could obtain international recognition
under such circumstances is to display a profound misunderstanding of state practice.
So the Clarity Act does
nothing undemocratic in establishing, in accordance with the Supreme Court's opinion, that
the clarity of a future referendum majority in favour of secession be subject to
assessment. On the contrary, C-20 displays an unusual openness, in a democracy, toward the
widely opposed phenomenon of secession, as Professor Robert Young, the author of a
major book on secession, told the Committee.
4. Two amendments for Aboriginal peoples
Although the negotiation of
secession raises many issues, it was the issue of Aboriginals that dominated a good part
of the deliberations of the Legislative Committee.
Speaking to the Committee,
Quebec's Canadian Intergovernmental Affairs Minister, Mr Joseph Facal,
maintained a position and the opposite at the same time. On the one hand, he cited
[TRANSLATION] "international legal texts" recalling that, although Aboriginals
are nations, [TRANSLATION] "Aboriginal rights must be exercised within sovereign
states." On the other hand, he stated that accessions to independence for nations
such as Quebec were "purely a factual matter," a political, rather than legal
issue. That allegation, incidentally, has been contradicted by the Supreme Court which
states in paragraph 83 of its opinion that: "Secession is a legal act as much as
a political one." In other words, he and his government believe themselves to be free
to act outside the law, but Aboriginal populations, for their part, would have to submit
to the law. Clearly a double standard.
It must surely be somewhat
embarrassing to give oneself a right and deny it to others. We know that the Honourable
Member for Beauharnois-Salaberry, the Bloc's Intergovernmental Affairs critic, was of the
opinion, before he entered politics, that the Aboriginal peoples could remain in Canada in
the event of Quebec's secession. And, esteemed witnesses invited by the Bloc to appear
before the Legislative Committee have maintained that point of view: Professors
André Tremblay, Andrée Lajoie and Guy Lachapelle, and the head of the
Confederation of National Trade Unions (CNTU),
Mr Marc Laviolette.
Under Bill C-20, the Government
of Canada commits itself to addressing, in negotiating secession, "the rights, interests and territorial claims of the Aboriginal
peoples of Canada." The Assembly of First Nations, the Grand Council of the Crees and
the Inuit Tapirisat of Canada called for stronger guarantees before the Legislative
Committee. Several other witnesses, including Mr Jack Jedwab, made proposals to
better take into account the rights of Aboriginals and of minorities in general. Liberal
and NDP members of the Committee showed strong support for amendments that would make
guarantees for Aboriginals more explicit.
The validity of these
suggestions led the Government of Canada to support two amendments proposed by the NDP and
supported by the Liberal members of the Committee. The scope of these amendments is to
explicitly mention representatives of the Aboriginal peoples of Canada among those whose
views would be taken into consideration by the House of Commons when assessing the clarity
of the question and of the majority.
The National Chief of the
Assembly of First Nations, Mr Phil Fontaine,
indicated he was satisfied with these modifications, but was disappointed that the role of
Aboriginal representatives in negotiations on secession had not been more clearly defined.
On
this matter, and I want to stress this, the reason why subsection 3(1) of the Clarity Act
mentions, among the participants in possible future negotiations on secession, only the
governments of all of the provinces and the Government of Canada is that these are the
only political actors to which the Court assigned an obligation to negotiate in the event
of clear support for secession. But neither the Court nor C-20 rules out the possibility
of other political actors participating in those negotiations, including the
representatives of the Aboriginal peoples of Canada. Simply put, it was not for C-20 to go
beyond the Court's Reference by creating an obligation for actors other than those to
which the Court assigned such an obligation.
I want to add that, according to
the Constitution Act, 1982, the federal and provincial governments are bound by
an agreement in principle by virtue of which representatives of the Aboriginal peoples
would be invited to participate in discussions on any constitutional amendment that would
affect the provisions of the Constitution that are mentioned in subsection 35.1. The Clarity
Act respects that principle, by clearly stipulating that negotiations on secession
would include "at least" the governments of the provinces and the Government of
Canada.
Conclusion
The Clarity Act fully
complies with and gives effect to the Supreme Court's opinion, and guarantees to all
Canadians that their federal government will never negotiate the secession of a province
unless the House of Commons has determined that the population of that province has
expressed its will to cease to be part of Canada. It also guarantees them that any such
negotiations, should they occur, would respect the rule of law and constitutional
principles.
Our colleagues in the Bloc
québécois, who ferociously opposed Bill C-20, have merely succeeded in creating the
impression that they know full well that they are incapable, through straight talk and
clarity, of convincing Quebecers that secession is the best solution.
The fact is that Quebecers, and
indeed all other Canadians, have a right to clarity rather than ambiguity, and to the
protection of the law rather than anarchy.
The time for ambiguity is past.
I call on all members of this House to vote in favour of the Clarity Act.
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