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"Alan C. Cairns on Canadians’
right to their country"

October 12, 2001

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          Let me take you back to the morning of Sunday, January 15, 1995. We are at McGill University, the location, in this referendum year, for yet another of those conferences on the uncertain future of Canadian unity. In front of the cameras of RDI and Newsworld, the constitutional industry is gathered once again: two hundred academics, journalists, politicians, from throughout Canada.

          One more conference, I sighed when I arrived at McGill. But the first speaker gave all of us a wake-up call with the following bombshell: the PQ government is wrong to predict that it will negotiate Quebec’s separation within a year of a referendum victory. "An organized, well-prepared, (...) stable partner" would not exist. "The rest of Canada [would be] headless."¹  
Professor Alan Cairns had spoken.

          I said to myself right away: there’s tomorrow’s headline. And indeed, on the Monday morning, La Presse ran it on the front page². The headline in Le Devoir was "Rational negotiations with a sovereign Quebec would be difficult."³ [Translation] "Cairns’s remarks left his audience clearly sobered, even stunned," The Gazette reported.⁴

          This is an academic at his best in society: someone who transmits the results of his research and reflections in a way that fundamentally changes how a crucial question will henceforth be addressed. People can agree or disagree with what the academic says, but it is in light of his remarks that the debate has been restructured.

          What is so exceptional about Alan is that he has played that role on more than one occasion, on a variety of issues, from our electoral system to Aboriginal issues. The wide range of topics discussed at this conference, that has brought us all together around his work today, is testimony to that. I am sure you understand how honoured I feel to be the keynote speaker.

          But in what way did Alan Cairns’ presentation on January 15, 1995,⁵ shake up such deep-rooted convictions? It debunked a myth which is propagated by the use of a false analogy with divorce, likening Canada and Quebec to two individuals who are separating. Each is depicted as a monolithic entity speaking with one voice, that of its government, Ottawa on the one hand, Quebec City on the other. It is the Parizeau myth: after a Yes vote, the people, having spoken, would disappear from the scene, leaving the stage to the teams of technocrats tasked by both governments to negotiate separation rationally.

          As Cairns so rightly put it – along with others, I must point out, like Keith Banting⁶ – after a Yes vote, at least one of those imaginary beings, Canada without Quebec, would be anything but a monolithic block. We would see 23 million people appear who would be uncertain and divided as to what to do next, prey to strong emotions – panic, fear, anger and insecurity – and thrown, along with their governments and their institutions, into a political earthquake for which nothing could have prepared them.

          After the 1995 referendum, Alan remained highly preoccupied with this question, and devoted a number of writings to it. He tried to prepare that part of his country, Canada without Quebec, for the painful difficulties that its reconstitution would pose in the event of Quebec’s secession. He called this "Plan C." He said he was very disappointed by the Supreme Court’s opinion of August 20, 1998, in its Reference re Quebec Secession. He would have liked to have seen the justices specify the legal procedure that would have helped what he calls "the new Canada," that is, Canada without Quebec, to reshape itself. Instead of that, he regretted, the justices only outlined the procedure by which Quebec could detach itself from Canada, without dealing at all with what would then happen to the rest of Canada.

          In point of fact, Cairns’ criticism is directed less toward the justices than to those who asked them the wrong questions according to him. This criticism touches me rather directly, I must say. After describing this criticism in greater detail, I will respond to it by pointing out how neither the Supreme Court’s opinion nor the Clarity Act, which gives it effect, addressed or could have addressed how Canada would reconstitute itself without Quebec. Instead, these two legal documents accomplish what one could expect them to: they explain the reason why secession could not be effected in a just way if it were attempted unilaterally by a provincial government, in confusion and outside the legal framework. And this reason has everything to do with the value of citizenship which is at the heart of Alan Cairns’ thinking, and which you have made the central theme of your conference: this value of citizenship is the solidarity of all citizens in society, or, to put it in a way that ties in more directly with my topic, Canadians’ right to their country.

          As you know, the Government of Canada asked the Supreme Court to determine whether the Government of Quebec could legally, under Canadian law or international law, effect secession unilaterally. The Court confirmed that the Government of Quebec does not have that right. To be legal, the secession of a province would require negotiations and a constitutional amendment. The obligation to undertake such negotiations could arise only from the clearly expressed will of the province’s population to effect secession. It would be necessary for that population, through a clear majority, in response to a clear question on secession, to express its will to cease to be part of Canada.

          This initiative by the Government of Canada was very controversial. 
Alan Cairns, for his part, supported it at first. He hoped that the Court would be the "policy instrument to inject fairness into the referendum process in Quebec by facilitating its incorporation of the interests of Canada/ROC."⁷ But when the court issued its opinion, he was very disappointed in its content.

          For Alan Cairns, the obligation of Canada to negotiate after a Yes vote is "the most innovative aspect of the Court’s ruling."⁸ He does not approve of the obligation to negotiate being placed upon a Canada without Quebec that would not only be distraught, divided, but that would not have a governmental authority invested with official responsibilities for it.

          The Government of Canada has responsibilities toward all Canadians, including toward Quebecers, Alan Cairns points out, and thus cannot speak on behalf of this "non-entity"⁹ which is Canada without Quebec. The latter is not an organized political community, it is only a sociological category. The justices, and before them those who asked them the questions, ought to have taken this into account, Cairns reproaches. They ought to have considered the fact that Quebec’s secession would create two new countries, not just one: not just Quebec, but also the "new Canada", which would not be the Canada of today. In Cairns’ own words:

"The single – with hindsight one might say obsessive – focus of the reference was the secession of Quebec from Canada by a fair process sensitive to constitutional requirements. The justices were not asked whether all secessions should be subjected to the same constitutional rules; whether, with all deference to Prince Edward Island, its secession should be distinguished from that of Quebec's. The departure of the former would leave a recognizable Canada behind; that of the latter would not. Quebec's departure would create two new countries – PEI’s would not."¹⁰

          And so even as negotiations critical to their future would be unfolding, Canadians living outside Quebec would be headless, voiceless, without an institutional existence. This is unfair, Cairns believes. Such negotiations conducted in their absence would very likely risk being concluded to the detriment of their interests, to the point of preventing their new country from reconstituting itself on viable foundations. This could provide the context for a chain reaction of secessions: Atlantic Canada, British Columbia, Alberta..., Cairns warns.¹¹

          So what should have been done? Find a way that Canada without Quebec would also be at the negotiating table, since Quebec would be there. Perhaps appoint an amicus curiae for Canada without Quebec, as was done for Quebec in the secession reference, he proposes, but above all, ask the right question. Cairns suggests: "What is the appropriate constitutional process for the creation of two new countries out of the shell of Old Canada?"¹²

          Let us ask ourselves how the Court would have answered if Alan Cairns’ question had been put to it. Well, we will never know, but according to the legal advice I have received in Government, the most likely response the Court could have given would have been as follows:

 - that Canada’s division into two countries, to be legal, would require a constitutional amendment;

 - that the precise amending formula cannot be determined in advance, in the abstract, without knowing the specific context.

         Perhaps the Court would also have added:

 - that the obligation to undertake such negotiations can arise only from a clear will to effect secession expressed by the clear majority of a province’s population in response to a clear question on secession;

 - that this obligation is imposed on the governments of the federation although other political actors might also participate in the negotiations;

 - that these negotiations should be guided by the principles of democracy, respect for minorities, federalism and the rule of law;

 - that the interests of all should be taken into account;

 - that everything would be subject to negotiation, including the delineation of borders, without anything being determined in advance;

 - that these negotiations might be extremely painful and difficult.

          In other words, with the Cairns question, it would have been difficult for the Court to go further than what is contained in its opinion of August 20, 1998. At the very most, the wording of the question, with the explicit reference to the creation of two new countries, might have led the Court to mention that one of them, Canada without Quebec, would, in the legal sense, be the continuator state of today’s Canada.

          What else could the Court have said? How could it have done what Cairns expected of it: to invite to negotiations on secession a Canada without Quebec before it even existed? I have searched in vain in Cairns’ writings for an answer to that question. However, in a text published in 1996¹³ and another in 1997¹⁴, thus before the Court had issued its opinion, Cairns came out with two pieces of advice in the event of negotiations on secession which I believe are not only very wise, but, in addition, are in no way contradictory to the Court’s opinion.

          First of all, Cairns proposes to limit negotiations with the secessionist province to the necessary elements of a separation agreement: "The negotiators would focus on disentanglement, not on partnership." This would be necessary because Canada without Quebec "could not enter into partnership arrangements on commercial, economic, political, or other matters that presupposed its stability, identity, and continuity until the reconstitution process was completed."¹⁵ "We cannot respond to that [the offer of partnership], because we do not know who we are going to be."¹⁶

Second, Cairns recommends that once the separation was completed, Canada without Quebec should take the time to reconstitute itself while avoiding any haste or panic and continuing "the existing constitutional arrangements, with Quebec excised, for a transitional period of, say, three to five years."¹⁷

          Since the Court’s opinion in no way contradicts the advice formulated by Professor Cairns, why did he not welcome it? He seems to believe that the justices established in law an obligation to negotiate between two actors of unequal status: a Canada without Quebec which would be disadvantaged because it would not yet exist, and a Quebec which, for its part, in contrast, would be at the table. If this really is Alan Cairns’ reading of the opinion, there is a misunderstanding: neither the "new Canada" nor the "new Quebec," that is, an independent Quebec, would be at the table.

          Negotiations would take place between Canadians, those who want to cease to be Canadians and those who want to continue. The referendum, in and of itself, even if it produced clear results in favour of secession, would not create a single non-Canadian. The Government of Quebec would be a provincial government requesting the status of a government of an independent state. It would not have the right to give itself that status unilaterally. It would not have that right, neither before, nor during, and no more so after negotiations that had proven unsuccessful from its point of view.¹⁸ Only an amendment to the Canadian Constitution could grant it that right.

          To be sure, the Court cannot rule out a priori the possibility of a separatist government being irresponsible to the point of acting "contrary to the rule of law"¹⁹ by proceeding with an attempted unilateral secession. But such an attempt would not be "under colour of a legal right"²⁰ and would take place in a context in which Canada would be entitled to "the protection under international law of its territorial integrity."²¹ Under these conditions, and considering the strong reluctance of the international community to recognize unilateral secessions outside the colonial context, it is irresponsible and unrealistic for the PQ leaders to think that an attempted unilateral secession could succeed in practice and obtain support abroad.²²

          If the Government of Canada wanted so much to obtain the Supreme Court’s confirmation that a unilateral secession would be unfounded in law, and if it asked the Parliament of Canada to give effect to this opinion by the Court through the Clarity Act, it is simply because Quebec’s secessionist leaders continually lay claim to imaginary "rights": the rights to act unilaterally, to artificially make an opinion appear to have majority support when it does not, to ignore Quebecers’ constitutional rights as Canadians or the rights of other Canadians, to flout the authority of the courts and the very foundations of the rule of law.

          This leads us directly to the notion of the right of citizenship, which is so central to Alan Cairns’ thinking. What the Government of Canada defended through its initiatives is the right of every Canadian to enjoy full Canadian citizenship. It defended Quebecers’ right to be Canadian and the rights of other Canadians to have Quebecers as their fellow citizens. It ensured that it was made clear that a provincial government cannot unilaterally annul this right of Quebecers to consider themselves at home throughout Canada and the same right of other Canadians not to be foreigners in Quebec.

          All Canadians have the right never to see their full belonging to Canada called into question unless the voters of their province have clearly expressed their will to cease to be part of Canada. Only in the presence of a clear will to secede should constitutional negotiations be undertaken on the conditions under which a province could cease to be part of Canada.

          It is this prerequisite for clarity that needs to be highlighted in the Court’s opinion, much more than the obligation to negotiate, contrary to what Alan believes. As Peter Hogg has written: "Even without the court’s ruling, the political reality is that the federal government would have to negotiate with Quebec after a majority of Quebec voters had clearly voted in favour of secession."²³ And as I myself said in one of my first statements as Minister, as reported in Le Soleil (Quebec City) on January 27, 1996: "If Quebec unfortunately voted with a strong majority on a clear question for secession, I believe that the rest of Canada has the moral obligation to negotiate the division of territory." [translation]²⁴

          If the clarity of the support for secession is an inescapable prerequisite for negotiations on secession, it is precisely because Canadian citizenship, full belonging to Canada, is such a precious value. This is the fundamental principle that the Prime Minister of Canada, the Right Honourable Jean Chrétien, defended in this historic debate. I am proud to have helped him, both as a Quebecer and as a Canadian.

          One way to summarize my remarks is to go back to the false analogy with divorce between two beings, the myth that after a Yes vote, Quebec and the rest of Canada would form two monolithic blocks nicely lined up behind two governments. The great merit of Alan Cairns is to have debunked that myth with respect to the rest of Canada. But he seems to have continued to think in terms of this myth holding true for Quebec.

          In the last political science article I published, in September 1995, I remarked that it is authors from Canada outside Quebec (Cairns, Banting, Young, Gibson) who "have paid considerable attention to the effects of short-term uncertainty on the ROC reaction to a Yes vote," but that those same authors "have characteristically neglected to look carefully at the effects of the same uncertainty on Quebec society." Conversely, the Quebec authors who addressed the profound uncertainty that a Yes vote would create in Quebec (Côté, Derriennic) "failed to address the effects of short-term uncertainty on the ROC."²⁵

          It is not that Cairns is unaware of the division that a Yes vote would create within Quebec society. He talks about "massive uncertainty"²⁶, about difficulty "to even maintain law and order"²⁷. Cairns does not use such dramatic expressions to describe the divisions that other Canadians would be prey to. And yet, one does not sense in his writings that he realizes the extent to which the profound divisions within Quebec society would weaken the position of a secessionist government at the negotiating table.

          The Court’s opinion confirmed that the Government of Quebec could not claim to be the only authority empowered to represent all Quebecers in negotiations on secession. The "new Canada" would not be at the table, but neither would the "new Quebec."

          The surest way to divide Quebecers among themselves is to ask them to renounce Canada. If Quebec’s secession were to be attempted in confusion, without clear support by Quebecers, without a legal framework, the consequences would be very negative here in Vancouver, or in Toronto or Halifax, but in Montreal they could lead to chaos. An attempt at secession would certainly pose grave difficulties between Quebec and the rest of Canada, and within the rest of Canada, but it would first and foremost divide Quebecers amongst themselves.

          We need to rid ourselves of the idea that Canada fell 50,000 votes short of breaking up on the referendum night of October 30, 1995. With such weak and ambiguous support, Mr Parizeau would never have been able to take Canada away from the millions of Quebecers who wanted to keep it and who would have had the law on their side. Instead, Canada would have entered a completely pointless period of upheaval. Foreign examples prove it: the referenda that have preceded peaceful, democratic secessions have always produced very clear majorities.

          The separatists should agree that, if their dreams of an independent Quebec have any chance of being realized, negotiations on secession should never be undertaken except with respect for constitutional law and with the support of a clear majority of Quebecers determined to no longer be Canadian.

          This is as true for Quebec as it would be for any other province. We have seen Alan Cairns reproach the justices for having issued an opinion that could apply to Prince Edward Island and to Quebec alike. To be sure, for obvious reasons, if none other than the size of the populations and territories, Quebec’s secession would cause much thornier problems than that of Prince Edward Island in political terms. But from a legal standpoint, and I would say from a moral standpoint as well, the residents of Prince Edward Island are no less Canadian than Quebecers. They have the same right to Canada as Quebecers do. Their Canadian citizenship is just as imbued with values as that of Quebecers. The prerequisite for clarity and the principle of constitutionality would apply just as much to Prince Edward Island as to Quebec. It is a question of justice.

          As an academic involved in society, and attached to his country, Alan Cairns is concerned about what would happen to Canada if Quebec were to be excised. He would hope that this new country could preserve its unity and avoid the domino effect of secession. He reproaches the Supreme Court and the Government of Canada with having compromised the capacity of that "new Canada" to survive.

          For my part, I do not know what would happen to a Canada from which Quebec was severed. But I know that one way to strengthen Canadians’ desire to be Canadian is to respect their citizenship, their right to full belonging to Canada. If the governments of this federation were to undertake carelessly to take such a right away from Quebecers, without even ensuring that this was clearly what they wanted, I do not see how those governments could maintain among Canadians the conviction that their citizenship is a precious asset, that their country is a beautiful country, a bearer of noble values.

          And I have no doubt that if Canada were taken away from Quebecers in such an unfair manner, that would increase the risk of other separations along the same lines.

          Those who doubt that need only look at what has happened in Quebec in recent years. By showing Quebecers how separating from their fellow Canadians would be a serious, delicate and complicated undertaking, requiring a clear resolve on their part and calling into question the rights of all Canadians, we have strengthened their conviction that Canada is a real country, their country.

          Plan A, Plan B, Plan C, this alphabet soup is just an illusion. The government of Jean Chrétien has pursued only one goal since 1996: the valorization of Canada. I am convinced that it is because we have treated Canada as a real country that we will never know what it would look like without the full contribution of its majority Francophone province, Quebec.

Notes

1. Alan C. Cairns, "Suppose the ‘Yes’ Side Wins: Are We Ready?", Western Perspectives: Canada West Foundation, February 1995, pp. 8 and 6.
   
   
2. La Presse, January 16, 1995, "Le Canada anglais sera incapable de négocier la séparation du Québec", p. A1.
   
   
3. Le Devoir, January 16, 1995, "Forum sur le référendum québécois : Les négociations rationnelles avec un Québec souverain seraient difficiles", p. A2.
   
   
4. The Gazette, January 17, 1995, "After a Yes, B.C. prof gave Quebecers something to think about", p. B3.
   
   
5. Alan C. Cairns, "Suppose the ‘Yes’ Side Wins: Are We Ready?", pp.1-12.
   
   
6. Keith G. Banting, "If Quebec Separates: Restructuring Northern North America", R. Kent Weaver (ed.), The Collapse of Canada?, Washington D.C., The Brookings Institution, 1992, pp.159-178.
   
   
7. Alan C. Cairns, "The Supreme Court, the UDI Reference and Democracy", Policy Options-Options politiques, September 1998, p. 48.
   
   
8. Alan C. Cairns "The Quebec Secession Reference: The Constitutional Obligation to Negotiate", Constitutional FORUM, Fall 1998, vol. 10:1, p. 26.
   
   
9. Alan C. Cairns, "Suppose the ‘Yes’ Side Wins: Are We Ready?", p. 7.
   
   
10. Alan C. Cairns, "We Were Not Invited", CanadaWatch, January-February 1999, vol. 7, no. 1-2, p. 27.
    
    
11. Alan C. Cairns, "We Were Not Invited", p. 29.
    
    
12. Alan C. Cairns, "We Were Not Invited", p. 29.
    
    
13. Alan C. Cairns, "Canada: Can We Survive?", Journal of Business Administration and Policy Analysis, Summer 1996, vol. 24, no. 6, pp. 335-352.
    
    
14. Alan C. Cairns, "Looking Into the Abyss: The Need for a Plan C", C. D. Howe Institute Commentary, no. 96, September 1997, pp. 1-32.
    
    
15. Alan C. Cairns, "Looking Into the Abyss: The Need for a Plan C", p. 18.
    
    
16. Alan C. Cairns, "Canada: Can We Survive?", p. 350.
    
    
17. Alan C. Cairns, "Looking Into the Abyss: The Need for a Plan C", p. 17.
    
    
18. Supreme Court Decision: Reference re Secession of Quebec, (August 20, 1998), par. 97.
    
    
19. Supreme Court Decision, par. 108.
    
    
20. Supreme Court Decision, par. 144.
    
    
21. Supreme Court Decision, par. 130.
    
    
22. See in particular my address to the Legislative Committee on Bill C-20 on February 16, 2000 and to the Special Senate Committee on May 29, 2000 available at: , Press Room/Speeches.
    
    
23. Peter W. Hogg, "The Duty to Negotiate", CanadaWatch, January-February 1999, vol. 7, no. 1/2, pp. 34-35.
    
    
24. Le Soleil, January 27, 1996, "Référendum au Québec : Dion prêt à reconnaître un OUI majoritaire", p. A10.
    
    
25. Stéphane Dion, "The Dynamic of Secessions: Scenarios after a Pro-Separatist Vote in a Quebec Referendum", Canadian Journal of Political Science/Revue canadienne de science politique, September 1995, pp. 545-546.
    
    
26. Alan C. Cairns, "Looking Into the Abyss: The Need for a Plan C", p. 14.
    
    
27. Alan C. Cairns, "Canada: Can We Survive?", p. 341.