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"THE PRACTICAL DIFFICULTIES
OF A UNILATERAL SECESSION"
NOTES FOR AN ADDRESS TO
THE CANADIAN BAR ASSOCIATION
MONTRÉAL
MARCH 23, 1998
As lawyers, you know that you don't argue a case in the court of public opinion,
especially if it is already being heard by the Supreme Court. So I don't intend
to reiterate the arguments we have presented in the reference on the legal
dimension of a unilateral secession. I want to talk about something completely
different. I want to talk about the practical consequences that such a
unilateral declaration of independence would entail for the citizens of Quebec.
The debate on Quebec's
separation/independence/sovereignty/secession has been dragging on for more than
30 years. So you might assume that all aspects of the issue have been explored
in detail. In fact, however, one essential dimension of the problem has been
almost completely neglected.
The debate has in effect centred on the
"why", while neglecting the "how". We've been asking
ourselves "why" we should or should not become independent, without
really taking the time to ask "how" that independence could be
effected, that is, how could Quebec be changed from a Canadian province into an
independent state.
The separatist parties certainly have a very firm
thesis to that effect. Until recently, however, it had been discussed only
superficially.
According to this thesis, the separatist
government monopolizes the procedure through its majority in the National
Assembly. Once elected, it alone determines whether accession to sovereignty
requires two referenda, as in 1980, or only one, as in 1995. The means of public
consultation is set and interpreted by it alone, whenever the time seems right,
with a question of its own choosing. A simple majority would be enough for it to
proclaim independence, and that change of status applies to the entire territory
of Quebec. Negotiations with Canada can be conducted before or after the
declaration of independence, with the government reserving the freedom to
declare itself independent at any time if it doesn't like the way negotiations
are going. It is in a position of strength, even to the point of being able to
slam the door leaving behind its share of the debt, a threat that Mr. Gilles
Duceppe repeated just recently.
That, if you will, is the separatist credo on the
procedure for secession. Anyone who challenges that credo is branded as
undemocratic, an enemy of Quebec, and so on and so forth.
But let's not let ourselves be intimidated; let's
try to sort out what's true and what's false. What I feel is true is that we
Quebecers will never be held in Canada against our very clearly expressed will.
I feel it is inaccurate, however, to claim that only our provincial government
can assess that will of Quebecers. Moreover, it is a mistake to think that that
government could determine on its own what would be negotiable and what
wouldn't, and dictate the terms and conditions of secession.
Even a mutually agreed-upon secession would pose
tremendous practical problems. A unilateral declaration of independence would
create insurmountable concrete difficulties. Permit me to examine with you why
this is so.
The practical difficulties of a
unilateral secession
If secession were to be attempted in Canada, it
would be the first time that a well-established democracy was broken up. It
would be the first attempt to remove a citizenship that confers rights as
extensive as ours, from citizens who wish to keep it. It would be the first time
that a secession would be attempted when there exist a charter of rights,
organized groups to defend a wide variety of interests, well recognized minority
rights, and fiduciary responsibilities toward Aboriginals. Never to date has it
been attempted to separate such complex and elaborate public bureaucracies, with
a public sector that represents almost half of the collective wealth.
One dare not imagine what would happen if the
separatist government, after asking its "winning" question and pulling
off a slim referendum majority in what Mr. Claude Ryan has called a
"dangerous ambiguity", and after having its offer of political and
economic partnership soundly rejected because it was so unrealistic,
unilaterally declared itself the government of an independent state.
In a press conference on November 12, 1997,
Minister Jacques Brassard suggested that it would be enough, following a
unilateral declaration of independence, for his government to exercise
"effective authority over Quebec's territory" for international
recognition to follow. In so doing, he raised a very disturbing scenario,
fraught with uncertainty and almost certainly doomed to failure.
In practice, neither Mr. Brassard nor any PQ
minister has ever explained how their government could assume all federal
responsibilities within all of Quebec's territory. Because that is the most
concrete definition one can give of an attempt at unilateral secession: the
Government of Quebec would be trying to swallow up common Canadian institutions
insofar as they affect Quebec. The federal government, for its part, would
believe it had a duty, in light of the above context of "dangerous
ambiguity", to continue to exercise its constitutional responsibilities,
because 1) Quebecers would not have clearly indicated their desire to renounce
Canada and make Quebec an independent state, and 2) the secession would not have
been duly negotiated.
Such an attempt by the Government of Quebec would
fail for two reasons. First, the conflict of legitimacy that a unilateral
declaration of independence would provoke would place Quebec citizens in an
untenable situation which is unacceptable in democracy. Second, the Government
of Quebec would not have the means to back up its claims and would be unable to
assume all of the functions currently fulfilled by the federal government. Let's
look at these two aspects of the problem in turn.
First, let's consider the moral dilemma that
would face citizens. Everyone would be forced to decide for himself or herself
which law, which government to obey. In democracy, citizens should not have to
choose between different public authorities. Citizens filing their tax returns,
public servants getting up for work in the morning, police officers conducting
an investigation, lawyers defending their clients, must all know where the
authority lies.
If citizens had to travel, what passport and what
consular services would they use if not Canada's?
What would happen to the many Quebec citizens
working in the federal public service and federal Crown corporations such as
Canada Post and the CBC? In the absence of agreements with the Canadian
government, would they leave their jobs and join the Quebec public service?
Without agreement on transferring their pension plans, would they take the risk
of the money accumulated when they worked for the federal government or Crown
corporations not being transferred to their new employer?
Questions just as thorny would also be raised
with respect to maintaining order. Would members of the RCMP renounce exercising
the functions assigned to them by numerous federal laws, such as investigating
drug and money-laundering offences? Would Sûreté du Québec officers agree to
enforce laws that the federal authorities would not recognize and whose
legitimacy and legality would be contested in court? And to what correctional
institutions would people be sent who were found guilty of a criminal offence?
For citizens who refused to obey certain Quebec laws on the grounds that they
violated the Canadian Constitution, which court would they be tried in?
In such circumstances, how would you, who
practise law, counsel a business operating in a field of federal jurisdiction
that wanted to obtain an environmental permit or authorization, to change its
corporate structure, or to settle a labour relations problem? What government
would give you access to the Free Trade Agreement dispute settlement mechanisms
in a commercial dispute between one of your clients and an American competitor?
Surely not a government that had declared itself independent but was not a
signatory to NAFTA.
And just imagine the tax nightmare for the
Government of Quebec! How, in the absence of intense cooperation by the federal
government, could the Government of Quebec collect source deductions for tax,
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? And if the Government of Quebec were
unable to count on all of the tax revenues from Quebecers, how could it provide
all the services and take over all federal programs in Quebec, such as
Employment Insurance and Old-Age Pensions?
How could the Government of Quebec prevent the
province's citizens from continuing to make use of the services provided by the
federal government, especially since it would not have the means, expertise or
human resources to provide them itself? Can one imagine that artists and
businesspeople would forego the grants and loans of all kinds provided by the
Government of Canada?
Just to transfer one thousand federal public
servants to the Government of Quebec under the new job training agreement,
endless precautions have had to be taken. And yet, both governments cooperated
closely and the federal government agreed to cover most of the transfer costs.
The upheaval involved in trying to integrate the federal bureaucracy into the
Quebec public sector against the counsel of the federal government defies
understanding. The Government of Quebec would not have the means to do it,
especially in the economic turbulence provoked by its attempted unilateral
secession.
Many other examples might be given of the
inextricable practical difficulties that would be created by a unilateral
declaration of independence: port activities, fisheries, airports, air traffic
control, banking... Our Quebec society would be utterly divided within itself,
shaken by conflicting directives, in an overexcited, emotionally charged
atmosphere.
Let's clearly admit it: the break-up of a
well-established democracy such as Canada, whose public sector represents half
of the economy, is an impossible undertaking without the willing and intense
cooperation of the country's governments and citizens. If it were to be
determined that Quebecers no longer wanted to be Canadians, negotiations would
be undertaken within the legal framework. In that eventuality, the secessionist
government would be in no position to decide alone what would be negotiable and
what wouldn't. Secession would be very difficult to achieve, there would be
numerous pitfalls and risks of derailment, the economic situation would be
deeply disturbed, but at least one could hope to avoid chaos.
A mutually agreed-on secession could be based
only on very clear support by Quebecers, recognized by all, and would have to be
negotiated with concern for fairness for all. The different interests that would
be expressed within Quebec would also have to be taken into account, as well as
the concerns of all Canadians. I believe this is something we should all agree
on, whether we are for a united Canada or for Quebec's independence.
The separatist leaders, for their part, claim
that Canada would be a "prison" if it did not commit itself to
recognizing a possible unilateral declaration of independence. Well, they must
be prepared to describe every constitutional democracy in the world as a
"prison". Many of them declare themselves to be indivisible, and none
would agree to the possibility of a unilateral secession. Indeed, those leaders
should also describe as a "prison" the indivisible secessionist entity
into which they want to transform Quebec.
Asserting that a unilateral secession poses
inextricable practical problems has nothing to do with a so-called hard line
against Quebec. On the contrary, no one who loves Quebec wants to see it plunged
some day into such uncertainty, which is unacceptable in democracy.
Conclusion
It would have been much more agreeable for me to
talk about other topics which, for their part, touch on unity, such as the
transformation of economic forces in Canada and the greatness of our common
values as expressed in the Calgary Declaration. I could also have spoken
enthusiastically about the initiatives of the Liberal government that have
improved our federation and which I have been pleased to collaborate on,
including the new job training agreements, environmental policy harmonization,
and the constitutional amendment on school boards.
In two days' time, I will be speaking at the
University of Ottawa about the decentralized nature of the Canadian federation
and the changes we have made to the federation in the past two years. This is a
topic which inspires me.
In fact, since I'm speaking to an audience of
lawyers, I would much have preferred to discuss a topic that is of great
importance to me: harmonization of federal legislation with the Civil Code. Our
country is not only bilingual, it is also bijural, and this is one of its
little-known great strengths. In our trade with South America, for example, our
civil law tradition automatically gives us an edge over the Americans.
But instead of talking about these things, I have
examined a possibility that is deeply repugnant to me, that of a rupture between
Quebecers and other Canadians. Why examine such a possibility? Because frankness
dictates that it be said that there is no consensus not only on whether or not
secession would be the right choice, but also on how secession could be
effected.
There is no consensus on whether it is
appropriate to hold a third referendum. Nor on the question that should be asked
if one is held. Nor on the majority required to effect secession. Nor on the
status of territories inhabited by populations who very clearly intend to remain
Canadian, especially Aboriginal peoples. On all these issues and on many others
besides, Quebecers are divided among themselves, not to mention the opinions
held elsewhere in Canada.
More and more voices are calling for
clarifications on all these issues. As Michel Venne wrote in Le Devoir on March
7:
"The controversy surrounding Jacques
Parizeau's great game with Parizeau and the $19 billion that would have been set
aside as a buffer has led many Quebecers to wonder what would have happened if
the YES side had won. Would there have been negotiations before or after the
declaration of sovereignty? What would the negotiations be about exactly? At
what point would Quebec turn to the international community? People don't want
dates, but they do want a fairly clear idea of the process." [Translation]
Mr. Bouchard should not be afraid to make these necessary clarifications;
unless, of course, he is afraid that with full knowledge of the facts, without
any trickery, Quebecers will never want to renounce Canada. My own conviction is
that, in an atmosphere of clarity, we will never renounce being both Quebecers
and Canadians. We will continue to improve further this federation that already
serves us so well, by helping our fellow citizens in the other provinces and
accepting their assistance in turn.
Check against delivery.
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