Notes for an address by the
President of the Privy Council and
Minister of Intergovernmental Affairs
the Honourable Stéphane Dion

on the second reading of Bill C-20

House of Commons

Ottawa, Ontario

December 14, 1999

Mr Speaker,

This bill on clarity that I have the honour of discussing today on second reading clarifies the circumstances in which this House would declare whether the Government of Canada would be obliged to enter into negotiations on the separation of a province from Canada.

An eventual break-up of our country is a serious and sad matter. But, paradoxically, it reveals how much Canada is a real country. It is because the ties that unite us have been so closely knit over the years, that endless precautions would need to be taken, should we, unfortunately, one day undertake to break-up our country.

This bill is in keeping with the Supreme Court's opinion of August 20, 1998 and gives effect to it. It defines the unavoidable responsibilities of the Government of Canada and the House of Commons, while respecting the prerogatives of the Government and National Assembly of Quebec and all other political actors in our federation.

1. The obligation to negotiate if there is clarity

If the population of a province clearly expressed its will to secede from Canada, the Government of Canada would have to undertake negotiations on secession. But in the absence of that clear will, it ought not to undertake such negotiations. This is the Government of Canada's position. It is reasonable, and it just makes good sense.

And it is good sense that has guided the Government of Canada in the past, in 1980 as well as in 1995.

Faced with the confusing question of the 1980 referendum, Prime Minister Trudeau stated on May 14, 1980 that if the Yes side obtained a majority, he would say to Mr Lévesque: "If you knock on the sovereignty-association door, there is no negotiation possible."

On September 8, 1995, the Prime Minister of Canada stated in this House: "For months and months I have asked the Government of Quebec to ask a clear question. It is asking an ambiguous question." He also declared that a majority of 50% plus one was not enough to break up Canada. The day after the referendum, on November 1, 1995, the Leader of the Official Opposition, who is now the Premier of Quebec, took note of that position: "We will recall that [the Prime Minister of Canada] said in this House he reserved the right not to honour a narrow yes majority in favour of sovereignty."

On January 27, 1996, two days after I was sworn in as minister, I was quoted in Le Soleil (Quebec City) as saying: [TRANSLATION] "In the unfortunate eventuality that a strong majority in Quebec were to vote on a clear question in favour of secession, I believe that the rest of Canada would have a moral obligation to negotiate the division of the country." I have reiterated that position in open letters to the Premier of Quebec and his ministers.

The Attorney General of Canada also said, in announcing the Supreme Court Reference in September 1996, that, "in the unlikely event that the population of Quebec were to decide that they do not want to remain in Canada, we will be negotiating (...)."

And that is exactly what the Supreme Court said in its opinion issued two years later, on August 20, 1998. The Court wrote that we are obliged to negotiate secession if things are clear. And the Court assigned to the political actors the responsibility of determining what constitutes a clear question in a referendum on secession, and what constitutes a clear majority.

To negotiate secession where there is clarity, and not to negotiate where there is not: this has been the Government of Canada's position in the past, this is what the Supreme Court's opinion enjoins it to do, and this is what it says in the bill on clarity.

This bill specifies the unavoidable responsibilities of the Government of Canada and the House of Commons. At the same time, it fully respects the prerogatives of the Government and National Assembly of Quebec.

The Government of Quebec can ask Quebec voters the question of its choice. But the Government of Canada and the House of Commons, as political actors, have a duty to make their own assessment of whether the question and the majority indicate a clear support for secession before concluding that the Government of Canada is bound to enter into negotiations on the break-up of Canada.

It is self-evident that the House of Commons would be duty-bound to evaluate the clarity of support for secession before the Government of Canada could undertake to negotiate secession, because the negotiations would aim to terminate all the responsibilities, those of the House of Commons as well as those of the Government of Canada, towards part of the Canadian population.

Even the Bloc's intergovernmental affairs critic and his leader have agreed with that. In fact, on December 8, the Bloc's critic and MP for Beauharnois-Salaberry said that: [TRANSLATION] "According to the Court's opinion, if there is a justifiable role for the federal government [...] it is after the referendum, in determining the clarity of the question and the majority required, so as to conclude whether there is an obligation to negotiate." So we're not that far apart, really.

The decision that the Government of Canada must undertake negotiations on secession would be a major one for this House. It could not ignore the enormous consequences for Canada's population as a whole. A referendum on secession is not just an ordinary election. Voters would not have the opportunity to review their choice four years later. Negotiating the dismantling of a modern, democratic country is an enormous, unprecedented task. A number of

difficult and complex questions would be raised, affecting the rights and interests of all the country's citizens. This House could not conclude that the Government of Canada can impose such an ordeal on Canadians unless there were a clear will in favour of breaking-up.

We, Quebecers, have the same rights as other Canadians to have our two constitutionally authorized governments, our provincial government and our federal government, fully respect our right to Canada.

In tangible terms, this means that if we clearly indicated in a referendum that we wished to stop being part of Canada in order to make Quebec an independent country, our federal government would have an obligation to undertake negotiations to terminate our belonging to Canada, to terminate its constitutional responsibilities toward us. But in the absence of this clear desire for secession, our federal government has the opposite obligation: the obligation to maintain peacefully the constitutional responsibilities it has toward us, and to safeguard all our prerogatives as Canadians, in Quebec, throughout Canada and around the world.

This is our right to Canada. For its part, the Government of Canada intends to respect that right of Quebecers. That is the reason for this bill.

2. The criteria for assessing the clarity of the question

No one can seriously maintain that the Government of Canada would be obliged to negotiate no matter what the question was. The question must clearly be about secession. A confusing question would make any negotiations impossible. It is only reasonable that, to trigger negotiations on secession, you need a clear question on secession.

The question would have to state clearly that the province would cease to be part of Canada and would become an independent state. That's what the bill stipulates.

The notion of the "will" to effect secession is essential. The Supreme Court speaks of "no longer wish[ing] to remain in Canada." It doesn't speak of the "will to confer a mandate to negotiate." You undertake negotiations on secession because you want to secede, not to find out whether that might be what you want.

The bill indicates that a clear question must address secession exclusively. That's obvious. Introducing other elements would make it impossible to know whether voters really want secession or not. No negotiations could result from a question such as the one in 1980 or 1995, referring to the notions of association or an offer of partnership with Canada, because it would be impossible to know if the Yes supporters really wanted to secede from Canada.

3. The criteria for assessing the clarity of the majority

Under both Quebec law and Canadian federal law, a referendum is a consultation. The political authorities assess the importance of such a consultation on the basis of, among other things, the clarity of the question and the clarity of the result. Accordingly, Quebec's Referendum Act sets no threshold, be it 50% + 1 or anything else. The White Paper on referenda (1977) stated that [TRANSLATION] "the fact that referenda are a consultation makes it unnecessary to include provisions about a required majority or a level of voter participation."

It is customary in democracy to require a clear referendum majority before proceeding with a radical change whose consequences would be virtually irreversible. This is the case with a vote that could lead to negotiations on secession. Such negotiations should never be undertaken on the basis of an uncertain majority that might not hold firm in the face of the inevitable difficulties engendered by the break-up of a country. It's not worth imposing that risk on everyone, because the chances that such an attempt at secession will succeed are slim to none in the absence of a clear majority. That's accepted in Quebec.

You don't break up a country with support of 50% plus one. That's just never happened. On the contrary, outside the colonial context, referenda held as part of a successful process of secession have always garnered majorities of over 70%. Separatist leaders around the world say: "Let my people vote under fair conditions and you'll see that they want to separate." They're not saying: "Half of my people want to separate."

Quebecers have already said no twice to secession even when they were asked questions designed to artificially boost support for the Yes side. And each time, the PQ government promised it would be back with another referendum. It said "See you soon!", "See you next time!", instead of taking into account the will of the voters. The PQ government has indicated that it wants to hold a third referendum on secession by the end of its current mandate. And it's not saying it will accept "three strikes, you're out," either.

As long as the Quebec population answers no, the separatist leaders intend to keep proposing their secession plan. But if they ever chanced to get a Yes, no matter how slim, they'd try to effect secession. That would have irreversible consequences, because it is almost impossible to rebuild a country after breaking it up. The No supporters would have no opportunity to say "See you soon!" or "See you next time!"

So the consequences of saying Yes to secession are very different from the consequences of saying No. No means not now, but Yes means forever. Only a Yes can give rise to an irreversible change that is binding on future generations. There must be a clear majority before negotiations are undertaken on the possibility of effecting such a change.

The Supreme Court requires the political actors to assess the clarity of any future majority in favour of secession. It used the expression "clear majority" no fewer than 13 times in its opinion. The qualifier "clear" obviously means that more than a slim majority is required. But the Court also added that there is a qualitative dimension to assessing clarity, requiring a political evaluation and a full understanding of the actual circumstances.

It is therefore impossible to determine what constitutes that clear majority at this time, in the calm atmosphere of a united Canada, outside the turbulence of a referendum, because the circumstances in which that political assessment would have to be made are unknown to us.

The government of the province would first, following a referendum in which a clear question had been asked, need to seek to enter into negotiations on secession. It is conceivable that, faced with a majority that was not clear, the government itself would conclude that it was better not to proceed. It would be ridiculous, for example, to have such a grave decision hinge on a judicial recount.

But in the eventuality that the Government of Canada were called on to negotiate, the House of Commons would proceed to consider and, by resolution, set out its determination as to whether, in the circumstances, a clear majority had expressed itself in favour of secession, again taking into account the other points of view that would be expressed.

4. Negotiations in accordance with the opinion of the Supreme Court

The final subsection of the bill stipulates that no minister of the Crown can propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in the framework of negotiations, the terms of secession expressly mentioned by the Court, such as the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights.

While the Court requires the parties to such possible future negotiations to address these issues, it also requires them not to determine any results in advance. Here again, the bill respects the Supreme Court's opinion.

With respect to borders, for example, the Supreme Court had this to say: "Nobody seriously suggests that our national existence, seamless in so many aspects, could be effortlessly separated along what are now the provincial boundaries of Quebec."

Borders could be subject to negotiation. To be sure, under Canada's Constitution, a province's borders cannot be modified without the agreement of the province's legislative assembly. It may be, however, that democracy and a sincere quest for justice for all would make an agreement on separation contingent on modifying the borders. But the bill provides no certainty about that, to any party.

So the bill does not reiterate the position once advanced by the Bloc's intergovernmental affairs critic, to the effect that the Aboriginal peoples living in Quebec would have the right to continue to remain in Canada, in the event of the province's secession. (C.D. Howe, 1992; and the Bélanger-Campeau Commission, 1991)

Aboriginal populations in Quebec have twice demonstrated through referenda, in 1980 and 1995, their clear will to stay in Canada. If Aboriginals were to express such a clear will once again, the Government of Canada cannot guarantee in advance what fate would await them, but it is committed to taking that factor into account during negotiations on secession. The Government would have all of its responsibilities to all Canadians at heart.

The House of Commons, every member of this House, would have the opportunity to assess the way in which the Government conducted these infinitely painful, serious and difficult negotiations.

Conclusion

This bill is reasonable, and is in everybody's interest, including that of my fellow Quebecers who desire Quebec independence. They can and must acknowledge that their plans for political independence can only be realized in clarity and legality. To act otherwise, to try to reach independence through ambiguity, with no legal safety net, is to show disrespect for Quebecers and to doom the independence initiative to failure, to an impasse that would be disappointing and costly for everyone.

In this matter, the separatist leaders do not defend the rights of Quebecers. None of our rights as Quebecers are threatened by this bill, quite the contrary. No one in this country wants to keep Quebecers against their clearly expressed will. No, what the separatist leaders defend is their capacity to maintain confusion on their project. They are upholding their so-called right to confusion.

So far, the Government of Quebec has reacted to the announcement of this bill with a most regrettable display of polemic frenzy. Among other niceties, it has said that the bill is of Soviet inspiration, designed to turn Canada into a prison, and to dishonour Canada in the eyes of other democracies.

Well, if Canada is to be described as a "prison" for not contemplating its own divisibility other than through legality and clarity, just how would we describe all those democratic countries that declare themselves to be indivisible? And how would we describe the indivisible country into which the separatist leaders want to transform Quebec? A prison?

The truth is that, by obliging itself in law to negotiate secession under circumstances of clarity, Canada is displaying unprecedented openness in the democratic world, in the face of the secessionist phenomenon.

And for my many, many fellow citizens who have Canadian unity at heart, and who will thus be saddened to see their Parliament pass legislation that contemplates the possible break-up of Canada, rest assured that your federal government is firmly convinced that, if things are clear, Quebecers will never renounce their full-fledged belonging to Canada.

The Government of Canada is convinced that Quebecers will always choose to stay in Canada, will always work from the inside to make Canada better, will always accept a helping hand from their fellow Canadians, and in return will never deprive them of the remarkable contribution of Quebec's culture and vitality. As Quebecers, we will never want to deprive anyone, be it ourselves or our fellow human beings, of the benefits of Canadian unity, here at home and throughout the world.

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