"Who’s Afraid of Clarity?"

INTRODUCTION

PART 1: A REASONABLE BILL

1.1 From the Court’s opinion to the clarity bill

1.2 The clarity of the question

1.3 The clarity of the majority

1.4 The legal framework of negotiations

PART 2: THE UNREASONABLE NATURE OF THE OTHER POSITIONS 

2.1 Refusal to negotiate when the situation is clear 

2.2 Agreeing to negotiate in confusion

2.3 The threat of unilateral secession: bluff or recklessness?

CONCLUSION: CLARITY TO THE MAX

 Ladies and gentlemen, if I had to summarize, in just two words, the short bill that you will be reviewing, the first would of course be "clarity", but the second would be "reasonable."

It is reasonable that the Government of Canada could not contemplate negotiating secession unless a clear question on secession had been asked beforehand. It is reasonable that the government could not undertake to negotiate the breakup of the country on the basis of a precarious majority. And it is reasonable that the Government of Canada could not negotiate secession other than within the legal framework, which in this case means respecting the opinion of the Supreme Court of Canada in its entirety.

This element of reasonableness explains why the efforts of the separatist leaders to inflame passions about the bill have failed. Of course, they have spared no effort in their propaganda campaign, but on the whole, Quebecers have refused to see this bill as an "attack" or an "assault" on Quebec and on democracy. Quebecers are not afraid of clarity; on the contrary, that’s what they want.

The clarity bill is pro-Quebec, pro-democracy and in the interest of all Canadians. As a Quebecer, I am proud to be the sponsor of this bill. An attempt at secession would create serious problems between Quebec and the rest of Canada, but first and foremost it would divide Quebecers among themselves. The surest way of dividing us has always been to ask us to choose between Quebec and Canada, rather than letting us hold both of these identities that are a part of us.

The prospect of such division is worrying enough, without contemplating its being created in confusion, outside the legal framework, rather than in clarity and respecting the rule of law, as confirmed by the Supreme Court of Canada.

Today, after highlighting the reasonable nature of this bill, I will demonstrate how the other proposals that have been put forward are unreasonable by comparison. In conclusion, I will show that the bill pushes clarity as far as possible in the absence of a referendum context.

The reasonable nature of the clarity bill stems first from the fact that it closely follows the opinion of the Supreme Court. This can be easily seen in each of the three sections of the bill: the clarity of the question, the clarity of the majority, and the legal framework for negotiations.

1.1 From the Court’s opinion to the clarity bill

In its opinion of August 20, 1998, on the Reference Re Secession of Quebec, the Supreme Court confirmed the rights of citizens in the face of any attempt at unilateral secession. It found that no obligation exists to negotiate the secession of a province in the absence of a clear will by the province’s population to effect secession, expressed through a clear majority in response to a clear question on secession. In the event of clear support for secession, the Court added that negotiations would need to be conducted within the constitutional framework.

This opinion by the Court protects the rights of all Canadians, and in this case, Quebecers in particular. Our separation from Canada would be one of the most serious decisions we could ever undertake, for ourselves, for our children and for future generations. To ensure that our rights are respected, that decision can be made only in legality and clarity. The Supreme Court’s opinion guarantees our rights against a Quebec government that would want to take Canada away from us unilaterally, heedless of our rights.

Since such an opinion has, for all practical purposes, the same import as a judgment, as confirmed by the Court itself (Reference Re Judges of the Provincial Court, 1998) and by numerous legal experts (Hogg, Constitutional Law of Canada, 4th edition, 1997, p. 8.6(d); Brun and Tremblay, Droit constitutionnel, 3rd edition, 1997, p. 780; Chevrette and Marx, Droit constitutionnel, 1982, p. 181; Strayer, The Canadian Constitution and the Courts, 3rd edition, 1988, p. 332), some have asked whether it is appropriate to reiterate in the form of legislation what has already been formally established in law.

The Government of Canada would undoubtedly have preferred never to have had to table this bill. It considers that it is duty-bound to do so because of the repeated refusal by the Premier of Quebec to accept the Prime Minister of Canada’s proposal to make a commitment not to hold a third referendum on secession during his current mandate, in accordance with the express wish of so many Quebecers.

The clarity bill is also necessary for another reason: the refusal by the Premier of Quebec to make a commitment to respect the Supreme Court’s opinion on secession in its entirety. The Quebec Premier sums up the Supreme Court’s opinion in a single sentence, but he never finishes it: " ‘They’ would be obliged to negotiate ..." he says, but he never adds, "within the constitutional framework, with everything on the table and nothing determined in advance, after a clear majority has been obtained in favour of secession, in response to a clear question."

Well the clarity bill completes that sentence. And that sentence concerns you, because the "they" in question includes you, as members of the House of Commons.

As you know, the Court left it to the "political actors" (par. 100) to determine what constitutes a clear question in a referendum on secession and what constitutes a clear majority. The "elected representatives" (par. 101) would have an obligation to give concrete form to the discharge of their constitutional obligations during negotiations on secession. It is obvious that the members of the House of Commons and the members of the Government of Canada are among those "political actors" and "elected representatives".

It is self-evident that the House of Commons, of which you are all members, would be duty-bound to evaluate the clarity of the support for secession before the Government of Canada undertook to negotiate such a serious and consequence-laden change, because the negotiations would aim to extinguish all the responsibilities, both of the House of Commons and of the Government of Canada, towards part of the Canadian population.

Even the Bloc’s intergovernmental affairs critic and the Honourable Member for Beauharnois-Salaberry, has agreed with that. On December 8, my colleague said that: [TRANSLATION] "If there is a role that the federal government is justified in playing on the basis of the Court’s opinion [...] it is to assess the clarity of the question and of the majority required after the referendum in order to determine whether there is an obligation to negotiate." So we’re not that far apart, really.

But I fear that the Member for Beauharnois-Salaberry is isolated within his political movement. The PQ government and the Bloc assert that the House of Commons ought not to have a say regarding the clarity of the question or of the majority because Quebec members of the House are in a minority. But it is the Honourable Member for Beauharnois-Salaberry who is right. We Quebecers are Canadians too. The Parliament of Canada is ours as well. We have the right to have that Parliament never contemplate terminating its responsibilities toward us unless that is what we clearly want.

As for Canadians outside Quebec, they are our fellow citizens, not foreigners. If we clearly supported secession, it would be the breakup of this country that we share with them that would be the subject of negotiations. They would have both the moral and the legal right to assure, through their elected representatives, the clarity of a possible will to secede. Quebec is a part of their country, and its loss would have serious consequences for them, just as the loss of Canada would have serious consequences for us.

In giving effect to the Court’s opinion, the clarity bill sets out, in tangible terms, how you, as members of the House of Commons, would assume your responsibilities in assessing the question, assessing the majority, and the conduct of negotiations on secession.

The bill rightly confirms that the government would be accountable to the House: it would fall to the House to determine whether the circumstances of clarity existed such that the government would be bound to undertake negotiations on secession. It is certainly preferable for the House to deliberate on these serious issues openly, rather than for the government to act on its own. In the event of negotiations on secession, the government would participate, but it would be up to the House to assess the results within the constitutional framework.

The clarity bill establishes the unavoidable responsibilities of the House of Commons and the Government of Canada, without in any way impinging on the responsibilities and prerogatives of the other political actors.

In fact, the bill recognizes that Quebec’s government and the National Assembly, like any government and legislative assembly in Canada, has every right to put any referendum question to its voters that it sees fit. The clarity bill does not challenge that prerogative in any way. It sets guidelines for the Government of Canada, not for a provincial referendum. For the Government of Canada to undertake to negotiate the termination of its responsibilities and duties toward the population of a province, the House of Commons must first conclude that that is what that population clearly wants.

The bill not only respects the prerogatives of the provincial governments and the other political actors, it obliges the House of Commons to take their views into account, both at the stage of assessing the question and at that of assessing the majority. This includes the viewpoint of every party represented in the legislative assembly of the province proposing a referendum on secession. That’s a key element, because in 1980 and 1995, the Official Opposition in the National Assembly did not support the wording imposed by the government.

The bill also stipulates, in accordance with the Court’s opinion, that possible negotiations on secession would include, among others, the governments of all of the provinces. The bill thus fully acknowledges the role of the other political actors, without in any way dictating their conduct.

1.2 The clarity of the question

Neither the Supreme Court opinion nor Bill C-20 has invented the problem of determining the clarity of the question or the clarity of the majority required to negotiate secession. That debate took place in 1980 and again in 1995, and we cannot really talk of changing the rules since there has never been agreement on what those rules are.

There was disagreement in 1980 as to the consequences of the referendum, between Messrs. Trudeau and Lévesque, with the former ruling out in advance any negotiations: [TRANSLATION] "If you knock on the sovereignty-association door, there is no negotiation possible." (14-05-80) The same thing happened in 1995, when Mr. Bouchard, on the day after the referendum, was highly critical of Mr. Chrétien for having reserved the right "not to honour a narrow yes majority in favour of sovereignty."(31-10-95)

Let’s start with the clarity of the question. We all know what a clear question on secession would look like. The Supreme Court speaks of a clear expression by Quebecers "that they no longer wish to remain in Canada." (par. 151). The closer the question were to that wording, the clearer it would be. But one could imagine other questions: Do you want your province to separate from Canada? Do you want your province to cease to be part of Canada and become an independent country?

The Supreme Court speaks of "no longer wish[ing] to remain in Canada," not a "wish to confer a mandate to negotiate." You undertake negotiations on secession because secession is what you want. You do not negotiate in order to find out whether or not that is what, perchance, you want.

Obviously, clarity cannot come from a question that addresses something other than secession, or that mixes in other considerations. Any manual of methodology will tell you that you have to avoid double-barrelled questions (Earl Babbie, "Avoid Double-Barrelled Questions," in Survey Research Methods, Wadsworth Publishing Company, 1973, p. 140). As professors André Blais and Claire Durand have noted: [TRANSLATION] "A question is ambiguous if it deals with more than one dimension. So it is best to introduce only one idea at a time." (Recherche sociale, Presses de l’Université du Quebec, 1997, p. 385). For this reason, the concept of partnership ought not to be included in a question on secession.

Moreover, the concept of partnership is itself unclear. The Premier of Quebec himself described it as "bare bones" on June 19, 1997. And despite the symposia that have been held since then, each as inconclusive as the next, it has still never been possible to put some meat on those bones. And for good reason: how could 25% of a country’s population leave that country and then return and count for 50% in the shared institutions?

Of course, an independent Quebec would have relations with its neighbouring states, consisting of cooperation and competition, each defending its own national interests. But a relationship between states, however civilized, is not the same as the relationship of sharing that unites Canadians within Canada. To benefit from the Canadian partnership, you obviously have to be part of Canada.

All Canadians have the right never to have their belonging to Canada challenged on the basis of a confusing question. The issue is too important to allow for even the slightest ambiguity. That is why the bill stipulates that the House of Commons, within 30 days after the government of a province officially releases a question for a referendum on secession, would consider the question and, by resolution, set out its determination on whether the question is clear.

My colleague, the Bloc’s intergovernmental relations critic would prefer that the clarity of the question and of the majority be assessed at the same time, after the referendum. But Bill C-20 stipulates that the House would assess the clarity of the question before the referendum campaign, for an obvious and logical reason: really early on and, we hope, even before the campaign began, voters would know whether their two parliaments, provincial and federal, agreed on whether or not the question was clear. That’s why the bill gives the House a maximum of 30 days to deliberate the clarity of the question. This would be important information that voters would have a right to.

Some people have suggested that a clear majority might make up for a confusing question, and that therefore no assessment of the clarity of the question should be made until the referendum result is known. But that’s a rather strange line of reasoning. It’s obvious that you can’t have a clear majority if the question is confusing, because it’s impossible to know whether the voters constituting that majority really want their province to cease to be part of Canada.

To be sure, it would be up to the government or the legislative assembly of the province to determine the wording of a referendum question in a provincial referendum. But the clarity bill makes it clear that no negotiation would be possible if the question were not clear. If the provincial government is confident that it has the public’s support, it would be in its interest, and in the interest of all, to ask a question that is clear beyond the shadow of a doubt.

The wording of the question ought not to be part of the secessionist arsenal of winning conditions. Rather than "winning," the question must be clear, allowing the population to state unambiguously whether or not it wants to cease to be part of Canada and make its province an independent country.

1.3 The clarity of the majority

The Supreme Court calls on 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. But it urges us not to try to establish this clear majority in advance: "It will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken." (par. 153)

This too is very wise advice from the Court. There is a qualitative dimension to assessing the clarity of a majority which calls for a political assessment in full knowledge of the circumstances. So it is impossible to determine that clear majority today, because the circumstances in which that political assessment would be made are currently unknown.

The bill provides that, in the event of a majority in favour of secession, in response to a clear question, the first actor that would need to assess the clarity of that majority would be the separatist government itself. That government would first have to attempt to initiate negotiations on secession in order for the House of Commons to proceed with its own assessment of the clarity of the majority. It is possible that, faced with an unclear majority, that government would itself conclude that it would be better not to proceed with its initiative for secession. Common sense would prevail.

It would be foolhardy, for example, to have such a serious decision hinge on the results of a judicial recount or an examination of spoiled ballots. The former policy advisor to the past two PQ premiers, Mr. Jean-François Lisée, raises that problem on page 305 of his latest book.

Only after that government had concluded that a clear majority existed and had invited the other participants in the federation to negotiate secession, would the House of Commons proceed to make its own assessment.

So that’s the process established by the clarity bill. There again, it gives effect to the Supreme Court’s opinion. No one can seriously claim that the Court placed such emphasis on the notion of a clear majority only to invite the House of Commons to accept, without further review, a majority of 50% + 1.

No one? Well actually, that’s exactly what the Quebec government and the Bloc are doing. They say that the rule of 50% + 1 is sacred, and that to question it under any circumstances is undemocratic and runs counter to the equality of voters.

Let’s take a closer look at that. There’s a logical reason why the Reform Party requires a 2/3 majority to dissolve itself, and why Quebec’s Civil Code requires a 3/4 majority to terminate co-ownership. It’s because once an association is dissolved, it cannot be subsequently resurrected just by voting on it. The same holds true for a country.

Our separatist leaders may well say "See you soon!" or "See you next time!" after every referendum defeat, but the No supporters could not say the same thing after a Yes victory. 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.

So it is inaccurate to claim, as the Quebec government is doing, that 50% + 1 is an ironclad rule of democracy. It doesn’t even respect that rule itself for its own municipal referenda.

Indeed, Quebec’s Referendum Act makes no mention of 50% + 1. The 1977 White Paper that gave rise to the Act 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."

I have raised these arguments many times, but neither the Bloc nor the Quebec government has ever refuted them. Instead, they have called the Government of Canada undemocratic. They accuse it of violating the principle of the equality of voters by requiring, as does the Supreme Court, a clear majority for the Yes.

Equality of voters means that each voice is worth one unit when the votes are counted. But once the results are known, it is up to the political authorities to determine what action to take on the basis of the vote. In our democratic tradition, referenda are consultative. That’s what Quebec’s Referendum Act says. So is it undemocratic as well?

Is the 50% + 1 rule really universal? Well, Aboriginal populations voted in 1995 to stay in Canada by majorities of over 95%. And yet the separatist leaders say they can ignore such referenda. So is the 50% + 1 rule more universal for some people than for others?

At least the Reform Party is more consistent. According to Mr. Manning, if 50% + 1 is good enough for those want to leave Canada, then it’s good enough for those who want to stay. But that consistency comes at the price of irresponsibility. It’s obvious that the 50% + 1 rule is inapplicable for this kind of decision.

In a recent editorial, The Economist joined the many others in saying that secession "should be carried out only if a clear majority (well over 50%-plus-one of the voters) have freely chosen it." (29/01/2000) After all, if 50%+1 is a clear majority, what would be an unclear majority?

To limit the risk of disagreement on a clear majority, the government proposing secession has only to avoid holding a referendum until it is guaranteed to win it. That guarantee would come from various indicators, such as polls yielding clear and stable majorities in favour of secession or support for secession across the political spectrum. Indeed, this is what has happened elsewhere in the world. Referenda haven’t been held to determine whether one half of the population wanted to separate; rather, the referendum has been an opportunity to officially confirm evident support for secession. In fact, outside the colonial context, referenda held during a process of a successful secession have always garnered majorities of over 75%.

So the Premier of Quebec is quite right not to want to hold a referendum until he is guaranteed to win it. But just as he must acknowledge that the wording of the question ought not to be part of his arsenal of winning conditions, he would also do well to acknowledge that his power to choose the timing of the referendum ought to be used in everyone’s best interest, rather than for tactical purposes. It would be unrealistic and irresponsible of him to attempt such a difficult and hazardous undertaking as negotiating secession on the basis of a circumstantial and precarious majority, rather than one that was clear and stable.

In democracy, it is a moral error to try to obtain a permanent decision through effects of circumstance.

1.4 The legal framework of negotiations

The Supreme Court has confirmed that negotiations on secession would have to take place "within the existing constitutional framework" (par. 149), and would have to respect the principles identified by the Court: "federalism, democracy, constitutionalism and the rule of law, and the protection of minorities." (par. 90). One practical consequence of this is that the Government of Quebec could not determine on its own what would be negotiable and what wouldn’t. It "could not purport to invoke a right of self-determination such as to dictate the terms of a proposed secession to the other parties." (par. 91).

Instead, it would have to negotiate in such a manner as to address the interests "of the federal government, of Quebec and the other provinces, and other participants, as well as the rights of all Canadians both within and outside Quebec" (par. 92), and of Aboriginals (par. 139), on all matters, including division of the debt and the issue of borders. Here again, the clarity bill is completely in keeping with the Court’s opinion.

The Government of Quebec and the Bloc do not want borders to be included in the list of issues to be negotiated. On this point, the Court noted: "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." (par. 96). In a legal opinion commissioned by the Bloc, Professor Alain Pelet confirmed that the Supreme Court’s opinion included the issue of borders among the issues that could be negotiated. (Summary legal opinion on the bill giving effect to the requirement for clarity, 13/12/99).

I know that it’s difficult for the Government of Quebec to admit the possibility of a change to Quebec’s borders, but only last week Aboriginal leaders reiterated that it would have to face up to that issue.

It may be that democracy and a sincere quest for justice for all would make secession contingent on an agreement to modify the borders. But the clarity bill provides no certainty about that. So the bill does not reiterate the position once advanced by the Bloc’s intergovernmental affairs critic, the Honourable Member for Beauharnois-Salaberry, to the effect that the Aboriginal peoples living in Quebec would have the right "to remain integrated with Canada" in the event of the province’s secession (C.D. Howe, 1992; see also Bélanger-Campeau, 1991). Rather, the clarity bill conforms to the Court’s opinion, which makes it very clear in respect of negotiations on secession that "there would be no conclusions predetermined by law on any issue." (par. 151)

The issue of borders attracts attention because it is known that there is profound disagreement on this point. In 1980 and again in 1995, Quebec’s Aboriginal populations indicated through referenda their clear desire to remain in Canada. But there may be many other potential bones of contention. Negotiations on secession necessarily entail serious and real risks of disagreement, both between governments and within populations.

The clarity bill in no way invents or creates such risk of disagreement. On the contrary, it makes every effort to limit such risk to a minimum, by stressing legality, clarity, deliberation and consultation.

2. The unreasonable nature of the other positions

Like the Supreme Court’s opinion, the clarity bill is based on the principle that there must be negotiations on secession if it receives clear support, and there must not be negotiations if the support is not clear. That reasonable position has been challenged by three others, all of which are unreasonable.

The first is not to negotiate even if there is clear support. The second is to negotiate secession even in the absence of clear support. The third concerns the secessionist government: it calls on it to break off negotiations through a unilateral declaration of independence.

2.1 Refusal to negotiate when the situation is clear

Negotiations if the situation is clear, no negotiations if it’s not: by providing this dual guarantee, Bill C-20 opened itself to criticism from both sides: by those who see it as a road map or a fast track for secession, and also by those who see it as stymieing any possibility of secession, as a sort of padlock law.

So, it is a road map or a padlock? The Conservative leader, Mr. Joe Clark, has the remarkable achievement of seeming to support both these viewpoints at the same time. In point of fact, however, both of them are wrong.

Let’s start with the argument that Bill C-20 is a road map or a green light for secession. Well, just what would those critics have us do? Refuse to negotiate secession even if the voters of a province clearly indicated they wanted to cease to be part of Canada? Because if that’s what they’re proposing, then let them say so openly.

To my knowledge, no major political party suggests that a province be held in Canada against the clearly expressed will of its population. As the Honourable Allan Rock stated in the House of Commons in setting out the reasons for the Supreme Court reference, on September 26, 1996: "The leading political figures of all our provinces and the Canadian public have long agreed that the country will not be held together against the clear will of Quebecers."

That position is self-evident in Canada, although I agree that it would be considered exceptional elsewhere in the world. Many other democratic states declare themselves to be indivisible and highlight their territorial integrity in their Constitution or their case law. They believe that because every portion of the national territory belongs to all of the country’s citizens, the country cannot be divided. They guarantee each citizen that their country will never be taken away from them, and that they will pass it on to their descendants.

This principle of indivisibility is valid and legitimate from the viewpoint of those countries. But Canada has come to a different conclusion. But let there be no misunderstanding: as Canadians, we admit our divisibility not because we don’t think that Canada is a real country, whose territorial integrity is less worthy of respect than that of other countries. No, it is because we realize that our Canadian identity is too precious to be based on anything other than voluntary adherence.

 But that kind of straight talk may not be too popular with those who reproach the clarity bill with giving a green light to secession. Rather than telling it like it is, they seem to suggest that we should take a rather different tack: so that while it may be true that Canada would in fact negotiate its breakup in the event of clear support for secession, we mustn’t ever say so, on any account. Instead, we should suggest that the very opposite is true, so as to frighten the voters.

I find that viewpoint cynical in the extreme. Canada would not deserve to be what it is if it were based on fear and deception, rather than on voluntary adherence. And in addition to being cynical, such reasoning is just plain false. The majority of Quebecers want to stay in Canada not because they’re afraid they’ll be detained by force, but quite simply because they are attached to their country. They may have some ideas on how to improve it, but they definitely want to keep it. Canada, a principle of liberty, must always be described as it is, because that is the best guarantee of its unity.

2.2 Agreeing to negotiate in confusion

And now, what about those who, on the contrary, denounce the clarity bill as a legislative padlock? What would they have the Government of Canada do? Negotiate secession even if it were not clear that the voters of a province wanted to cease to be part of Canada?

Because if that’s what they want, they are asking the House of Commons and the Government of Canada to abdicate their responsibilities. Such an abdication would constitute disrespect. Disrespect to Canada, which is a real country, just as much as other independent countries. Disrespect to all Canadians. And above all, disrespect to the citizens of the province in question, who have the right never to have their full belonging to Canada called into question unless they’ve clearly said that’s what they want.

To respect our rights as citizens, our right over Canada, the House of Commons should call on the Government of Canada to negotiate secession only if the province’s voters clearly supported that. Only this position is in line with both our political culture and the law. Only this position is in the interest of all.

Just after I was sworn in as a minister, I said that: [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." (27-01-96) On August 20, 1998, the Supreme Court gave a legal confirmation to that moral obligation, well established in Canada. It is eminently desirable that we all respect that opinion, whether we are in favour of Canadian unity or Quebec independence.

If the separatist leaders are finding they can’t win in clarity, that’s not because of the law or of the judges, but because of the will of Quebecers. But the fact that they find themselves unable to win in clarity, does not authorize them to try to obtain victory in confusion. To win, they have to convince a clear majority of Quebecers that they would be better off if they ceased to be Canadian.

They definitely have their work cut out for them, but that’s not anyone’s fault. Rather, it’s because it must be very difficult to renounce Canada, a country that Mr. Bouchard himself described, on Canada Day, 1988, as a "land of promise [...] a country celebrated for [its] generosity." The Government of Canada is convinced that, if things are clear, Quebecers will always choose to stay in Canada. They will make that choice because they love this country, this land of freedom.

2.3 The threat of unilateral secession: bluff or recklessness?

It is often wondered what would happen if a provincial government simply ignored both the Supreme Court’s opinion and a federal clarity law and unilaterally declared independence. This is not a rhetorical question, since the Government of Quebec, backed up by the Bloc, is brandishing just such a scenario.

They claim that the Government of Canada would then be obliged to negotiate on the Quebec government’s terms, if for no other reason than to ensure that it ponied up its portion of the debt. They warn that if there are no negotiations, there will be no contribution by Quebec to the common debt.

It’s funny that the PQ leaders don’t see that, after a unilateral declaration of independence, no one would be asking them to help pay down the federal debt. On the contrary, they would be the ones doing the asking, for a portion of federal taxes.

Because a unilateral declaration of independence would be just that: a declaration. It would have no legal import.

The Supreme Court’s opinion did not exclude the possibility of an attempt at unilateral secession for the simple reason that no one can rule out in advance the possibility of a government’s choosing to act in a way that is "contrary to the rule of law." (par. 108) But the Court clearly established that such a unilateral move would have no basis either in international law or under Canada’s Constitution. The secession of a province would necessitate a constitutional amendment, "which perforce requires negotiation" (par. 84), "principled negotiation with other participants in Confederation within the existing constitutional framework." (par. 149) An attempt at unilateral secession would not be "under colour of a legal right" (par. 144), and would take place in a context in which Canada would be entitled "to the protection under international law of its territorial integrity." (par. 130)

This means that the Government of Quebec would be negotiating as a provincial government, within the framework of the Canadian Constitution, from which it draws its powers. At no time during those negotiations would it have the right to proclaim itself the government of an independent state. If it did so, it would not be "under colour of a legal right," and such a move would be very risky business indeed.

So we need to ask that government how, in the absence of a legal right, it could take away their full belonging to Canada from millions of Quebecers who would want and would be entitled to keep it. How could it ensure respect for its own authority if it had placed itself outside the law? We need to ask that government some very practical questions about what would happen after it had declared its independence unilaterally. For example:

- How could that government prevent the province’s citizens from continuing to make use of the financial assistance and the services provided by federal institutions, when it would not have either the means or the human resources to provide them itself?

- Or how could that government unilaterally collect source deductions for federal income tax or 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 how could it be imagined for an instant that a provincial government could absorb thousands and thousands of employees of the federal public service and Crown corporations without the active cooperation of the federal government? How could they be integrated without an agreement on transferring pension plans, for example? Even Bloc MPs would have a few problems with that!

If the Government of Canada believed it was duty-bound to continue peacefully to exercise its constitutional responsibilities, it would be because: 1) voters had not clearly indicated their desire to renounce Canada and make their province an independent state; 2) secession had not been duly negotiated; and 3) the Government of Canada could not ratify an illegal and unconstitutional move. Under such circumstances, could a provincial government that unilaterally proclaimed itself to be independent obtain international recognition, as the spokespersons for the Quebec government and the Bloc maintain?

The Supreme Court, for one, has made a much more prudent and realistic assessment of the chances of obtaining international recognition (par. 103). It makes the obvious point that: 1) there would have to be clear support for secession within Quebec, 2) the Government of Quebec would have to have respected constitutional principles and values during the negotiations, and 3) the Quebec government would need to encounter unreasonable intransigence on the part of other participants for it to be more "likely" to be recognized.

We can understand this prudence by the Court in light of the international community’s extreme reluctance to recognize unilateral secession. There are, unfortunately, many populations in the world that desire their independence to an almost unanimous degree, that are victims of unimaginable demands by the states to which they belong, and yet do not succeed in obtaining international recognition as independent states.

And so those among us who opt for secession ought not to count on international recognition exercised against the will of the Canadian state. Instead, they should count on the honesty of Canadians. They should count on the values of tolerance that we all share in Canada, and which would be more necessary than ever to the conduct of those painful and difficult negotiations. And therein lies one contradiction of the secessionist project: since other Canadians are such open and tolerant people, why should we want to separate from them?

If the separatist leaders feel otherwise, if they believe that, faced with a clear will to separate on the part of Quebecers, Canadians in the other provinces would act in bad faith, or that federal ministers from Quebec would block any negotiations, which is what they accuse me of in their propaganda, then they envisage a scenario much darker than mine.

The breakup of a modern democratic state would be a mammoth undertaking, a source "of considerable upheaval and uncertainty," in the Court’s words (par. 96), not because of bad faith on one part or another, but because it would be very difficult to sunder such close-knit ties forged over decades of democratic life together. Such an operation would certainly necessitate respect for the law and, above all, clarity.

Spokespersons for the Government of Quebec, in brandishing the threat of unilateral secession, are maintaining a grossly irresponsible and unrealistic position. They are either being reckless in the extreme, or they are bluffing. They would do far better to commit themselves unequivocally to always acting in clarity and legality, in other words, to never attempting secession without respecting the rights of Quebecers.

Conclusion: clarity to the max

The clarity bill is reasonable. It is reasonable to oblige the Government of Canada to negotiate if there is clear support for secession, and not to negotiate if there is not. It would be too dangerous, too disrespectful of the rights of Canadians, to act otherwise. The bill is in the interest of all because it provides the only answer to the problem of secession that is in keeping with our culture and our law, the answer of a free country whose unity is based on legality, clarity and mutual consent.

And furthermore, the clarity bill is complete: it does not address issues other than secession, and with respect to secession, it covers only what can be established with complete certainty in advance.

Some people have called for Bill C-20 to include other considerations than just secession. It has been said that it should also be possible to use it to effect changes within Canada. But that would be a mistake. This bill addresses only secession because it cannot be otherwise. The first condition of clarity is an ironclad distinction between proposals for leaving Canada and proposals for improving Canada. Voters have to know that if they vote YES in a referendum on secession, they are expressing their desire to leave Canada.

As a result, this bill in no way affects or inhibits any proposal, constitutional or otherwise, for improving the Canadian federation. It rightfully applies only to proposals for leaving it.

The purpose of this bill is to "give effect" to the opinion by the Supreme Court, not to speculate on aspects that the Court didn’t address. For example, the Court did not comment on the complex mechanics of possible negotiations on secession. There again, it would be very difficult and certainly ill advised to try to define things in advance, in the absence of a given context. Moreover, it would be difficult for the House of Commons to determine this aspect on its own through legislation without impinging on the responsibilities of the other participants in the federation.

Similarly, the Court did not specify which constitutional amending formula would apply to secession, because "each option would require us to assume the existence of facts that at this stage are unknown." (par. 105) Incidentally, the Attorney General of Canada argued for just this cautious approach in his pleadings before the Court. Bill C-20 therefore refrains from dealing with this issue.

So what does the clarity bill accomplish? It sheds as much light as possible on the steps that would have to be taken in order to undertake what, at this point, must necessarily remain a black hole, in the words of Mr. Jean Charest. It sets out the circumstances for clarity in which the government would declare itself bound to negotiate secession, and confirms that the government would negotiate in accordance with the principles set out by the Supreme Court. The conduct of such negotiations, and their consequences for citizens, remain fraught with uncertainty.

The bill specifies the criteria that would enable the House of Commons to judge the clarity of the question. But it does not determine the possible wording of a referendum question, because the House of Commons has no business doing so in the context of a provincial referendum.

The bill specifies the criteria that would enable the House of Commons to assess the clarity of the majority if an invitation to negotiate secession were made by the government of a province following a referendum on a clear question. But it does not determine in advance the clear majority that would oblige the Government of Canada to negotiate secession, because that can only be determined in the unknown circumstances following a referendum.

The bill makes the government accountable to the House of Commons for how it will assume its responsibilities during negotiations on secession. But it in no way predetermines the terms and conditions for such a secession.

The Government of Canada has chosen to provide this clarification now, when things are calm, outside of any referendum campaign, because citizens have the right to know.

Secession is still a black hole. The clarity bill simply gives us the best flashlight possible, with the best batteries.

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