Parsing the Unity Bill

The NDP is wrong on secession, the Clarity Act and the Supreme Court

“The Reference requires us to consider whether Quebec has a right to unilateral secession. Those who support the existence of such a right found their case primarily on the principle of democracy. Democracy, however, means more than simple majority rule.”

This was a unanimous Supreme Court of Canada in 1998’s reference decision on Quebec secession. The Court went on to declare that only “a clear majority on a clear question” could compel the federal government and the other provinces to engage in negotiations with Quebec on the matter.

It is true the Court did not specify what would actually count as a “clear majority” (55 percent? 60? 67?). That, the justices said, was a matter for the political actors to decide. What is crystal clear, for anyone with the scarcest smidgen of reading comprehension, is that a “clear majority” is something more than 50 percent plus one. The highest court in the land has made an explicit distinction between “simple majority” and “clear majority.”

In 2000, the Liberal government enacted legislation along precisely these lines to dictate the federal government’s response to a future referendum on sovereignty. Dubbed the Clarity Act, the law sets out a timeframe and some conditions (such as taking into consideration the views of other provincial governments, Aboriginal peoples and all the parties in the House) for Parliament to determine whether the results reflect a clear majority on a clear question.

In 2005, the NDP passed the Sherbrooke Declaration, taking the position that 50 percent plus one was sufficient for triggering negotiations. Since then, the party has often stated its belief that such a position was consistent with the Clarity Act. This week, after a Bloc motion to rescind the Clarity Act put pressure on the NDP to clarify its position, the party came out with a private members’ bill that would replace the Clarity Act altogether.

The NDP legislation, dubbed the Unity Bill, would see the federal government enter into negotiations after a simple majority vote on a clear question. The bill, and the party’s defense of it, betrays a cringe-inducing understanding (or blatant misrepresentation) of the Supreme Court’s reference decision, the Constitution and how a presumably “federalist” party ought to act as a defender of the Constitution and national unity.

Craig Scott, the NDP MP (and former law professor!) introducing the bill, has said “the Supreme Court never once hinted that when they were talking about a clear majority, they meant a substantial majority.” He’s right. The Court didn’t “hint” at it at all. It explicitly said so (see the quote above).

If the NDP thinks the Court is wrong then it is certainly free to say so. But instead, the party has introduced a bill on the utterly false proposition that the bill is consistent with what the Court has said.

Piling gaffe onto blunder, in another hilarious misread of the Court’s reference decision the bill would also refer the matter of a “clear question” to the Quebec Court of Appeal. This is a scenario the Supreme Court clearly wanted to avoid when it emphatically declared such a determination was to be made by the political branches.

In some ways this is all moot. There is little reason to be worried about even a simple majority of Quebecers voting yes on a legitimately clear referendum question (despite the razor thin margin in 1995, the question then spoke of a murky “economic and political partnership”). Even if it did, the federal government is not the sole authority on how any negotiations would proceed—each of the other nine provinces would be every bit as important in the process, given the unanimity required under the constitutional amending formula.

Yet the NDP’s stance, to put it as diplomatically as possible, is highly problematic. First, the party is actively, egregiously misrepresenting what the Supreme Court decided on this matter. Second, and more importantly, the NDP is defending a position that the Canadian Constitution could legitimately be torn asunder by an ephemeral simple majority of a single province. The party ignores basic supermajority requirements for constitutional amendment (except, it appears, for the party’s own constitution, which requires a two-thirds majority).

And from a political perspective, the party shuns even deeper principles, for it is impossible to avoid the conclusion that this is a shameless appeal for soft nationalist voters in Quebec. As a result, it is also impossible to be sure that, were it to form government, the NDP would live up to the expectation that it would act first and foremost in defence of Canadian unity and the Constitution.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter here.




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Parsing the Unity Bill

  1. well said,the truth,canadians need to hear the truth,we are an adult scociety! this kerfuffle puts the ndp back in the grey zone as a goverment in waiting.its probally going to be the death nail in the ndps coffin for future enterprizes.

    • Or so you wish.

      • ohhh its going to happen selena60.mulcair is again over exposing himself.hes afraid JT will steel his thunder.mulcair should cool his jets.tom cant even ask a question unless he has a lectern to read it from.your not a true parlimentarian unless you put away the lectern.your just a polititian till that happens.

  2. As the Supreme Court refused to comment on what constitutes a “clear majority”, it seems possible that politicians *could* decide that a simple majority *is* a clear majority. I’m not sure the Supreme Court reference decision actively precludes governments from negotiating secession, if that’s what they wanted to do. Indeed, it seemed that a referendum might not be required at all to initiate secession negotiations.

    • True, a caveat being that if any province in good faith didn’t feel 50% +1 was enough to achieve secession, and that was what Quebec got, then that province could in good faith not participate in negotiations, effectively scuttling them and ending Quebec’s bid for nationhood (a result I have no problem with, even I don’t get the howling fantoids at the idea of 50% +1, as some do).

      • Well, obviously, the *practical* result of a lone province (or even a group of provinces) scuttling negotiations this way would be to make the Québec government hold a new referendum almost immediately, which would be won by an overwhelming margin as soft-federalists jump on to the Oui camp, but that seems entirely fine as an outcome, yes.

        (It’s easy to forget, but there’s a period of about a year to 18 months after Meech failed where even the Parti Libéral du Québec was an explicitly sovereigntist party promising to hold a referendum. Bourassa didn’t waiver and managed to bring his party back, but most of the PLQ membership and a good chunk of the caucus and cabinet supported an independent Québec at that time. Federalists jump ship when they think the RoC isn’t taking them seriously.)

        • That’s a possiblility but I wouldn’t go so far as to say obvious.

  3. I think you’re missing something important in the paragraph from the SCC reference here – the word “unilateral”. The Supreme Court is imagining a scenario where Québec secedes unilaterally on a result of 50%+1, which is quite different from what the NDP is proposing here. The NDP position is that the GoC must enter into *negotiations* with Québec in the case of a 50%+1 result, which does not in any way contradict the reference. I believe the GoC is capable of setting its own guideposts on when negotiations with Québec must be opened, and that at that point, the secession process becomes bilateral, not unilateral, and its legitimacy would not be in question.

    You may not agree that 50%+1 is a legitimate goalpost for a referendum, but I think to say that it is unambiguously incompatible with the SCC reference is going a bit too far. The SCC does not

    (I’d also quibble, though I think this is a much less persuasive point, with your parsing of the meaning of the phrase “simple majority rule”. You read it as meaning that a simple majority cannot be interpreted as a mandate to secede, but I think it’s quite reasonable to read it as saying that a simple majority cannot be the only condition for such a mandate to be valid. A simple majority, along with other conditions ranging from a clear question, open democratic campaign, and endorsement of the process by all players involved, could certainly qualify as meeting the guideline in that passage.)

    ((And I guess I should add that I’m writing this as an ardent federalist franco-ontarien living in Québec who believes to my core that Québec is better off in Canada and that Canada is enriched by the presence of Québec.))

    • The PQ has always made it very clear that it regards 50%+1 as justification for making a unilateral declaration of independence, completely on its own terms.

      • That doesn’t make it legal though. We (the rest of Canada) are under no obligation to accept such a declaration. And they would quickly discover they wouldn’t get to set the terms. Even a negotiated separation would be an ugly divorce. The economic chaos a unilateral separation would cause would almost certainly lead to bloodshed.

        • EXACTLY. That’s why it’s so vital for our politicians to make that very clear. By playing political games with this Mulcair is betraying both our country, and the separatist voters who get lured into believing that 50%+1 would actually work the way their leaders pretend it would.

    • Another way to state that distinction, if I read you correctly, is that the Court does NOT say the federal government *can’t* negotiate after a simple majority vote. I’d agree – if the rest of Canada wanted to negotiate after a 51% ‘yes’ vote then there’s nothing stopping it (although I obviously would not favour the break-up of the country after a narrow vote).

      What the SCC ruled on is what conditions would *compel* the rest of Canada to negotiate. That, I argue, is only the case after a “clear majority” (as distinct from a simple majority).

  4. The quote which begins this article is not addressing the % vote necessary for secession but the additional constitutional requirements to secede such as protection of minorities. The full quote reads as follows:

    Aside from the possible ramifications of the use of the term “clear majority” is there anywhere the court actually DOES say a simple majority is insufficient? IIRC correctly, they ran away from setting a number and said they wouldn’t adjudicate on the matter.

    • sorry did not include the quote (p. 149 and next, as it was too unweildy and deleted it.

  5. A province leaving confederation should require at least the same level of support across all of Canada as a Constitutional Amendment (7/50 rule). Dismantling the country I would argue is a greater and more permanent fundamental change than a constitutional amendment so should at least meet the same threshold. The idea of 1/2 of one province destroying the whole country is repugnant.

  6. “This week, after a Bloc motion to rescind the Clarity Act put pressure on the
    NDP to clarify its position, the party came out with a private members’ bill that would replace the Clarity Act altogether.”

    I’ll ask what seems to me to be the obvious [although not really vital] political question. Was this just a humungous, unsolicited gaffe, or did the bloc rather cleverly set them up? Or is it just the usual Ottawa cock up?

    • And by pure chance the Bloc tabled this just as Mme Marois was to set foot in Scotland.

  7. So, does the NDP support the right of the Cree and other aboriginal peoples of Quebec to keep their territories as part of Canada in the event that Quebec attempts separation?

    The NDP owes us all a very clear answer on this. We have the right to know.

  8. Kick them out. All we need is 10% to get rid of these losers.

  9. I want the Indians to have all their land in Quebec. That leaves the French idiots with about 5% of the province. Kick them out.

  10. As has been pointed out before, the NDP requires a two thirds majority even to make a trivial change of name for their party.

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