Thoughts on secession -

Thoughts on secession

‘What is the content of this obligation to negotiate?’ The SCOC asked a hell of a question, writes Paul Wells, but look at how they answered


Emmett Macfarlane has already written here on the NDP’s Unity Bill, which makes secession easier than the Liberals’ Clarity Act, which as some of the critics Aaron Wherry canvasses have pointed out, isn’t super-clear. I’m not going to try to win arguments here; I learned a long time ago it can’t be done, thanks partly to the superhuman ability of activists in the secession debate to speak and write with certainty about things they haven’t read. If, for instance, you haven’t read Jacques Parizeau’s books Pour un Québec souverain and La souveraineté du Québec, maybe you shouldn’t speculate on what he planned after the 1995 referendum. But on the other hand you probably needn’t let it stop you, because I keep running into people who’ve read the books and still don’t seem to have understood basic points Parizeau repeats frequently.

Anyway. The reason we have spent nearly 40 years debating the effect of referendum results a few points this side or that of 50 per cent is because we have all known for nearly that long that any separatist “victory” in a referendum will be a close thing. If there ever were such a vote, 50 per cent plus a bit on a confusing question, then a sovereignist Quebec government would run into difficulties that don’t have much to do with the text of the Clarity Act and would not be eased by Tom Mulcair’s attempted compromise. 

The Supremes sing the hits better than anyone. In their opinion on the Secession Reference, the top court got everyone excited with Paragraph 88, which identifies (Andrew Coyne and many others have said it “invents”) an “obligation on all parties to Confederation to negotiate constitutional changes to respond” to “the clear expression of the desire to pursue secession by the population of a province.” Every six weeks ever since there has been an op-ed in Le Devoir invoking the “obligation to negotiate” as Quebec secessionists’ trump card after a future third-time-lucky majority referendum vote.

It would be so lovely if somebody read more than one paragraph. Having discerned an obligation to negotiate where few had seen one before, the Supremes then ask the obvious question: “What is the content of this obligation to negotiate?” That’s a hell of a question, and since it comes precisely one paragraph after the one that gets everyone so excited, it’d be swell if a few people followed what comes next. The justices promptly “reject two absolutist propositions.” The first is “that there would be a legal obligation on the other provinces and federal government to accede to the secession of a province, subject only to negotiation of the logistical details of secession.” To anyone who says a Yes vote must lead to secession on Quebec’s terms, “we cannot accept this view.” Make the Yes vote as big as you like — Quebec could still not “dictate the terms of a proposed secession to the other parties: that would not be a negotiation at all.”

At Paragraph 92 the Supremes reject the other absolutist proposition, that the rest of Canada could simply ignore a “clear expression of self-determination.” (The word “clear” appears 62 times in the opinion. How much of what happened on Oct. 30, 1995 was clear?) And that’s fair. Even a narrow majority on a ridiculous question would be a bad day for Canada. There would certainly be voices in every part of the country declaring the Confederation experiment over.

How would the negotiations go? Paragraph 96: “No one can predict.” Surely they’d lead to some sort of agreement? “The possibility that they might not lead to an agreement amongst the parties must be recognized.” (Note “amongst.” The justices are not silly enough to believe negotiations could be reduced to “Quebec” and “the rest of Canada.”) What issues would be addressed? “A wide range.” But just silly ones, right? No, “many of great import.” Such as? “Debt… boundary issues… linguistic and cultural minorities…”

I’m almost done quoting the Supreme Court for now, although I wonder how any member of the NDP caucus can reconcile their silly little bill with Paragraph 100 of the opinion. Recall that Mulcair’s little bill would require future governments to run off to the courts for an opinion on the clarity of a referendum question. I’m profoundly saddened to note that the Court already addressed this notion. The justices write:

“the workings of the political process are complex and can only be resolved by means of political judgments and evaluations.  The Court has no supervisory role over the political aspects of constitutional negotiations.  Equally, the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so.  …  Only the political actors would have the information and expertise to make the appropriate judgment as to the point at which, and the circumstances in which, those ambiguities are resolved one way or the other.”

You’d think that would be clear.

But back to the notion of negotiations. Paragraph 88, the obligation-to-negotiate paragraph, refers four times to “constitutional amendments.” Four times in one paragraph. Almost like it’s important. That’s how you’d make a secession legal. We have a Constitution that mentions Quebec, has been amended since 1982 according to the Quebec government’s wishes, is used every day in dozens of courts by Quebec lawyers on every side of complex questions. We’d need to rewrite the Constitution so it doesn’t mention Quebec any more.

Now here’s the thing. It may please a future Quebec government, or indeed the one we’ve got now, to insist that Canada’s Constitution doesn’t apply to Quebec. That’s baloney; the Supremes recall some old language to that effect at Paragraph 32. But never mind the tales Quebec might tell itself. The rest of the country’s governments do not even have the luxury of pretending they can ignore or flout the Constitution.

Some might be tempted to try, including, manifestly, a hypothetical NDP federal government in Ottawa. That’s okay. Courts will be there to remind them of their obligations. The courts will be petitioned, massively, by anyone inside Quebec or out who feels their rights are being slighted during a secession attempt. Say you’re a pensioner who depends on federal cheques and begins receiving cheques from a sovereign Quebec government of unsettled legitimacy — at the same time as your federal cheques keep arriving. Say you’re a federalist in Chelsea who does not believe the Quebec government obeyed procedural niceties. Say you’re a Winnipegger who does not appreciate the negotiating stance Manitoba’s government takes. You’re going straight to court, and you’ll be in a long line.

One more thing. To pass the constitutional amendments the top court mentioned four times in one paragraph, two provinces — Alberta and British Columbia — require provincial referendums. This is not some clever trick to padlock Quebec in the Canadian prison, it’s just the law. And citizens will punish governments that ignore the law.

So a secession attempt would be just about infinitely more complex than the conventional wisdom usually assumes. I haven’t even considered the near-certainty that local secessionist, purely dissolutionist, or U.S.-annexationist movements would pop up across Canada if Quebec began a secession attempt. But surely governments of good will can overcome dissent? Well, maybe, except that the last time Canada’s governments attempted a coast-to-coast set of constitutional amendments — the Charlottetown process of 1992 — the unanimity and best efforts of every head of government in the land wasn’t enough to ensure passage.

It’s possible the public appetite in Quebec for a new country would not last through the negotiation process. Especially if the appetite wasn’t clear at the outset. It’s possible things would go the other way, and an unwieldy negotiation would embitter the population of Quebec and deepen their determination. That’s not usually the pitch the PQ makes, but all is possible.

But responsible governments do not normally embark their populations on extraordinarily complex and thorny journeys without some assurance that the populations want to go there. Which takes us back to the question of a proper margin of victory. The question isn’t, Should it be 55 per cent or 51 per cent or 50 per cent of registered voters or some other number to be determined later? That’s been an irrelevant question, in most places where secession has proceeded to a successful conclusion, because support for the change was overwhelming. All the referendum did was to document a consensus.

The question the Clarity Act really seeks to ask — a question that would remain, whether the Clarity Act stays or goes — is: What government would ever go down this path without knowing for sure that the people were united and determined?




Thoughts on secession

  1. Who needs the Bloq Quebecois when we have the NDP?

    • There’s an outside chance the bloc set them up for this.

      • I think Canadians are being set up by the corporate media. In 2011, they said a Harper majority was a good idea. (Brilliant.) Now they are exploiting every opportunity to attack the NDP.

        Lawrence Martin wrote an interesting column related to this:

        “A headline the other day announced that the Conservatives were benefitting from an NDP slide. The story went on to say that the Tories were at 35 per cent. This was a one per cent gain since last October. [5 points lower than the last election.] The NDP, meanwhile, was at 29 per cent — a decline of two percentage points. No matter. It was enough for a big headline making it sound like something significant was happening.”

        Corporations have designs on Canada and they are not about to let pesky democracy get in their way.

        Mulcair and the media’s horserace fixation

        • I remember reading the article that Martin references, and the headline included the word “surges” to describe the tiny improvement of the Cons’ numbers. Your theory is an interesting one, and I will be thinking about that for the next few days as I read the news. It’s also interesting to me that at this time when the economy is sputtering and we need more jobs, that old fights keep coming to the fore — abortion rights, Indian Act, protest movements, pot legalization, PQ separation — all old fights, seemingly put away but left to simmer for a government that is bereft of new ideas so has nothing better to do to bring up old battles?

          • I disagree that some of those issues don’t need to be addressed. One thing that we should be able to agree with no matter what your political stripe is the Indian Act and conditions on reserves in particular need to be revisited and dealt with.

            The status quo only really suits the ideology of a fringe of remaining socialists that are as anti-science as the most ardent creationists. Most people agree that wealth and prosperity can only occur if people are allowed access to private property and the ability to build equity. So we should deal with that as soon as possible to start undoing the damage done by poverty and begin trade and investment in our reserve system that will actually reach the average person who lives on them.

          • Yeah, the corporate media can also spin distractions.

            They also never challenged Harper’s absurd spin on the economy: e.g., “Canada has the strongest economy on the planet” nonsense. Fact is our recovery from the 2009 recession has been one of the weakest since the Great Depression (recovery growth in the 1980s and 1990s was around 5%; 2012 growth could come in below 2%.)

            Our economy also doesn’t stack up well against other developed nations:

            * OECD productivity (2011): #17
            * OECD productivity growth (2011): #24
            * OECD government debt/GDP (IMF 2011): #25
            * OECD Unemployment rate (2012 Q1): #17
            * OECD GDP growth (2011 CIA): #14
            * OECD trade balance (IMF 2011): #24
            * Inequality-adjusted Human Development Index (2011): #12
            * Conference Board of Canada Economy Rankings (2011): #11
            * WEF Global Competitive Index (2012-2013): #14

            The only hope democracy has in Canada is if we implement voting reform (Preferential Ballot Voting to ensure MPs earn their seats with a majority) and for the social media to overtake the old media in influence (thank you pay walls!)

        • Yes indeed. Every time the NDP and Mulclair sticks their foot in their mouth, it is the fault of Corporations. Evil ones.

          • Corporations believe in the philosophy of greed and self-interest (that it all balances itself out.) They lobby governments to get policies put in place that favor their bottom line. Are they not going to influence stories in a way that helps them make higher profits?

            Take the Dutch Disease incident for example. (The Dutch Disease refers to a condition where development and exports of resources causes the dollar to become overvalued hurting the manufacturing sector and other value-added exports.)

            Mulcair talked about the Dutch Disease and the corporate media erupted across the country accusing him of talking “rhetoric” and playing wedge politics.

            In today’s Financial Post they refer to the “rhetorical” Dutch Disease: “Manufacturers — hard hit by a strong Canadian dollar, which squeezed exports — saw output expand 0.7% in November after falling back by 0.9% the previous month.”


            This is a clear example of the corporate media engaging in double-speak and playing politics.

        • That sort of thing goes on all the time. I’m more inclined to put it down to poor reporting or sloppy editing. Not that that isn’t a reason to be wary of the corporate agenda. I don’t think they’re evil, but they are greedy. Our govt’s are just too gutlesss to say no to them more often.

      • Mulcair is thought to be a good politician. He probably knew it was a set up but felt for political reasons he had to respond. Well he got his answer in spades and the Libs and the Conservatives will not let this little piece of proposed legislation be forgotten in the next election. Just visiting sounds like a nice theme for the Quebec politician who really only cares about Quebec.

        • Don’t forget that he’s a French citizen who sought out French citizenship voluntarily as an adult. He CHOSE to swear allegiance to a foreign country.

          • Who cares, thousands of people have dual passports and I wouldn’t mind one myself. .

          • Yes, but the vast majority of them only hold the second because they were born with it – either they immigrated to Canada from a foreign country, or they inherited their second citizenship from a parent who immigrated. They don’t go out of their way to swear allegiance to a foreign country to get it.

        • I agree, this is Mulcair’s second really big blunder. But i’m not ready to cheer the govt on yet. They have’nt come down that hard on this yet – could it be they want to cozy up to soft federalists too, particularly the Franco ones?

    • How absurd. The NDP has done the most for Canadian unity by getting Quebecers to vote for a federalist party after 20 years of supporting a separatist one.

      I think hard-right conservatives who use Quebec as a wedge would prefer the Bloc back in power. If they can’t have that they’ll say the “NDPQ” is just as bad or worse. (Which, of course, is pure foolishness.)

      The simple reality is that most Quebecers are opposed to the Clarity Act. They don’t want English Canada meddling in their affairs. Since the NDP was elected by Quebecers, it’s
      their job to represent them.

      • As a party who is pretending to be a federalist party and purportedly wants to govern the “whole” of Canada Mulcair and his band of misfits needs to think nationally. In this instance Mulciar has betrayed his true allegiance. That is defending his Quebec turf and really not understanding what he is doing. He nor the kids in his caucus are ready for prime time.

      • A ‘yes’ win in a referendum would have vast consequences not just for Quebec, but for all of Canada, so of course Canada is going to have something to say about it. History clearly demonstrates that PQ governments are unwilling to ask a straightforward, unambiguous question like “Should Quebec become an independent country?”. If PQ governments had been willing to ask a clear question, there would be no need for the Clarity Act.

        Ideally, what should happen is that the Quebec and Canadian governments sit down and hammer out the question that both sides agree to honour, as happened with the Scottish referendum question. But since a PQ government would never do that, we’re left with the Clarity Act.

        • The Scottish question will be resolved by the terms of its relationship with Europe. If the EU agrees to continue the existing terms then 50%+1 will work if not, watch the whole question disappear.

      • Completely false. The NDP’s national unity positions come to them directly from the separatist Bloc Quebecois. The NDP can no longer claim to be a federalist party – they’re a Trojan Horse for separatists to get into the federal government and do the most damage possible from the inside, just as they did in Mulroney’s Progressive Conservative party.

        The majority of Quebeckers accept that the Clarity Act is simply good sense – it’s only separatists who oppose it. In the election after introducing it, the Liberals received a greater share of the Quebec vote and more Quebec seats than they had in any election since 1984.

  2. Early effort:
    So what you’re saying is that when the supremes decided not to say what constituted a clear majority, it wasn’t an aberration as many of us thought/think; they actually knew what they were about? Dang those guys are good.

    Edit: Oh well it looks like EM thinks the court did say that a simple majority was not on from the start.
    “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).”
    here’s the quote:
    “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.”

    • The context of your quotation is not the terms of a referendum but the right to unilateral secession. The SCC is justifying its reasons for the obligation to negotiate.

      • I wonder if macfarlane was more familiar with commentary saying that 50%+1 was too low a limit than with the text of the decision itself, and when he wrote the article glanced at the judgment just long enough to grab a quote that looked like it confirmed something he “knew” to be true.

      • “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).”

        I think the best response to that is EM’s on the other blog to a similar question. You appear to be right though.

        • What I still fail to see is where the SCC explicitly states that a simple majority referendum result cannot be part of the condition of a “clear majority”. I do agree with the notion that numbers alone should not be sufficient to oblige parliament to negotiate secession. I agree that the clarity of the question is integral to any referendum. An overwhelming response to a poor question should not oblige the negotiation of secession.

          Still, it is imperative that parliament explicitly state all of the conditions it would require in order to initiate its democratic obligation to negotiate secession- and this includes things like the minimum required % of eligible voters, the minimum number of votes required to carry the referendum.
          The Clarity Act does not make this clear but rather relies on an ambiguous phrasing of “clear majority”. Just as politically motivated and craven as Mulcair’s current move.

          • Looks like they have left it up to the politicians. I’m not so sure they weren’t wise to do so. But then i’m constantly impressed with how smart those [9??] ladies and gents are.

          • And that’s where Mulcair is right. That added clarity needs to be there. He thinks following Westminster convention and being consistent with Sherbrooke declaration that a clear majority is a simple majority. If parliament thinks it should be a super majority then that should be legislated.

          • Sorry, but this is politics. I’m a liberal. I don’t trust his motivation, and i don’t think Sherbrooke makes any kind of sense.

          • No doubt there is political maneuvering going on and said so above, which may work to consolidate support in QC or may not. But. That in itself does not invalidate the position of the NDP. There are indeed ambiguities and issues with the Clarity Act that should be addressed by parliament. And. If one thinks the Liberals weren’t playing politics with The Clarity Act then one is more naive than I may appear.

            Notwithstanding, I appreciate that most of the comments were posted in good faith and a real willingness to get to the bottom of things. Intellectual good faith, honesty, and curiosity are sadly in very short supply these days in our politicians, in our journalists, and especially in the shilling commentariat.

          • Agree with you completely. It was a pleasure.
            I guess I should say that after reading PWs posts I have to say that I believe the supremes had far more of the ambiguities covered than Mr Mulcair now says is the case. Guess I’m not much of a soft or flexible federalist.

          • I had to spend my lunch hour re-reading re-secession (heh) and frankly the court DOESN’T explicity say a bare majority is insufficient. (incidentally, the term gets discussed together with “clear question”, and the court seems to feel the meaning of the word is ‘unambiguous, FWIW).

            The idea that 50% is insufficient comes mainly from the broad legal concept that a word must have meaning and that therefore “clear” has to have a significance, and that significance must be something more than 50% or 50% +1. There absolutely could be something to that but it is NOT explicitly stated in the SCC decision (odd, for a judgment talking about how clear this kind of determination must be). Nor is it an obvious implication. Especially when you consider they do clearly state that it is up to politicians to set the number, though it must be a clear (unabiguous) majority.

            The quote Mr. MacFarlane used to bolster his claim that simple majority is insufficient is not apt. The court, in its conclusion, was not referring to the necessary vote percentage at all but stating that other constitutional concepts aside from majority rule (no matter the % vote) had to be observed when considering secession.

  3. “What government would ever go down this path without knowing for sure that the people were united and determined?”

    That’d be the federal government of Canada in 1948, Mr. Wells. Secession of a chunk of Great Britain with a less-than-super-majority vote. But we accepted it because it expanded our borders and satisfied the Canadian version of manifest destiny (all the British North American Colonies in Canada).

    It’s even more amusing when you consider that in determining the clarity of the referendum question, after the delegates at the National Convention chose the options of “Responsible Government” and “Commission of Government” to be placed on the ballot, it was decided unilaterally by Great Britain to include “Confederation with Canada” as the third balloting option.

    Was keeping the Union Flag until 1982 not an indication of anything?

    • The notion that Newfoundland constituted “a chunk of Great Britain” would have come as news to most Brits. I’m told the bus from Bristol to Gander was almost never on time.

      But you’re right: since Britain wanted nothing to do with Newfoundland and Canada wanted it, and its social and logistical ties to either were nearly nonexistent, adjusting its constitutional status was easy work. Which means that what happened to Newfoundland was not “this path” in the sense of the question you quote.

      Quebec is geographically the largest province. It’s right in the middle (well, middle-east) of the country. Its secession would trisect Canada, a modern welfare state with thousands of times more interconnections and mutual legal obligations than Newfoundland had in 1948-49. Settling all that in a secession may — may — not be impossible, but it’s a hell of a lot of work. A minimal condition for beginning that work would be making sure Quebecers want to do it.

  4. Quebec isn’t separating from Rest of Canada, unfortunately, so there is no need to take any of this seriously. Quebec is dependent on RoC for $$$, and lots of immigrants have moved to Quebec and they want to be part of Canada. If Quebec didn’t separate in 1980 when separation fever was at its height, it is extremely unlikely to get gumption to separate now. And look at the questions Quebecers were asked to vote on in 1980 and 1995 – half assed questions about maybe, kinda separating but not really either. It is obvious certain Quebecers want to have their cake and eat it as well.

    If Quebecers ever did vote to separate, which would be terrific for R of C if they did, why should they care what a foreign supreme court thinks? Clarity Act is hubris because Quebecers are unlikely to follow what law courts of foreign country have decided. Fifty % is enough to form a new country if that’s what Quebecers want to do, Canada is not going to send in Armed Forces to stop them from separating, but what happens next after Quebec decides to separate would be bewilderingly complex.

    Reading first paragraph, I have sense Wells could talk for hours about futility of talking to people rationally when fervor is in air.

  5. Two quick comments. If the SCC rightly decided that it was parliament’s role to negotiate the terms of secession, then it was incumbent on the drafters of the unclarity act to specify the minimum result of a referendum to even initiate secession proceedings. Secondly, the SCC said democracy is not a simple majorty, not a referendum. I believe it is getting more at the fact that democracy is not simply quantitative but a complex qualitative issue and secession would require much debate, consideration, negotiation. But surely if another referendum were ever to be held, parliament must stipulate exacty the minimum result considered to even initiate secession negotiation.

    Many good points. Although, I don’t see why everryone is so riled over this. It’s largely political gamesmanship. The private members bill will go nowhere and Quebec will never secede.

    • Quebec will never secede? In 1995, the Liberals were blithely assuring us that the separatists would never win a referendum – and yet they almost did.

      Hubris on this file will lead to disaster, and the NDP’s treacherous stance on the Clarity Act supports the separatist cause. The NDP have demonstrated that they do not deserve the vote of any loyal Canadian.

  6. Has anyone considered,with the type of determination Jacques Parizeau had,a Rhodesian style UDI?Then what?

    • In that case whether other countries choose to recognize you is the main factor. There’s very little chance of many countries doing so in Quebec’s case, with France being the only important one that might even consider it, and it would be a longshot.

      • That is true,however the highly moral Canada might get a taste of its own medicine…….remember Kosovo,Slovenia,Croatia,Bosnia?None of which had the consent of the Federal Government in Belgrade.Talk about meddling in domestic affairs!

    • The Clarity Act and the Secession Reference are useless the Canadian Government enforces it or Quebec willingly acquieses. I doubt the PQ will give up on independence because the Supreme Court said no – and I also doubt whether the rest of Canada would want to hold Quebec by force.

      Given that Quebec federalists are also behind the 50% + 1 rule, not recognizing a Quebec referendum might probably just form a short prelude to a second referendum where a “clear” majority says oui.

      The Rule of Law doesn’t work unless the law is willingly being obeyed or being enforced (i.e. Caledonia, Ontario).

      As an aside, Montenegro barely made its 55% threshold in its independance referendum(in fairness, Paul Wells did note that most, but not all, independent countries had a large threshold). The separtists, with some justification, point at Newfoundland having joined Canada by a measly 52.3% vote.

  7. And the Liberals weren’t playing political games by deliberately not imposing a super majority condition on a future referendum in their Obfuscation- I mean Clarity Act. One they needed the ambiguity in the Clarity Act so as not to completely alienate all nationalists in QC. Two, they would have effectively eliminated all possibility of ever even entering into secession negotiation -as Wells points out, any foreseeable referendum result to secede would always be razor thin. This not only goes against SCC but would even further alienate QC nationalists (soft and extreme) from Liberals.

  8. Clarify this. How many clear majorities are required before secession is considered a non-starter once and for all?

  9. Excellent analysis Paul. The only axiom be careful what you wish for comes to mind. It would be a mess all around.

  10. Tommy the Commie will never be PM, however he could be president of Quebec (city) if the separatistas were ever successful in a referendum. The island of Montreal will never go judging from past referendum results, nor will the Indians of Quebec. Call the result instant Greece.

    • Neither will Gatineau or the Pontiac ever go with an independent quebec. Any future referendum must take into consideration that a lot of areas (either by municipal or federal district) will have the right to remain within Canada. Other than that, they are going to push us into civil war without a second thought. If Canada is divisible, then so is quebec. The sooner the separatists accept this the sooner they can arrange to negotiate to secede with only the areas of quebec that vote to leave. There are hundreds of areas that want out of an independent quebec and, the same as they flout Canadian law, we will flout their law of their borders remaining intact while they try to steal our home, businesses and our land that we pay taxes on. Let’s partition this place and get it over with – the faster the better – 40 years of this misery is quite enough!

  11. So, does the NDP support the right of the Cree and other aboriginal nations in Quebec to keep their territories as part of Canada if Quebec attempts to separate?

    Please, Mr Wells, ask them this question. And insist that they answer it clearly. We all have a right to know.

  12. Americans have a higher esteem for Quebecers than Canadians do, and millions of Americans are learning french every day. The reason is probably because we Americans don’t live in the same federation.