The legal realities missing from the sovereignty debate in Quebec

No wonder the PQ doesn’t want to talk about sovereignty

Paul Wells on the legal realities no one is talking about on the campaign trail

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REUTERS/Christinne Muschi
REUTERS/Christinne Muschi

The salvation of Quebec’s sovereignty movement has always been the reluctance of many voters and, indeed, of most political journalists to read and remember. Did you know that Jean-François Lisée, the Marois government’s minister for relations with anglophones, expects as many as 300,000 Quebecers to flee the province after a Yes vote in a referendum? Probably not. I’ve never seen anyone quote Lisée about the likelihood of a major post-referendum exodus. Yet he wrote it up in a book he published 14 years ago, and on the off chance anyone forgot to buy the book, he posted an excerpt on his blog, where it remains to this day. Lisée cites estimates between 150,000 and 300,000 departures after a Yes vote, before adding that even though it would mostly only be anglophones, it’d still hurt:

There is no doubt this exodus would be all kinds of trouble for Quebec. The anglophone community contributes to Montreal’s and Quebec’s economic success, to its progress toward a knowledge economy … and powerfully contributes to connecting us with anglophone America, our main client and partner. The departure of 100,000 or 200,000 of them would stop Montreal’s economic recovery in its tracks and aggravate Quebec’s demographic decline …

Funny how he forgot to mention any of that during the 1995 secession referendum.

Lisée goes on to suggest means that might “reduce” this exsanguination from the Quebec economy, and I’ll leave it to readers to consider whether any of them constitutes more than wishful thinking. I’ll note only that he sees in promises of protection for Quebec’s anglophone minority “an important negotiating tool at the Quebec-Canada table” during post-referendum secession negotiations. I’m afraid this escapes me. “In return for allowing us to treat our anglophone minority well, you must … allow us to treat our anglophone minority well … or it will … uh … leave and become part of your workforce.” Then they’ll really have Ottawa over a barrel.

At least Lisée acknowledges that various matters would be negotiated after a referendum, assuming, as federal law requires, that the House of Commons believed a sufficiently clear majority had voted Yes to a sufficiently clear question. It’s usually assumed, in casual conversation, that a Yes vote would be executory: that on the magic night, Quebec would become a country simply because some number of voters said it should. But, of course, secession would be a process of fundamentally uncertain outcome.

We were reminded of this yesterday when the archives of former U.S. president Bill Clinton opened long enough to disgorge the talking points that were prepared for him in anticipation of either result in the 1995 referendum. Here they are. What would a Yes vote mean? “It is up to Canadians to work out,” Clinton would have been advised to say. When would the meaning of the referendum be clear? “It will be some time.” Recognition? “Premature.” NAFTA? “Nothing is automatic.”

These are not trivial considerations. In his 1997 book Pour un Québec souverain, Jacques Parizeau admitted that a  Quebec attempting to secede would have needed international recognition if negotiations with the rest of Canada broke down. Here again, Parizeau wrote it all down for everyone to read, knowing almost nobody would bother. (Much of what follows comes from an article I wrote in 1997 for Saturday Night magazine.) “Far from being a sort of decorative element,” he writes, “the diplomatic preparation of sovereignty would have been the key to its realization if the Oui had won.” Later he calls international recognition “an essential condition” for secession. It’s an important insight: a new country exists only when the nations of the world formally welcome it among them.

But how to win international recognition of an independent Quebec? “The problem,” Parizeau writes, “kept me preoccupied for a long time.” He concluded that Canada would try to block the recognition of Quebec by other countries, “beginning with the United States,” whose approval Parizeau saw as critical. He also surmised that the U.S. “won’t be inclined to recognize [Quebec] unless it really cannot do otherwise.” So Parizeau needed a way to force the Americans to act.

In 30 years of pondering the problem, he could come up with only one solution. He called it “le Grand Jeu,” the big game or the great strategy. And it would never have worked.

“The only way to incite the United States to accept the new status of Quebec is to see to it that France recognizes it as a country within a very brief span of time. The United States could not permit that, not only for historic reasons like the Monroe Doctrine…but because to lose face in that manner, in Canada and throughout America, would be unbearable to them.”

This is not excellent logic. Fear of French recognition of a seceding Quebec would force American recognition of a seceding Quebec over Ottawa’s objections? I phoned Reed Scowen, a former Quebec government diplomat whom Parizeau mentioned in his book as having attended a Washington dinner where Parizeau hatched his grand scheme. (Scowen’s and Parizeau’s recollections of that dinner differed, in amusing ways.)

“My reading of the thing,”  Scowen told me, “is that [if the separatists won a referendum] Clinton would call up Chrétien and say, ‘Do you want us to recognize Quebec?'” And if Chrétien said no, “Clinton would say; ‘Well, okay, look, I’ve got other problems right now. Call me when you get it sorted out.'” As for France forcing Clinton’s hand, Scowen laughed.  “Whether France recognizes an independent Quebec is really no more important than whether Bangladesh recognizes an independent Quebec.”

So: U.S. recognition would be “an essential condition” of achieving secession over Ottawa’s objection. And there was no way to obtain it. Secession would happen by negotiation or it would not happen at all. And it’s hardly clear that it could happen by negotiation. Quebec’s PQ government may believe it can ignore Canada’s Constitution, but (a) it’s wrong and (b) the rest of Canada couldn’t. Secession would require constitutional amendments and therefore the consent of every provincial legislature. Alberta and British Columbia require their own referendums before ratifying any constitutional amendment. So a Quebec secession referendum would automatically trigger at least two others, on a deal whose terms are also spelled out in the Clarity Act: “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.”

Again, all of this is public knowledge, but not part of public thinking. I promise you that Pauline Marois has never spent three minutes pondering the legal reality that she could not secede without getting a Yes majority in Alberta. You don’t even have to believe the populations of other provinces would want to block Quebec’s secession to suspect the terms agreeable to those populations would be different from those Quebecers might prefer. Especially after a Yes vote in Quebec, a Yes majority would probably be really easy to whip up in Alberta. But the fine print would be all kinds of fun to read. I can’t imagine even good-faith secession negotiations leading to a deal that would pass the amending formula. (Anyone who would excitedly cite paragraph 103 of the Supreme Court’s Secession Reference to me is invited to describe a secession deal that would be acceptable to the populations of Alberta and Quebec.)

Anyway, I belabour all of this precisely to point out why Pauline Marois looks a little spooked these days whenever somebody asks her about her party’s raison d’être on the campaign trail. Negotiating, not with some vague angelic notion of reasonable Ontarians, but with Danielle Smith and Terry Glavin over the terms of deconfederation, in an attempt to stem a stampede of highly educated Quebecers that would, in Jean-François Lisée’s picturesque description, “stop Montreal’s economic recovery in its tracks,” is not super-high on most Quebecers’ to-do list for Q4 2014. How many Quebecers want to hear less campaign talk about sovereignty? Seven in 10, says today’s Léger poll. One of my favourite rules of thumb holds that a party led by a veteran campaigner should have an advantage over a party with a rookie leader, but that’s predicated on the notion that experienced leaders are reassuring. A promise of nonstop secession headache eliminates Marois’s incumbent advantage. She could, of course, promise not to hold a referendum if elected. But that would tear her party apart. I almost feel sorry for her. Just kidding.