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?