BY PETER MCKENNA - Here we go again. Election polling in Quebec is suggesting the Parti Québécois is headed toward a slim majority government in the Sept. 4 election. If that happens, Canada faces the risk of another referendum on Quebec sovereignty, even though party leader Pauline Marois has been trying to downplay the issue in her campaign.
As part of her strategy to build support for sovereignty, Marois plans to provoke a host of constitutional and financial battles with Ottawa — mainly over extracting more provincial powers and financial transfers to Quebec.
When the federal government refuses to play along, as it surely will, the PQ will point to Quebec’s mistreatment as Exhibit A in the case for sovereignty.
“You know very well our agenda is open on this orientation,” Marois said recently. “There will be no surprises.”
But is it really possible today for Quebec, acting on its own, to separate from the rest of Canada?
Clearly, the best insurance policy that Ottawa has against Quebec separatism is the 2000 federal Clarity Act. Although Stéphane Dion, a former Liberal intergovernmental affairs minister and chief architect of the act, has argued that it “will not guarantee Canadian unity,” he has stated that it “gives us the certainty that this country will not break up in confusion.”
Former prime minister Jean Chrétien responded after the fact with the controversial August 1998 Supreme Court of Canada reference on Quebec’s right to secede from the federation. While ruling out any unilateral declaration of independence (UDI) by a province within Canada, the court did leave open the possibility of a democratically arrived-at exit.
But the judgment was very precise on the nature of any future referendum, emphasizing the need for an unambiguous question and a clear result. According to the act itself, “democracy means more than simple majority rule, that a clear majority in favour of secession would be required to create an obligation to negotiate secession.”
On the issue of any (UDI), the law is succinct: “The Supreme Court of Canada has confirmed that there is no right, under international law or under the Constitution of Canada, for the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally.” It goes on to state categorically: “Whereas the Supreme Court of Canada has confirmed that, in Canada, the secession of a province, to be lawful, would require an amendment to the Constitution of Canada, that such an amendment would perforce require negotiations in relation to secession involving at least the governments of all of the provinces and the Government of Canada.”
Simply put, since provincial consent for a constitutional amendment codifying Quebec’s right to secession is highly unlikely, any future PQ government could only secede unilaterally by, in effect, breaking the law or through unconstitutional means.
Furthermore, to avoid repeating the confusion surrounding both the 1980 and 1995 referendum questions, the law specifically refers to the fact that the House of Commons “shall consider whether the (referendum) question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state.”
With respect to what constitutes a clear expression of will (i.e., what percentage of a Yes vote would be acceptable), the Clarity Act remains deliberately silent. For ultimate flexibility, of course, this determination would be left to the House of Commons, with the assistance of provincial governments, the Senate and Canadians themselves, if need be. Any referendum question, then, would have to first have the endorsement of Parliament.
What it does say in bold type is that the Canadian government will refuse to negotiate the dismantling of this country unless the House of Commons determines “that there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada.”
Whatever the election result is on Sept. 4, Canada now has in place very clear guidelines setting parameters around which the next referendum — if it does come — will have to be fought. Indeed, Ottawa sees the Clarity Act as tantamount to game, set, and match. By securing a veritable constitutional checkmate, the law has effectively boxed the separatists in and placed the referendum issue in a semi-permanent deep freeze.
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Peter McKenna is a professor of political science at the University of Prince Edward Island.