By: Joan Bryden, The Canadian Press OTTAWA - There seems to be a lack of clarity in Jack Layton's position on the explosive issue of Quebec separation.
During the 2004 election campaign, the NDP leader vowed to repeal the landmark Clarity Act, the federal law that spells out the conditions for negotiating Quebec secession. He said it had been "unhelpful in the promotion of Canadian unity."
He reversed himself during the 2006 campaign, declaring that he would not repeal the Clarity Act because "it follows directly from the principles laid out by the Supreme Court and has been broadly accepted across the spectrum as the basis for proceeding."
Now, however, Layton isn't mentioning the Clarity Act one way or the other. Instead, he's touting something called "the Sherbrooke Declaration," which was adopted by his party in 2006.
Trouble is, the declaration seems directly contrary to the Clarity Act.
It states that Quebecers have the right to freely decide their own future, that self-determination is a "political question and not a legal one."
The declaration doesn't mention the Clarity Act but it does commit the NDP to respecting, "in all its dealings," the Quebec Referendum Act.
Furthermore, it explicitly says the NDP would recognize a bare majority decision (50 per cent, plus one vote) to secede. And it recognizes the right of Quebec's national assembly to formulate whatever referendum question it chooses.
All that would seem to fly directly in the face of the Clarity Act, brought in by former Liberal prime minister Jean Chretien in the wake of the country's near-death experience in the 1995 referendum on Quebec independence.
NDP campaign director Brad Lavigne maintained that Sherbrooke is entirely reconcilable with Clarity and the Supreme Court ruling, both of which the party accepts.
Based closely on a 1998 ruling by the Supreme Court of Canada, the Clarity Act stipulates that the federal government would be obligated to negotiate secession only if a "clear majority" of Quebecers voted yes on a direct, clear question on independence. It leaves it to Parliament to determine whether a referendum question is sufficiently clear and the result sufficiently large to merit negotiating the exact terms of the divorce.
Constitutional expert Peter Russell said the Sherbrooke Declaration amounts to shutting out the federal government and allowing Quebec separatists to set all the rules of the game and to secede on their terms.
"I'm just shocked that the New Democratic Party, which is, I thought, a federalist party, would be so willing to concede so much to separatists," the retired University of Toronto professor said in an interview.
Saying secession is strictly a political matter implies there would be no legal recourse to, for instance, ensure the province pays its share of the national debt or to protect the province's aboriginal communities which could well choose to remain in Canada.
"It's quite irresponsible to say, well, if you get 50 plus one, let's make Quebec a separate country, we give them the entire province, much of which geographically is not francophone at all and strenuously opposed to Quebec being independent, and we let them go away without paying their share of the debt — just for starters."
Russell said Layton needs to clarify whether his support for the Sherbrooke declaration means he's once again advocating repeal of the Clarity Act.
"Is it Sherbrooke or Clarity? They don't sound to me to be compatible," he said.
Lavigne said the Sherbrooke declaration explicitly states that it would be up to the federal government to determine "its own process" for responding to a Yes vote "in the spirit of the Supreme Court ruling and under international law."
Since the Clarity Act leaves it to Parliament to determine what constitutes a clear majority, Lavigne said the NDP is simply stating its opinion that a clear mandate "is one side winning more than the other, which includes 50 plus one."
"As a federalist party, we recognize the Clarity Act and we recognize that the rules have been established by the Supreme Court of Canada over 12 years ago," Lavigne said.
"Now is not the time to squabble over the rules," he added.
He said it's more important to "break the 20-year stranglehold" of the Bloc Quebecois and Layton seems to be the only leader in this campaign capable of doing that.