Parsing the Unity Bill

The NDP is wrong on secession, the Clarity Act and the Supreme Court

“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.”

This was a unanimous Supreme Court of Canada in 1998’s reference decision on Quebec secession. The Court went on to declare that only “a clear majority on a clear question” could compel the federal government and the other provinces to engage in negotiations with Quebec on the matter.

It is true the Court did not specify what would actually count as a “clear majority” (55 percent? 60? 67?). That, the justices said, was a matter for the political actors to decide. What is crystal clear, for anyone with the scarcest smidgen of reading comprehension, is that a “clear majority” is something more than 50 percent plus one. The highest court in the land has made an explicit distinction between “simple majority” and “clear majority.”

In 2000, the Liberal government enacted legislation along precisely these lines to dictate the federal government’s response to a future referendum on sovereignty. Dubbed the Clarity Act, the law sets out a timeframe and some conditions (such as taking into consideration the views of other provincial governments, Aboriginal peoples and all the parties in the House) for Parliament to determine whether the results reflect a clear majority on a clear question.

In 2005, the NDP passed the Sherbrooke Declaration, taking the position that 50 percent plus one was sufficient for triggering negotiations. Since then, the party has often stated its belief that such a position was consistent with the Clarity Act. This week, after a Bloc motion to rescind the Clarity Act put pressure on the NDP to clarify its position, the party came out with a private members’ bill that would replace the Clarity Act altogether.

The NDP legislation, dubbed the Unity Bill, would see the federal government enter into negotiations after a simple majority vote on a clear question. The bill, and the party’s defense of it, betrays a cringe-inducing understanding (or blatant misrepresentation) of the Supreme Court’s reference decision, the Constitution and how a presumably “federalist” party ought to act as a defender of the Constitution and national unity.

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).

If the NDP thinks the Court is wrong then it is certainly free to say so. But instead, the party has introduced a bill on the utterly false proposition that the bill is consistent with what the Court has said.

Piling gaffe onto blunder, in another hilarious misread of the Court’s reference decision the bill would also refer the matter of a “clear question” to the Quebec Court of Appeal. This is a scenario the Supreme Court clearly wanted to avoid when it emphatically declared such a determination was to be made by the political branches.

In some ways this is all moot. There is little reason to be worried about even a simple majority of Quebecers voting yes on a legitimately clear referendum question (despite the razor thin margin in 1995, the question then spoke of a murky “economic and political partnership”). Even if it did, the federal government is not the sole authority on how any negotiations would proceed—each of the other nine provinces would be every bit as important in the process, given the unanimity required under the constitutional amending formula.

Yet the NDP’s stance, to put it as diplomatically as possible, is highly problematic. First, the party is actively, egregiously misrepresenting what the Supreme Court decided on this matter. Second, and more importantly, the NDP is defending a position that the Canadian Constitution could legitimately be torn asunder by an ephemeral simple majority of a single province. The party ignores basic supermajority requirements for constitutional amendment (except, it appears, for the party’s own constitution, which requires a two-thirds majority).

And from a political perspective, the party shuns even deeper principles, for it is impossible to avoid the conclusion that this is a shameless appeal for soft nationalist voters in Quebec. As a result, it is also impossible to be sure that, were it to form government, the NDP would live up to the expectation that it would act first and foremost in defence of Canadian unity and the Constitution.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter here.

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