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Hill Dispatches

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Karl Nerenberg has been reporting on federal politics from Parliament Hill for rabble.ca since September, 2011. In his long career, he has won numerous awards as a broadcaster and documentary filmmaker.

Why does the NDP's Craig Scott want to replace the Clarity Act?

| February 12, 2013
Why does the NDP's Craig Scott want to replace the Clarity Act?

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What do these seemingly disconnected facts have in common?

  • The Parti Québecois Government is trying to show that the federal system does not work for Quebec and is pushing the sovereignty option.

  • The unelected Canadian Senate has reached a new low in public esteem; but chances of change are slim to nil, given the Canadian Constitution.

  • The Canadian Government has been favouring Christian evangelical groups in its grant-giving.

  • The Conservative Party continues to get very low polling results in Quebec, almost always trailing in fourth place, behind the NDP, Bloc and the Liberals.

  • New Democrat MP Craig Scott has introduced a Private Member's Bill that would repeal the Clarity Act and set a new standard for a clear majority on a clear referendum question in favour of Quebec sovereignty.

Connect the dots between the five facts and the picture they make is the spectre of "national unity" raising its ugly head once more.

The last thing most Canadians -- including, it seems, Quebeckers -- want to think about these days is the prospect of the country breaking up.

The Parti Québecois may have won the last election in Quebec, but only with a narrow minority, at a time when support for Quebec's independence seems to be lower than it has been for many years.

The urgent challenges facing Canada and the world would seem to make a renewal of debate over Quebec's place in (or out of) Canada a matter of marginal concern, at best.

Those challenges include exacerbated social and economic inequality, rapidly accelerating climate change that will bring with it disastrous consequences, and the increasing threats to Indigenous peoples' cultural and material survival in Canada and worldwide.

Still, some of us are talking, yet again, about Quebec separation.

Marois' ace-in-the-hole

Quebec Premier Pauline Marois knows that her Parti Québecois did not get a mandate to pursue sovereignty.

But she also knows that Quebeckers have never felt more alienated from a federal party in power in Ottawa than they do from the current Conservatives.

In the entire history of Canada no majority government has had such minimal and weak representation from Quebec as Harper's.

The repeal of the long gun registry and the punitive omnibus crime legislation are just two examples of Conservative initiatives that are highly unpopular in Quebec. Withdrawing from Kyoto is another one.

CIDA's tilting toward evangelical Christian groups in its partnership program is just beginning to get attention in English Canada, what with the revelation that a "Christian" group highly inimical to the basic rights of gay people got funding to work in -- of all places -- Uganda.

The Canadian government has condemned the Ugandan government's criminalization of gay activities and open persecution of gay people.

In Quebec, however, development organizations have been complaining for many months about CIDA's new tilt toward groups on the Christian Right -- to the detriment of mostly secular Quebec-based organizations.

Even before the last provincial election, the international cooperation movement in Quebec was suggesting that the province might be better served if it "repatriated" all responsibility for what we used to call "foreign aid."

When the current Quebec International Relations Minister Jean-François Lisée evokes the possibility of the province taking over CIDA's role, that resonates with many Quebeckers, regardless of their views on sovereignty.

And that is the card the Parti Québecois is trying to play.

The sovereigntist party seems to have a weak hand on the separation issue; but the Harper Government's blithe indifference to both what many see as "Quebec values" and to Quebec's interests is the PQ's ace in the hole.

Clarity Act is the target

The Bloc Québecois in Ottawa has taken this opportunity to put the Chrétien-era Clarity Act on the agenda. One of its members has proposed a Private Member’s Bill that would simply repeal the Clarity Act.

The Clarity Act was itself an outcome of a 1997 Supreme Court decision on Quebec's right to secede.

That Court decision said the Quebec people have the right to decide, via referendum, on their place in or out of confederation, as long as the referendum question is clear and there is a clear majority in favour.

The Clarity Act enshrined those principles in law, without ever setting out a "number" -- without defining what would constitute a clear majority.

Would that be 51%, 55%, 60%,  or 75%? The Clarity Act is entirely unclear on that point.

In its Sherbrooke Declaration, the NDP has said that it believes a 50% plus one vote -- on a clear question, in a vote that was not tarnished by irregularities -- would be sufficient to trigger a negotiation between Quebec and Ottawa. But, until now, the whole question was way back on the most remote of back burners.

The Bloc has forced the NDP's hand.

The Official Opposition cannot simply vote against the Bloc's Bill without seeming to disavow Sherbrooke.

But the NDP certainly does not want to get in bed with those whose primary objective is breaking up the country.

Few outside Quebec are probably aware of the degree to which the NDP's current leader is, as they say in French, "farouchement fédéraliste" -- a passionate federalist.

Throughout his public life Tom Mulcair has been unambiguously and vigorously opposed to the separation of his home province from Canada.

He fought for the 'No' side in the referendums of 1980 and 1995 and worked, for a while, for the Quebec Anglophone rights organization, Alliance Quebec.

In that context, the Private Member's Bill Mulcair's colleague Craig Scott is proposing looks eminently reasonable in Quebec, even to a great many avowed federalists.

Scott's Bill is, in a way, a response to the Bloc's.

However, instead of simply doing away with the Clarity Act, Scott would replace it with rules he says would be much clearer.

What the Scott Bill actually says

The NDP MP's Bill first affirms that the Parliament of Canada recognized, in 2006, that the Québecois form a "nation within a united Canada" -- a nation that has the right to "democratically decide its own future."

It then cites the 1997 Supreme Court decision, which, according to Scott, stated that the "clear expression" of the "wish to pursue secession by the population of a province" would give rise to a "reciprocal obligation on all parties to confederation to negotiate constitutional changes to respond to that desire."

The Bill then lays out some clear ground rules.

First, it says that the Canadian government must decide long before any referendum vote is held whether, in its view, the question "clearly sets out the constitutional change being sought."

The Bill goes further and suggests two questions that the Government of Canada would accept as being clear: "Should Quebec become a sovereign country?" or "Should Quebec separate from Canada and become a sovereign country?"

Can't get much clearer than that -- and those questions are a long way from the long and confusing muddle of a question the 1995 referendum posed.

If Quebec wanted to choose other referendum language, the Bill says, the federal government would have to agree to it. And if it did not agree with Quebec’s proposed question, the Canadian Government would immediately refer the matter to the Quebec Court of Appeal (whose members are appointed by the Canadian Prime Minister).

The Bill concludes that if the question is clear, if there are no irregularities in any aspect of the vote, and if a majority of "valid votes are cast in favour of the proposed change," then -- and only then -- must the Canadian Government "enter into negotiations with the Quebec Government."

A moderate and politically realistic proposal

That's it: hardly an open invitation to separate from Canada, with no consequences.

In fact, the NDP only proposes legislatively recognizing what would, in fact, almost certainly happen in the event of a yes vote on separation, whatever the margin of victory.

The Government of Canada would do its duty and enter into talks with the Quebec Government. The alternative might very well be chaos, very damaging to the Canadian economy and Canada's political stability.

Inside Quebec almost everyone sees it that way. The whole question of sovereignty versus being part of Canada is not a black and white question to most Quebeckers.

Outside Quebec it is a different story.

A great many non-Quebeckers think the NDP is making a bad mistake in taking this stand -- especially in accepting a simple majority as sufficient to trigger negotiations.

Of course, those who are upset at Scott's Bill are often under the impression that it says a 50% plus one vote would mean automatic separation from Canada.

The Bill does not say that.

It only says that such a yes vote -- subject to all the other conditions such as a clear question -- would oblige the Canadian government to negotiate.

Ironically, what Quebeckers call the "national question" seems to elicit a more emotional response from the Rest of Canada than it does from Quebeckers, these days.

Many Canadians -- including many NDP voters -- argue that you "cannot break up a country on a simple majority vote."

The vote should be at least 60% in favour of sovereignty, many say. After all, it takes more than a simple majority to amend the constitution.

Scott is actually posing a tough challenge to the separatists

The "60% solution" might make some sense, at first blush.

But try to imagine that the unthinkable were to happen and Quebec were to vote yes to a clear question.

Could the rest of Canada merely fold its arms and say: "Sorry we don't recognize the vote because it did not reach 60%?"

Would Canadians want their Government to provoke an even deeper crisis and risk incurring international opprobrium for failing to recognize the democratically-expressed will of a people?

Seen that way, Scott's Bill is merely statement of democratic, constitutional principle.

It could hardly be categorized as a "soft-on-separatism" Bill, and is not seen that way by either federalists or separatists in Quebec.

If anything, the Scott Bill's clear statement of the need for acceptable, unambiguous language in a referendum question is almost a gauntlet thrown at the feet of the sovereignty movement.

Don't try to sugar-coat your objective in cute and devious language that evokes undefined "agreements" and an ongoing "association with Canada," as you did in two previous referendums, the NDP is telling the PQ, and others who advocate sovereignty.

The truth is, Scott and Mulcair seem to be saying, if the sovereignty movement were to express itself as bluntly as the NDP MP's Bill requires, there is very little chance it could ever get anywhere near even a simple majority in a fair vote.

Of course, there is always Pauline Marois' ace-in-the-hole: a Harper Government that seems willing to do all kinds of things to alienate Quebeckers.

The separatists are hoping that works for them.

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