Sherbrooke Declaration vs. Clarity Act

Well, you can always hope that Steve and Co. will discover principles and depend on them to provide the means to maintain that $7 a day daycare etc.while you warm yourself in the fires of righteousness. :)

Bump

Hello old friend!

By the way, I have come to not like the Sherbrooke Declaration either. I actually think it is just a bit weaker than it needs to be. I also think it contains too many things including partisan comment that should not be part of such a policy. The better compromise would be to require 50 plus 1 ala Sherbrooke and some agreement in Quebec by both sides as to what would be the terms by which such a vote would be accepted. Suggesting no such agreement would be required or that we can say what the terms would be is an interference. Even Sherbrooke could be used to interfere in the interpretation of the result as it sets up a test. It suggests that the vote should be taken as an ordinary vote. We have not heard a consensus from Quebec that this is what is desired. It is possible some terms could be desired within Quebec.

I have some ideas as to possible terms -- just ideas and I would not want these imposed from Ottawa. The principle of quorum appeals – a minimum number of people voting for the result to be valid. Some could advocate mandatory voting on such a topic allowing for abstentions but making sure that there is a very high turnout. Also it is reasonable to have agreement by both sides on the question posed if the result will affect both camps. You should not load the question and win by 50 plus 1. In other words 50 plus 1 is the only democratic answer but you can preserve the integrity of the vote in a number of ways and insist on a neutral (more than just clear) question. By both camps let me be clear: I mean Quebec federalists NOT rest of Canada federalists representing the "No" side. The ideal "clarity" rules would be some kind of agreement between both sides in Quebec and tested in a Quebec court. I have trouble with federal parties saying either what the test should be or should not be. I think the NDP declaration implies no need for such an agreement and no more terms than a regular vote and I don't think this should have come from a federal party. It would have been enough for the NDP to say it would respect a Quebec process and makes no assumptions about what that process would require. The NDP could also express that it is disturbed by the spectre of a majority not being respected and hopes that Quebec could find another way to be sure that the result reflect the true intention of the people of Quebec. The NDP would respond further based on events in Quebec as required. Nothing more than that needed to be said.

I do not dismiss the concerns of everyone who supports the flawed Clarity Act entirely. A normal election has a mandate for a specific term. A vote for an independent country has the presumption of an eternal mandate and may be impossible to reverse even if opinion were to change. While I respect 50 plus 1 and reject super majority positions, I also respect that the vote is a special and wrenching one and special requirements that the vote be an accurate representation -- even if close-- are not unreasonable. That is why I think of other mechanisms than disturbing a simple majority which is the mistake of the Clarity Act. I also insist that the federal government and federal parties should not be speaking publicly before such agreement could be negotiated in Quebec.

I think the correct position from the rest of Canada is to recognize the importance of such a vote, make it clear that the rest of Canada will respect the intentions of Quebec and encourage both sides there to find an agreement on what are the terms by which such a vote would be taken and accepted. Due to the uncertainty and high emotion of such a period, the federal government and a federal party could even encourage Quebec to lay out these terms in advance at a time of less pressure and emotion. The result could lead to a more stable society while respecting self determination.

Unfortunately all the federal parties have spoken and cannot unsay what has been said. So trying to find a neutral position is the next step. Now the NDP has to be clear that it won't endorse a defeat of federalists in Quebec should they lose due to a poor process. The response to such a problem would be presumed to come from Quebec without any predetermined NDP response. The NDP can still call on parties in Quebec to clarify the terms by which a 50% plus 1 would be acceptable. Should there be a minimum percentage of people voting? Mandatory voting? Pre-agreement on a question? Let's hear Quebec answer. The NDP can explain the 50 plus 1 is not the only requirement that can be made but that you simply cannot tell a majority in a democracy that they have won on a question put legally and constitutionally.

The legal test for whether the vote should be valid ought to be clearly stated as determined by the Quebec court. I do not think the Supreme Court of Canada ought to have jurisdiction on a vote in Quebec over the self determination of Quebec. It would obviously have a role in the determination of the position of the rest of Canada.

I don't think the NDP response is complete enough and I don't think the Clarity Act is anything more than a document that sits in defiance of democratic principles. I also think that it would be best if this were laid out in Quebec by Quebec.I believe my opinion is closest to the intent of the Sherbrooke declaration but that the distinctions I am making are more than just rhetorical. I would not promise the NDP endorsement of any 50 plus 1 vote. I would condition that on more than just confidence in a good question and process. Even great societies can have consitutional impasses. The NDP could encourage Quebec to produce its own terms and pre-agreement on a question. But it should not presume that 50 plus 1 is the only thing Quebec may come up with even if that is an important thing.

One of the problems with Sherbrooke and the Clarity Act is that in both cases these are pan Canadian conditions for accepting a vote in Quebec. In my view the correct position would have been to say that the federal government and federal parties would want to see Quebec proponents of independence and federalists come together and lay out an agreement and declaration of their own on what would be the conditions for such a vote to be accepted by Quebec and that failing that the federal government and federal parties would either wait for such a declaration from Quebec to decide a response or if no such declaration came, would respond to events as they unfold. It is in the interests of a civil society for both sides to determine the terms of a vote before it is held. I am confident that Quebec can do that and I am confident, given the previous difficulty that they would.

That said a statement of objectives could be provided in terms of what the Federal party and the government of Canada would prefer (rather than impose): 1) the vote be clear 2) that both sides in Quebec understood and agreed to the terms of acceptance of such a vote 3) that the vote include measures in keeping with the seriousness of the result given the long term implications 4) that the principle of majority plus 1 be respected should all other conditions as agreed by both sides be respected (important to respect a majority on such a question to keep a peaceful society) 5) that a Quebec court consider these objectives and determine if they have been met. An NDP government could ask for clarification from Quebec before taking a formal position.

In other words I would have preferred a request from the federal government and national parties to ask Quebec to consider and declare (with agreement from both sides of a potential question) as to what the ground rules should be. I think it has always been a mistake for the federal government to seek to impose rules-- either ones that might be considered too relaxed as has been said about the NDP's proposal or too difficult and unrespecting of a majority such as what the Liberals passed.

The discussion of rules happened in the wrong place- prematurely at the federal level rather than the provincial. It was incumbent on the federal side to ask for federalists and separatists in Quebec to first declare their terms for such a vote before responding. The preferred position is that we would respect the terms produced in Quebec to lay out its own self determination abd then any vote held under those conditions. This is about respecting Quebec as a democratic entity.

To assume that no such agreement could be made is an insulting hypothetical that the federal government and federal parties ought not to have waded into without there already having been an attempt and failure to do so in Quebec. The Sherbrooke Declaration suggests the terms by which the NDP could, against the valid objections of federalists in Quebec, agree to a result in a vote there. The Clarity Act seeks to lay out the terms to overturn a decision expressed democratically of the majority in Quebec.

Neither are fully respectful of self determination which ought to fully include the right to set all the terms by which such a vote is recognized. That test should be by agreement between federalists and separatists in Quebec as mediated by their legal system. Not through the political maneuvering of federal parties all seeking to get a few votes by wading into a Quebec only matter. The federal turn should only be in response to a Quebec decision not about determining the test for whether that decision will be taken as Quebec's position. In this sense I regard both the NDP decision and the federal clarity Act as needlessly paternal and the Clarity Act far worse than the Sherbrooke Declaration.

So I don't support either the Clarity Act or the Sherbrooke declaration as is. I see both as unfortunate but recognize they cannot be unsaid. Now we need some damage control and for that we must turn again and appeal to Quebec to help us. Let's do what we should have started doing and ask them to say what they can agree as to what the terms should be. I think we could be so bold and ask that they find widespread agreement from both sides in the interest of everyone. Then we need to shut up and listen.

Ok I will go to your table for an example. You ask if the questions from 1980 and 1995 would have been accpetable. One says yes and the other no. The correct answer is it is up to Quebec to decide what rules it wants on a question not for the NDP to go on record saying that a question advanced by the government is okay even if there is debate in Quebec on that point.

What question works for me? Regardless of what has worked in the past, I would prefer that there be wide agreement on both sides to the question in advance as it would add credibility to the result. But if a Quebec court stated that advance agreement were necessary then I would say it is. If it were to say no then I would say it is not. I would not endorse, or seem to endorse, one side over the other in what would be a very crucial Quebec only debate. The federal government and federal parties should not pronounce on what is or is not acceptable until a Quebec process is complete and the Quebec court has given a final answer. One exception to this: agree to accept the ruling of the Quebec court as to wherther the result is a true and valid result. As a person living outside Quebec that is what I am looking for. I don't presume I can set any terms and nor should the federal NDP. And certainly the types of terms the Liberals and Conservatives want to suggest even worse.

There is a side of me that thinks legal-- I worked in law that is why. I am nervous about precedent. The idea that the federal government could say 50 plus 1 is acceptable in that sense has some of the same problems as saying 60 plus 1. Or anything else. Just say you accept Quebec process once any legal findings that need to be made are made. That is it. Much shorter declaration that respects the jurisdiction of Quebec not only to hold the vote but to decide how and what the requirements for a yes should be.

I hope that clarifies things a little better so even if you don't agree with me you can see where I am coming from.

If people in BC are so latently "anti-Quebec" they should be in favour of any law that makes it EASIER and more likely that Quebec would separate. Ithat way they get to say "good riddance" and no longer have to endure bilingualism etc...

Determinant wrote:

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Both Parizeau and Levesque made promises they knew they couldn't keep in their referendum campaigns.

Determinant wrote:

The Charter of Rights wasn't change? 

Y'all are so clever. Trudeau never said exactly [i]which[/i] change he meant, so in the context of a referendum over Québec's powers, reducing said powers technically counts as change. That rascal!

I mean, it almost seems like the federalist side of both referenda wasn't...[i]clear[/i] about what a No vote would entail. Perhaps they should offer Québec a clear question: "You can be Manitoba, or you can leave, in which case you'll 'pay dearly'. But we love Québec, and we want it as a part of the federation. Why do you make me hurt you, baby? You know you're my one true love unless you try to leave. Then you'll pay."

If Quebec wants to cut all the ties, if can.  But it isn't a mushy  "Austria-Hungary" pie-in-the-sky fantasy.  It means customs booths on the Ottawa River bridges. There's no gilding the lily here.

As for your Charter strawman, cco, Levesque's only problem with it was the Minority Language Education Rights section.  He is on record as agreeing with everything else, as well he should as it was in Quebec's own Charter of Human Rights.  And speaking of Manitoba, Section 23 of the Charter overturned the Manitoba School Question and reinstated French schools there.  And yes, Quebec is Manitoba insofar as all provinces have equal powers.  Section 92 isn't province-specific. 

And Levesque only got snooty because the Charter overturned his blatantly restrictive provision of Bill 101 restricting English schools to those who had a parent who attended an English School in Quebec (Grandfather Clause?  Hmm, not a good precedent).  The ROC had to provide French schools to those with French as a first langauge (and does, I might add) while Quebec had to overturn a blatantly restrictive law and restore English schools to all Canadians who reside in Quebec.  Or in other words, it couldn't cut the Quebec English community off from the rest of the country and hope it would whither which is was the PQ's policy in the first place.

Seeing as Mme Marois has shown that the PQ isn't to be trusted to protect people's rights given her disgusting Values Charter and Quebec's Charter of Human Rights can't stand up to a determined government, it seems the Charter of Rights and Freedoms with its constitutional entrenchment was worth it after all. 

Again, I just know the Cons are gonna run ads with the simple and dumbed down narrative along the lines that "the NDP supports Quebec separitists over the rest of Canada" here out west during the 2015 federal campaign. And it will strike a nerve with many swing voters in rural, exurban, and suburban BC, for example.

I suspect that Romanow likely can forsee the same thing happening:

February 2, 2014 8:02 am

Romanow Disagrees With NDP Unity Bill

By Joan Bryden  The Canadian Press

OTTAWA – The NDP’s proposed “unity bill” has sparked some disunity in the party’s own ranks.

One of the most prominent NDP stalwarts, former Saskatchewan premier Roy Romanow, says he disagrees with the federal party’s proposition that a bare majority Yes vote would be sufficient to trigger negotiations on Quebec’s secession from Canada.

And he says he’s not the only New Democrat with qualms.

“I think within the party there are many people of varying views on this particular issue,” Romanow told The Canadian Press.

"To me, it’s probably one of the most important, if not the most important issue that any political party in a federation as diverse and fragile as ours must consider.”

Federal New Democrats supported the Clarity Act in 2000, as did Romanow, then Saskatchewan premier. The NDP has since changed its mind. Romanow has not.

Indeed, at a tribute for Chretien last month, Romanow told some 700 luminaries from multiple political parties that Clarity was “a great act of political vision and courage and determination” that he’s proud to say he supported.

“I just don’t accept its consequences or its potential consequences.” [of the NDP's Unity Act]

Romanow said he and his government’s legal and constitutional advisers did seriously consider whether a simple majority should be sufficient. But after analysing the Supreme Court’s advice on the rules for secession, upon which the Clarity Act was based, they concluded that the fate of the country could not hinge on a judicial recount over a handful of votes.

Romanow said he continues to believe that “the nation called Canada ought not to be easily broken up by a clerical error or the wrong attendance of a wrong voter at the wrong time and the wrong place, or something of that nature, that there’s got to be a clear expression of it.”

While the top court did not specify a threshold, it did signal that something more than 50 plus one should be required. For instance, it referred repeatedly to the need for a “clear majority,” said both the referendum question and the result must be “free of ambiguity” and noted that “Canadians have never accepted that ours is a system of simple majority rule.”

http://globalnews.ca/news/1123473/romanow-disagrees-with-ndp-unity-bill/

Where? (That is to say: Which members of caucus have the Declaration on their sites?)

Not that Sherbrooke was exactly the Allaire report. At its best, it was a tepid endorsement of compensated opt-out and asymmetricism. But if some MPs have posted it now, that's a step up from the Layton era.

ETA: Not that the Allaire report was exactly inspiring in reality, either. A few years back, when I couldn't find enough about it online, I went down to la Bibliothèque nationale, went into the archives, got a desk, and pulled it out of the stacks. I expected a meticulous 300-page dossier on division of powers, only to find an ancient PLQ booklet thinner than the average campaign pamphlet. Still, the constitutional revisions it proposed were deep and fundamental, and it was fascinating for me to see that the PLQ once endorsed such things -- if only briefly and for the sake of PR. (Jean-François Lisée's book "Le Tricheur" is a fascinating, though hardly neutral, history of the Charlottetown era in the PLQ.)

And while we're at it: Wow, it's been 9 years since the Declaration. In that time, it's been mentioned during one campaign (during which it was impossible to find online), in the vaguest terms, and been milquetoastly affirmed by Mulcair when he's asked about it. Call me jaded, but somehow I trust it even less than the Red Book.

Now that I've looked for the first time since 2008, I was actually able to find what appears to be a mimeograph (there's an old-school reference for you) of the original Allaire report. Boy, does seeing those ancient Stylewriter fonts bring back some memories.

Oh, of course. He also put way too much emphasis on so-called economic issues (code for surrendering all levels of government to anti-union, anti-living-wage neo-fascists who'd like to see both Canada and Québec ruled by London bond market profiteers). But the report wasn't written entirely by him, and even if it had been, I (mostly) agree with its propositions for division of power without endorsing the then-in-vogue early-90s Washington "consensus" fellatio.

Stockholm wrote:

You are barking up the wrong tree. The Tories won't touch that issue because putting a big emphasis on "national unity" only plays into the hands of Justin Trudeau. Not to mention the fact that the Tory base out west are largely people who hate Quebec and WANT Quebec to separate. No, if anyone is going to wrap themselves in a maple leaf and demgogically attack the NDP over its Quebec policy it will be the federal liberals under Justin Trudeau.

Sorry Stock, I gotta disagree. The Libs out west here in BC in 2015 will likely be confined to the City of Vancouver proper with them regaining the vote they lost to the Cons in 2011 and neighbouring munis such as the North Shore and into Richmond. The Cons will go after Trudeau there with likely leadership ads and his flakiness. 

OTOH, the Cons will most likely paint the NDP as closet Quebec separatists helping Quebec separatists with the 50% + 1 matter, which would "cause political and economic chaos in Canada". I have seen the Cons regional BC ads since 2004. They have perfected same, in order to hit a nerve, into an art form.

Remember also that during the 1990's many current NDP voters in suburban, exurban, and rural BC voted right-wing Reform here in BC.

And don't forget that the Ipsos poll from over a year ago shows that only 21% of BCers agree with the 50%+1 threshhold. For that matter only 30% of Quebeckers agree with that threshhold.

https://www.ipsos-na.com/download/pr.aspx?id=11934 

Better to face the matter before a campaign than become blind-sided during a campaign. 

Unionist wrote:

Looks like they both conveniently forgot the pesky little matter of indigenous Treaty rights. Typical of both sides. Sometimes I immagine the Anglo-French conflict as two elefants fighting it out while the indigenous mice are getting crushed under foot.

Unionist wrote:

Yes Glenl, it should be a clear question. But the point you're missing is that the people of Québec should formulate the question. Not Stephen Harper, not Obama, not Kim Jong-Un. And the Sherbrooke Declaration, to which all NDP candidates pay lip service, recognizes that reality. I hope you do too.

 

Shouldn't the indigenous nations of Quebec also have a say in how the question is formulate it, or do they not matter?