Taking the offensive against the separatists

Those willing to look past the Senate scandal that has consumed Ottawa these past weeks should congratulate Stephen Harper's government for the development of enhanced free trade arrangements with the European Union — and for its decision to join in the legal attack on Quebec's Bill 99.

That piece of provincial legislation, enacted in 2000, was the reply of then-premier Lucien Bouchard to Jean Chrétien's Clarity Act. Bill 99 declared that if 50%-plus-one of those voting in a referendum approved secession, no matter how fuzzily worded the question, the entire province of Quebec would secede on whatever terms its National Assembly decided, and to hell with the millions of Quebecers who were opposed.

Pauline Marois' minister of Intergovernmental Affairs, Alexandre Cloutier, now is calling the federal government's support of a private legal challenge to Bill 99 "a hypocritical affront," and has successfully called for an all-party resolution in the provincial assembly supporting the 13-year-old law. As usual with such matters, Quebec's party leaders were intimidated by the nationalist impulse, and their response last month varied from the hard-line separatist Solidaire Party's invocation of "the inalienable right of self-determination," to the Liberals' flimflam that, in former premier Jean Charest's words, "Quebec alone has the right to decide its future."

That proposition is arguable, but it isn't the point here. Rather, the issues are (a) the validity of a response to an ambiguous referendum question, and (b) the rights of the large minority of Quebecers who, in such a scenario, would wish to remain in Canada.

Quebec's 1980 referendum question was worded in a way that was muddled and complex. It asked voters whether the government of Quebec should be mandated to negotiate "sovereignty" for Quebec with a continued "economic association [with Canada], including a common currency." Embedded within the latter part of the referendum question was the promise of "another referendum" that would serve to approve "any change in political status resulting from these negotiations."

The 1995 referendum involved a shorter question, which was just as confusing: "Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?"

Both questions were trick-formulations of eating and retaining the same cake: exchange embassies with every country in the world but continue to receive the benefits of confederation. (In 1995, the billboards and printed advertisements urging a yes vote used the Canadian $1 coin as the "o" in "oui.")

In 1980, the No side won, 59.6% to 40.4%. In 1995, it won 50.6% to 49.4%. Turn-out increased from 87% in 1980 to 94% of eligible voters in 1995. In both cases, Canada's prime ministers — Pierre Trudeau in the first referendum and Jean Chrétien in the second — made the tactical error of accepting that such a soft question could actually have a serious impact on the future of the country (though both, and especially Trudeau in 1980, did ridicule the self-serving vagueness of the wording). After a Supreme Court reference case, Chrétien adopted the Clarity Act in 2000, requiring a "clear expression of the will of the population of a province that the province cease to be part of Canada" (a formulation typically interpreted as requiring a 60% voter threshold).

Chrétien did not follow the advice of many (including this writer) who urged the principle that any province is just as divisible as Canada itself, and so any county that votes no in a provincial referendum, and whose voters meet the Clarity Act's criteria for clarity of expression in regard to their views, would secede from the secessionist province and remain in Canada.

Notwithstanding the aforementioned complaints of Quebec's minister of Intergovernmental Affairs, the true "hypocritical affront" on display here is not the federal government's intervention against Bill 99, but rather the separatists' clinging to the idea that they can drag millions of people out of the country they wish to live in and into one they don't wish to live in, by a majority of one vote among over 5-million on a deliberately vague question.

It is time for a little unilateralism on the federal side. It should be enacted as federal law that any effort to secede in a way that drags involuntarily out of Canada more than two fifths of the population of a province, or all of the people in any county of a province where the majority of that county do not wish to secede, will be resisted by whatever means the government of the day, with the authority of Parliament, judges appropriate. The separatists will continue to delude themselves and distract the rest of us indefinitely if they think they can smash up this country by walking through an open door.

© 2024 Conrad Black