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The Colliding Paths of Canada’s Clarity Act and Québec’s Fundamental Rights Act
The political and constitutional future of Québec has been
hotly debated from the time of the "Quiet Revolution" - circa 1960 -
right up to 1995, with unflagging intensity.
A democratic intensity, I should perhaps add, because these debates have
taken place within the context of referendums, general elections, hearing of parliamentary
commissions and in the many other places where both the options for Canada’s
federal unity or Québec’s national sovereignty were brought forward. During
those three and a half decades, the issue of Québec’s right of
self-determination and secession was debated in academic - and to a less extent
- political circles, yet the discussion of the legal aspects of Québec’s claim
for independence law remained limited.
But, suddenly, just before the October 30th, 1995
referendum, the right of Québec to become a country was challenged before the
court. A first judgment on this issue
was delivered a few weeks before the referendum and alluded to the fact that a
unilateral declaration of independence (UDI) might contravene the Constitution
of Canada and provisions of the Canadian Charter of Human Rights and Freedoms.
The Court refused however to grant an injunction to prevent the holding of a
referendum related to the question of Québec’s accession to sovereignty as well
as its offer of partnership to Canada.
The referendum having almost been won by the sovereigntists
(50,48% NO- 49,52%- a mere 54,288 votes of the 4,671,008 ballots cast making
the difference), the issue of Québec’s right to achieve sovereignty and to
secede from Canada took a very legal bend . This slim victory of the NO camp
caused a significant shift in attitude among certain federalists, especially
those governing in Ottawa. A plan which came to be known as plan B- intended
to hobble the sovereignist movement in Quebec and to muzzle the Quebec nation. Devised by the new minister of
Intergovernmental Affairs and president of the Privy Council of Canada, my
colleague at the Université de Montréal, Mr. Stéphane Dion, this plan is
comprehensive and has several components, i.e a propaganda component where
Canadian flags and subsidies to celebrate Canada Day are distributed very generously
in Québec, a territorial aspect through the threat of partition of a sovereign
Québec’s territory and a diplomatic nature illustrated by a catechism to be
applied by Canada’s foreign agents when sovereigntists like myself promote
Québec sovereignty abroad.
In its legal dimension, this plan B first found expression
in the request for an advisory opinion by the Supreme Court of Canada on the
issue of Quebec's secession. This
request rendered moot the case that had been filed just before the 1995
referendum and which had been continued.
It had given rise to a judgement on preliminary exceptions which were
rejected by the Québec Superior Court.
This Court formulated however a number of questions that in its view
required an answer when the merits of the case would be debated.
Claiming the need that such answers should be given quickly
by the highest court of the land, the government of Canada submitted in
September 1996 a request for an advisory opinion to the Supreme Court of Canada
on the position of Canadian constitutional law and international law and on the
issue of secession. The Government of
Canada put three questions on Quebec's right to unilateral secession to
Canada's final court of appeal, one of which referred to the right of peoples
to self-determination. The questions
read as follows:
Question 1: Under
the Constitution of Canada, can the National Assembly, legislature or
government of Quebec effect the secession of Quebec from Canada unilaterally?
Question 2: Does
international law give the National Assembly, legislature or government of
Quebec the right to effect the secession of Quebec from Canada
unilaterally? In this regard, is there a
right to self‑determination
under international law that would give the National Assembly, legislature or
government of Quebec the right to effect the secession of Quebec from Canada
unilaterally?
Question 3: In
the event of a conflict between domestic and international law on the right of
the National Assembly, legislature or government of Quebec to effect the
secession of Quebec from Canada unilaterally, which would take precedence in
Canada?
These questions were severely criticized by the former head
of the International Law Commission of the United Nations in a legal opinion
sought by the amicus curiae of the Court. The renowned international French scholar
Alain Pellet stated:
“I am profoundly
distressed and upset by the partisan manner in which the questions are put and
I take the liberty of suggesting that a court of justice has the duty to react
to what appears to be a blatant attempt at political manipulation.”
Yet, contrary to all expectations and as constitutional
experts have pointed out, the Court refused, in its August 28th 1998 Reference re
Secession of Quebec to answer YES or NO to the questions put to it. And, rather than simply denying Quebec's
right to declare independence unilaterally and state that international law on
the self-determination of peoples did not recognize the right to unilateral
secession, it noted that the federal and provincial governments had a
constitutional and mandatory duty to negotiate should Quebec vote in favor of
sovereignty. It also considered the
question of the international community's recognition of Quebec's sovereignty,
linking the two questions. It said:
“The corollary of a
legitimate attempt by one participant in Confederation to seek an amendment to
the Constitution is an obligation on all parties to come to the negotiating
table. The clear repudiation by the people of Quebec of the existing
constitutional order would confer legitimacy on demands for secession, and
place an obligation on the other provinces and the federal government to
acknowledge and respect that expression of democratic will by entering into
negotiations and conducting them in accordance with the underlying
constitutional principles already discussed. “
The advisory opinion of the Supreme Court hurt the
federalists especially because it recognized that Quebec could turn to the
international community if Canadian governments failed in their obligation to
negotiate in good faith. The Court said:
“To the extent that a
breach of the constitutional duty to negotiate in accordance with the
principles described above undermines the legitimacy of a party's actions, it
may have important ramifications at the international level. Thus, a failure of
the duty to undertake negotiations and pursue them according to constitutional
principles may undermine that government's claim to legitimacy which is
generally a precondition for recognition by the international community.
Conversely, violations of those principles by the federal or other provincial
governments responding to the request for secession may undermine their
legitimacy. Thus, a Quebec that had negotiated in conformity with
constitutional principles and values in the face of unreasonable intransigence
on the part of other participants at the federal or provincial level would be
more likely to be recognized than a Quebec which did not itself act according
to constitutional principles in the negotiation process. Both the legality of
the acts of the parties to the negotiation process under Canadian law, and the
perceived legitimacy of such action, would be important considerations in the
recognition process. In this way, the adherence of the parties to the
obligation to negotiate would be evaluated in an indirect manner on the
international plane.”
In order to neutralize, indeed circumvent, the obligation to
negotiate set out in the advisory opinion by the Supreme Court of Canada, the
Parliament of Canada tabled on December 10th, 1999 (International Human Rights
Day!) an Act to Give Effect to the Requirement for Clarity as Set Out in the
Opinion of the Supreme Court of Canada in the Quebec Secession Reference (Bill
C-20). This federal initiative, which I
fought with vigour during several months as the critic for Intergovernmental
Affairs for the Bloc Québécois, led to the passing of the Clarity Act on June
29, 2000 which purports to impose conditions on Québec before the federal
government fulfills its obligation to negotiate with Québec.
The adoption of such a law casted a pall on Canadian
democracy and struck a chord with the Government of Quebec, which considered it
necessary to reply with a bill entitled An Act Respecting the Fundamental
Rights and Prerogatives of the Québec People and of the Québec State. This piece of legislation was adopted by
Québec’s National Assembly on December 7th 2000 and reaffirms Québec’s right of
self-determination and its right to choose freely its political status.
With these two pieces of legislation, Canada and Quebec are more
than ever before on colliding paths, a course where not only ideas but
interests have and will continue to collide.
The Clarity Act and Quebec: Ideas in collision
After its tabling in the House of Commons of Canada, the
so-called Clarity Act was debated in conditions unworthy of a parliamentary
democracy in which the government repeatedly invoked closure in order to ensure
quick passage of this bill, through the legislative committee struck for the
purposes of the bill and through the House of Commons itself. It was passed on March 15, by a vote of 208
to 55, including 47 nay votes from among the 73 Quebec members present at the
time of the vote (64% of Quebec's MP’s).
The bill was subsequently examined by the Senate of Canada and passed on
June 29, despite strong opposition, especially by senators from Quebec. It received royal assent from the Governor
General the same day.
The Clarity Act attempts essentially to define the wording
of the question in a future referendum on Quebec's sovereignty and to determine
the majority threshold that would allow the Canadian government to shirk its
obligation to negotiate. By doing so, it
collides headlong with ideas that have prevailed for decades and guaranteed the
Quebec nation a freedom the government is now trying to take away.
It had long ago been agreed that Quebecers could organize
referendums on their future through their National Assembly. In the organization of these referendums,
Quebec's elected representatives would decide the wording of the referendum
question. This notion was destroyed by
the Clarity Act, which will give the House of Commons the power to determine
the clarity of the question. This House
of Commons - where only 25% of the members are from Quebec (75 of 301) - is to
be given, in the name of clarity, the right to reject a question formulated by
a democratic institution in Quebec, the National Assembly of Quebec. And yet this Quebec institution is the seat
of the sovereignty of the people of Quebec, and their elected representatives
exercise this sovereignty on their behalf.
The idea that a referendum is won with a majority of 50 per
cent plus one of the valid votes cast seemed also to have prevailed in all
referendums organized with respect to the political and constitutional future
in Quebec and Canada. Here too, ideas
are in collision, since the intent of the Clarity Act is to give the House of
Commons the power to decide that a majority of 50 per cent plus one of valid
votes cast is not enough to oblige the federal government to assume its
constitutional and mandatory duty to negotiate.
On this point, the collision is all the more real and the undemocratic
nature of the bill all the more obvious in the light of Canadian practice on
the subject of majority rule. All
referendums in Canada have been held on the basis of majority rule. Newfoundland joined Confederation with 52% of
the valid votes cast. All referendums on
Quebec's and Canada's political and constitutional future -- on
sovereignty-association of 1980, on the Charlottetown Accord in 1992 or on
sovereignty and partnership in 1995 -- were all governed by majority rule of
50% of the valid votes cast.
To cast doubt on the rule of 50 per cent plus one is also to
contravene the fundamental principle of the equality of voters. The vote of some must have the same value as
the vote of others. This is a matter of
equity and justice the Supreme Court of Canada recognized in its 1991 decision
on electoral boundaries in Saskatchewan: "...dilution of one citizen's vote as compared with another's should not
be countenanced."
The three parties represented in the Quebec National
Assembly, the Parti Québécois, the Quebec Liberal Party and the Action
démocratique du Québec, all rejected the Clarity Act, as did a very clear
majority of the federal members for Quebec, as mentioned earlier. Hence, nearly two thirds of the Quebec
members of Parliament in attendance during the vote at third reading on March
15, 2000 voted against Bill C-20, including the 44 members of the Bloc
Quebecois. Civil society, through the
voices of trade unions, student associations, women's groups and community
groups is also nearly unanimous in its rejection of this law. Very few groups in Quebec supported this
federal initiative.
The Clarity Act breaks the democratic tradition in Canada
that, up to now, had taken into account Quebec's desire to freely decide its
future. It cannot be ignored. It is no credit to a country that boasts of
itself in international circles as a model of democracy and the best country in
the world. Canada's aboriginal nations
know this not to be true as do its poor children, whose defence the UN has
taken up.
Quebec appears today to be the victim of a country described
as unique by its ability to recognize its own divisibility, when, in actual
fact, its Clarity Act is intended to confront what the Minister of
Intergovernmental Affairs, Stéphane Dion, calls "any threat of separation" and "to guarantee the unity of Canada", according to Prime Minister
Jean Chrétien.
This sort of attitude is not going to deny Quebec its right
to self-determination. Every ten years
or so, it seems that Quebec has to reaffirm its freedom to determine its
political status. In 1980, the Prime
Minister of Quebec, René Lévesque, noted in the days after the May 20 referendum
that "the recognition of this right
to self-determination was the most important outcome of the Quebec referendum". Another Prime Minister of Quebec, Robert
Bourassa, said on June 22, 1990 that "no
matter what is said or done, Quebec is now and will always be a distinct
society, free and the master of its destiny and its development." In 2000, the Government of Quebec took a solemn
stand on the Clarity Act by tabling in turn An Act Respecting the Fundamental
Rights and Prerogatives of the Québec People and of the Québec State, setting a
collision course with the interests of Canada.
The Fundamental Rights Act and Canada: Interests in collision
In reaction to such a serious threat to the freedom of the
people of Quebec to determine their future, the Government of Quebec tabled, on
December 15, 1999, two days after the tabling of the Clarity Bill, a bill
entitled An Act respecting the fundamental rights and prerogatives of the
Québec people and of the Québec State (Bill 99). With this bill, the government called on the
National Assembly of Quebec to reaffirm Quebec's freedom to determine its
future and to adopt measures to establish this freedom on solid legal grounds.
The Quebec Fundamental Rights Bill was debated at length in
the National Assembly and in its Committee on Institutions. A number of amendments were made to it as the
result of proposals by individuals and groups that testified before the
parliamentary committee. Adopted on December 7th 2000, the bill received the
support of the members of the Parti Québécois and the Action démocratique du
Québec. Despite an attempt to achieve a
consensus, the members of the Liberal Party of Quebec refused to support the
bill and would have preferred to see the National Assembly pass a solemn
declaration on this matter.
The Fundamental Rights Act has a much broader scope than the
Clarity Act and was described by the Prime Minister of Quebec as a charter of
collective rights for Quebec. As such,
it is in collision not only with the Clarity Act but with the vision of Canada
held by its leaders and the interests they appear to promote.
One of the dominant features of the Fundamental Rights Act
is its unreserved affirmation of the existence of the Quebec people and its
establishment in law of this affirmation.
Thus the first chapter of the act affirms, as no Quebec legislation has
ever done, the concept of a Quebec people.
This affirmation was necessitated by Canada's inability to recognize the
existence of the people of Quebec. After
consistently refusing to consider that Quebeckers constituted a people, albeit
a nation, the attempt to affirm the existence of a "distinct society" in Quebec was also challenged by the rest of
Canada and its representatives.
The affirmation of the existence of the people of Quebec is
therefore necessary in this context and permits the bill to enshrine the right
to self-determination and the right to choose a political system and a legal
status for Quebec. Thus, section 4 of the
Fundamental Rights Act provides clearly that "when the Québec people is consulted by way of a referendum under the
Referendum Act, the winning option is the option that obtains a majority of the
valid votes cast, namely fifty percent of the valid votes cast plus one."
Section 5 of the Fundamental Rights Act rightly provides
that the Quebec state derives its legitimacy from the will of the people
inhabiting its territory and contains an affirmation fully consistent with the
third paragraph of article 21 of the Universal Declaration of Human Rights,
which provides that "the will of the
people shall be the basis of the authority of government". The subsequent reference to the fact that the
will of the people is expressed through the election of members to the National
Assembly by universal suffrage, by secret ballot, under the one person, one
vote system, pursuant to the Election Act and through referendums held pursuant
to the Referendum Act is also consistent with the requirements of this
international instrument and sets out the two Quebec laws whose democratic
nature is incontrovertible.
The objective of protecting Quebec's internal and
international jurisdictions is apparent in the other sections of chapter II of
the Act and is set to collide with the interests of the federal government,
which has tried to progressively expand its jurisdiction. Accordingly, section 6 of the Fundamental
Rights Act states that "the Québec
State is sovereign in the areas assigned to its jurisdiction by laws and constitutional
conventions." There are recent
examples to support the argument that Quebec's jurisdiction has been infringed
by federal authorities, whether it be in the case of the millennium scholarship
institution or of the passage, without Quebec's approval, of a framework agreement
on Canada's social union.
This sort of attitude reflects an increasingly obvious
desire on the part of these authorities to assume a determinant role in all
spheres of activity and to use their spending power to this end. Quebec has consistently disputed the exercise
of this power, but its pleas have been ignored.
Accordingly, the government decided to remind Parliament and the
Government of Canada of Quebec's profound commitment to its areas of
jurisdiction and to their integrity and of its intention to resist any attempt
to further usurp these areas that were given to Quebec by law and
constitutional convention.
In addition, Quebec's exercise of international jurisdiction
has consistently been disputed by the federal government of Canada, and here
again the differing interests of Canada and Quebec collide. Arguing that only the federal government had
international jurisdiction as granted by royal prerogative, successive Canadian
governments have rejected the doctrine formulated in 1965 by Minister Paul
Gérin-Lajoie to the effect that Quebec could extend its internal jurisdiction
internationally. Under these conditions,
the principle enshrined in the first paragraph of section 7 of the Fundamental
Rights Act whereby "the Québec State is free to adhere to any treaty,
convention or international agreement in matters under its constitutional
jurisdiction" and "the Québec
State is not bound by any treaty, convention, agreement or Act in the areas
under its jurisdiction unless it has formally adhered to it by a decision of
the National Assembly or the Government, subject to the applicable legislative
provisions."
In its application as well to the question of international
representation, the Gérin-Lajoie doctrine was also rejected by the Government
of Canada and has been the source of considerable conflict between Canadian and
Quebec government officials. Whether it
concerned participation in international forums on cultural diversity or in
meetings between representatives of Quebec with heads of state or foreign
governments (e.g. Bouchard-Zedillo) or the refusal to give Quebec its proper
place in the context of the Free Trade Area of the Americas (FTAA), the
doctrine of the federal government's monopoly over foreign policy has caused
considerable and ongoing conflict.
Accordingly, the Government of Quebec wanted to affirm in the third
paragraph of section 7 that Quebec "may,
in areas under its jurisdiction, transact with foreign states and ensure its
representation outside Quebec."
In this era of globalization, such an affirmation seems all the more
compelling in the light of what the Quebec Minister for Canadian
Intergovernmental Affairs, Joseph Facal, called a "Canadian federal deficit", which aims to prevent Quebec from reaching
out as it will onto the international scene.
Added following the hearings of the National Assembly's
Committee on Institutions, section 8 of the Fundamental Rights Act reiterates
Quebec's jurisdiction over issues of language and reiterates that French is the
official language of Quebec. It also emphasizes the fact that the "Québec State must promote the quality and
influence of the French language" and that it "shall pursue those objectives in a spirit of
fairness and open-mindedness, respectful of the long-established rights of
Québec's English-speaking community". This desire to preserve and
promote Quebec's French language also conflicts with another desire, that of
the federal government to promote two official languages in Canada.
In the chapter on the territory of Quebec, the National
Assembly of Quebec reaffirmed that "the
territory of Québec and its boundaries cannot be altered except with the
consent of the National Assembly."
This provision is intended to ensure that the existing boundaries of
Quebec are respected and maintained and to counter the partitionist reveries in
subsection 3(2) of the Clarity Act. This
provision is intended primarily to temper and limit the right of the Quebec
people to choose their political future and status freely. Quebec's territorial
integrity, the intangibility of its borders and the rule of law form the
cornerstone of a very broad consensus emerging in Quebec.
The Fundamental Rights Act assures the Abenaki, Algonquin,
Attikamek, Cree, Huron, Innu, Malecite, Micmac, Mohawk, Naskapi and Inuit
Nations of a rightful place and sets forth, in the fifth clause of the
preamble, the principles associated with the recognition of the aboriginal
nations including their right to autonomy within Quebec. In addition, in sections 11 and 12 of the
act, the National Assembly recognizes, in exercising its constitutional
jurisdiction, the existing rights -- aboriginal and treaty -- of the aboriginal
nations of Quebec, and the government undertakes to promote the establishment
and maintenance of harmonious relations with these nations and to foster their
development and improvement of their economic, social and cultural conditions.
On all these matters, the Fundamental Rights Act and the
Clarity Act differ in their concepts of the future. However, with the final provision of the
Fundamental Rights Act, the collision becomes headlong. Section 13 of this act provides that
"no other parliament or government may reduce the powers, authority,
sovereignty or legitimacy of the National Assembly, or impose constraint on the
democratic will of the Québec people to determine its own future."
This provision is fundamental and is designed to nullify any
effect of the Clarity Act on Quebec. It
must also be seen as a stand taken against any power this law might give the
House of Commons to decide on the clarity of a measure of the National Assembly
and specifically the clarity of a question selected by a motion of the National
Assembly. It also nullifies the effect
of any measure by the House of Commons to determine the clarity of the result
of a referendum and the votes cast by Quebec electors.
Conclusion
In this pivotal year 2001, the right of peoples and nations to
self-determination remains as relevant as ever.
It underlies claims to autonomy and independence and the calls for
freedom heard on every continent. This
right rests on the guarantee of rights to national and ethnic, cultural or
religious minorities and on the recognition of the right of peoples and nations
to self-determination. It should notably
evolve towards the recognition that political independence is a means to
implement such a right in a democratic context, such as the context of Québec’s
claim for independence.
So long as governments and international institutions
continue to question the right to self-determination and refuse to give it
effect, they exacerbate conflicts and promote neither political harmony nor
cultural diversity. However, their
democratization is essential and cannot be achieved at a cost to the
minorities, peoples and nations that fashion this international system and give
meaning to the concept of international community. This democratization must, however, be based
on principles that neither threaten freedom nor impose trusteeship regimes on
minorities, peoples or nations. It must
never be based on the principles that gave rise to the Clarity Act recently enacted by
the House of Commons of Canada, which represents the antithesis of the process
of democratization that springs from true recognition of the right to
self-determination. This democratization
must be based on a real desire to recognize minorities, peoples and nations and
an absence of meddling in the process of determining their political and
constitutional future.
This conference, as well as the other conferences organized
under the auspices of the Consortium on International Disputes Resolution, may
help give the right to self-determination the letters patent it deserves and
permit it to be linked with the principle of democracy which was given a key
role by the Supreme Court of Canada Advisory Opinion on Québec’s Secession. I
will continue to argue, as do Puerto Ricans and Hawaiians, Scots and
Palestinians, to give but a few examples, in favour of the application of
democratic right of self-determination.
A right that should be the key foundation for peoples who desire to take
charge of their economic, social and cultural development and intend contribute
in their own way to the enrichment of humanity's common heritage.
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