‘Let’s not help the Bloc by perpetuating the confusions of the Clarity Act’

By Aaron Wherry - Wednesday, February 6, 2013 at 11:08 AM - 0 Comments

Charles Taylor—who endorsed Thomas Mulcair for NDP leader and was a mentor to Jack Layton—writes in support of the NDP’s Unity Bill.

But with a clear question, 50 per cent plus one becomes the unambiguous and democratic expression of the electorate. As the Supreme Court made clear, if we agree that Canada must be held together by motivating its people to stay together, and not by force, then there is no other path. So how do we so motivate them? For one thing, we pass clear laws that avoid the kind of arbitrary after-the-fact shifting of the goalposts that has been met with such anger by Quebeckers. Independentists in Quebec have few effective battle horses left, which is why they’re trying to exploit this issue, as we see with the Bloc Québécois motion in the House of Commons.

As a federalist, my message to all Canadians who want this country to stay together is simple: Let’s not help the Bloc by perpetuating the confusions of the Clarity Act. This is why I believe that rewriting this act to add clarity is helpful to the cause of unity. But Mr. Scott and the NDP go further with their bill: In an innovation that has been mostly overlooked by the media so far, the bill also draws a road map for Quebeckers to seek constitutional change within Confederation. This addition is important and puts into law the commitment Mr. Layton made during the last election: creating the winning conditions for Canada in Quebec.

Clarity, Quebec and the NDP

By Aaron Wherry - Tuesday, February 5, 2013 at 12:52 PM - 0 Comments

Stephane Dion scolds the New Democrats for their Unity Bill.

The bill sets this threshold at a single vote difference. The NDP, which requires a two-thirds majority to amend its own constitution, is prepared to dismantle Canada on the basis of a recount. If 50 per cent plus one is a clear majority, then what would be an unclear majority? Moreover, contrary to the Clarity Act, this bill does not use the turnout rate as a criterion for evaluating a clear majority. Unlike the Clarity Act, the bill says nothing about the principles that should guide the federal government when negotiating on secession – in particular, the protection of minority rights.

Emmett Macfarlane questioned the NDP bill last week.

Craig Scott, the bill’s sponsor, defended his side in an interview with Postmedia.

“Everybody knows that the Clarity Act was anything but clear,” Scott told Postmedia News. He said the act is “arbitrary and unclear” and offers a “muddy set of ground rules.”

Uncertainty over the acceptable threshold for victory could even backfire on federalists, he said, because some Quebecers might vote for sovereignty to send a “signal” — only then to unhappily realize it helped secure a referendum victory for hard-core separatists. Scott said the NDP’s plan accomplishes two things: It respects basic democratic principles, and it provides clarity. “The fact of the matter is we have put forward a clear number. Everybody knows what the stakes are when they go to vote.”

Threshold for Quebec secession actually less than 50 per cent in NDP bill

By The Canadian Press - Wednesday, January 30, 2013 at 6:06 PM - 0 Comments

OTTAWA – Depending on how many showed up to vote, fewer than half of Quebec’s eligible voters could trigger the breakup of the country if the NDP’s proposed rules for another independence referendum were to be adopted.

The party has drawn criticism for insisting that a bare majority of 50 per cent plus one vote should be sufficient to trigger negotiations on Quebec secession.

But the threshold is actually lower than that due to the NDP’s deliberate decision not to take voter turnout into account.

Toronto MP Craig Scott, author of the party’s proposed “unity bill,” says 50-plus-one would apply regardless of how many Quebecers actually turned out to cast ballots.

He doubts voter turnout on such a momentous question would be a problem, noting that 94 per cent of Quebecers cast ballots in the 1995 referendum.

But even with 94 per cent turnout, a bare majority would translate into only 47 per cent of eligible voters deciding the fate of the country.

Parsing the Unity Bill

By Emmett Macfarlane - Wednesday, January 30, 2013 at 12:35 PM - 0 Comments

“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.