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TOM FLANAGAN

Clarifying the Clarity Act Add to ...

Recent labour strife has turned public attention away from the stand of Jack Layton and the NDP toward the Clarity Act, specifically whether 50 per cent plus one in a referendum would constitute a “clear majority” for the separation of Quebec from Canada. But we shouldn’t leave that discussion without clarifying some essential questions.

There is, indeed, good reason for emphasizing the normal criterion of 50 per cent plus one as the decision threshold. Anything higher could encourage strategic voting as a bargaining threat. Those who would vote to divide Canada must be made to recognize the seriousness of what they are doing. But there are other considerations, too.

The Clarity Act was passed by Parliament in 2000 after the Supreme Court of Canada had laid down some legal principles governing provincial secession. The most important feature of the act is its insistence that the secession of a province can take place only through a constitutional amendment.

In other words, Canada can’t be broken up by a one-vote majority in a provincial referendum. The most that such a referendum can do, regardless of the size of the majority, is to trigger negotiations with the federal government and the other provinces about the terms of a possible separation agreement. Canada would be obliged to negotiate in good faith, but not to grant every demand made by provincial separatists.

A second crucial feature of the Clarity Act is that it requires the House of Commons to state in advance whether the provincial secession referendum is on a “clear question.” The question, according to the act, must amount to “separation, yes or no?” It can’t involve additional and confusing conditions about a mandate to negotiate or to enter into a new relationship with Canada. The House could never have approved as “clear” the questions asked in the Quebec referendums of 1980 and 1995, questions that were long, convoluted and probably not fully understood by large numbers of voters.

A third, more controversial, part of the Clarity Act deals with the issue of a “clear majority.” The act requires the House to state after the referendum whether “in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada.” It is unfortunate that the House has to make this determination after the referendum, because that looks like changing the rules after the game has been played.

But the concept of a “clear majority” embraces much more than the margin of victory. As the act makes clear, it also includes the turnout in the referendum. Even a large majority in favour of separation would be considered insufficient if, say, only 20 per cent of the voters showed up at the polls.

Other concerns include the rules under which the referendum was conducted, as well as the integrity of enforcement. The House could not certify a clear majority if a province’s referendum legislation prevented some large fraction of the population from participating. There would also be a problem if ballot boxes started disappearing or if ballots were rejected arbitrarily, as allegedly happened in the 1995 Quebec referendum.

Since the concept of a clear majority contains so many disparate factors, it is impossible to define it clearly in advance, before the referendum has taken place. I would agree with the NDP in accepting a bare majority of 50 per cent plus one, but only if there were a high turnout and if international observers certified the rules were fair and had been scrupulously followed.

And, yes, we should have international observers if it ever comes to a third referendum. Canadians and the Québécois are as human as Albanians and the Sudanese when nationalist passions are aroused.

Tom Flanagan is a professor of political science at the University of Calgary and a former Conservative campaign manager.

 

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