When the so-called Clarity Act was adopted by Parliament in 2000, some federalists breathed a sigh of relief. We were told this was the solution to repeated attempts by Quebec sovereigntists to break up the country we cherish.
At the time, emotions remained raw from the 1995 referendum and the painfully thin margin between the Yes and No sides. Many felt helpless to save Canada and looked to the federal government to do something – and hoped federal legislation clarifying the process would be an insurance policy against future referendums.
But the new law failed to provide clarity and became yet another flash point in the ongoing constitutional debate.
Let me be clear: I am a federalist and a Quebecker. I campaigned on the No side in 1980 and 1995. And Thomas Mulcair was there with us in the trenches, fighting for Canadian unity and passionately making the case then – as he does now – for Canada, in Quebec.
While I dearly hope we don't face another referendum, I know that no simple act of Parliament can prevent the people of Quebec from seeking independence, if they so choose.
In its ruling on the Quebec Secession Reference, the Supreme Court underlined a key political fact: In the event a provincial government receives a mandate to seek constitutional change, up to and including secession, the other participants in Confederation would be obliged to come to the negotiating table. In plain language: This is a political problem, requiring a political solution.
Fast forward to this past week.
Craig Scott is a constitutional expert and NDP MP for the same riding the late Jack Layton represented. In 2011, Mr. Layton became the first federalist leader in more than two decades to win a majority of seats in Quebec. As the New Democrats' newly appointed democratic reform critic, Mr. Scott started drafting legislation that put into law what the Supreme Court had already told us – if a province has a legitimate mandate, the rest of Confederation must sit down to negotiate.
A central point in this debate, of course, has been around how one determines when the citizens of a province really have expressed a majority will to secede. This issue was brought to the forefront because of the complex and unclear wording in the two previous referendums, especially the 1995 question. Any Clarity Act worthy of its name must solve this problem – but the law we have now failed to clarify anything. The only way to solve this problem is through a clear, unambiguous question – agreed on by both sides. This is now accepted practice elsewhere, including the coming Scottish referendum.
With an ambiguous question, there is reason for asking whether the vote is a clear expression of voters casting their ballots for independence. And ambiguity leads to a messy process where outsiders must step in and decide, after the fact, what level of vote is required. The current act is a recipe for endless wrangling. This is why it was seen as insulting and paternalist by the vast majority of Quebeckers – and why all parties in the National Assembly opposed the current Clarity Act.
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.
To their credit, the New Democrats chose not to hide from the issue. Nor did they try to use the unity debate to score partisan points, as parties such as the Bloc – which have little left to offer Quebeckers – routinely do. The NDP will rightly vote down the Bloc bill to repeal clarity, which would have left us with a legal void.
Instead, Mr. Scott and the NDP chose a constructive and positive approach that I believe brings us closer to eventual constitutional peace in Canada. For that principled act, Mr. Mulcair, Mr. Scott and the NDP's caucus should be applauded.
Charles Taylor is a professor emeritus of philosophy at McGill University and a recipient of the Kyoto Prize and the Templeton Prize. He served, with Gérard Bouchard, on Quebec's accommodation commission.