Bill 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

Debates of the Senate (Hansard)

2nd Session, 36th Parliament,
Volume 138, Issue 44
Thursday, April 6, 2000
The Honourable Gildas L. Molgat, Speaker

On the Order: Resuming debate on the motion of the Honourable Senator Boudreau, P.C., seconded by the Honourable Senator Hays, for the second reading of Bill C-20, 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.

Hon. Douglas Roche: Honourable senators, we are faced in the debate on Bill C-20 with the momentous question of how to preserve the unity of Canada. We are also faced with a diminishment of the role of the Senate, which will have profound consequence for the future working of the Parliament of Canada.

These are two issues that clash in Bill C-20. The bill's implications affect not only the future of Canada but also the future of the Senate. As one member of Canada's Parliament - for that is what I am - I am torn. Part of me wants to go one way on the bill; part of me wants to go another. What shall I do?

I have, of course, studied the eloquent speeches of the Leader of the Government and the Leader and Deputy Leader of the Opposition. The opposing views are so powerfully presented - each side makes such a strong case - that one is tempted to hide. As an independent senator, I cannot hide. In the end, I have to vote for or against this bill using, God help me, my own intellectual resources.

The only way that I can, in an orderly way, approach the bill is to separate for the moment the two issues: the requirement for clarity and the role of the Senate.

First, as to the requirement for clarity, I begin by asking myself a key question that has been brought forward: Is Canada divisible? Those who hold that Canada is indivisible make the point that the bill is ultra vires. They say that the government has no right to introduce legislation that would make secession legal. Therefore, they oppose the principle of the bill. However, I maintain that there is nothing in our Constitution that says that Canada is indivisible. All states are, in theory, inviolable, but practical politics over the past 30 years have, if nothing else, given de facto legitimacy to the idea of separation. The whole Quebec debate has turned on the fact that if Quebecers get serious about secession, they have the legal right to seek it through constitutional amendment. That is, in effect, what the Supreme Court said. Thus, I recognize the objective of the bill. Honourable senators, it behooves the Government of Canada to address any question of secession in a responsible manner - before the event, rather than just picking up the pieces as best it could, as would have occurred had a narrow margin of Quebec voters gone the other way in 1995.

Let us cast aside immediately the spurious notion that Canada has to have a Plan A or a Plan B to hold Quebec in Confederation, as if they were mutually exclusive. Canada needs a Plan A, showing the benefits of this great country to the people of all provinces; and it needs a Plan B, spelling out the ground rules if any province decides to negotiate its departure.

Underlying Bill C-20 is the recognition that something went wrong in the 1995 Quebec referendum. At that time, there were false beliefs that a Yes vote would merely lead to negotiations between Quebec and Ottawa. There were false beliefs that a majority Yes vote would only act as a bigger bargaining chip for Quebec within future Canadian constitutional negotiations.

These dangerous illusions came close to creating the most serious constitutional crisis in Canadian history. We discovered later that the secessionist Government of Quebec indeed intended the referendum to lead to a unilateral declaration of independence. The referendum question was, in fact, ambiguous in its wording and its intent. Polls demonstrated that the people of Quebec voted in confusion in what was one of the most important decisions they could ever make.

As a result, there has been a drastic change in attitude among Quebec's people toward their politicians. Their trust in them has weakened.

Federalists in particular, whether anglophone, aboriginal or allophone, feel their representatives failed to defend their constitutional rights. It is for the Government of Canada to defend the rights of its citizens under the principles of federalism, democracy, constitutionalism and the rule of law, and the protection of minorities. This is what has been done in the new federal guidelines that Bill C-20 would legislate.

In Bill C-20, honourable senators, the government has exercised its responsibility to recognize the demands for a clear legal framework that safeguards the constitutional rights of the people of Quebec and all other provinces, as recognized by the Supreme Court. This bill will give legislative effect to the opinion handed down by the Supreme Court in the Reference re Secession of Quebec of August 20, 1998. The Supreme Court then ruled that Quebec's secession from Canada, in order to be legal and constitutional, would have to be based on a clear democratic expression of the will of the people of Quebec through a clear question put to them in a referendum.

Bill C-20 states the circumstances under which the federal government would be obliged to enter into negotiations on the possible secession of a Canadian province. The bill does not establish a framework for a referendum. Rather, it sets a framework for the federal government in entering negotiations. The bill specifically asks for political decisions on two pivotal issues: the clarity of the question and the clarity of the result of any referendum.

No province can secede unilaterally; an amendment to the Constitution would be required. An amendment cannot be introduced by the federal government until a series of negotiations ranging from the division of assets and liabilities to changes in borders, aboriginal claims, and minority rights is completed and accepted.


In short, by eliminating uncertainties, Bill C-20 will do a service to the people of Quebec and to all Canadians by restoring the rule of law to any future referendum process.

Opponents of the legislation charge that it is undemocratic, that it straitjackets Quebec, and that it is but a legal solution to an entrenched political problem. I do not accept this. We should welcome the principle of Bill C-20 because it ensures that the law, as it should, informs and shapes political debate - in this particular case, the unity of Canada.

Honourable senators, it is difficult to sustain the argument that the bill prevents the people of Quebec from freely choosing their own destiny. The bill does nothing of the sort, as its principles apply only to the federal government. Any province may hold a referendum any time it likes, on any question, under any rules, but the federal government cannot accept the result as a basis for negotiations, except on the terms handed down by the Supreme Court and given effect in Bill C-20.

The only constraint upon a secessionist province that could be discerned in this legislation is that the act of secession must be negotiated. It is difficult to accept that the federal government is acting undemocratically by insisting that such monumental negotiations, should there ever be any, take place within the law.

It is not only for the separatists to set the terms of the unity debate. All Canadians naturally have a stake in the future of the country. Their interests must be effectively voiced by their representatives in Ottawa. Honourable senators, I now come to the role of the Senate. Here the government has made a grave error, and that error must be corrected by the Senate itself.

As Bill C-20 reads, in the determination of clarity, the Senate is able only to give its views to the House of Commons. Yes, the House of Commons "shall take into account" such views. However, in the end, it will be the House of Commons that determines whether clarity exists. Hence, the House of Commons alone will have the capacity to legally permit or prohibit the Government of Canada from entering into negotiations on the secession of any province. I must say, as a former member of the House of Commons, that I think this is not a good idea. To restrict to one chamber the determination of clarity on a question of monumental importance to the country shortchanges the national interest. Also, the bisection of a bicameral legislature in Canada's Parliament thwarts the very Constitution that has made the Senate an integral part of Canada's Parliament.

Much has been made of the Supreme Court's references to "elected representatives" who must determine the conduct of negotiations for constitutional separation, but the Supreme Court did not exclude the Senate from fully participating in the determination of clarity, a determination that must be made prior to any such negotiations.

In using the term "political actors" as a synonym for elected representatives, this bill is too clever by half. The obfuscation practised by the drafters of the bill in trying to pretend that only the House of Commons should have a determinative role, with the Senate relegated to an advisory role, poisons the legislation. The constitutional structure of the country's governance is weakened by the very bill that purports to save the country. The Supreme Court wants "political actors" who have the "information and expertise" to make appropriate judgments. Well, the Senate is a constitutionally based political actor.

Let us be very clear on what the Senate can and cannot do. As with any piece of legislation, the Senate has a determinative role in the assessment of political issues. It will be a political judgment whether a question and a majority vote possess clarity. The Senate must be inextricably involved in such a political decision. However, the Senate cannot exercise a permanent veto in constitutional questions. It is for the House of Commons, comprised of elected representatives, to supervise constitutional negotiations concerning secession.

Therefore, let us separate out the Senate's necessary action in the political determination of clarity and the inability of the Senate to permanently veto constitutional change. The government must stop confusing the legal identification of clarity with the conduct of constitutional negotiations.

The bill must be amended to make it clear that the Senate equally shares with the House of Commons in the determination of clarity. That is the only way this bill can be saved with any integrity.

I respectfully propose that the determination of clarity be entrusted to a joint committee of the House of Commons and the Senate. This special committee, composed of representatives of both Houses of Parliament, would make the decision on clarity, which would, of course, be sent to the House of Commons and the Senate for ratification.

Let us not hear that this bill is closed to amendments because the government does not want to reopen the debate in the House of Commons. Let us not hear that those senators who have genuine concerns based on their experience and expertise will not be allowed to voice and vote those concerns. Let us not hear that the government leadership in the Senate is impervious to this flaw in Bill C-20, a flaw so serious that it will open the door to continued diminishment of the Senate.

In order to give this bill the proper attention such an extraordinary piece of legislation demands, I further respectfully propose that, upon second reading, the bill be referred to the Senate's Committee of the Whole for the purpose of hearing witnesses and making a report. Within Committee of the Whole, all senators can have the opportunity of appraising Bill C-20 in an inclusive setting. This action would itself make the point that the Senate of Canada has a structural, an instrumental and an indispensable role to play in deciding questions that cut to the heart of the future of Canada. I have shared with honourable senators my hopes and fears engendered by Bill C-20. I do not shrink from my duty as a senator to help bring clarity to any future referendum on secession. I do not shrink from my duty to uphold the constitutional role of the Senate. We must bring our political processes together in Canada. To do that, Canada's Parliament - the whole Parliament - must work together.

The need for clarity is uppermost. The consequences of persistent uncertainty over the status of Quebec given a Yes vote in any future referendum have been seriously detrimental to the province and to Canada as a whole. Political uncertainty has led to economic decline, stunted investment, and the relocation of many businesses and the fracturing of families.

Quebec columnist Alain Dubuc has insisted that the beginning of the 21st century must be seized to "turn the page" and change political priorities and traditions in the province. He called for the beginning of a new chapter in Quebec's history to free itself from the vicious circle of federal-provincial quarrels and constitutional wrangling.

The Hon. the Speaker: Honourable Senator Roche, I regret I must inform you that your 15-minute speaking time has expired.

Senator Roche: I am on the last page of my speech, honourable senators. Senator Hays: Could I ask Senator Roche how long he thinks he will be? Senator Kinsella: He just told us - one page.

The Hon. the Speaker: Senator Roche advises he is on his last page. Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Roche: Alain Dubuc called for the beginning of a new chapter in Quebec's history to free itself from the vicious circle of federal-provincial quarrels and constitutional wrangling. I want to see this sentiment extended to the entire country. Together in unity, Canada, with its rich natural and physical resources, will be ideally placed to work for a humane, just and peaceful world.