Bill to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Succession Reference

Debates of the Senate (Hansard)
2nd Session, 36th Parliament,
Volume 138, Issue 72
Tuesday, June 27, 2000
The Honourable Gildas L. Molgat, Speaker

Hon. Douglas Roche: Honourable senators, I rise today to discuss Bill C-20, the most important piece of legislation to confront the Senate in my time in this chamber. Like other senators, I have carefully considered the merits of the clarity bill from a variety of viewpoints, studying the substantial testimony presented to this special Senate committee. Upon careful reflection, I have determined that there are four points upon which I situate my position on this bill. The first is the constitutionality of the bill. The second is the politics behind it. The third is its wisdom: Is it good for the country? The fourth is the role accorded to the Senate.

Honourable senators, I shall speak first of the constitutionality of the bill. Whether everyone likes it or not, the Supreme Court of Canada's ruling in the secession reference is binding. Its ruling must be respected.

Furthermore, the clarity bill is consistent with this ruling in establishing both guidelines and procedures for the establishment of clarity in any referendum process and the possibility of a secession of a province.

The Supreme Court has made it clear in the secession reference that the amending procedures of the Constitution extend to all types of amendments, including the secession of a province. I share with my colleagues the difficulty in recognizing the divisibility of Canada, but does anyone in this chamber believe that the separatists maintain Canada's indivisibility? We know they do not. We know that they contemplate, and most likely would declare, unilateral independence with a 50 per cent plus one majority.

We must formulate an answer to this most dangerous situation. We must have the framework at our disposal to counter the ambiguity thus far inherent in the process and outcome of a referendum on secession. We cannot hide behind the belief that the potential breakup of our country is not possible because "Canada is indivisible." Just as no province has the legal right to unilaterally secede from Canada, Canada has not the legal nor the moral right to hold against their resolve those Quebecers who have clearly expressed their democratic will to secede.

The Government of Canada cannot be indifferent to the expression of a desire to secede by a clear, substantial majority on a clear question. The Supreme Court has told us this. If the scenario of having to negotiate secession should ever arise, there exists an obligation to undertake negotiations on secession within the legal framework of the Constitution. In accordance, then, with the Supreme Court's ruling that Canada's divisibility would be acceptable only under conditions of clarity and would have to be effected through a constitutional amendment, Bill C-20 effectively establishes the rule of law in a situation of extreme confusion and uncertainty.

The second issue, honourable senators, is politics. All problems cannot be settled before the courts. Even the Supreme Court recognized that this issue must ultimately be resolved in the political realm, and so I move to the politics of Bill C-20.

In this legislation, I see recognition of the errors and ambiguities of the 1995 referendum campaign. We now know that the secessionist government of Quebec held the 1995 referendum with the intention of declaring unilateral independence if the Yes side had won by so much as a single vote. There was an ambiguous question, and polls later demonstrated that the people of Quebec voted in confusion. There were beliefs in 1995 that a Yes vote would only lead to negotiations between Quebec and Ottawa. There were beliefs that a majority Yes vote would only act as a bigger bargaining chip for Quebec within future provincial-federal relations. Many wondered whether the federal government would protect minorities who sought to remain in Canada. Beliefs over the sanctity of Quebec's borders in case of a secessionist victory corresponded only to political aspirations, not to the rule of law.

What dangerous ambiguities these were - ambiguities that continue to threaten the constitutional rights of Quebecers and of all Canadians.

Linguistic and ethnic minorities within Quebec, in particular, have felt their representatives have failed to defend their constitutional rights. This damaged confidence has manifested itself in a series of municipalities within Quebec, representing nearly 1 million people, having passed resolutions supporting their citizens' right to remain a part of Canada regardless of any referendum result. We cannot ignore that these municipal councils have conveyed Quebecers' lack of confidence that their constitutional rights will be defended at the federal level.

In Bill C-20, the government has responded by legislating the recognition of those demands for a clear legal framework to the threat of separation, a legal framework that safeguards the constitutional rights of the people of Quebec and all of Canada who are threatened with the fracturing of their country through ambiguity. Bill C-20 will do a great service to the people of Quebec and to all Canadians by restoring the rule of law to any future referendum process. The clarity bill ensures that the law, as it should, informs and shapes the unity debate.

I come now to the wisdom of the bill, honourable senators. One of the great strengths of Bill C-20 is the wisdom of laying down the criteria for clarity in advance of any future separatist referendum. I see nothing in Bill C-20 that endorses, sets a road map or validates secession or the divisibility of Canada. I find it also difficult to sustain the argument that the bill is a provocation to Quebec and that it prevents the people of Quebec from freely choosing their own destiny. The bill does nothing of the sort. In fact, reactions to Bill C-20 have been either supportive or indifferent in that province. Only the Parti Quˇbˇcois has responded with vehemence - and how have they? By reiterating that they plan to ignore the Supreme Court ruling in any future referendum. To my mind, this only reinforces the need for, and the importance of, this legislation.

The only constraint upon a secessionist province that I can discern in the bill is that the act of secession must be negotiated under the Constitution of Canada. It is difficult to accept that the federal government is acting unwisely by insisting that such monumental negotiations, should there ever be any, take place within the law.


The separatists have set the terms of the unity debate for far too long. The Government of Canada has now responded, and I support the response.

A vote of support for Bill C-20 is a vote of confidence in the government's dealings with the threat of separatism in Canada. Each and every Canadian naturally has a stake in the future of the country. Their representatives in Ottawa are now, through Bill C-20, effectively voicing their interests and concerns.

Honourable senators, I turn to the topic of the role of the Senate. Many feel that the Senate has been mistreated by Bill C-20, and that the bill is unconstitutional as it would give the Senate a consultative, as opposed to a determinative, role regarding the clarity of the referendum question, and the clarity of the result. I shall admit to having shared such concerns. I made a point in the second reading debate of voicing those concerns about the treatment of this chamber.

This being said, however, I have reviewed the testimony of the many learned witnesses who testified before the special committee. I am convinced that the role envisaged for the Senate under Bill C-20 is both legal and constitutional.

At the outset, honourable senators, we must keep in mind that Bill C-20's chief aim is to set the conditions under which the executive would be willing to enter into constitutional negotiations in the wake of a referendum on secession. In this regard, we must acknowledge that, under the current situation, the executive already has this power and does not require anything more than the confidence of a majority of the House of Commons in order to conduct negotiations. Indeed, a constitutional amendment providing for the secession of a province could be presented to Parliament as a fait accompli.

If Bill C-20 gave equal weight to the House and Senate in giving permission to the government to enter into negotiations for a constitutional amendment for secession, the Senate would be seen to have an indirect veto over constitutional amendments. We cannot give the Senate a power that it does not already enjoy under our Constitution. At the same time, we cannot fault the proposed legislation for not granting powers to the Senate that it never had.

The Senate must accept the fact that it is in a junior position to the elected chamber on constitutional matters. I accept Professor Hogg's assertion before the Special Committee on Bill C-20 made on June 5 when he said:

...there is no doubt about the constitutional validity of a provision delegating decision-making authority to the House of Commons alone.

Honourable senators, I wish to sum up my argument. With respect to any amendments, I see a special problem. If any amendment passes, the bill would, of course, have to be returned to the House of Commons. In my view, an amended bill risks being rejected by the House. This would be particularly true if an amendment provided a specific role for the Senate that was not originally given by the House of Commons. The risk may also obtain on other subjects. As a result of an amendment on any subject, a legislative impasse may well result with, in the end, the country being deprived of the clarity that Bill C-20 seeks to establish.

In order to make the case for a determinative role for the Senate, the Senate would itself become the focal point of public discussion. In such a circumstance, the Senate would be seen as overreaching. The opponents of the Senate would make the Senate the issue. There are signs of this already in the media. We might well emerge from such a fight not only bloodied, but also bowed. I do not think that we could win such a fight, nor is the clarity bill the right fight for the Senate to make to enhance our role in constitutional affairs.

The role of the Senate in constitutional affairs was established in 1982 when the present Constitution gave the Senate only a suspensive veto in constitutional matters. The overall powers of the Senate do need to be strengthened, but that can only come about by constitutional change and due process.

Bill C-20 is about establishing clarity in a referendum for separation. Other issues ought not to obscure the central aim of this bill. The Senate is not overlooked, for the bill provides that the House of Commons shall take into account the views of the Senate, as well as the provinces and aboriginal groups, in determining clarity.

Bill C-20 takes nothing away from the Senate that we now have. For the good of the country, it is better for us to leave Bill C-20 the way it now stands. The Senate will be heard, and senators will do their job in making sure that we are heard in the determination of clarity. For these reasons, I shall fully support the bill on third reading.