Jackson Doughart
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No Clarity Here

Prince Arthur Herald, 28 August 2013

An article in the June issue ofVice magazine on the subject of Quebec nationalism states, "[T]he Clarity Act of 2000 essentially eliminates the possibility of legal separation now that the Federal government must approve any referendum question beforehand." This interpretation of the law is not only mistaken, but it worryingly parrots a common belief among English Canadians: namely, that there is a legal or institutional solution to the fact that the country's largest province by land area and second largest by population, as well as the holder of its most important sea-trading route and the home to numerous minority peoples, principally speaks a different language and is always trying to secede. All to the contrary, no legal or institutional arrangement, from language provisions in the Charter of Rights and Freedoms to official bilingualism to the entrenchment of "clear question" and "clear majority" negotiation provisions (as established by the Supreme Court in Reference Re Secession of Quebec [1998], the juridical basis for the Clarity Act), compromises or qualifies the nationalist project. This is because Quebec secessionism, like all ethnic territorialist movements from Scotland to Catalan to the Republika Srpska to Eritrea, is principally concerned with the exertion of power, not adherence to the rule of law, or to international norms and conventions, or to abstract ideals about justice --- these latter concepts are mere instruments to the former one, means that are happily abandoned if they don't support the ends.

Too much is made of the secessionists' deference to the "will of the people", supposedly demonstrated by the use of direct-democratic decision procedures, i.e. referenda, concerning the question of independence. But the will of the people is only consulted when the secessionists think they can get the result they're looking for; the decision to hold a referendum is always taken according to a ruling secessionist party's calculation that a vote will favour separation. The Liberal Party of Quebec, which is purportedly and nominally a federalist party, has never held a referendum when it thinks it can get a "no" vote in order to solidify federalism. So Quebec residents who favour remaining in Canada can only express their will when the facilitator of the referendum is confident that they will lose. And the only semblance of popular control over whether there will be another binding plebiscite is the provincial election every four years, where the people who have the most to lose in a "yes" vote also have the least influence in the outcome. A ce propos, I thought that most of the commentary about the 2012 election was wrong, especially since François Légault's Coalition Avenir du Québec was portrayed as a kind of moderate party on the sovereignty issue. But Légault, of course, is as opportunistic as the péquistes; his policy was to withhold any separation vote for ten years, meaning, "We can't win now, so no sense holding a referendum that the Canadians might win." And needless to say, the result of the two previous referenda in 1980 and 1995 will bear no meaning in the eyes of secessionists if the next vote favours their side.

The motivation to send the question to a referendum is not found in an intrinsic philosophical justification or an otherwise matter of principle. The péquistes would gladly declare independence through the National Assembly, if only it were so easy. Like Canada, Quebec has no political tradition of direct democracy in the way that, say, Switzerland does. But conducting, and winning, a sovereignty referendum would, according to secessionist reasoning, confer added legitimacy on an independent Quebec where it matters most: in the international political system, where a prospective and/or embryonic Quebec state would depend on outside actors (namely France) to make their case for recognition diplomatically, and a popular vote in favour of secession would seem to many people infinitely more legitimate than an edict passed by a party whose very raison d'être is to bring about an independent Quebec.

Both the reference case and the Clarity statute operate under the assumption that ethnic nationalism in Quebec can be mitigated by legal gimmicks. This is false. Apart from the fact that there is no evidence for a overall decline in the secessionist ideology among Quebec francophones, the salient indication of concern is the decline in population of groups committed resolutely to federalism, including Anglo-Saxons, Jews, English-speaking immigrants, and autochthonous groups. Aside from the straightforward ability to vote against secession in a referendum, this demographic decline also has a more qualitative effect: the fewer committed federalists, the greater chance the secessionists have to inaccurately portray the status quo as the mere infliction of Anglophone Canada on an increasingly-homogenous francophone nation.

Which brings me to the Clarity Act itself, whose first mistake (though the Supreme Court declared this even before the Liberal government did) was to admit that there were conditions under which secession negotiations could be undertaken between Quebec and Canada --- an implicit admission that there was merit behind the idea, and that there was some kind of moral equivalence between Canadian federalism, which is premised on full membership and participation in national governance for the Québécois and other French speakers, and Quebec secessionism, which is, in addition to being without a hope of working in the way its supporters believe, advanced through the demagoguery of minorities by its proponents and through disrespecting the very language rights it claims as the moral basis for an independent state. Furthermore, the Canadian Parliament and the Supreme Court are unambiguously institutions of Canadian federalism, of which Quebec is not only a constituent member but also a founding constituent member. It would be as if New York or Massachusetts decided to leave the United States, or if England were to secede from the United Kingdom. This gives the Canadian Parliament and the Supreme Court no right to dictate the terms upon which the Canadian state may be dissolved. Without the Canadian state, there is no Parliament and no Supreme Court, meaning that both bodies undermined their own authority by conceding that the very institution that they partially constitute is dissolvable.

What's more, the court's ruling in the reference case did not rely on any textual basis in Canadian case law; rather, the majority cited pronouncements about self-determination in the international arena, despite having clearly explained that claims of self-determination do not emanate from anything resembling oppression. Yet this has no bearing on the court deciding, and Parliament affirming, that there were nevertheless conditions under which Canada would have to accede to its own breakup, or at least "good faith" negotiations leading thereto.

Neither would it be possible for Canada to accede to the result of a referendum ---however clearly it is phrased, however clear the majority, and however valid the claims of Québécois self-determination --- as a basis for the negotiation of its own breakup, at least without advance knowledge of various details of the secessionist proposal that would most certainly not be a part of the clearly-phrased question. The most important of these would be the territorial integrity of Quebec (including the disputed Labrador border with Newfoundland --- many Quebec maps depict all of Labrador as belonging to her), the terms of trade between the two states, division of the national debt, and the arrangements for the use of the Canadian currency in a seceded Quebec. It is here that the frivolity of the Clarity Act shows itself: suppose that there were a referendum in which a clear majority voted for independence, and then during negotiations with Canada, Quebec made demands that Canada could never accept. What would happen? A mere return to Quebec as a province? Of course not. Once the secessionists win enough votes to legitimate their project in the eyes of the international community, the proverbial ball will be in the Canadian court to arrive at a settlement that satisfies the Québécois, and not the other way round, especially since the Canadian government has written into law the terms that Quebec will have to meet in order to initiate separation.

By showing its cards in the Clarity Act, Canada has simply supplied the secessionist adversary with more tools for the job. The admission that a clear majority is needed to legitimate separation is but an invitation to the Parti Québécois to further harass federalist constituencies in the hope that they will leave the province. Unless Canadians come to collectively understand that the Quebec Question will ultimately be decided by power and demographics, and not law and process, the dismemberment of their country is but an inevitability.

Jackson Doughart jdoughart (at) gmail (dot) com