Proceedings of the Special Committee on
Bill C-20

Issue 3 - Evidence (afternoon meeting)

OTTAWA, Monday, June 5, 2000

The Special Senate Committee on 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, met this day at 2 p.m. to give consideration to the bill.

Senator Joan Fraser (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, the fourth meeting of the Special Senate Committee on Bill C-20 is now in session. I would like to welcome all of you, including our television audience, to our hearings.

Today we continue our consideration 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.

[Translation]

The bill was adopted by the House of Commons on March 15, 2000 and was read in the Senate for the first time on March 21. It was then read for a second time on May 18, which means that the Senate approved the principle of the bill. Bill C-20 was then referred to the special committee for in-depth consideration.

[English]

That consideration continues today with the appearances of Professor Maurice Pinard, Professor Emeritus, Department of Sociology, McGill University, who will be followed by Stephen Blair, a lawyer from Ottawa.

We will start with Professor Pinard, who will make an opening statement, followed by a question and answer period.

Later today, we shall be hearing testimony from Professor Peter Hogg, Dean of the Osgoode Hall Law School, and Dr. Guy Lachapelle of the Department of Political Science at Concordia University.

[Translation]

Once the committee will have heard all of the witnesses, the bill will move to clause-by-clause consideration. The committee will then report its decision to the Senate for its consideration.

Mr. Pinard, I thank you for appearing before the committee today. You may begin your presentation and then we will move on to questions.

[English]

Mr. Maurice Pinard, Professor Emeritus, Department of Sociology, McGill University: Honourable senators, I have provided my prepared brief in both French and English. I cannot possibly read it in its entirety in the short time allowed to me, but I will read some excerpts from it and summarize it in less than 15 minutes. After that, I will, of course, be open to questions.

I am pleased to be with you and I hope that my expertise can be of help in your deliberations.

There has long been a great deal of confusion among many voters regarding various aspects of the Parti Québécois' option. This confusion pertains specifically to, first, the meaning of the different terms used to refer to Quebec secession; second, the consequences entailed by each of them; third, the divisibility or indivisibility of the two components of the sovereignty partnership option; and fourth, the actual meaning of the 1995 referendum question itself.

I will go through each of these points in brief form.

[Translation]

First of all, there is confusion regarding the terms separation, independence and sovereignty. All these terms ultimately refer to the same phenomenon, Quebec's secession. However, as recently as the summer of 1999, no less than 46 per cent, almost half, of respondents to a CROP poll, stated that Quebec's sovereignty and Quebec independence meant something different. When sovereignty was compared with Quebec's separation 47 per cent saw it as something different.

And, therefore, the situation is not very different from what it was in 1980. It is thus not surprising that support for secession increases when questions featuring the term separation are used instead of the term independence, and more so when the term sovereignty is used. Support, basically, increases by 4 per cent when we go from separation to independence, and it increases by another 4 per cent when we move from independence to sovereignty, and yet all of these would signify Quebec's secession. The confusion is responsible in large part for the differences. Table 1 at the end of my paper contains more information on this topic.

Second, there is confusion as to the consequences that would stem from these terms. There are a lot of people who feel that it is not only a matter of different terminology, but of different options. If one understands what separation means, the same cannot be said for sovereignty. Several believed, for example, that it meant that political ties would be maintained with Canada. Thus, in a survey, 31 per cent of respondents -- almost one in three -- felt that a sovereign Quebec would still be part of Canada. And 14 per cent did not know. As well, 20 per cent felt that Quebecers would still be sending members of Parliament to Ottawa.

In light of the above confusion it is not surprising that in studies which were carried out results varied depending on the wording of the question on sovereignty. In an academic study, where we asked half the people whether they were for or against Quebec sovereignty and the other half whether they were for or against sovereignty, but specified that sovereignty would mean that Quebec would no longer be a part of Canada, support for the sovereignist option dropped between 2 and 8 per cent, and opposition increased between 4 and 17 per cent, based on these surveys, because this exercise was repeated on more than one occasion.

There are many who feel that not only sovereignty, but also independence, would include a partnership, although the questions that we mention here do not indicate support for sovereignty-association, but rather sovereignty alone. And this support is even higher.

As to sovereignty-association or sovereignty within a partnership, all we did by adding these terms was to increase the level of confusion. In 1980, a large number of people felt that after sovereignty- association, because of association, as in the case of sovereignty, Quebec would still remain a province of Canada.

Given this confusion it is not surprising that a September 99 CROP poll, dealing with the 1995 referendum on sovereignty-association, indicates that 31 per cent of respondents, namely close to a third, after having stated that they would vote Yes in answer to the Parti Québécois's question, stated that they would also answer Yes to a referendum question which stated: Do you want Quebec to remain a province of Canada? Since 1997, according to several surveys, the number of Yes votes in a referendum where this type of question would be asked represents a percentage of 66 to 77 per cent.

My third point is in regard to the divisible or indivisible nature of the two options of sovereignty-association. Support for sovereignty-association has always been conditional, in other words based on the certainty that economic association with Canada would be negotiated successfully. During the 1970s, half of the support for this option was based on the assurance of such an association while the other half was made up of unconditional supporters. Half of those who were in favour were in favour only as long as partnership was an element of the equation. Without this condition, they were no longer favourable to the option.

The wording of the questions, in surveys, does not usually mention this distinction, thus leading one to believe that the two aspects of the question are indivisible. If we merely ask people whether they are for sovereignty-association, for a lot of respondents, that would mean sovereignty where a partnership would exist.

The questions that I mentioned earlier, I put to individuals, for example: if you are unsure of a partnership, would you still be in favour of sovereignty-association? Or if you were not certain about a partnership, would you still be in favour? And we see that half of those who respond are no longer interested if there is no guaranteed partnership. So the wording of the questions, in surveys, implies that the two necessarily go together, that both would necessarily apply. However, the current position of the Parti Québécois, is that they are divisible, but several people do not know that. There could be sovereignty without partnership. Surveys carried out in 1995, during the course of the referendum, indicated that only some 50 per cent of the electorate knew that the option was divisible.

Generally speaking, all these confusing elements worked in favour of the sovereignists in 1995, as was the case in 1980. In 1995, when we asked respondents if the referendum question had been the following: "Do you want Quebec to become a sovereign nation, no matter whether negotiations for economic and political association with the rest of Canada succeed or fail?", the proportion of people who intended to vote Yes, based on this last question which was generally asked after the official question, was lower by some 5 per cent on average than the results obtained with the official question. The knowledge that sovereignty was not conditional upon successful negotiation made the support for the Yes side drop by five points. This makes the close call on the Yes side a much more relative outcome.

According to our analyses, the ambivalent No voters -- in other words people who would intend to vote No in a new referendum, but who say that they are favourable to sovereignty-association -- when asked the following question: "Are you in favour of this option or not?" -- there are always more people who are favourable to that than there are who would vote Yes in response to that particular option -- and they were usually the most confused of all. However, it is an important group in the electorate in the decision that will lead to a winning or losing referendum. The same can be said of the soft Yes voters according to a CROP poll carried out for the Privy Council in the summer of 1999.

Some would say that it is not so much a matter of confusion as a matter of strategy when people say: I will vote Yes -- I am in favour of remaining within Canada -- since they feel that this would lead Ottawa to make concessions which would be shy of sovereignty proper.

There are people who vote strategically, there is no doubt about it. Some of you are probably aware of people who voted strategically during the previous referendums. Thus, amongst those who voted in 1995 who said they would vote Yes, 26 per cent of them said that it was and I quote:

[...] to bring about changes to the current system of federalism while maintaining Quebec in Canada.

That was the option that was being offered to them. These voters could also have been confused or voting strategically. However, our analyses suggest evidence of confusion even amongst some of the strategic voters.

Furthermore, where respondents state that if Quebec became a sovereign State, it would remain a province within Canada -- see Table 2 on this topic -- this response cannot in any way be interpreted as a strategic position. It says that a sovereign States implies that Quebec remains a province of Canada. That is not what I do or do not want, those are the facts. So this response cannot be interpreted as an expression of strategic voting. It simply indicates that people do not understand what a sovereign State means. Therefore it is not always possible to claim that what appears to be confusion is in actuality a strategy, as some analysts have suggested in defence of the sovereignist position.

Generally, based on analyses, there are a lot more voters who are confused than there are strategic voters, particularly amongst the less educated and the less politically aware.

My fourth and final point, very briefly, deals with the understanding of the 1995 question. Given the results, it is not surprising to see that on the eve of the 1995 referendum, only 46 per cent of individuals declared that the referendum question that had just been read to them during the course of the interview was very clear or quite clear. In fact, 53 per cent said the opposite, that it was rather ambiguous or very ambiguous. The same results hold for 1999: after having read the question, 36 per cent of respondents indicated that the question was clear and an even a larger number, 61 per cent, said that it was not. The majority therefore continued to believe that the referendum question of 1995 was not clear.

The Chairman: We will now move to questions.

Senator Lynch-Staunton: Professor, am I to conclude that you are against referendums?

Mr. Pinard: No, not at all.

Senator Lynch-Staunton: According to your analysis of referendums, the questions and the answers are not very clear.

Mr. Pinard: The responses are unclear where the questions are unclear.

Senator Lynch-Staunton: Are you saying that 95 per cent of the people eligible to vote do not know what is at stake? Whether the question is clear or not, you are saying that the people did not know what a Yes vote or a No vote meant.

Mr. Pinard: In the document I tried to demonstrate that a large majority of the people did not understand what they were voting about. And the percentage is even higher given that in these particular cases the questions were not straightforward.

One of my first studies in sociology dealt with referendums regarding water fluoridation in the United States. Very simply we could have asked: "Are you for or against fluoride in the drinking water of the municipality?" Hundreds of referendums are held in American cities on these types of issues. We could very easily have asked a question that people would not have understood, such as: "Would you be in favour or not of adding such and such a chemical formula for fluoride based on discussions held between such and such a municipality" as was the case with the 1995 question.

The first question, as to whether people were for or against fluoride in their drinking water, was clear. I am favourable to referendums dealing with clear questions and I can provide you with some examples.

Now I am not saying that 100 per cent of the people who would vote would understand. However, what I am saying is that in any vote, in any democracy, in any bureaucratic system, people who are not well informed will vote for the wrong option, just the opposite of what they favour, they will be mistaken. There are ways to make things very clear and afterwards, democracy is served. What we want is the best of all systems.

People can, to a large extent, not understand. It is more serious when the referendum is dealing with something which is more or less irreversible, as in the case of secession, the fluoridation of drinking water, or in the context of an election.

Very often, people do not quite understand the platform and the objects of a political party. Some even go so far as to suggest that the right to vote should only be given to the best-educated, and the best informed. I am sure you have heard that type of thing before, and I am against it. Everyone should be able to vote, and what remains, under the circumstances, is a better democratic system.

Senator Lynch-Staunton: Would you agree that the true question should be included in Bill C-20 so that people would know what the question is, if and when it was ever to be put? Do you think that they should answer?

Mr. Pinard: I do not think that the question should be included in the bill. If I was a member of the National Assembly in Quebec and I was asked a certain number of questions about Bill 99, I would say that in that case it would probably be desirable. However, I do not think that it is up to the federal government, up to the Senate or to the House of Commons, to dictate the question. That is not the object of this legislation, and the question should not be introduced into the bill, because the question could suggest elements which should not be there.

Senator Lynch-Staunton: The object of Bill C-20 is to allow the House of Commons to decide whether the question is clear or not. Do you feel that the House of Commons should have the right to tell the Legislative Assembly of Quebec that the question could be subject to a veto by the House of Commons?

Mr. Pinard: I do not believe so. The House of Commons cannot say that Quebec cannot hold a referendum with such and such a question. The House of Commons may say, "We will decide how to act based upon how we feel about the question. You can hold the referendum using this question, but it shall be on your head. We are not going to impose a question upon you, we will not prevent you from holding a referendum using this question, but the bill states that if this question is used, we will decide how we will proceed later on."

Senator Lynch-Staunton: In your expertise with referendums, have you examples of referendums in Canada where both the question and the answers were clear?

Mr. Pinard: I should have expected that question.

Senator Lynch-Staunton: I have given a great deal of thought to public surveys regarding the right to sell alcohol, especially that of 1942, with the question of conscription. The question was the following:

[English]

Are you in favour of releasing the government from any obligation arising out of any past commitment restricting the methods of raising men for military service?

[Translation]

Was that a clear question?

Mr. Pinard: I would have liked to see something clearer.

Senator Lynch-Staunton: Do you agree with the fact that the responses were clear? Even if the question may be confusing and subject to all sorts of interpretations, the answers, in the long run, are very clear. That is my opinion.

Mr. Pinard: Had I taken part in discussions on this question, I would have liked it to be clearer. We were dealing with a vote for or against conscription.

Senator Lynch-Staunton: Exactly.

Mr. Pinard: But in this case, if you are asking a question regarding secession, the question may not be clear, but everybody understands that we are dealing with secession. The brief that I have just put before you indicates that a lot of people did not think that it was a matter of secession. That is very serious.

[English]

Senator Kroft: I have two questions.

Not to try to oversimplify what is, obviously, work that does not lend itself to simplicity, is it fair to say, as a very broad generalization, that, in your view, the closer one gets to a clear question on the matter of secession in Quebec, a question equivalent to, "Do you wish Quebec to be a separate country?" or something to that effect, the more likely there is to be a "no" answer?

Mr. Pinard: Definitely. Table 1 at the end of the document shows that, in 1999, for example, when the question incorporated the word "separation," or the phrase "complete independence of Quebec," the proportion in favour of that or who would vote "yes" to that was 31 per cent; the proportion who would vote "no" was 62 per cent; and the proportion undecided was 7 per cent. The clearer the question, the smaller the proportion who say "I am not sure," or "I do not know." It drops to 7 per cent. Less than one third, 31 per cent, would vote "yes" for that question. That 31 per cent held in 1998, 1999 and, so far as I know, since we have had very few polls asking that type of question, it holds now.

Do not forget that for that question, in 1990, at the time of the Meech Lake failure, the proportion was 42 per cent "yes" and 50 per cent "no". It was pretty close at the time of the failure of Meech. Sovereigntist support and secession support was very high. It is no longer at 42 per cent. It is now at 31 per cent.

Senator Kroft: Are you saying that there is a purpose in clarity then?

Mr. Pinard: There is no doubt about that.

Senator Kroft: My second question will draw you a little more into a subjective area, but I believe that is appropriate in view of your expertise.

To what extent do you think the procedure under Bill C-20, in which Parliament, or some portion of it, would exercise a view on the clarity of a question, might have an impact on the outcome or the dynamic of a referendum being held subsequent to the expression of that view?

Mr. Pinard: I think this would lead people who are ambivalent, confused, and who do not know what it means exactly to realize that association, for one thing, is far from certain, because the federal government would be saying that even negotiation concerning secession itself would not take place. That would give rise to some confusion, as there is already, concerning the Supreme Court opinion as to whether the federal government would be obliged to negotiate after a vote of "yes" to a clear question with a clear majority. The Supreme Court said that the Government of Canada would have to negotiate, but negotiate what?

If I understand the opinion clearly, they would have to negotiate secession in its various aspects. In my mind, there is nothing in the bill which says that the federal government would have to negotiate the partnership. In that case, you would then have the population realizing, not only that they are not ready to negotiate the partnership after a yes vote to the question, but that they are not even ready to negotiate secession itself. Thus, people might say, "Well, we better be careful as to where we are going."

The opinion in Quebec is extremely optimistic about association after a yes vote. They are optimistic because they think mainly of economic association which, for a long time, was the only aspect dealt with. Economic association is obvious to them. When you interview people in non-structured ways, they will tell you that it is in their interest to sell to us and for us to sell to them. They will tell you that they want to continue selling to Ontario, and that Ontario will want to continue selling to them. The answer to that question would obviously be "yes." However, that is not an economic association that goes very far. It does not address the problem of customs or money. It does not deal with all the other issues that would be involved in an association which might not take place, let alone a political partnership after that.

The clarity which the federal government would require would, possibly, open the eyes of many people so that they would recognize what was going on with the last question. Even that would not solve the problem, which is why the federal government said, "We will not enter into that." Basically, I agree with that.

[Translation]

Senator Beaudoin: At the outset, I completely agree with you that, if there is ever another referendum, the question has to be clear. Everyone is hoping that this will be so. The problem lies in the fact that the first article of the Parti Québécois platform talks about sovereignty-association. Chances are, if we base ourselves on the first two referendums, that the question will not be clear and it will be something like this: are you in favour of sovereignty-association? The bill is quite clear on this point, the government gives the order not to negotiate. Two things will follow: if I have understood Bill C-20 correctly, the referendum vote will not have taken place yet. The federal government can step in and say yes or no to the question and rule on the clarity of the question when the referendum is before the provincial legislative assembly.

We must never forget the fact that, when all is said and done, these negotiations cannot take place unless the Constitution is amended. Some witnesses have discussed this matter with us. We will discuss the matter today, Thursday and next Monday, but we must never forget that there are two phases.

How will the people of Quebec react if the federal government were to intervene and say: The question is not clear, we are not negotiating. The referendum takes place and there is quite a significant majority; the federalists in Quebec -- after all, there are quite a few of them -- will be divided. Will they participate in this debate? We are not negotiating, but they will give their views on the question all the same. What kind of results will we wind up with in the end? If the answer is yes, things will continue, and if it is no, every thing comes to a halt. If we say yes, the question is clear, the referendum will be held. Second, there is the question of a clear majority. There are, therefore, two issues: a clear question and a clear majority. If we were to say that the question was not clear initially, and that we would not be negotiating, the referendum would take place all the same -- if I am understanding this bill correctly -- and obviously, we would not take the results into account. How would our actions translate in the polls?

Mr. Pinard: And in the vote!

Senator Beaudoin: Yes. Imagine, after 20 days, the federal government says no.

Senator Prud'homme: The federal government will say no.

Senator Beaudoin: The government will say no if there are two questions in one. If there is only one question, the government will say that the question is clear, but I fear that it will not be clear and that it will be a double question. The question will be as follows: Are you in favour of sovereignty-association? At that point, the federal government will say no, we are not negotiating. The vote will be held after. What influence will the No have at that point? I am not talking about the legal situation, I know full well what is going to happen.

Mr. Pinard: What influence will the No have on the referendum?

Senator Beaudoin: The no from the federal government at the time of the referendum.

Senator Corbin: Your question is not clear.

Senator Beaudoin: The federal government comes out and says that the question is not clear and that it is a double question. I took an example that could easily be used if there were a majority for it. The federal government will say no, we are not negotiating. Quebecers will not yet have voted. What impact will this have on the way they vote?

Mr. Pinard: This will result in more intense polarization.

Senator Beaudoin: Will that improve the situation?

Mr. Pinard: It will improve the situation in that the die-hard sovereignists will be angered, will become even more convinced than ever to vote YES and will continue to vote Yes. The people in the No camp will gladly make this decision, with support for their position, and they will continue to vote No. The crucial group is the one I referred to earlier, the group that is ambivalent about voting No. A small percentage of these people may say perhaps: I was reluctant in the past, but now I am going to vote Yes. And they will vote Yes. However, I do think that most of them will gain a bit more insight into the scope of the question and they will vote No in the end. Your question is hypothetical and, based on my knowledge of Quebec public opinion, I am providing you with a hypothetical answer. There will be more extreme polarization because many of the voters are afraid. People are saying: they are afraid of Quebec, afraid of the economic consequences. There are still people in Quebec today who are afraid of secession.

[English]

The end result of this calculation implies that more will tilt to the "no" side than to the "yes" side in that situation.

[Translation]

Senator Beaudoin: That is your opinion?

Mr. Pinard: Yes.

Senator Nolin: In table number 1, you refer to a 1995 poll. Could you specify the date of this poll?

Mr. Pinard: This is not a poll, this is an average of 11 polls. In 1995, 37 per cent said that they would be voting Yes to separation. The number of polls is shown between the parentheses in the third part of the table, along with the "DO NOT KNOW," on page 2. There were four polls on independence in 1995. Everyone was asking questions, particularly about sovereignty. This was Mr. Parizeau's opinion before sovereignty-partnership. Twenty-two polls were conducted up until April 1995. These figures represent the average of these polls.

Senator Nolin: The closer we get to the date of the referendum, the less incomprehension, ambivalence and confusion we have. How do you explain this situation in sociological terms?

Mr. Pinard: That is not very difficult to explain. What happens is that the closer we get to the referendum, the people start paying attention. Earlier, mention was made of the fact that approximately 93 per cent of the people voted in 1995. This happened for a reason! More and more people started saying that this was very important and they got involved. Instead of talking about hockey or baseball, people started talking more and more about this issue. At work, at home, with their friends, they started listening to what people were saying and they became better informed.

This document, or if it is not in this document it is in the book I published with Vincent Lemieux and Robert Bernier on unfinished business in Quebec, contains some chapters that deal with the referendum. I clearly show that confusion decreased tremendously during the referendum period. However, 15 to 20 per cent of the people were still confused. I'm quoting these figures from memory, but I think that these figures are found in this document. In addition, 10 to 15 per cent said that they did not know the answer when asked whether or not Quebec was going to remain a province. We no longer had a situation where 33 per cent or 35 per cent said that Quebec was going to remain a province. At that point, 15 per cent thought that we would remain a province and 10 per cent said that they did not know. Thirty percent still did not know the answer. There is a good reason for this. In the case of sovereignty, we no longer belong to Canada in legal, constitutional or other terms. The reason for that is that people are paying more and more attention to the question. Some people always pay attention -- people like me because I have been doing research on the issue for 30 years -- and others because they are politicians and they give the matter greater thought. However, a lot of people do not think about this issue very often. Currently in Quebec, there are a lot of people who do not want to think about it and they do not want us to talk to them about it. There is, therefore, less interest in the issue, but it has not disappeared.

If you look at line 95, the table shows hardly any difference in the proportion of people who would vote Yes. Thirty-seven per cent were for separation and 38 per cent were for independence.

Senator Nolin: A difference of two points.

Mr. Pinard: There is hardly any difference. Support for sovereignty is dropping and it is now on the same level as support for separation. People are coming to the realization, more and more, that sovereignty means separation. Note that this talked about sovereignty, not sovereignty-partnership. It was not for nothing that, in April, when facing the figures, the Parti Québécois -- pressured by Mr. Bouchard, and with a still reluctant Mr. Parizeau -- came out and said that it could not be a matter of just sovereignty, and was soundly beaten. We have to go back to sovereignty, not just sovereignty-association but sovereignty-partnership.

Senator Nolin: You have just given me the introduction to my second question. Let us look at the results at the end of the debate on the issue, namely, at the end of September 1995. The CRÉATEC poll, conducted at the end of September, showed that we were ahead by 13.4 per cent. That was a breakdown of three quarters/one quarter of undecided.

Mr. Pinard: Was that with the new question?

Senator Nolin: This is the question that will be presented to the Quebecers at the time of the referendum. From then on, all we can see, from both the public and internal polls, is a decrease that became especially noticeable on the 7th, the date where Mr. Bouchard was finally identified as the negotiator.

A series of polls conducted in 1995 show less confusion. Despite that, at the end of September, we were ahead by 13 per cent and more in polls on a known question, a question that had been debated in the National Assembly. All of a sudden, in October, the referendum campaign began and then we started experiencing problems. Could Mr. Bouchard's presence alone explain why we had so many problems? Because it is always the same question.

Mr. Pinard: Let us go back a little bit further in time. From the time of the shift in April 1995 until the month of August, the percentage of people who told us that they would be voting Yes, after a prorated distribution of the undecided -- not 60/30 -- held steady on average, in a very symbolic manner, at 53 per cent for the Yes and 47 per cent for the No. This is not shown in the tables.

Senator Nolin: Was it not rather the reverse?

Mr. Pinard: No. The Yes was ahead in April with respect to the question of sovereignty-partnership. The question had not yet been revealed, but the pollsters had guessed it. The question was about sovereignty with a possibility of partnership. Support was maintained at 53 per cent for the Yes from April until September. As soon as the question was made public, support fell to 50 per cent and 47 per cent within one week. This figure dropped even lower, still factoring in the prorated distribution of the undecided, to about 46 per cent during almost all of September. Support started to climb very slightly, from 45 per cent to 47 per cent, at the end of September. Support remained at 46 per cent or 47 per cent. I don't have the figures with more realistic breakdowns, but support remained at 46 or 47 per cent until Mr. Bouchard was appointed as chief negotiator. Then we had what I call, and what many other people have called, the Bouchard effect.

Some claimed that there was no Bouchard effect. Support had begun to climb well before that, and this was shown by the Léger and Léger polls, this firm being the only one to have examined this issue -- that support continued to climb. All of the other polls showed that support was just about stable, with a prorated lead of seven or eight points only. This was a much more realistic lead than the one for the No, but the No had moved ahead. Support fell when the question was revealed, and not because it was any different from the one asked in previous polls. The people were afraid as soon as the question was made public. They started thinking about the issue and saying No.

The Bouchard effect increased confusion, once again, among certain people who said: "They are going to negotiate association. We are talking about association, we will continue to remain part of Canada." I can tell you that in a study which was released only recently, last December, some people told us during the course of informal interviews: "Mr. Bouchard does not want separation or independence for Quebec. He is simply working to reach a new agreement with the rest of Canada." As far as they were concerned, partnership was a new agreement that did not involve independence. The arrival of Mr. Bouchard on the scene reassured them. They were afraid of Mr. Parizeau, who had fought to limit the question to sovereignty alone and not to include sovereignty-partnership. They were convinced that this was sovereignty-partnership, and that partnership involved Quebec remaining in Canada. The tremendous Bouchard effect reassured people. Mr. Bouchard's charisma and strength became apparent. There was still some confusion at that time, but since Mr. Bouchard was there, the people were less afraid to make the jump to the Yes side.

[English]

Senator Murray: Madam Chair, I have four points I would like to make about the experience of referenda in other countries and our limited experience here. I would like to make my four points and then invite Mr. Pinard to comment on them. I will try not to ask any supplementary questions.

[Translation]

The first thing about foreign referendums that jumps out at you is how difficult it is to get any initiative approved by referendum. In Australia, where the referendum is part of the constitutional amendment process, only 20 per cent of the projects have met with approval and the record in California and in the United States is, generally speaking, not much more impressive. Second, and this is almost always the case in a referendum campaign, the No takes the lead and the Yes loses ground. This phenomenon is so evident that there is a general rule amongst strategists that if the Yes is to have any shot at winning, it has to start off with a minimum support of 65 per cent at the beginning of the campaign.

In 1992, in Canada, this is exactly what happened. The No surpassed the Yes during the course of the referendum campaign. In Quebec, however, in 1995, the No -- as Senator Nolin has just reminded us -- lost a significant 14-point lead during the course of the campaign, and the Yes nearly won. Perhaps you could explain why this happened in Quebec in 1995.

Third, voter turnout is generally much lower for referendums than for elections in Quebec. As everyone remembers, the voter turnout rate in 1995 was 94 per cent. And in 1980, the voter turnout was 84 per cent.

Mr. Pinard: What is you question about the voter turnout?

Senator Murray: Why is it that voter turnout in other countries is much weaker for referendums whereas in Quebec, and even in Canada, the voter turnout for referendums is much higher?

Fourth, the wording of the question is far less important than other factors: far less important than the political context, than the debate itself. In 1968 or 1969, 80 per cent of the French electorate exercised their right to vote on a question that was supposedly about the reform of their Senate. However, everyone understood the stakes involved. This was an opportunity for the French to express their views on General de Gaulle's administration. The next day, following the defeat of his referendum, he stepped down from the presidency for good.

[English]

Here in Canada, in 1980 and again in 1995, it was the determined strategy of the federal spokesmen -- in 1980 Mr. Chrétien, certainly Mr. Charest in 1995 -- to, as they said, remove the cobwebs about sovereignty association and to insist that what was at stake was separation or not. Prime Minister Trudeau made three or four speeches in Quebec designed specifically to achieve that in 1980, and we saw Mr. Charest waving the Canadian passport in the middle of the 1995 campaign.

[Translation]

I accept the research that you have provided with us on-site. However, I would like to ask you what meaning I should give to this research in the current context?

[English]

I have an idea that, as a result of the Supreme Court judgment, or aided by the Supreme Court judgment, if Mr. Bouchard can persuade Quebecers that the immediate consequence of a yes vote will be to convene the other partners to the negotiating table, he will start with a very considerable advantage in the next referendum.

Mr. Pinard: To take your last point first, Mr. Bouchard will make a campaign of saying, "They will sit at the table. The Supreme Court said they have to sit at the table."

Senator Murray: "The only way get them to the table is to vote yes." That will be his canvas.

Mr. Pinard: Yes, but the bill that are you considering is trying to do just the contrary, and I think it will have the impact of doing just the contrary.

I am not sure that people will buy that easily, after a resolution in the House of Commons and having asserted officially that, no, they will not negotiate. It is much stronger than if it was the Prime Minister or a few ministers saying, "We will not negotiate." This time there will have been a resolution, and, if I understand Bill C-20 correctly, a binding resolution.

Senator Murray: That is if the question is to ask for a mandate to negotiate something,

Mr. Pinard: If you want my opinion, a question which says, "Give us a mandate to negotiate sovereignty association, and we will come back to you after that," would get a larger proportion of yes than the question asked in 1995. If in 1995 they had asked the question asked in 1980, it is not impossible that the yes would have won. Again, in the study that has not yet been completed and released, many people were convinced about what would have happened if the yes had won in 1995. Nothing would have taken place. There would have been a discussion, there would have been a deadlock, and they would have gone nowhere. Many of them, and this was striking for me, said they would have had to hold another referendum. Basically, they were reasoning on the basis of the question of 1980, which was not the question asked in 1995, of course.

To take your four points briefly, I agree with you that it is very difficult to win a referendum, but it can also be very easy in certain circumstances. I suppose you are familiar with the many speeches of Mr. Dion pointing to the very large proportion that voted yes in some countries for their independence -- in the Baltic countries, for example. It is correct that there is a tendency for referendums to be defeated, but some key referendums have received a very high proportion of support, so we can make no assumptions.

It comes to my mind that, if Quebec were to be oppressed the way some groups are in some non-democratic countries, it would be very easy to win, even with a very tough question. Let's say that the Canadian army, composed totally of anglophone Canadians, were to occupy Quebec and say, "We will maintain you in Canada under all circumstances, including the restraining of civil rights and restraining the freedom of the press," and so on. In cases of oppression, it can be very easy to achieve high figures on referendums.

[Translation]

The No lost, but elsewhere the No was in the lead. What I tried to point out earlier was that we were sitting at 53 per cent from the month of April to the month of August. I have made separate calculations for the two periods. I do not remember exactly, but I believe that from the month of April to the month of June, and from the month of June to the month of August, on average the Yes was sitting at 53 per cent and the No was sitting at 47 per cent with undecided votes being distributed pro rata. The percentages dropped to 46 per cent, and the No won. The Yes dropped to 46 or 47 per cent in September.

Mr. Bouchard arrived on the scene and reassured people and the percentage climbed. Five of the last six polls showed, on a prorated basis, exactly 53 per cent. Mr. Bouchard picked up those people who had jumped off the bandwagon at the beginning of the campaign, largely because they were afraid. These people included those who had been confused and who voted Yes thinking that, with Mr. Bouchard, Quebec was not headed towards secession.

Voter turnout elsewhere is much lower. In several referenda on fluoridation, voter turnout must have been very low, and in many referenda on subjects that people are not very interested in, they do not even go and vote, not even at municipal elections which are more than a referendum on one issue. Voter turnout depends on how important people feel the issue is.

In 1995, when people saw that it was very close, that increased voter turnout. It is especially the people on the No side who tend to abstain. The less educated, those less interested in politics. Those are all factors that indicate that people tend to be on the No side. If it had remained at 80 per cent instead of going up to 94 per cent in 1995, the Yes side would probably have won. That is my hypothesis.

With regard to the wording of the question, you will hear Mr. Lachapelle say that the wording of the question has no importance and that in the final analysis, generally speaking, people vote Yes or No and forget all about the wording of the question or do not understand what is in the wording of the question. Mr. Lachapelle claims that people know what they are voting about, and that the wording of the question has no importance. Yes and no. In 1980, I managed to make the only relatively accurate prediction about that referendum. In my referendum survey questionnaire, instead of telling people -- like all other surveys did -- to read that 114-word question and asking them if they were going to vote Yes or No to that question, I asked them all kinds of questions on the reasons why they may tend to vote Yes or No. Lastly, in the 15th question, I asked them: if the referendum was to be held tomorrow, would you vote Yes or No? There was no wording, no reference to the word "secession" or "sovereignty-partnership." Instead of obtaining 49, 50 or 51 per cent for the Yes side, as all other surveys showed, I obtained 43 per cent for Yes and 57 per cent for No. That analysis led me to state that it was possible that the YES would go down to 41 per cent. In my mind, people knew whether they were going to vote Yes or No. We had to stop reading them 113 words and ask them how they intended to vote. In that sense, the wording of the question was not important, but at the same time, at the time they did decide whether to vote Yes or No, they did say that themselves: I am not going to vote on this or that the same way as during World War II. Then they knew they were voting on conscription, regardless of the wording of the question.

My point is that in 1995, people did not say to themselves: I am going to vote on secession; instead, they said: I am going to go and vote on a new agreement with Canada and that is where the confusion arose.

If on the day of the vote we had asked people what the question was they would have answered that they did not know, that this was the Parti Québécois's referendum. Ask more educated and highly politicized people. You will be overwhelmed by the degree of confusion that exists among many voters on things like that. This issue is a complex one. Sovereignty-partnership is complex, like it or not.

That being the case, voters forget about the wording of the question. What they have understood of the wording and what conclusions they have reached makes them decide to vote Yes or No. The content of the question, which is the objective of the referendum, will influence whether they vote Yes or No and the clearer the question, the more their Yes or No vote will be an enlightened one.

[English]

Senator Milne: Mr. Pinard, on the one hand you say that your polling shows that the questions have been confusing in the past. On the other hand, you say that Mr. Lachapelle, who we will be hearing from later today, says it does not matter what the question is. The separatists in Quebec seem to agree with Mr. Lachapelle. They seem to think that, no matter what question is asked, the people of Quebec understand well what it means, in particular by the end of the referendum campaign.

Should there be another referendum, do you think this attitude by the separatist party in Quebec will lead them to devise another confusing question?

Mr. Pinard: I have been wondering a lot about that. I suspect it all depends on the level of support that the polls are indicating on the eve of the referendum. If they were in a situation where 70 per cent of the people said they intended to vote yes on a tough question, then they would put a tough question because this would facilitate their strategy in terms of what they will do next. As it stands now, I do not think they will hold a referendum in the near future because support for the yes side has been dropping, not only since 1995 but since 1990. The best they can hope for in the short run is reaching 50 per cent, 55 per cent, or possibly even 60 per cent in the polls on a soft question. I think is what will happen.

Senator Milne: In that case, do you think, then, that Bill C-20 will give the Government of Canada a useful tool for dealing with that kind of a question, in whichever one of those situations we face?

Mr. Pinard: I think it gives the Government of Canada an opportunity to say, "The issue is secession; and until you get a yes vote on secession, we are not playing that game with you." I think it helps.

Senator Kinsella: Mr. Pinard, I would like to explore with you what I refer to as the "shelf life" of a referendum result. Just a few moments ago in reply to Senator Milne you said that the voters will be looking at secession until they all agree on it. In your analysis of the voters' understanding the last time around, how long do you think that they thought their answer would last?

Mr. Pinard: Are you referring to the voters, senator?

Senator Kinsella: Yes. In their minds, how long would that judgment last?

Mr. Pinard: Do you mean their judgment concerning voting yes or no?

Senator Kinsella: The question is about the shelf life of a referendum result. In other words, did the voters feel that they would have another chance to vote on this matter?

Mr. Pinard: As I mentioned before, in work we have done just recently, I was surprised by the number of people who thought that the results of the 1995 referendum would not lead to any decision, not only because negotiations could fail -- it was partly because of that -- but also for various other reasons, including saying the politicians were too scared to take that big a decision. They were saying this was true of the separatist politicians. Many were saying that the status quo would continue and that nothing would happen, that they would have been scared to do anything about it, or they would have decided, very soon after negotiations started, that they would have to ask another question because it would have been too important a matter to make a final decision. The shelf life was not very long, and it would not have led to any drastic decision in the very short term.

Senator Kinsella: Therefore, would it be plausible, or at least reasonable, to conclude that no matter how clear the question is, the voters would have in the back of their minds that they will have another crack at it? After two or three referenda in recent years, does the process not lose its impact on the voters? In your analysis of the psychology or the intent of the voters, is it your conclusion that they are not taking the referenda seriously? How do you analyze that phenomenon?

Mr. Pinard: Presume the question is: "Do you want Quebec to secede from Canada and to become a completely independent country?" If you ask a question like that or something along those lines, making clear it is secession and that you are talking about creating a new country, not only independence from Ottawa when the decision is made, then the voter participation would be extremely high, and the proportion of people who would know what they are doing and voting yes or no would be extremely high compared to 1980 and 1995. People would think this is crucial, because it would be the final decision. There would still be people saying that they will not do it, and that is clear enough, but I think it would affect the results.

In my view, currently, if you had a referendum in a month, you would have 30 per cent or barely that voting yes on a question like that.

Senator Kinsella: Do you think the bill should be amended so that the question would have to be a question as clear as that, so this time we really know what we are dealing with?

Mr. Pinard: The bill indicates what terms they would find not clear, but as I said before, it is not for the Parliament of Canada to decide what the question should be. It should not dictate the question in any way, shape or form. That is where I disagree with the people saying it is trying to dictate the rules. It would do that if it were to state the question, but that is not what it is doing.

Senator Chalifoux: I find this dialogue most interesting. You talk about the question and you talk about your surveys. In Quebec, there are many Inuit and many First Nations people. When you did your surveys, were those people taken into consideration? I would point out that, for many of them, French is not their first language. They have their own aboriginal languages. Was that taken into consideration in any survey you did of any of those communities? Their lands form a large part of the province of Quebec.

Mr. Pinard: Most of these are not my polls. The most we can determine in a poll with 1,000 respondents -- as is usually the habit now in Quebec -- is the number of people who are not of French origin and those who are anglophone or allophone, that is, their mother tongue is neither French nor English.

The proportion of these people is very small. The proportion of aboriginal people in Quebec is even smaller. That proportion does not get into our samples in such a way that we could analyze it in a meaningful way. It is too small. We already have a problem determining the proportion of the non-French who would vote yes or no.

From an analysis of the voting in the various reserves in Quebec, we have a very good indication of what their response would be. I think 95 per cent of aboriginal people voted no in the last referendum.

Senator Chalifoux: Have you surveyed any of the aboriginal nations?

Mr. Pinard: No. Some people have suggested doing it, but in some cases it would be difficult. The Mohawks in particular did not even vote in the referendum. I suspect that if they became aware of the intention to carryout a poll among their people, they would refuse to participate, or pressures would be put on in some ways.

It is very unfortunate. Of the thousands of polls that have been done in last 30 or 40 years in Quebec, some could have been done among these people separately. Some should have been done among new Canadians or anglophones in Quebec and so on.

The Chairman: I have a question, and then we will go to questions from non-members of the committee.

Professor Pinard as you are undoubtedly aware, by the terms of Bill C-20, it is the House of Commons that would make the final determination on whether the question was clear and the majority was clear. Quite a number of my colleagues have suggested that the Senate should play the same role in that process that it plays in the normal process of legislation which, in effect, would give the Senate a veto, if it wished to exercise a veto.

I doubt that you have done any research on this, but nonetheless, on the basis of your understanding of Quebec public opinion, can you tell me what you think the effect would be in Quebec, particularly, after a referendum, if all parties in the National Assembly said "That is a clear majority,"; if the House of Commons said "That is a clear majority,"; and then the Senate said, "No, we veto negotiations"? What would the reaction be in Quebec?

Mr. Pinard: I have done no research on that, although I do know of research regarding the view of the people on the Senate. I am not a constitutional expert, but my view as a citizen is that decisions on issues like that should be taken by elected representatives. It is a crucial decision, and it is part of the overall process that would lead to negotiations in which the people involved would be elected representatives. Therefore, the overall decisions in this regard should be taken by elected representatives. I do not have very strong views on that, but that is my own feeling as a citizen.

I have stronger views about what would happen if there were to be a division between the House of Commons and the Senate. I think that would be disastrous in terms of the outcome of a referendum on the clarity of the question. It would add tremendous confusion. It would also have tremendous consequences after a yes vote if the House of Commons were to say it was clear and the Senate were to say it was not clear. If one thing would be extremely important after a yes vote by a clear majority on a clear question in Quebec, it would be that the rest of Canada be united. It is in the nature of Canadian society that the rest of Canada will not easily be united. Consider the various factions -- provincial, federal, western, eastern, French and English, and others. There are various divisions in the country that do not exist on the sovereignist side.

While there could be minor disagreements between Mr. Parizeau and Mr. Bouchard, you could easily see that, basically, the yes side would be very strongly united. By reason of the structure of Canadian society, it would be extremely difficult to obtain unanimity on the no side. In a situation like that it is crucial that the federal government be united. Thus, I think it would be a very serious crisis if Ottawa were divided on this issue.

With regard to what people would think of a gesture by the Senate, the only thing I can say -- and I am sure you are aware of all the polls that have been conducted concerning the Senate over the last few years -- people do not look very kindly, to put it mildly, on the Senate. Few people think the Senate should be left as it is. Most people want it to be either abolished or reformed. When these were the options put forward in some polls by Environics, some 20 per cent wanted to keep the Senate as it is, some 40 per cent wanted it abolished and some 40 per cent wanted it reformed. I am citing these numbers from memory.

When people have been asked whether the Senate should be elected or not, I have been surprised by the results. Approximately 80 per cent of respondents say that it should be elected, while only 6 per cent say it should be people appointed by the government.

As it stands, the image of the Senate is not very positive. A decision of the Senate to veto a decision of the House of Commons in that situation could be very bad in that sense. The crucial point is: I hope that, if we come to these events, the country, and at least the central government of the country, will be united.

[Translation]

The Chairman: We will now go on to questions from senators who are not members of the committee. I am sure that their questions will be brief and concise.

Senator Prud'homme: Mr. Pinard, when I was Chair of the Quebec Liberal Caucus and the National Caucus, I had the opportunity to invite you on many occasions. I was elected by secret ballot and obviously I would not have been elected by a show of hands.

If Quebec said, "Give us a mandate to negotiate with Ottawa on the formulation of a new Canada and we will come back to you and submit the results for your approval," what would your opinion be of that wording?

Mr. Pinard: I think a question like that could win. Many members of the Parti Québécois are in favour of that strategy. I think they would win the referendum, but this strategy has not been adopted because it would lead them into an impasse. There would be enormous pressure from the public that would want to see an agreement on something other than secession.

Senator Prud'homme: It is not necessary to take the pulse of our communities. There are 65,000 Aboriginals in Quebec, including Indian nations and an Inuit nation. There is no use wondering how those people would vote, we already know.

For their part, allophones make up 18 per cent of the population. I hate that word and I do not like the word francophone either; I prefer to say I am French Canadian.

Anyhow, 18 per cent of the population is allophone and anglophone. In the last referendum, we know full well how that segment of the population voted. In the region of Mount Royal, more specifically in Côte-St-Luc, over 99 per cent voted No. The result is clear and unambiguous; these people knew full well what they were voting about.

In 1980, Pierre Elliott Trudeau was part of the No committee. I was there with Senator Nolin, who represented the forces of the Conservative Party and I was there for the Liberal Party. There was also Mr. Jean Marchand and Mr. Claude Ryan. One day, I will tell you how things worked out behind the scenes. It was almost chaotic.

Ottawa's message seemed to me very clear, especially Mr. Trudeau's. You are right when you say that all the words are eliminated. When time came to vote in 1980, people had a good idea of what they were voting about I am sure.

Up until now, I have not been in favour of passing Bill C-20. In my opinion, we are going to be opening up a Pandora's box pointlessly, since what Ottawa will consider is not being stated in advance. Since I am familiar with virtually all the institutions in Ottawa, I see here that what constitutes a clear majority is not set out in advance.

Are we to await the result and say that, depending on the result, the question was unclear? I must admit I find that very disturbing. I maintain that Canada is indivisible for reasons other than those stated by Senator Joyal.

The Chairman: Senator Prud'homme, do you have a question?

Senator Prud'homme: We all have our own habits. One can make comments and the witness can comment on that if he so wishes.

The Chairman: It is just that we do not have much time.

Senator Prud'homme: Do you not think that the least provocation in the middle of a referendum could change the result? French Canadians in Quebec constitute 82 per cent of the population. At the time of the Yvette affair, one incident occurred and the result changed.

Right now, people are indifferent. All my friends in the Bloc Québécois and the Parti Québécois can feel that nothing is happening. I am more sensitive than they are. If ever there is a referendum, the danger is that the dynamite can pile up. In the middle of a referendum campaign, people will realize that there is a bill in Ottawa that will decide things.

Do you not find the thesis put forward by Senator Joyal somewhat frightening? We do not know the makeup of the next House of Commons. The Speaker of the House of Commons could decide by a vote whether or not the question is clear, whether the referendum is clear or not, does that not disturb you?

Mr. Pinard: I hope it will not come down to a decision by the Speaker of the House of Commons. If that does happen, we will have to accept it, but the lack of a decision on the clarity of the question is no better.

You were saying earlier that people did understand the question in 1980, but I think that they did not. If people had understood in 1980, they would not have gotten 40 per cent, they would have gotten less than that. However, at that time, there was the promise of another referendum. In the studies I conducted of the 1980 referendum, there was also an awful lot of confusion. So that is nothing new. Incidentally, I did cite figures from the 1980 referendum in my paper.

You will undoubtedly be told that people are not idiots, and I am in total agreement with that. That is not the issue. The issue is whether people understand the question or not. There are many things that I do not understand in physics, chemistry or other such fields, and that does not make me an idiot. It is simply not my field. There are people who do not understand because the subject is of no interest to them. That does not make them idiots, but it does make them less well informed on this issue. Anything that can be done to improve that situation will be a good thing. In 1980, there were a lot of confused people as there were in 1995 as well because of very elaborate questions.

Senator Joyal: My first question is on the fact that there seems to be some consensus within the Parti Québécois, or at least in the hard-line wing of the party, to have the next question read: "Do you want Quebec to become a sovereign State?" In the ascending order of concepts of sovereignty, independence, secession, separation, that seems to me to be the softest question. Ms Josée Legault wrote in The Gazette a week ago that it would be a question that she would hope to see in the next Quebec referendum. In your opinion, is that a clear question?

My second question is about voter participation. Bill C-20 assumes that voters are those who are currently entitled to vote under Quebec law, namely registered voters aged 18 and over. According to your statistics, what would happen if the legal voting age was reduced to 16? In your opinion, would that significantly change the distribution of figures that we have right now?

My third question is about the basis of your statement that it would be preferable for the Senate to be excluded from the bill in order to avoid creating confusion. In that case, do you not think that the four parties in the House of Commons who have already stated their position, that is that a majority of 50 per cent plus one is a clear majority, should also be excluded? If we want Canada to speak with a single voice, we must first clarify the opinions of the political parties who have already stated their positions. Four of the five parties represented in the House of Commons feel that 50 per cent plus one is a clear majority. I imagine that the party in power does not accept that opinion. So from the outset, we already have a fundamental conflict that is quite genuine between the opinion of a party that currently forms the government but which may not form the government during the next Quebec referendum on secession. In your opinion, is this not from a practical standpoint a much more conflicted situation than the fact that the Senate may or may not state its opinion, according to the hypothesis that you yourself put forward?

Mr. Pinard: With regard to your first question about "Do you want a sovereign State?", I see two problems here. Knowing what people understand about the word "State," I think it would be better if the word "country" was used. As soon as you use the word "country" in interviews with the soft voters, they start to understand a little better than with the word "State." The State is the State apparatus, et cetera.

The word "sovereign" -- and I think this is what you suggested -- is the softest of the following terms: separation, independence and sovereignty. Table 1 shows that when we move from the word "separation" to "independence" and then to "sovereignty" the level of support increases.

One of the reasons for this is that the word "sovereignty" has become linked to the word "association," and people say in polls that even without the word "association," sovereignty is necessarily accompanied by association. It is not the same thing at all as independence or separation. The word "sovereignty" is by far the least understood of all these terms. I have even seen people in unstructured interviews tell me that sovereignty refers to the Queen. It is difficult to be more confused than that, but some people do hold this view. Unfortunately the term "sovereign State" is not clear enough.

We must clearly refer to secession and not use the word "secession," because this word is even less understood. People do not know what it is. We have to refer to il using words such as "separation," "independence," or a completely independent country that is no longer a province of Canada.

Senator Joyal: Would you therefore vote no to such a question? Is that question not clear?

Mr. Pinard: In my view, the question "Do you want to be a sovereign State?" is not clear enough to determine what people want.

As to your second question about the right to vote at age 16, I can tell you that age was not an important factor in 1990 at the time of the Meech Lake Accord. Almost everyone was in favour, up to the 50 to 55-age group. At the time of the referendum, the relationship between the way people voted and their age was much the same among 20 to 50-year olds. Since that time, however, the age factor has become important again. The younger people are, the more inclined they are to vote Yes, and the older they are, the less inclined they are to vote Yes. Since the last referendum, the Yes camp have lost middle-aged voters. Having the voting age limit at 16 rather than 18 would tend to increase the votes for the Yes side.

However, rather curiously, and I do not know whether you know that we have done some polls not long ago on this, people are very strongly opposed to allowing 16-year-olds to vote. People see that as sort of a trick or feel that at age 16, people are not adults. From memory, some 80 per cent of people were opposed to lowering the voting age. I was very much struck by that.

Your third question was about the exclusion of opposition parties in the House of Commons. In an ideal world, I would like the government, the federal Parliament to speak with one voice, and that would means speaking with one voice even in the House of Commons. But that mean completely abolishing the democratic system, and I don't see how we can do that. I hope there will be unanimity in the House of Commons on these issues at the time of a vote.

Senator Prud'homme: Government or Parliament?

Mr. Pinard: Ideally, government as a whole and Parliament as a whole should speak with one voice, that is the Senate and the House of Commons, if it were to make a statement about the question. Senators will always have the right to say what they think about it in any case, will they not?

Senator Prud'homme: I am sorry, but we make a significant distinction between the terms "Parliament" and "government." Parliament means the Queen, the House of Commons and the Senate. I have no objections if you mean the House of Commons, but the word "government" is a different matter.

Mr. Pinard: I understand.

[English]

The Chairman: Senators, we are running a bit over time, and our next witness is here. I already have three senators on the list. I propose to give them each five minutes. Is that agreed?

Hon. Senators: Agreed.

Senator Nolin: I cede my five minutes.

Senator Kroft: I have already spoken.

Senator Lynch-Staunton: I cede my five minutes to Senator Grafstein.

The Chairman: Senator Grafstein, you are the beneficiary of your generous colleagues.

Senator Grafstein: Mr. Pinard, you have an awesome reputation in Canada for the clarity of your conclusions, if not the questions that you have been asked to address.

The present Quebec government has said that it will move when it has winning conditions. From your evidence today I conclude that what they would like to have is a confusion of questions to amplify their support in Quebec. They would like to have a weak federal government which could speak with many or different voices. The optimum occasion when a referendum might erupt is under two preconditions. That is to say, first, when the questions are not too clear, that is, softer questions that might gain support; and, second, when there is weakness at the centre, either in the government itself or in Parliament with a minority government.

The existing policy positions of the two major opposition parties in the other House, the Alliance and the Bloc, is that 50.1 per cent is all that is necessary. However, that would not be the view of the general public. Is there not a bit of inconsistency in your conclusions about the Senate if, in fact, the Senate, as opposed to Parliament, speaks for the popular view and the House of Commons speaks for the minority view on the question of 50.1 per cent?

Mr. Pinard: Do you mean if the Senate were to say that 50 per cent plus 1 is not enough?

Senator Grafstein: Yes.

Mr. Pinard: I do not know what would happen in that case. I would be surprised if the House of Commons were to say that 50 per cent plus 1 is sufficient, unless the question were very clear.

Senator Grafstein: Remember that this bill is a duplex bill. The question has to be clear, and then there is a vote. Then there is the question of whether or not the result of the vote represents a strong enough majority. However, in referenda, practically speaking, these questions will become merged in the first debate. We now know -- and I do not think anyone would contest this, either those who support the bill or those who have questions about it -- that the two largest opposition parties, the Bloc and the Alliance, say that 50.1 per cent is sufficient. However, the public, both in Quebec and in the rest of Canada, would not agree with that. If the Senate took the popular position and the House of Commons was fragmented, would not the public then look at the consequences and say, "Thank God for the Senate"?

Mr. Pinard: Do you mean before or after a referendum?

Senator Grafstein: First before and then after.

Mr. Pinard: I think such a gesture on the part of the Senate would be very strongly supported by the population. It would be supported by a large proportion of Canadians outside Quebec, as well as by federalists within Quebec. This is a case in which the Senate could get support, despite the low support it usually has.

Senator Grafstein: Mr. Pinard, your evidence is very informative. As I read your testimony and your paper, it strikes me that the clearer the consequences, the clearer the question. When a question is asked without the consequences being clear, the more confusion there is. To support that contention, you have said that sovereignty without consequences is not clear and there will be confusion. You have said that there will be confusion without the consequences. You seemed more comfortable with sovereignty association. It is a little more user friendly, thus there would be less confusion, but there would still be confusion as to what it really means. You have also said that independence without the consequences is also rather confusing.

Let me give you one other word to see if it would be more clear. I refer to the question of the "indivisibility" of a country. Would that be a clearer word than the other four or five, without talking about the consequences?

Mr. Pinard: I am not sure I would use those words. My preferred question is: Do you want Quebec to remain a province of Canada or not? That would be my question. I think it is clear. As I said, in polls since 1997, 60 to 70 per cent of people have said, "I would vote yes to that."

Senator Grafstein: Is it fair to say, Mr. Pinard, that indivisibility and remaining part of Canada is almost interchangeable?

[Translation]

Mr. Pinard, we agree that a referendum or plebiscite question has never been clear or as clear as we would have liked. You mentioned the 1942 plebiscite -- but the responses have been clear. I would also like to mention the question asked regarding the Charlottetown Agreement in 1992:

Are you all in favour of the agreement entered into...

And then the date was mentioned. The question could not have been more confusing or vague. It was not clear, but the response was clear. People understood the issues during the debate. I would like you to agree that even if the questions are not clear, the responses usually are.

Mr. Pinard: I fundamentally disagree with you on that. I think the generalization that could be drawn from what you say --

[English]

-- with all due respect to politicians, very often politicians like to make questions the easiest possible for them to win what they want to win. It is not surprising that the Parti Québécois does that. The federalists did the same with the Charlottetown Agreement as they did with conscription. There are cases where a question on separation could be a bit complex. However, very soon, people would say, "It is like conscription." People at that time asked, "Is it conscription, yes or no?" If the question related only to secession, people would end up saying, "It is a question on separation." I do not think that either the question of 1980 or 1995 enter into that category.

Senator Lynch-Staunton: The question in 1992 read: "Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?" Name me one person other than those in the inner circle who understood what that question was all about. Yet, there was a pretty good turn out at the referendum, and it was a pretty categorical vote against. Was it against the confusion, or was it against the fact that during the campaign people felt that, perhaps, the changes were too complicated and complex and they were not ready to accept them? No matter the question, clear or not, the answer turned out to be pretty clear.

Mr. Pinard: I think that the question will never be entirely clear. There will not even be discretion on separation. People will say, "No, it will not lead to that. It is a trick." There will be some confusion about that.

Once this is said, I disagree with the idea. Read my analysis in the book and read my analysis of the 1980 referendum. I do not think anyone can look at that in an objective fashion -- and my work on that has been described as objective -- and say that the people were clear as to what they were voting on in those referenda.

Senator Lynch-Staunton: That is an argument against referenda. Are you in favour of referenda?

Mr. Pinard: I am certainly in favour that a decision be taken by referendum and not by the government in an election, for example.

[Translation]

The Chairman: Thank you, Professor Pinard. Your testimony was extremely interesting and will be most helpful to us in our work.

[English]

Senators, our next witness is Mr. Stephen Blair, who is a lawyer in Ottawa and who has submitted a brief about the constitutional status of Bill C-20. Welcome, Mr. Blair. Please proceed.

Mr. Stephen G. Blair, Barrister and Solicitor: Madam Chair, honourable senators, thank you for inviting me to speak here today. Last December, the Globe and Mail printed a copy of the clarity bill in one of its issues, and I took the liberty of reading the bill. Had I not done that, I do not think I would be here today. However, I was immediately struck by the features of the bill that deeply trouble me, and I will list them briefly.

First was its long preamble. Second was its treatment of the separation of powers. Third was its attempt to bind future Houses of Commons. Fourth was the curtailed role it prescribed for the Senate. Fifth was what I thought was a new federal process for the review of provincial laws.

With regard to the preamble, I will not say much except I think it is there because the government may see this as a constitutionally shaky bill. They put in a very long preamble in the hope that they might be able to justify the bill should it ever come before a court. I have never seen one that long, and I do not think it will save this bill. I have not departed from my conclusion, in that regard at least, that it will be of no assistance in saving this bill from being declared unconstitutional, should it be passed.

The issue of separation of powers is of considerable importance to me. In my years practising law and as a law student, I had never before seen an act of Parliament or of a provincial legislature where the legislators who are passing the law took the opportunity to appoint themselves as the arbiters who would have the sole task of determining the application and enforcement interpretation of that new law. In Canada, when we pass new laws and we foresee the need for them to be interpreted, and that task is usually assigned to independent tribunals or to courts. Again, I think if you look through the vast array of federal statutes now in existence, you will see none where Parliament has given that role to either the Senate or the House of Commons to act as judge and jury in respect of the laws that have been passed.

In my view, it has been settled law since about 1700 that matters involving the application of generally applicable laws to particular facts are to be determined by independent judges. More recently, we see that task being also undertaken by independent tribunals. The hallmarks of these independent tribunals are that they are free from political or financial influence in the decisions they make, and that is for good reason.

John Locke once said that it is:

...too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to also have in their hands the power to execute them$

We have had unfortunate examples in Canada of cases where legislators have assumed judicial roles. The most notorious are, of course, the contested election laws that were finally abolished in 1873. They had existed in England going back to time immemorial, and Erskine May, in his book on Parliament, described the practice of having disputed elections tried by members of Parliament as a notorious perversion of justice. In 1878, Mr. Justice Henry of our Supreme Court also described these old contested election law processes, when he said that the parliamentary records of all countries exhibit ample proof of bias and lack of reliability. He continued:

Those records exhibit, however, glaring cases of arbitrary and high-handed injustice to individuals whose humiliation it suited the partisan majorities to procure.

With this history, how can we today suggest that legal and factual determination surrounding the clarity of a referendum question can be done fairly and without bias by a House of Commons whose proper job it is to be highly partisan and biased in its normal day-to-day activity? The answer, quite simply, is it cannot be done, and this is why our legislatures have not passed this form of legislation, in my view, in over 100 years.

In response to the Supreme Court's ruling in the secession reference, Minister Dion said:

There are few things more dangerous in a democracy than a government that places itself above the law but continues to demand obedience of its citizens.

By proposing to place the determination of the clarity issues before the House of Commons -- which, after all, is a captive body in the case of a majority government situation -- according to criteria already passed by the same house, the federal government is asking those who pass the law to act as sole arbiter in the interpretation and application of these laws to particular cases, those particular cases being a provincial secession referendum question. In my view, such a law flies in the face of Mr. Dion's statement and our democratic traditions, and it also violates, in my judgment, the constitutional separation of powers.

In my paper, I have argued forcefully that the clarity bill violates the separation of powers. In recent years, the Supreme Court has clearly confirmed, in many cases, that there is a constitutional separation of powers in Canada. The late chief justice Dickson said:

In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.

Dean Hogg, who will testify here later today, emphasized the importance of independence. He said:

The independence of the judge from other branches of government is especially significant, because it provides an assurance that the state will be subjected to the rule of law. If the state could count on the courts to ratify all legislative and executive actions, even those unauthorized by law, the individual would have no protection against tyranny.

In an Australian case in 1957, Lord Simonds, speaking for the Privy Council, referred to the Australian federal system, but I think it is applicable to our system as well. He said:

In a federal system, the absolute independence of the Judiciary is the bulwark of the Constitution against encroachment whether by the legislative or executive.

The following sentence is very important:

To vest in the same body executive and judicial power is to remove a vital constitutional safeguard.

That, in my view, is what is happening with the clarity bill. We are putting the determination of legal issues into the hands of members of Parliament, those same members having passed the law, and those same members being subject to the forces that we know exist in our parliamentary system where they are told how to vote by their party leaders, and if they do not vote according to the wishes of their party leaders, they are subject to significant sanctions including possibly losing their jobs.

If you take that into another example, and look at our jury system, our juries are independent. Could you imagine a case where a jury member is told by a judge that he must vote to find a person guilty and not exercise his own independent judgment? Could you imagine a system where a juror would face a financial penalty if he or she voted to acquit rather than to vote for a guilty verdict?

I have summarized all this in my paper, but I would like to repeat what I said there.

Parliamentarians should restrict their activities to what they do best, the legitimate practise of partisan politics leading to the creation of new laws within prescribed constitutional limits. The important lessons learned over a century ago from the former discredited contested election laws should not be forgotten. To be clear, today's legislators should not be allowed to appoint themselves as arbiters of the laws of others, especially when they seek to judge those laws according to legal criteria and procedures which they themselves have created and passed into law.

For these reasons, Canadians should not applaud the provisions contained in clause 1 of the clarity bill. Rather, they should be alarmed by them because, as the Privy Council said in Liyanage, an important case, if such measures are done once and allowed to stand, then they may be done over and over again, resulting in an erosion of constitutional protections.

I will move more quickly over the other issues. I believe it is clause 2 of the bill which says that the House of Commons must consider a particular referendum question and the legislation says that if it contains this or that it is not a clear question. I believe that is an attempt to tie the hands of a future House of Commons, or the current House of Commons for that matter. This is something we do not normally do in our system. There is a principle of common law that the present Parliament cannot tie the hands of a future one, and that is being ignored in the clarity bill.

Dean Hogg said:

In political terms, the rationale of this rule is clear. If a legislative body could bind itself not to do something in the future, then a government could use its parliamentary majority to protect its policies from alteration or repeal. This would lay a dead hand on a government subsequently elected to power in a new election with new issues. In other words, a government while in office could frustrate in advance the policies urged by the opposition.

To be clear, there is no question that the clarity act could be amended by the current Parliament or a future Parliament. However, until it is amended, assuming the bill is passed, the Parliament following this one is tied into the same law and the same evaluations of secession referendum questions. If push came to shove and a vote were held, members of Parliament would be tied to voting in a particular way after a subsequent, or perhaps many subsequent, elections. I do not think that is how our system normally operates.

This also struck me as a most unusual bill with regard to the Senate. Accordingly, I reread the 1979 Senate reference case decided by the Supreme Court of Canada. As I read that judgment, it became clear to me that under the old section 91.1 provisions in the then BNA Act, Parliament alone could only alter the role of the Senate or the House of Commons in what might largely be described as housekeeping matters such as mandatory age of retirement, new senators from the North, et cetera.

In 1982, the constitutional amending formulae preserved, in my opinion, this limited amending power by Parliament alone in section 44 of the Constitution Act, 1982, or the amending formula portion of the Constitution.

The power to amend the Constitution in relation to the substantive powers of the Senate are found today in section 42(1)(b) respecting the legislative powers of the Senate and its makeup. In order to effect a section 42(1)(b) amendment, it must pass through both Parliament and provincial legislatures to some degree.

I cannot believe that legislation such as the clarity bill involving the possible breakup of Canada is of a housekeeping nature, entitling Parliament to rely on section 44 to amend the Constitution vis-<#00E1>-vis the Senate without provincial consent. It seems to me that the Senate has a vital interest in any discussions leading up to the possible breakup of the country and must be accorded its full constitutional legislative role.

Furthermore, to the extent that I now learn that the government or other people who support the bill rely on section 44 as a basis for the clarity bill, I am surprised, because assurances were given only a few months ago that the clarity legislation was valid and involved no constitutional changes. If there is to be a section 44 amendment, please tell me what it is, because it is certainly not clear from the proposed legislation. Are we not entitled to at least a clear statement to the effect that a particular section of the Constitution is hereby amended as follows? Nothing of that sort is contained in the bill. If there are amendments, are we now left simply to guess what implied amendments are being made? Are we to believe that an implied amendment to a written constitution like ours is satisfactory?

In my paper, I deal with the federal review of provincial laws and I refer to the history of the reservation disallowance provisions. I do not advocate a return to the days when reservation and disallowance was used. I favour its abolition. However, I think it is particularly instructive as we look at the clarity bill before us because the reservation and disallowance provisions contain a very precise and clear procedure for the review of provincial laws at the federal level and, apart from what is said in those sections of the Constitution which have remained unchanged since 1867, there is no other process by which the federal government can review provincial laws.

Therefore, I ask where the authority is that Parliament now says it can seek to review provincial referendum questions in the way it proposes via the House of Commons. If that were to happen, we would be looking for something in our Constitution saying that Parliament may pass laws it sees fit providing for the review by it of provincial laws. Clearly, there is nothing in our Constitution that says that, and clearly no right-thinking member of a federal union, like one of our provinces in 1867 or today, would agree to such a wide-ranging review process by the federal government.

Furthermore, such a process would not be good government but, in my view, rather bad government, as provincial laws would be subject to any form of arbitrary review by the federal government that it might choose to legislate or undertake.

We must remember that the British North America Act, 1867 was agreed to by the parties that were present; and the Privy Council said some years later:

The process of interpretation as the years go on ought not to be allowed to dim or whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies.

That passage was cited with approval by the Supreme Court of Canada in 1979 in the Senate reference case when it explored the possibility that Parliament might amend the provisions relating to the makeup and legislative power of the Senate. I think it applies equally as we look at this bill which proposes a new system, in my view, for the review of provincial laws. Quite simply, this was not contemplated at the time of Confederation, it was not agreed to and, in my view, it is unlawful.

For these reasons, I am of the view that the clarity bill is invalid and beyond the power of Parliament to enact.

I have been watching the debate in the Senate and this committee. There has been active discussion in the Senate on whether this nation is divisible. In my opinion, it is divisible, for two reasons.First, the Supreme Court said it is divisible in the secession reference case. Second, in my view, this is consistent with our common law traditions in which there is really nothing that can never be changed. In keeping with this tradition, our Constitution contains no prohibition against division, and the various amending formulae are not restricted in respect of the categories of amendments that are possible.

However, I sense that some senators are having difficulty accepting these principles. I sympathize with you, and I have a suggestion. I suggest that this difficulty is not really one with the concept of division but, rather, the problem arises with this particular bill. The problem arises because the real subject matter of this bill is the secession, or a possible secession, or a procedure for the secession of a province from Canada. The government is dressing up this bill by calling it the "Clarity Act" when its underlying subject matter is secession.

As senators, you are being asked to judge and pass the first legislation in Canada's history that deals with the subject of secession, and I understand the pain that must cause many of you.

Furthermore, there is yet no formal ruling establishing that Parliament has the legislative competence to make laws in relation to secession. The reference case strongly suggests that the courts might support such legislation within normal prescribed constitutional limits, but to date there is no formal finding that Parliament does in fact have that power. I should add that I do not believe that the clarity bill fits within normal, prescribed constitutional limits.

Some have said that the clarity bill is a legislative triumph. I do not regard it as a legislative triumph. I find it unfortunate that I am speaking to you in the month of the 10th anniversary of the death of the Meech Lake Accord and that the subject we are discussing is possible secession. Since the referendum was held in 1995, there has been an ever-growing body of secession law developed in Canada by academic writers before and after the reference case.

This month, the Law Society of Upper Canada will hold its annual special lecture series. This is probably the pre-eminent legal education program for lawyers in Ontario. For the first time in 15 years, the topic is constitutional law. I have provided the materials to you. One of the panel discussions this year is entitled, "Quebec Secession." That would have been an unthinkable topic for a constitutional law conference as little as five or ten years ago.

If this clarity bill is passed, we will then have a court reference on secession. We will have a remarkable amount of academic writing on the topic. Circulated to you is a list of at least 25 articles that go from about 1997 to the current date. We have a special edition of the National Journal of Constitutional Law devoted to the Supreme Court reference case. We have a book written by a lawyer at the Department of Justice, Warren Newman, about the Supreme Court reference case. We have a developing body of secession law.

I do not regard that as a positive development for Canada. However, if this bill is passed and this legislation is challenged, then whether one side loses or one side wins, there will be an even bigger body of secession law, and that body of secession law will grow exponentially once there are one or more additional cases decided by the courts in Canada.

In my view, the Senate has a chance to stop this process. You can do it by stopping the clarity bill in its tracks at this stage. The reference case presently serves both sides well, and each can claim victory to a limited degree. We should let the future unfold. It may soon happen that the feeding frenzy in secession law will subside. If this bill is passed, you can be certain that it will not subside. It will grow, and secession may in fact become a self-fulfilling prophecy.

In the debate that has gone on here, I am pleased to see some reference to the American experience. I know reference has been made to the great case of Texas v. White. I think our interests would be far better served to remember the 1858 or 1859 decision of the United States Supreme Court in Dred Scott. This case involved the slave who had been in slave territory and moved to a free state, was a free man for a while, and then returned to a slave state. The issue before the court was whether or not he went back to having his slave status. The outcome of the court decision, like so many others, as far as Dred Scott was concerned, really does not matter.

Senator Cools: Could we have that name again, please?

Mr. Blair: Dred Scott. I do not have a reference for the case, but I could get one. As I was saying, like so many other legal cases, at the end of the day what happened to Dred Scott really does not matter. He was in fact sent back to a life of slavery. However, the decision fixed in place a constitutional situation vis-a-vis slavery that in fact sparked the civil war. The decision marked the end of a decade in which significant legal changes had taken place in the American republic. More than any other decision or legislative act, this case set the stage for the civil war by placing the nation in a constitutional straightjacket on the issue of the future of slavery as the great western territories of the nation were being opened up to settlers, development, and ultimately statehood. The results of the case show the dangers that are present when governments rely overly on legislative actions and court judgments to resolve their differences.

In describing the Dred Scott case, one historian said:

The amazing acts of mastery -- legislative, executive, judicial - committed by the federal government in the decade between 1850 and 1860 changed the whole political climate of America So the ambitions and passions of both political parties were in reality responsible for the judicial opinion that rocked the country from one end to another.

In my view, Canada has yet to have its Dred Scott case. By blocking this legislation at this juncture, you have a chance to prevent that from happening. If you do not, the body of secession law will continue to develop in ways that are not foreseeable and with results that cannot be predicted. As an example, we need look no further than the recent decision involving Donald Marshall, the near riots at Burnt Church in New Brunswick and the possible nationwide effect that that decision had upon resource exploitation.

In summary, I would encourage you to defeat this bill. Do not send it back to the House of Commons. It is bad law. It violates the Constitution. It feeds into the feeding frenzy of secession law that is now developing.

Senator Joyal: On a point of order, I must excuse myself since I must attend the Transport Committee where gens de l'air from Quebec will be appearing on Bill C-26. I apologize to the witness and to my colleagues. I will try to be back as soon as the testimony is over, but I may, unfortunately, have to read these proceedings.

Senator Kinsella: I found very interesting the reference that you made to this new body of literature that seems to be developing on secession law in Canada. I also found rather interesting one of the documents you circulated, that is, the National Journal of Constitutional Law. The cover page that you circulated seems to have the names of several government supporters in this new field of literature development.

Let me turn to the bill, and, in particular, clause 3 of the bill, which speaks to the requirement for an amendment to the Constitution to provide for a province to secede from Canada. At second reading in the chamber, I asked the proponent of this bill which amending formula would apply. He unable to answer that question. At our last meeting of this committee, Professor Joseph Magnet testified, and he was absolutely certain that the amending formula that would apply to an amendment of the Constitution would be the unanimity formula. Do you agree with Professor Magnet that it would have to be the unanimity formula?

I consider this so terribly important because, notwithstanding the body of literature that has developed and the opinion given to us by the Supreme Court in the reference case that there is a constitutional obligation to negotiate, I am not convinced that there is a constitutional recognition of secession. There is a jump being made from a recognized constitutional obligation to negotiate to the conclusion that there is now, in Canada, constitutionally recognized in constitutional law, the right to secession of a province.

In case I am wrong and they are right, and interested in maintaining a defence for the unity and the indivisibility of Canada, I am interested in having clarity brought to which amending formula would apply. Could we have your views on that?

Mr. Blair: I am not a student of Part V which deals with amendments. However, section 41 seems to be the section that deals with amendments by unanimous consent. The amendments there are the office of the Queen, Governor General, Lieutenant-Governor, representation in the House of Commons, the use of English or French, the composition of the Supreme Court of Canada and an amendment to that part or, I suppose, to the amending formula itself.

On first reading of this, I do not see that the secession of a province would fall under section 41, unless of course someone is saying that we would in fact have to amend the amending formula to allow for a province to leave Canada.

My own view is that it might be seen as a general form of amendment, which I think comes under section 38 of the act. Anything else that is not enumerated as a special type of amendment is a general amendment, and section 38 might apply. I really do not know.

Senator Kinsella: The argument is that the office of the Queen and the Lieutenant-Governor of a seceding province would be dramatically affected. In your view, would that not weigh heavily in favour of the argument that it would have to be the unanimity formula?

Mr. Blair: I really could not say, senator. I do not have a strong view one way or the other. It seems to me that, again, you are speaking of the particular offices, the Queen, the Governor General and the Lieutenant-Governor, not the makeup of the country. If we wanted to abolish having the Queen, for instance, that would require unanimity. To make a significant change to the office of the Governor General requires unanimity. However, there seems to be no such requirement for a province to leave.

Senator Kinsella: You seem to be suggesting in your presentation to us this afternoon that one of the difficulties that you are having with the bill and the power that it would give to the House of Commons to review the question of a legislative assembly is sort of like a reinstatement of a process something like disallowance.

Mr. Blair: Yes.

Senator Kinsella: Would you like to explain that a little further?

Mr. Blair: I use reservation and disallowance as the examples, saying that that was the agreed-upon formula, if you like, in 1867, allowing for the federal review of provincial laws. There is no other formula in the Constitution that allows for another method of review by the federal government, apart from court challenges, which we have recognized as being a legitimate means to review provincial legislation or vice versa.

From my own perspective, I look to section 91 of the Constitution which sets out the powers of Parliament. Reading the enumerated heads of section 91, I see banking, Unemployment Insurance, trade and commerce, lighthouses and buoys, but I do not see anything that says the House of Commons is entitled to review provincial legislation in the way it proposes to do in this bill. I do not think that when the court wrote the Supreme Court reference case and indicated that the political actors are to have a role in the process that it was contemplating that it would be such a radical role as to have the House of Commons actually sitting in judgment of a valid provincial law.

Senator Milne: Mr. Blair, you claim that Canada is divisible. Therefore, you agree with that portion of the Supreme Court opinion. However, you disagree with the fact that the Supreme Court, in the same opinion, ruled that the political actors, and specifically the elected political actors, must decide on whether or not a question is clear or a majority is clear. Why do you think one part of that opinion is good while the other is not?

Mr. Blair: I am afraid I disagree with your interpretation of the opinion, senator. I think that whatever the Supreme Court said that the political actors must do must be read in the context of saying, "They must act within existing prescribed constitutional limits." If the Supreme Court had intended to allow Parliament to override the existing separation of powers rules, then it would have had to say so specifically. I think what the Supreme Court is saying is that there is a role for elected political officials to play, but what I am saying here is the route chosen by the federal government in the clarity bill is dead wrong.

Senator Milne: I cannot argue with that -- at least I cannot argue with your conviction.

Mr. Blair: I think it flies in the face of many Supreme Court decisions which uphold the separation of powers. We cannot assume that because the Supreme Court said in the secession reference case that the political actors had to have a role, they were impliedly overruling all their previous jurisprudence on separation of powers. There are many cases which say that judicial functions are to be performed by the courts only. Sections in the Constitution guarantee that.

The other problem I have with the legislation is that it really asks the House of Commons to perform a judicial task. I am a lawyer. I am biased in that view. However, I cannot read it any other way. I am not sure that a court could read it any other way either. As well, it flies in the face of 100 years of tradition in this country. We do not do things that way. I cannot say it any clearer.

Senator Milne: It does not fly in the face of that Supreme Court opinion.

Mr. Blair: It does. The Supreme Court did not authorize the particular type of law that Mr. Dion is proposing.

Senator Milne: I give up, Madam Chair.

Senator Beaudoin: I have two questions. One is on the separation of powers argument. The second one, of course, has to do with the amending formula. Obviously, this question is paramount because there is reference in the bill to a constitutional amendment. We always forget that after negotiation, even if the question and the majority is clear, there has to be a constitutional amendment. The Supreme Court was not invited to rule on this. Bill C-20 does not deal with it. I started to look into that question and realized that lawyers are divided on the issue. Peter Hogg is thinking one way; and he will be here tonight. Professor Magnet was thinking the other way. Some opinions are in between.

Since you have dealt with that question, I will deal with the separation of powers question.

One particular witness, Claude Ryan, raised the difficulty of some form of intervention from one order of government in the affairs of another order of government. It is a complex argument, and I would like to know more about this subject. Bill C-20, uses the word "determine." It says that they will "determine" the clarity of the question. "Determine" is a very strong word for a legislative body. It is normally used for the judicial branch of the state.

If I understand your argument, you consider this to be an intrusion by one order of government in the affairs of another order of government. Can you elaborate on that? This is based on federalism.

Mr. Blair: Yes.

Senator Beaudoin: We have two orders of government in this country, and each order of government, in its own sphere, is equal to the other. I would like you to elaborate on this. It may be close to what we call a legislative intervention or a judicial intervention.

Mr. Blair: On the judicial side, it amounts to what you might call a usurpation of the judicial function or an attempt to usurp the judicial function by Parliament. I cannot say for sure, but I think the court will take a very hard look at the process that has been proposed here. I will just go through the steps of the process we have here. Within 30 days of the question being tabled in the provincial legislature, it must be reviewed by the House of Commons, and a determination, as you said, must be made as to whether or not the question is clear. To assist Parliament or the House of Commons in arriving at that determination, the bill sets out different criteria in clause 1(4). In fact, it imposes, in my view, mandatory criteria in the case of certain types of referendum questions.

To me, if you take out "House of Commons" and substitute "court," it looks very much like the type of legislation that Parliament passes every day when it seeks to have its laws apply to people and corporations across the country.

I think it is a usurpation of the judicial function. As I say, I cannot see any precedent for it, and if you look through all the federal statutes, you will see nothing like this bill.

I have spoken too long and I have forgotten the second part of your question.

Senator Beaudoin: You say that it is of the nature of an intervention in the legislative sphere of another government before the act is adopted by the first order of government. Very few have raised that problem. Actually, the only one I can remember is Mr. Ryan. Of course, the provincial authority may pay no attention to that, but the fact is that one order of government is determining that some legislation that is at some stage of the process in one legislature, is not clear. Usually we leave that to the courts but, in this case, we will leave that to another order of government. I put aside disallowance. It is not a disallowance. The power of disallowance has not been used for 47 years. Even Bora Laskin said that it is dormant, if not already dead. There is no way to resuscitate that power, but it is still there in theory.

Is it an illegal intervention?

Mr. Blair: Yes. On the disallowance, I agree, it is dead, it is dormant, whatever you want to call it, but it is still instructive because it was the agreed-upon method for the federal review of provincial law. The clarity bill proposes something new. I can find no constitutional support for this new review process. What you are saying is that we have two spheres of legislatures. They are equal. I think when one sphere or one legislature starts entering into the area of another legislature and judging the work that it does, that is something we do not do, and I think it is wrong.

Senator Beaudoin: This is very important. The court often rules on the question of the division of powers. What is less known is the separation of the three powers: legislative, executive and judicial. Your point is that, in this case, on that part of the bill, we are concerned with the legislative branch assuming some kind of a role of the judicial branch.

Mr. Blair: Correct. You have made a good point. The division of powers has been with us since Confederation. The separation of powers, which talks more about the role of the three branches of government -- executive, legislature and judiciary -- has always been with us but has really only been articulated by our courts in, say, the last 20 years. It has been a more dormant feature of the Constitution, but a lot has been written about it in the last 20 years, and that lets you know it is alive and well and kicking.

The Chairman: Just before we go to the next questioner, for the purposes of clarification and also perhaps for the television audience, who may not have the Supreme Court opinion in front of it in its living room, the passage Senator Milne was basing her question on was paragraph 100, which states in part:

The Court has no supervisory role over the political aspects of constitutional negotiations. Equally, the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so.

Further on it states:

Only the political actors would have the information and expertise to make the appropriate judgment as to the point at which, and the circumstances in which, those ambiguities are resolved one way or another.

I am not asking you to comment, Mr. Blair. Your position is clear.

Mr. Blair: Did you say that related to the majority or to the question?

The Chairman: Both: a clear majority on a clear question.

Senator Kroft: I am sobered because I see my constitutional law professor named as one of the authors in this journal, and so I presume somebody is watching me. I assure you that if anyone ever had an instinct to be a supporter of the government, it was not he. I refer, of course, to Professor Dale Gibson.

I will continue to question you on this issue because, as my colleague, Senator Beaudoin mentioned, the point you are raising has not been one taken up except, it seems, by Mr. Ryan. Let me go back to the basics, as I understand them. The two issues involved here are the correctness of the handing over, the delegation or whatever of this role to the House of Commons, and the question of the interference with the provincial level.

I should like to come to grips with both of them because they are, in a way, coincident, and we have had very persuasive evidence from previous witnesses on this point. I would like to know why my understanding may not be correct, if you are right.

First, on the issue of intervention at the provincial level of jurisdiction, the federal government's position is quite clear. It is one that I and most of our expert witnesses have accepted. It is that all this bill does is set some rules for how the federal government would behave in response to a given set of circumstances. It in no way intrudes, as I understand it, on the legislation or the ability of the provincial government to act under that legislation. Therefore, where does the intervention come? I do not think the federal government is seeking to do anything other than develop some guidelines for itself.

Second, we have been told by several witnesses -- and we have been told that it is the underlying position of the government -- that there is a gratuitous element to what it is doing, that in effect the federal government on its own has the power to enter into these negotiations on its best judgment. Professor Monaghan suggested that they could have chosen the House of Commons, as they did, or the Senate alone, or all of Parliament, or some other group all together. I remember that Senator Grafstein pursued that line. That is just where they seek their counsel on how to exercise their judgment on how they will respond to the provincial legislation.

That is my understanding of both elements. I am still perplexed as to whether the intervention comes in because I do not think there is any intervention into the provincial field, other than deciding how the federal government will react to it. They are empowered to seek counsel when or where they like, or nowhere, in terms of the clarity of the question.

Mr. Blair: On the issue of federal intervention, if you are talking about a province that has put forward, presumably in good faith, a secession referendum question, then it has every expectation that that referendum question can be judged fairly by the federal government as to whether that is the route to go. My main objection to the clarity bill is that putting this question before the House of Commons, the House of Commons having written its own guidelines on how it will judge the question and the MPs being subject to party discipline, the review process will be anything but fair.

Senator Kroft: Where is the intervention into the other order of government of which Senator Beaudoin has spoken?

Mr. Blair: You are subjecting a provincial law to review at the federal level.

Senator Kroft: I submit that you are not. The federal government is only discussing, with those with whom it chooses to discuss, how it will react to the result of that referendum decision. It is not suggesting that the provincial government do anything other than proceed as it will. You still have not made the case to my satisfaction that there is any interference in provincial jurisdiction.

Mr. Blair: I see that as intervention. I see that as unauthorized intervention. I see that as something we do not do in Canada, as a rule, and I do not see authority in the Supreme Court of Canada decision to do that in the way proposed. I call that intervention.

Senator Kroft: I see all of the other things you have listed exactly the other way, so, like my colleague, I do not think I have made any yards.

My other concern was what is deemed the inappropriate use of the House of Commons as the guidance in deciding.

Mr. Blair: As the court, in effect.

Senator Kroft: When colleagues of yours say that the government can turn to no one or to anyone to help it arrive at a decision on whether it wants to negotiate, you thoroughly and soundly reject that position?

Mr. Blair: Again, I look at the whole process proposed in the clarity bill and find it to be an affront to our democracy.

Senator Kroft: Perhaps I can put a specific question. In your judgment, does the federal government have the right, had it chosen not to introduce this bill --

Mr. Blair: That was your other question.

Senator Kroft: Yes, everything else proceeds from there on this half.

Does it have the right to make its own decision on whether this is a basis upon which it should enter into negotiations with the provincial government?

Mr. Blair: I think so, yes.

Senator Kroft: How possibly can their action be diminished or called into question because they choose to look to the House of Commons or anywhere else for what can only be deemed gratuitous input, since they have the power without it?

Mr. Blair: That is because they are asking the House of Commons to purportedly judge the clarity of the referendum question, and the method they have chosen is, by resolution of the House of Commons, setting out criteria. Yet, in our system we do not ask our lawmakers to judge their own laws. That is the problem with this legislation.

Senator Murray: No one speaking on behalf of the government has said that this bill is a section 44 amendment. Professor Monahan said that it was, and perhaps some others. We will have the opportunity when we see Mr. Dion again to ask him that question.

Senator Grafstein: Professor Monahan said it was section 44 or something else.

Senator Murray: Mr. Blair's view is that it is a section 44 amendment.

Mr. Blair: No, no.

Senator Murray: Is it not? What is it then? Is it peace, order, and good government? What is the authority for it?

Mr. Blair: What amendment are we talking about?

Senator Murray: You have gone so far as to suggest that it is an amendment of the powers of the Senate and, therefore, it should require seven provinces with 50 per cent of the population.

Mr. Blair: Yes, section 41(1)(b).

Senator Murray: If it is not that, is it a section 44 amendment, or is it legislation under peace, order, and good government?

Mr. Blair: Are you talking about the Senate's power or the Senate's role?

Senator Murray: I am talking about the bill.

Mr. Blair: You cannot amend the Constitution under peace, order, and good government.

Senator Murray: Then it is an amendment of the Constitution?

Mr. Blair: Yes, if you accept my view that it is an infringement of the separation of powers, that it involves a new review process for provincial laws, and that it impinges on the role of the Senate, then it involves several constitutional principles, all of which would have to be amended to make this law work.

Senator Murray: The government, of course, claims that it is not an amendment to the Constitution under any rubric.

Mr. Blair: I disagree.

Senator Murray: You seem to like the Supreme Court opinion. I think that is a fair statement from your brief. I do not know what to make of your statement in the very last sentence:

We need look no further than the recent decision involving Donald Marshall, the near riots at Burnt Church and the possible nation wide effect upon resource exploitation.

Those events did not arise from any decision of the House of Commons or the Senate, but rather from a rather generous interpretation by the Supreme Court of Canada of section 35 of the Charter.

Mr. Blair: I am saying, though, that if we continue on this road and legislate in regard to secession, and the clarity bill is passed and is challenged in court, working its way up to the Supreme Court of Canada from a lower court, we will have many court decision coming out and we do not know what the result of them will be. We may have a Donald Marshall-Burnt Church situation on our hands.

Senator Murray: What do you make of the new obligations that have been imposed upon us by the court, the new wrinkles in the amending procedure, and the constitutional obligation to go to the table and negotiate if one of the partners initiates a constitutional amendment? What do you make of that?

Mr. Blair: You mean if there is a successful referendum result?

Senator Murray: No, no.

Mr. Blair: Sorry, you have lost me.

Senator Murray: They have said that a legitimate initiative to change the Constitution on the part of one of the partners brings about an obligation on the part of the others to come to the table to negotiate it.

Mr. Blair: Who says this?

Senator Murray: The Supreme Court of Canada.

Mr. Blair: In what?

Senator Murray: In the advisory opinion. I have raised this before. Some of us voted on that amending formula in 1981. If we had intended to impose a constitutional obligation of that kind in the amending procedure, we would have done so. I do not understand how the court can find that there is this "binding constitutional obligation." I wondered what you thought of it.

Mr. Blair: Is this the obligation to negotiate?

Senator Murray: Yes.

Mr. Blair: I do not know where it comes from, but it is there in the judgment.

Senator Murray: Is it now the law? Do you agree with that? Or is it just an advisory opinion?

Mr. Blair: I do not practice law any more, and I do not miss practicing law.

Senator Murray: You do not appear before the Supreme Court of Canada, then.

Mr. Blair: I do not appear before the Supreme Court of Canada, but I would hate to go in front of the Supreme Court of Canada and argue that their decision is not the law.

The Chairman: A practical note, one might say. Senator Kenny.

Senator Cools: On this very interesting point, which was --

The Chairman: Senator Cools, your name is on the list. Do you have a question, Senator Kenny?

Senator Cools: I do it as a point of order.

The Chairman: You cannot. Senator Kenny.

Senator Cools: You cannot ignore me.

The Chairman: Senator Kenny.

Senator Cools: Madam Chairman, please, I wanted to raise a point. He has just raised something which is extremely important.

The Chairman: You will have your turn, Senator Cools.

Senator Cools: I raise this as a point of order.

The Chairman: No, Senator Cools.

Senator Cools: He has said as a lawyer he could not disagree with their opinion here and go and argue before the Supreme Court of Canada. That is extremely important.

The Chairman: Thank you, Senator Cools. Senator Kenny.

Mr. Blair: I should add that personally --

The Chairman: Mr. Blair, it is Senator Kenny's question.

Senator Cools: It is an ethical point that you have raised. This is a court --

The Chairman: Senator Kenny.

Senator Kenny: Is it okay with everyone?

Senator Grafstein: If it is okay with the chair, it is okay with me.

Senator Kenny: Mr. Blair, during the course of your testimony, you lamented the fact that a body of secession law is being developed. I do not believe that anyone around this table wants to see Canada break up, but you have indicated that you believe that Canada is divisible, I believe.

Mr. Blair: Yes.

Senator Kenny: It stands to reason that all countries at some time or another will change in some fashion, eventually.

If a significant group of Canadians wants to separate, would it not be better if there were some rules? Would it not make more sense if we put those rules in place in advance, in a calm and dispassionate way, before people start throwing bricks in the street?

Mr. Blair: What you say, senator, makes some sense. My fear is that when we try to put those rules into place, they are potentially subject to court challenges and uncertain results. If we could be sure of putting those rules into place and that they would not be challenged and hopefully would collect dust for the next 50 years, that would be fine.

With regard to this particular bill, I am of the view that it is so flawed that it is bound to attract litigation, and it will potentially result in some negative court decisions.

Senator Kenny: If I understand you correctly, you agree that putting rules in place in advance in a calm and orderly way is desirable, but you just do not like the way the government is going about it in this particular case?

Mr. Blair: As a principle, yes. Having said that, I also say in my submission that I think the current Supreme Court decision serves the country well. It serves both sides well. I am not sure there is a need to enact further rules. That is my personal view. Others may think differently.

Senator Kenny: My main concern was the fact that I see a situation where, if we do not have some rules, we are left with a mob who will make up rules as they go along. I see that as a potentially disastrous scenario for the country. It is not orderly, not peaceable and not the way we are used to living.

Mr. Blair: I do not think anyone knows what it is going to be like the morning we wake up and a majority has voted in favour of secession of a province. I think the whole ground shifts then, and I am not sure we can make up enough rules for that situation.

Senator Kenny: It is better to drive blind and take your chances.

Mr. Blair: I am a common lawyer. I do not think we can predict with any accuracy what the future holds. The laws that we make today may serve us well in the future, but they may hamstring us. I do not know.

Senator Kenny: You quoted Dean Hogg in your statement. He is appearing before us tonight. My understanding is that he testified before the House of Commons on February 22 that the clarity bill is consistent with Canadian constitutional law and in particular with the ruling of the Supreme Court of Canada in the reference. Do you have difficulty with that?

Mr. Blair: Yes. I do not know --

Senator Kenny: With the fact that he said it, or that --

Mr. Blair: No, I will accept that he said it, but I just do not see him having looked at these separation of powers issues which I regard as the main faults of this bill. Until he takes a serious look at those issues, as I have done, and renders a decision, I would have to say that I do not accept his view.

Senator Kenny: When he comes before us tonight, what points would you like us to put to him to have him clarify?

Mr. Blair: You could give him my paper, ask him to read it and then ask him what he thinks.

Senator Grafstein: Bad question, Senator Kenny. Try again.

Senator Bolduc: In the bill, a paragraph in the preamble reads as follows:

Whereas the Supreme Court of Canada has determined that the result of a referendum on the secession of a province from Canada must be free of ambiguity both in terms of the question asked and in terms of the support it achieves if that result is to be taken as an expression of the democratic will that would give rise to an obligation to enter into negotiation that might lead to secession;

I know that Senator Murray has asked a question about that. I would like to ask you as a lawyer to qualify that obligation to enter into negotiation. Do you think it is the normal role of the Supreme Court to say that, or is it wise, or is it appropriate, or is it a bit of judicial activism? What do you think?

Mr. Blair: I think it is some judicial activism. The situation I can liken it to is perhaps a collective bargaining situation where the union has achieved the minimum level required for certification and it shows up on management's door step and says, "We now want to negotiate towards a first collective agreement." It is, I think, a big step to go from the collective bargaining model to --

Senator Bolduc: As a matter of fact, it is exactly that. It has been like that in Quebec City for 25 years. I have been involved in it, and I know.

Mr. Blair: That is the only situation from which I can draw any conclusion.

Senator Bolduc: In other words, do a good referendum, and you will have negotiations. Is that what it says?

Mr. Blair: It does not say that negotiations will succeed.

Senator Taylor: I gather you do not like this bill very much. If there is so much doubt, why would the Senate, out of an abundance of caution, not follow the procedure that was followed in New Brunswick in the Donald Marshall case in which the province asked for clarification of the earlier decision by the courts. I say that in light of the fact that this bill leaves out the Senate. There is the question of political actors versus elected representatives, as well as infringing on provincial rights, as you just mentioned. Do you think the Senate would be wise to refer this back to the Supreme Court for clarification as was done in the Donald Marshall case?

Mr. Blair: If we knew what the result would be, then you could decide whether or not it would be a good idea to make the reference back. My fear in a situation like that is that something would come out of the decision that would ignite passions on one side or the other. I would be afraid of what might be said and what effect it might have.

The other point is that if it goes back to the Supreme Court of Canada, then it adds to the body of secession law.

Senator Taylor: We are in the horns of a dilemma of some sort. That leads us to my second question. Not being a lawyer, I do not quite understand. How would this be challenged? You say it could be challenged in the Supreme Court. Can a layperson make a challenge immediately after Bill C-20 receives Royal Assent? I do not know my law well enough. Do we wait until a referendum has taken place? How can the legality of the bill be challenged?

Mr. Blair: Most provinces have reference statutes that allow them to refer legal cases to their courts of appeal for legal opinion. A province could challenge the bill by referring it to its Court of Appeal, perhaps. Alternatively, it could sue the federal government and ask for a declaration that the bill be declared invalid.

If a provincial government were to sue the federal government, I think the court case would begin at the trial level. It would be heard by a single judge. If it is possible for a province to do it by way of reference, then it would go immediately to the Court of Appeal, skipping the trial phase.

Senator Taylor: Could, say, Alberta start a suit because the Senate has been left out, which means that its regional check and balance has been damaged?

Mr. Blair: Yes. There are rules regarding what we call "standing." Presently, I am not up on the rules of standing, that is, about who exactly can challenge a federal statute. Whether someone walking in off the street could mount a case saying that his rights are somehow impinged, I cannot say for sure. It is possible.

Senator Cools: I would like to thank the witness for coming before us. I would also like to share with honourable senators that the witness's father, who is very proudly sitting in the gallery, was a former member of the House of Commons. He was also a superior court judge.

You have raised a couple of questions, the most critical of which was the one Senator Kroft was honing in on. It is a bit unfortunate that he did not pursue his line of thinking.

You said in jest -- which I took very seriously -- that you would not disagree with the Supreme Court of Canada's opinion and then go before the court to argue. I took that as a very serious statement. Many lawyers have indicated that to me before. Even on this particular bill, they simply will not come before the Senate committee to adopt a position because they say that they have to go to court and argue before the very self-same judges and it is not in their interest to do it.

I had wanted to make that point, which I was trying to make before the chairman cut me off. I think that is a very important issue and something that Senator Kinsella has raised with our Rules Committee.

There is another related question that flows from that but not necessarily caused by it. It is often said that the clients of constitutional lawyers are usually governments and that constitutional lawyers are usually, in one form or the other, in the pay of governments and that quite often their opinions reflect that. I think that is a point, perhaps, we should make and hold on to. As we have sat here, looking at some of these issues, whether it was the Meech Lake Accord or the Charlotteown Agreement, that particular point was raised again and again. What we seem to be discovering is that constitutional lawyers are taking the government where the government wants to go. As you said, this body of law has grown up quite suddenly, quite mysteriously, quite rapidly, without any foundations in law -- with absolutely no foundations in law. As a matter of fact, since you cited the case of Dred Scott can I perhaps say this body of law has grown like Topsy, assuming that we know who Topsy was.

Having said all of that, I would like to take up the very important question that you have posed, which was the difference of opinion between the House of Commons and the Legislative Assembly of Quebec. They like to call themselves the National Assembly, but I still prefer the proper constitutional term which is the Legislative Assembly of Quebec. There would be a difference of opinion on the nature of clarity. I think it is a very important point that you have raised. Not many witnesses have raised it before. However, I have been eagerly awaiting and anticipating that some witness would raise it.

In the instance of a disagreement between the opinion of the House of Commons and the National Assembly, which, to my mind, is entirely possible, the question would then become: How would the opinion of the House of Commons be enforced? In addition to the enforcement of that opinion, the real question which arises is: How will the House of Commons express its displeasure toward the National Assembly or the Legislative Assembly of Quebec?

For example, such a motion, the resolution on clarity, could be moved by a minister of the Crown. What would the minister of the Crown and the House of Commons do? Would the minister of the Crown or the House of Commons, by motion, ask the Speaker to issue a warrant to arrest Mr. Bouchard? How will the difference of opinion be made clear and stood by beyond the question of the authority given to the government to negotiate secession? These are the kinds of issues that people shy away from because they are two areas of law which are absolutely neglected, yet the government relies on them again and again. One of those areas is the law of the prerogative and the other area is the law of Parliament. They are probably the most neglected areas of law in respect of study.

Could you just back up a moment and go back to your question and tell me how the difference of opinion with the House of Commons, and its displeasure, will be expressed?

Mr. Blair: If I understand the government's position, the House of Commons will pass judgment on the referendum question, and then a minister in the government will put forward a resolution saying, "We approve of the question," or, "We disapprove of the question," and a vote will be taken and the resolution will be passed. What happens after that, I am not quite sure.

Senator Cools: That is on the question of whether or not, if the resolution passes, the government is safe.

Mr. Blair: Right.

Senator Cools: If the resolution of the government fails, you could have a government facing a resignation. No one has talked about this. I put a scenario to Minister Dion the other day: If such a motion by the government would fail, and then if the Senate quickly moved a motion to remove that minister whose motion in the House of Commons failed, the result would be a defeated government, make no mistake about that, and we would be into an election.

However, in respect to my peculiar question, I am speaking about the attitude of the House of Commons, which, by a resolution, would have condemned the Premier of Quebec. What will be the course of action for the House of Commons in respect of that premier?

Mr. Blair: I do not think the bill goes beyond passing a resolution disapproving of the question. My understanding of the government's position has always been that, despite the fact that the question has not been approved by the House of Commons, the province is free to go ahead with its referendum using that question.

It will be interesting to see what position the federal government will take as the referendum campaign picks up steam. Will they just sit on the sidelines and do nothing, or will they actively participate in the process even if they say, at the end of the day: "A "yes" vote in favour of this question will not bring you to the negotiating table"? I cannot say what will happen.

Senator Cools: It is these kinds of questions, and the inability to answer them, that speaks directly to the fact that it is a fundamentally political issue.

My next question has to do with the authority on which Bill C-20 was founded. You were very strong in your opening remarks. You said that this bill is pressed as clarity but its underlying idea is secession.

Mr. Blair: Yes.

Senator Cools: I agree with you. There is nothing about this bill whatsoever that brings clarity. This bill is attempting to create lawful authority for secession. I have been attempting to find out what constitutional authority, what legal authority, the government is relying on to bring Bill C-20 before us, because I can find no lawful authority. It is very interesting. In the Supreme Court of Canada's advisory opinion, they said, "Abandon the law." They said that the law is misleading, so you cannot rely on the law. This is staggering and extraordinary. A court has said that you cannot rely on law to make a determination.

Senator Kroft: Can you give us a paragraph reference?

Senator Cools: Certainly. I can read it for you, if you want.

The Chairman: While you are searching for it, perhaps Mr. Blair can answer your question.

Senator Cools: I have asked this question of the minister and he has not been able to answer it. Under which enumerated head of the BNA Act is there a power to bring Bill C-20 before the Parliament of Canada?

Mr. Blair: I dealt with that issue in my paper at page 17. To be clear, first of all, there is no enumerated power in section 91. Again, we are talking about banking, trade and commerce, buoys and lighthouses. Clarity or secession does not fit into any of those enumerated categories.

The question then turns to whether or not, since secession is not something that is dealt with expressly in the Constitution, can we look to the peace, order and good government section as justification for Parliament to legislate in this area. As I said in my presentation today, that question has not been answered by a court.

Certainly, if you read the Supreme Court decision, it seems to perhaps almost invite some involvement by the different levels of government in the process, but it does not state clearly that the legislative authority to pass something like the clarity bill comes from the peace, order and good government section. That would be the argument people would make at the next court hearing when this bill is considered. It is still a threshold issue. It has not been formally determined.

Senator Cools: Absolutely, and I think that is part of the intention of this.

Senator Grafstein: I want to add my congratulations to a citizen coming forward and presenting this document. It is very wide and sweeping and direct. Obviously, your gene pool was very deep when it came to the preparation of this particular piece of paper, because I have known your father from the first days that I entered the political process. I see he is here so I want to commend your work to him as well.

Having said that, I want to now analyze this paper with you, if I can. I want to start with a very nice little phrase in the Supreme Court of Canada reference.

This is paragraph 26, which states, in part:

...the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government.

Therefore, an appointed court, the highest court in the land, is saying that its primary concern is to retain its proper role within the constitutional framework of our democratic form of government. You will know, Mr. Blair, that one of my concerns is to retain in this piece of legislation the rule of law and constitutionality, so I am interested in the Senate of Canada's concern to retain its proper role within the constitutional framework of our democratic form of government.

You have indicated, and I tend to agree, that there is a serious problem with the bill. You have mentioned a number of serious problems but one of the serious problems is what would seem to be an evasion of the earlier court reference of 1979-80, that, in effect, said that the federal government cannot directly or indirectly evade the proper role of the Senate as a co-legislative body.

Mr. Blair: Or cannot amend.

Senator Grafstein: Or cannot amend unilaterally. You seem to suggest that this might be a set of circumstances that would give rise to that concern.

Getting to the heart of the legislation, as one great constitutional mind said to me the other day: "Let's do the smell test." You have said that the smell test of this product leads you to conclude that this is really a judicial issue and, therefore, should be relegated to the courts. The court itself has said that this is a lawmaking issue when it dealt with the question in the reference. It said it was a question of law.

Is it, in your view, a law of the normal course in the legislature, as it appears to be at first instance, or is it, in its nature, an amendment to the Constitution? In effect, if we disagree with your contention that it is a separation of powers issue but think it may be a legislative or amendment issue, would you then agree that the bill is still flawed; in other words, that by leaving out the Senate we have not considered the proper role of the Senate within the constitutional framework of our democratic form of government? What would be your conclusion on that?

Mr. Blair: I am sorry, your question was so long I could not possibly follow it.

Senator Grafstein: By leaving out the Senate, is this bill flawed?

Mr. Blair: Yes. However, I will qualify that. Again, because the issue concerns possible secession of a province from Canada, I think the senators, particularly from that province but from elsewhere as well, should have a role to play, as I read the Senate reference case.

Senator Grafstein: I believe that you are the first witness who has brought forward the reference of 1979-80 that clearly set out what the powers of the Senate were in the modern era, and I appreciate you doing so.

Mr. Blair: Yes, and I do not think the amending formulas added in 1982 changed what the Supreme Court said in 1979.

Senator Grafstein: You anticipated my question and I appreciate the answer.

With regard to your general comments, you stated:

There has been an active discussion in the Senate on whether this nation is divisible. In my opinion, it is divisible for two reasons. First, the Supreme Court said it is divisible in the secession reference case.

Is that really the case? Let me suggest to you why one could quarrel with that. The reference, which has been utilized for many different reasons, was an advisory opinion based on three questions. It said nothing about the constitutional or legal ability of the government to deal with secession. All it said -- both in the negative -- is that under domestic law a unilateral declaration of secession is illegal, and under international law a unilateral declaration of secession is illegal. They did not answer the third question because it was subsumed by the first and second. That is all it said.

Therefore, why do you conclude that the Supreme Court of Canada said that the nation is divisible, from which I assume you are saying that the nation is divisible under the Constitution?

Mr. Blair: I take a very simple view of this aspect of it. As I read the decision, the court said that if you have a referendum on secession with a clear result, the successful party has a right to insist on negotiations, and those negotiations may lead to a constitutional amendment.

Senator Grafstein: Is it not also open to conclude that the Supreme Court said that there was a political obligation, assuming a clear question and a clear majority, for the institutions of government to try to negotiate?

Mr. Blair: Yes.

Senator Grafstein: That would not lead one to the conclusion that there was a binding constitutional requirement to negotiate secession.

Mr. Blair: I agree with you there.

The Chairman: Mr. Blair, on behalf of the committee I would thank you very much for appearing here this evening. It is not every day that an individual volunteers to come before a committee of the Senate with such an intensely thought through brief. You presented a fresh perspective on several counts, and we are very grateful to you for your time and your trouble.

Mr. Blair: Thank you, senators. It was a pleasure to be here.

The committee adjourned.