Proceedings of the Special Committee on
Bill C-20
Issue 3 - Evidence (evening 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 7:10 p.m. to give consideration to the bill.
Senator Joan Fraser (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this fifth meeting of the Special Senate Committee on Bill C-20 is now in session. I should like to welcome all of you, particularly our television audience, to these hearings. Today, we continue our consideration of Bill C-20.
[Translation]
This bill was adopted by the House of Commons on March 15 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 has approved the bill in principle. Bill C-20 was then referred to this special committee so that we could consider it in-depth.
[English]
That consideration continues today with the appearance of, first, Dean Peter Hogg of the Osgoode Hall Law School and, second, Dr. Guy Lachapelle, Professor of Political Science at Concordia University in Montreal.
We shall begin with Dean Hogg. Dean Hogg, I know it took an extra effort for you to make yourself available for us this evening. We are very grateful. Please give us your presentation and we will launch ourselves into questions and answers after that.
Mr. Peter Hogg, Office of the Dean, Osgoode Hall Law School: It is a great pleasure and privilege to be here. I have distributed a short paper. I apologize that it is only in English. I will use it as the basis for my presentation and then, obviously, I will be available for questions.
On February 28, I appeared as a witness before the House of Commons Legislative Committee on Bill C-20. In that appearance, I argued that the clarity bill was consistent with the ruling of the Supreme Court of Canada in the secession reference. I argued as well that, in my view, it was wise for the Parliament of Canada to lay down these rules in advance of a future sovereignty referendum in Quebec. I will not go over that ground again. I will try to offer my opinion on the issues that have emerged in the testimony before this committee. I have reviewed most of the testimony that has been given and I have picked out the issues that appeared to me to be controversial.
First, let me discuss the constitutional authority for Bill C-20. Does the Parliament of Canada have the constitutional authority to enact Bill C-20? My answer is yes. Under the peace, order and good government power in the opening words of section 91 of the Constitution Act, 1867, Parliament has the power to legislate in relation to all matters not coming within the legislative powers of the provinces. In my view, it is clear that the Parliament of Canada has the power to regulate the action of the executive government of Canada, both in respect of entering into negotiations for secession and in respect of proposing a constitutional amendment, those being the two things that Bill C-20 does.
The divisibility of Canada is my next point. Is it a constitutional objection to Bill C-20 that the bill assumes that Canada is divisible? My answer is no, because the Supreme Court of Canada made clear in the secession reference, the important paragraphs being paragraphs 84 and 85, that the amending procedures of the Constitution extend to all kinds of amendments, including the secession of a province. Even without that clear ruling, it is obvious that all countries, including Canada, are divisible. Even those that, like France, contain an explicit statement that the country is indivisible can be divided because the statement of indivisibility can itself be amended. Even countries that, like the United States, have fought a civil war to preserve the union can still be divided if there is a will to do so through the use of the amending procedures in the constitution.
National referendum is my next topic. Is it a constitutional objection to Bill C-20 that it does not provide for a national referendum as a precondition to negotiations by the Government of Canada for an amendment respecting the secession of a province? My answer is no, because referendums are not a necessary part of the amending procedures in Part V of the Constitution Act, 1982, and, as I said before, the Supreme Court of Canada has made clear that those amending procedures extend to all conceivable changes in the Constitution, including the secession of a province.
In practice, it is very likely indeed that we would have a national referendum, not at the beginning of the process of negotiation but at the end, to ratify the various changes that would be needed to accomplish the secession and to reconstitute the rest of Canada. At that stage, of course, the Senate and the House of Commons and at least seven provincial legislative assemblies would need to ratify the new arrangements. Two provinces, British Columbia and Alberta, as you know, have a statute requiring a referendum before approving a constitutional amendment. Thus, there would have to be referendums in two provinces, and the political pressure to hold referendums elsewhere would be very strong indeed.
There is also, of course, the precedent of the Charlottetown Agreement, which, as everyone will recall, was the subject of a national referendum in 1992. It is very likely that there will be a national referendum in the event of this unfortunate secession occurring, but a referendum is not required as a matter of constitutional law.
My next topic is the advisory opinion of the Supreme Court of Canada. Is it a constitutional objection to Bill C-20 that it proceeds on the assumption that the Supreme Court of Canada delivered a binding ruling in the secession reference? Again, my answer is no. A decision of the Supreme Court of Canada in a reference is not binding in the same way that a decision in a case between parties is binding, because there is no formal judgment that could lead to contempt of court proceedings for disobedience. However, in practice, such decisions are always treated as binding, simply because they are the considered views of the Supreme Court of Canada. We can be absolutely certain that the decision will be followed by all lower courts and by the Supreme Court of Canada itself. Therefore, any violation of the decision is bound to be ruled unconstitutional in later proceedings. Therefore, the decision must be obeyed.
I turn finally to the topic of the exclusion of the Senate. Is it a constitutional objection to Bill C-20 that it remits to the House of Commons the responsibility of determining whether a referendum question is clear and whether a referendum has been passed by a clear majority? My answer is no. It is not a constitutional objection, because the Parliament of Canada has the power to delegate decision-making powers to any body or person that it chooses. Even legislative functions can be delegated, and as everyone in this room knows, more laws are made by regulation than are made by Parliament itself. Normally, the delegation is to the Governor in Council or to a minister or to an administrative body like the National Energy Board, but there is no reason why the decision maker cannot be the House of Commons.
I can understand that senators would be upset that the Senate has been relegated to a subordinate role in these exercises. The House of Commons is, under Bill C-20, directed to take into account any formal statements or resolutions by the Senate, but obviously the Senate does not have the same power that it possesses in the legislative process, where it has a veto or even, in the amending process, where it has a suspensory veto. However, in my view, there is no doubt about the constitutional validity of a provision delegating decision-making authority to the House of Commons alone.
Let me turn briefly to issues of policy. Obviously I cannot speak with any real persuasiveness on issues of policy, but I do think there are some good policy reasons for the provisions in Bill C-20. Remember, first, that if the bill did not exist, it would be the Government of Canada, meaning the federal cabinet, that would decide whether a question was clear and whether a majority was clear. Neither the House of Commons nor the Senate would have any role to play in that situation.
By appointing the House of Commons to those tasks, Bill C-20 at least opens the issue up to representatives from all parts of the country and from all parties. I can understand why the Senate was not added, although I do not know what the actual reasons were. However, I can speculate that it would be awkward to give the decision to two bodies that might reach different conclusions. It is not like legislation to which amendments can be made to secure agreement between the two Houses, or where a bill can simply be defeated if agreement is not reached. Those options are not available on the simple question of whether a referendum question is clear or whether a referendum majority is clear. If only one body is to be chosen, surely the choice should fall on the body that is directly elected and that determines the composition of the government that will have the responsibility of conducting the constitutional negotiations.
The role of the Senate in representing regions of Canada or linguistic minorities is not, I suggest, very important in dealing with a question as specific as whether a referendum question is clear or whether a referendum majority is clear. Those are very specific issues. When negotiations for secession and the reconstitution of the country have been concluded, assuming all these things were to happen, at that point the Senate would play its normal role in the amending process. At least seven of the provincial legislative assemblies would also have to approve the outcome. As I noted above, there is likely to be a national referendum. I think it is hard to argue, although I certainly respect the contrary point of view, that that process could ignore the interests of particular regions or minorities of Canada.
Madam Chairman, that concludes my submissions to the committee.
The Chairman: We shall now move to the question period, which I expect will be very lively.
Senator Lynch-Staunton: What importance do you give to the fact that this bill has been condemned by all three parties in the National Assembly of Quebec, including the Quebec Liberal Party, no later than yesterday? As reported in the press today, Mr. Charest has said that it is a black hole and that it is trespassing on the prerogatives of the National Assembly of Quebec. What importance should we as members of the national Parliament and also as partners with the provincial legislatures give to the fact that the government party and the two opposition parties in Quebec have condemned Bill C-20 as being not helpful for Quebec in determining its future, whether within or without Canada?
Mr. Hogg: I think that is a most unfortunate and disturbing circumstance. I find it difficult to understand, because it seems to me that it is in the interests of the people of Quebec to vote on a clear question. It is in the interests of the people of Quebec, I would have thought, not to be moved out of Canada without voting on a clear question with a clear majority. Those are the two things that this bill tries to accomplish. Thus, I do not see it as inimical to the interests of the Quebec people. I can understand why the Parti Québécois would be opposed to it. I suspect they like to ask a confusing question. However, I do not understand why the Liberal Party of Quebec would be opposed to it.
Senator Lynch-Staunton: Does their opinion not impress you to the point that you might think we should have second thoughts at least and look into Quebec's reaction and, perhaps, modify this bill to accommodate a jurisdiction that they feel is quite important and even sacrosanct?
Mr. Hogg: If the objection to the bill was to eliminate the requirement for a clear question, then I think that would be a most unfortunate change in the bill.
Senator Lynch-Staunton: I will restrain myself because, first, I do not think the bill helps. It does not define clarity; it just asks for clarity. Second, I gather from what you have said that we do not really need this bill and that the government could at any time say, "We do not like your question." Why have this bill? Why go through the turmoil of antagonizing Quebec and, in effect, trying to install a system, an act or a bill that is unnecessary, for the government can do what the bill pretends to do anyway? What is the point of this bill? If passed into law, what will it do more than what the government could do anyway?
Mr. Hogg: In my mind, the justification for the bill arises from the previous referendum in Quebec. I regarded the question that was asked in 1997 as being quite unclear because it contained a reference to a political and economic partnership with Canada that was very unlikely ever to be accomplished. If that referendum had carried by a vote of 50 per cent plus one, there is no doubt that the Government of Quebec would have regarded that as a sufficient ground for secession.
My feeling is that the bill would obviate that situation in the future by requiring the Government of Quebec -- if it wished to obtain secession -- to put a more forthright question in which the secession of the province was not masked by references to political and economic association. They also said, for example, that Quebecers could keep their own citizenship, that the borders would not be changed and that the Canadian currency would still be used. In my mind those were very misleading statements for the Government of Quebec to make because they would likely not be the outcome if secession actually took place. I see this bill as making it less likely that we would be placed in that very awkward situation that we came so close to at the last referendum.
Senator Lynch-Staunton: I will not go beyond that except to remind you that in the last two referendums both prime ministers Trudeau and Chrétien said they would not negotiate based on the answers to the two questions.
Let me get to my second question. I am disturbed, as are others, that too often recently Parliament has been asked to pass bills that are seriously constitutionally challenged. I think of the Pearson bill and the redistribution bill, which never got far enough to be challenged. However, a tobacco bill has been successfully challenged and another is in the course of being challenged. The Canada Pension Plan bill is being challenged, as are the Nisga'a treaty bill and the firearms registration. We have reason to believe that, if this bill is passed, it will be challenged.
I am extraordinarily uncomfortable being asked even to examine a bill that others, more competent than I, are suggesting may be unconstitutional. If those incidents are to be repeated, would you be in favour of Canada having a constitutional court where, before Parliament goes any further, the bill can be referred for confirmation of the constitutionality or lack thereof in order that when we proceed to examine it we know that we are on solid ground? We know now, based on the testimony of competent experts in the field, that we are not on solid ground
Mr. Hogg: Senator, every public policy issue in Canada for the last 30 years has become a constitutional issue. Opposition to any important policy nearly always takes the form of a constitutional challenge. The constitutional challenge often has very little merit, but that is always one of the vehicles of opposition.
I believe there is no doubt about the constitutionality of this bill, and I do not think any purpose would be served by a prior reference to the court. Perhaps a prior reference to the court would do no harm, other than delaying legislation, but the mere fact that legislation has been challenged does not mean that the challenge is well founded.
Senator Lynch-Staunton: Do you believe that it was all right for Parliament to pass the Nisga'a treaty, knowing fully that three court cases would ensue the day after Royal Assent was given?
Mr. Hogg: Absolutely, and I believe that bill to be clearly constitutional.
Senator Lynch-Staunton: I am not asking for your opinion on the constitutionality of the legislation. I am asking whether you think it is proper for Parliament to pass legislation in the full knowledge that it will be challenged the next day. Whether the challenge is successful or not is irrelevant.
Mr. Hogg: I do not think it is irrelevant. If the constitutional objection to legislation is not substantial, I think legislation should not be delayed and thwarted by the presence of a constitutional challenge. The Nisga'a proceedings may go on for 10 years.
Senator Lynch-Staunton: If a constitutional court or other independent body ruled on constitutionality before Parliament assessed the bill, we could save 10 years of litigation.
Mr. Hogg: Perhaps you would have the 10 years before the passage of the bill.
Senator Lynch-Staunton: We will discuss that another time. Thank you.
Senator Chalifoux: Professor Hogg, I am very pleased that you have given us this excellent presentation. I have three questions. First, I am interested in how treaties with First Nations would be affected by any type of secession. Second, with that in mind, do you believe that the First Nations should have a seat at the negotiating tables? Third, does the Constitution already guarantee that?
Mr. Hogg: I believe that the treaties with the First Nations would be violated by a secession because the treaties include some obligations of the Government of Canada that it would no longer be in a position to fulfil after a secession. Therefore, I believe that if the secession were to include the First Nations that have signed treaties, they would have to agree, and that means, of course, that they would have to be at the negotiating table.
I am not as clear about whether section 35.1 would require them to be at the table, because it is not explicitly an amendment to class 24 of section 91 or section 25, but I think that the Government of Canada's fiduciary duty to the aboriginal people would require it to have certainly the First Nations who had signed treaties at the table.
Senator Beaudoin: Dean Hogg, I read with great interest your two and a half pages summarizing a very important question.
I have only two questions. The first one is on the applicable formula of amendment in case there are some negotiations between Ottawa, the rest of Canada, and Quebec. You say in your memorandum that the Senate and the House of Commons and at least seven provincial legislative assemblies would need to ratify the new arrangement. I am personally inclined to agree with that formula of amendment. That is exactly what you say in your book, at page 135. You said that probably secession could be accomplished under the general amending formula. One or two other constitutional experts who appeared before us stated that the applicable formula of amending is 7-50. That is controversial, of course, but what is your main basis for coming to that conclusion?
Mr. Hogg: My conclusion that it is the 7-50 formula is based on the proposition that the secession of a province is not one of the matters explicitly mentioned in any of the other amending formulae. In that opinion I am in a small minority. I am pleased, Senator Beaudoin, to know that you are also in the same minority. I am aware that those constitutional lawyers have concluded that, because there would be some impact on matters listed in section 41, the unanimity part of procedure, the unanimity procedure would need to be followed. I do not find that argument compelling because, as you know, we normally judge these matters by the pith and substance of the amendment, and it seems to me that the pith and substance of the amendment is not dealing with the office of lieutenant governor or the Supreme Court of Canada.
Senator Beaudoin: My second question is about the exclusion of the Senate. I understand your words in that paragraph but, rightly or wrongly, I think that Bill C-20 is not intended to be a constitutional amendment. It is intended to be an ordinary statute, although very important.
If it is a constitutional amendment under section 44, I may understand, and of course the Senate has an absolute veto in that case -- not only suspensive but absolute. It does not, I understand, fall under section 42, the 7-50 formula. You do not say that and I take it for granted that that paragraph does not apply. We are left with the other possibility, then: it is an ordinary statute of great importance. But do you not think that, if we rely on legislation alone, the two Houses are equal and should be treated equally? That is the only point that worries me here.
There is no problem with section 44, et cetera. However, if it is purely a statute where the two Houses are equal -- and this is what bicameralism is about in our federation -- does that mean that they should not be treated equally and there is no question of giving power to one house only? I should like to hear you a little bit more on this.
Mr. Hogg: I agree with you that the best way to treat this is to regard it as a piece of ordinary legislation, although, admittedly, very important ordinary legislation. It seems to me it does not directly change anything that is in the Constitution, so I start from the same premise as you, Senator Beaudoin.
Obviously, the statute must be passed by the Senate as well as by the House of Commons and must receive the Royal Assent, but if the Senate in its wisdom does choose to approve a statute that grants decision-making power to the House of Commons alone, then I do not see that any constitutional offence has been committed. The Senate would have agreed to the proposition that this particular issue -- the clarity of the question and the clarity of the majority -- could be determined by the House of Commons alone. In my mind, that situation is no different than remitting the issue to the National Energy Board or the Minister of the Environment or whatever.
Senator Beaudoin: They are asking a lot from the Senate. It is very generous on our part to vote for our own exclusion. Once we have voted to do that, we have lost any other power. We will not vote any more on this.
Mr. Hogg: The only power you have lost is the power to participate in the question of whether the referendum question is a clear one and whether the referendum majority is a clear one. That is the only issue.
If this bill did not exist, the Senate would not be consulted on those issues, nor would the House of Commons.
Senator Beaudoin: That is true. If the House of Commons and the Senate are not involved and only the executive is involved, it is logical. If it remains in the legislative field, of course, we are creating some kind of inequality, are we not?
Mr. Hogg: Yes, we are creating an inequality by remitting the issue solely to the House of Commons.
Senator Beaudoin: That is very gentle on our part.
Senator Furey: Thank you, professor. I am going to ask you to comment on some concerns that Senator Beaudoin raised in the Senate. I might preface it by saying that I do not always agree with Senator Beaudoin, but I always respect his opinion.
Senator Beaudoin indicated that by giving legislative power to only one House -- he just stated this again -- our Parliament is going against the legislative equality of the two federal Houses. He went on to say that when the House of Commons adopts a resolution, it is a legislative measure because the power to adopt that resolution comes from a legislative act. He comes directly from Bill C-20, and it is the very exercise of that legislative power. He relies on the Sinclair case from the early 1990s, in which the Supreme Court of Canada ruled that an order in council, which, as we know, is from the executive branch, is part of the legislative process.
If an order in council is part of the legislative process, that is all the more reason, Senator Beaudoin, that we cannot break down the legislative process and exclude the Senate on the pretence that the resolution is not a legislative act. I should like you to comment on that, please, Dean Hogg.
Mr. Hogg: Senator, as you know, nearly every statute confers decision-making authority on some body other than the Parliament of Canada. There is nearly always a power to make regulations conferred on the Governor in Council. There is often decision-making authority conferred on a minister. Sometimes there are decision-making authorities conferred on administrative tribunals.
It is perfectly clear, as a matter of constitutional law, that those delegations are valid and they are valid even if you characterize them as legislative powers. Many of the laws that are passed by regulation are extremely important, as you know. Therefore, the sole question is, can the House of Commons be the recipient of delegated power?
We know the Governor in Council can be, and ministers can be. We know administrative tribunals can be. Can the House of Commons be made the recipient of delegated power? I can see no reason why the House of Commons could not be. That is my answer.
Senator Kinsella: Dean Hogg, I have three brief comments in three different areas.
Building on the last conversation about the model that this bill provides for the Senate's involvement or non-involvement in the process, is it not true that one of the aspects of a bicameral system is to have two looks at a piece of legislation? In other words, are two examinations not better than one examination? There are a variety of models that could have been used to avoid the problem that you have indicated of not wanting to have two different resolutions in the two Houses. For example, we often use joint committees of the House of Commons and the Senate. We scrutinize regulations in a joint committee. Perhaps you can comment on that.
Second, regarding the point raised on the amending formula, how are we going to find out what the appropriate amending formula is if we are at that stage of a constitutional amendment at the end of the negotiation process? How is that going to work? If the bill is designed to bring clarity to the process, would it not be better to bring some clarity to this matter? The government should tell us what their policy is on this matter, right in the legislation, so that we know, in the interests of clarity. In other words, amend subsection 3(1).
Finally, the Supreme Court was asked to answer those questions. Part of the pith and substance of one of the areas of examination is the whole question of the content of the right of self-determination. For those of us who have a preferential option for the principle of the indivisibility of Canada, thereby wanting to ensure by all possible means that the country is not divisible, not wishing to argue that course, we are therefore challenged to find meaning in the right of the peoples to self-determination within Canada. Would you also comment on what the right to self-determination means?
Mr. Hogg: Perhaps I could start with the last question. The Supreme Court of Canada made clear that the right of self-determination is not really relevant as part of the Canadian debate about secession as it is a right that is possessed by a colonial people or by a people who have been oppressed. Those conditions not applying in Canada, the right of self-determination really does not figure in the debate about whether or not Quebec could secede.
On the question of which amending formula is the correct one, I, like you, think it would have been a good idea to ask the Supreme Court of Canada in the secession reference to tell us which amending formula was the appropriate one. The judgment was made by the Government of Canada not to do that. I believe one of the reasons they decided not to do it was that the constitutional amendment that might follow negotiations for secession could also deal with the reconstitution of the rest of Canada. It might, therefore, involve the reconstitution of the Supreme Court of Canada, for example. That is in the unanimity list. Perhaps the thought was that it would be a little difficult to determine how to ask a clear question in advance as to which amending procedure is the appropriate one. However, I do think that, if the amendment dealt solely with the secession of a province and did not try to reconstitute the rest of Canada, then probably the 7-50 formula would be the correct one. Perhaps that question could have been asked of the court, but it was not.
With regard to your first question about reconciling differences between the two Houses in a bicameral system, it occurs to me that one of the things that happens in a joint committee is that compromises are reached in which changes are to be made to the bill. It seems to me that that would be a difficult thing to do if the Senate were saying the question was clear and the House of Commons were saying that it was unclear. It is not very easy to have a committee work out some compromise between those two points of view. I am sure you are right, senator, that there would be a way to handle it. I know people are reasonable and there is always a solution, but it is awkward.
[Translation]
Senator Gauthier: If I have understood correctly, you said that the only power we were losing was the power to participate in the process to evaluate the question. To my mind, that is a rather important power.
The House of Commons amended Bill C-20 to include Aboriginals. I agree with Aboriginals giving their opinion on the clarity of the question, but I wonder why this right was not extended to official language minorities.
If Bill C-20 is implemented and Quebec decides to leave, I foresee there being a backlash on the part of anglophones in Canada. Moreover, it will have the same effect on anglophones in Quebec, if the only solution to the problem were for Quebec to separate.
In this consultation process, why was the bill amended to include Aboriginals but not official language minorities? I am not talking about future negotiations, I am talking about the consultation process.
You said that as far as Bill C-20 is concerned, the role of the Senate was not that important. Perhaps you are right. Being from Ontario, I can tell you that the francophone minority outside Quebec has been neglected, even ignored, for several years, and the federal government has had to resort to special measures to guarantee their rights.
Mr. Dion told us that the only reason Aboriginals were included in Bill C-20 is because they are part of the Constitution. Official language minorities are protected under sections 16 to 20 in the Constitution. Is that not enough to include them in the consultation process? What do you think about the clarity of the question or the state of the majority in Quebec?
[English]
Mr. Hogg: Senator, I do not have a categorical answer to your question. All I can say is that the process of negotiating secession and of approving the ultimate arrangements for secession would involve the Senate, the House of Commons, the provinces and probably many other groups as well. It seems to me unlikely that through that process there would be a temptation to ignore the interests of official language minorities. It seems to me the key issue is not determining whether the question is clear; the question is very unlikely to say anything explicit about the details of working out the secession. The important role comes later in making certain that there is a voice for minorities in the process under which the arrangements are negotiated.
Senator Gauthier: Perhaps I was not clear enough. I will say it in English. I am asking you this. You said there should be a voice for minorities in the process under which the arrangements are negotiated. I do not disagree. However, why do we exclude minorities in the process of deciding whether or not the question is clear? That is my question. The negotiations are not there yet, at least I hope not.
Mr. Hogg: I do not know the answer to that, senator.
Senator Pitfield: Professor Hogg, I think the question that was asked by Senator Lynch-Staunton is so important that I will return to your answer to it and ask you another question. The question was whether or not the questions that are being put to the law officers of the Crown are not, by their nature, so sensitive that, perhaps, there should be another means of soliciting an independent opinion than the one that we use traditionally.
This has become a very serious problem in the operation of the Canadian political system. We are talking about the serious situation that the Senate faces in trying to put its defences in order. You are saying that the Senate was giving up its right to be one of the parties that was consulted on these matters. Actually we are talking about one of the major offices of state, and we are talking about the right of that function to do what it is appointed to do. It is not that it is giving up that right willingly. Every conceivable pressure has been put on it to do what is being proposed be done.
I would have thought, whether it is colourability or some other similar provision, that in American federalism, for instance, this would be regarded as a constructive amendment to the constitution and would be expunged for that reason. How can it be dealt with in Canada?
Mr. Hogg: In response to Senator Beaudoin I said that I did not think this was a change in the Constitution, but if we did treat it as a change in the Constitution, section 44 does give Parliament the authority to amend the Constitution in relation to the executive government of Canada or the Senate and the House of Commons. Therefore, the Parliament of Canada, which of course includes the Senate, could, I believe, enact a law that gave some functions to the House of Commons alone. That would occur with the consent of the Senate.
Senator Pitfield: While we are all trying to digest the implications of that, sir, may I ask my second question. We have come to a hard spot with regard to the question of divisibility. Some of us feel quite strongly about divisibility. As you were reading your briefing material, to what extent did you reflect on the question of whether the parties are talking about the same thing with the same name or about something different, one from the other?
We are talking about divisibility. Some of us are talking about a state that exists and cannot be changed right now, although it can be changed in the future. Everything can be changed ultimately. However, for the moment, the established policy is thus, and if that is to be changed it will be changed by forces that are recognized in the course of negotiation, and so on. That is one form of divisibility. The other form of divisibility is what you suggest. You say that the reality is that you can divide these now.
Is there a third divisibility? Some will say that there is divisibility in the sense that they do not want it ever to change. Parliament can make a man into a woman, can change the name on a passport, and do all sorts of other amazing things, but it cannot change that reality. I do not know if that kind of divisibility exists at all.
Mr. Hogg: Senator, I perhaps have spoken a little too glibly about divisibility, because, if I understand your third sense of divisibility, I certainly am very much opposed to the idea of Canada being divided. I am only making a legal point, which is that it is possible to divide Canada through the use of the amending procedures if all of the various preconditions for those procedures take place, including a referendum in the seceding province.
Senator Taylor: Professor Hogg, I noticed you were a witness before the committee of the other place when they studied this bill. Were you strictly a witness, or were you also retained by the government to help formulate the bill?
Mr. Hogg: I was strictly a witness. I did have a couple of telephone conversations with civil servants who were associated with designing the bill, but I was not retained to help prepare it.
Senator Taylor: Your view is pretty well ad idem with that of the government, so I thought perhaps there was some pride of authorship.
Mr. Hogg: No, there is no pride of authorship, but I do believe the bill is a wise one.
Senator Taylor: You refer to the Parliament of Canada a few times in your brief and say that Parliament is both Houses. When you build anything on a parliamentary majority, it is very similar to building on quicksand, because you never know what will happen in the next election. A new parliament can amend or repeal a bill, et cetera. Harry Belafonte used to sing about a house built on sand. I cannot think of anything more fleeting than building on a House of Commons majority. The Senate adds some permanence, because we do last a while.
In my very first speech on this topic I asked what is the point of a bill that tells the Senate to butt out when that could have been done with a resolution in the House of Commons, because, after all, the executive controls the House nine times out of ten. What is the point of going through the process of a bill that says that the Senate will not be consulted? Was the point to undermine the Senate? Since you are fairly close to this, perhaps you can answer that.
Mr. Hogg: I am not at all close to this, Senator Taylor, and I certainly had not thought about these issues until the last few days.
It seems to me that there is some advantage in naming the House of Commons in the bill, as opposed to simply leaving it to the government to introduce a resolution at the time, in that the House of Commons now has a right to be involved in the decision-making process even if the government of the day should later decide that it would prefer not to allow the opposition parties to become involved in the process. I think something is added by putting it into the bill and I speculate that that was the thought process.
Senator Taylor: My second question flows from that. At the bottom of page 2, you said, "Usually, the delegation is to the Governor in Council or to a Minister or to an administrative body like the National Energy Board." This act has stated that only the House of Commons will make the decision. By so doing, can this act become sort of the equivalent to the National Energy Board, where Ontario and Quebec have 59 per cent of the House, going up to, perhaps, 65 per cent? Can that be used as a precedent to other bills that have nothing to do with separation but might include energy or something else? Can this be used as a precedent by saying, "You, the Senate, acquiesced to that so we now have the right to go ahead on this one?"
Mr. Hogg: It could be a precedent for other bills, but the subject matter of this bill is so unusual that I would have thought that other bills, for example bills dealing with energy, would seem so different that it would not be a reliable precedent.
Senator Taylor: You have more faith in the parliamentary process than I have.
[Translation]
Senator Prud'homme: In your presentation, in the last paragraph on page 3, you say in English:
[English]
The role of the Senate in representing regions of Canada or linguistic minorities is not very important in dealing with such specific questions as whether the question is clear or whether the majority is clear.
[Translation]
The future of a country must be very important, like the divisibility of a country or its continuity, as well as representation of the regions and linguistic minorities. I would like to ask you this: How do you see the Senate?
I am asking you this independently of current public opinion, over which we are not defending ourselves, as we do not have to defend ourselves. We do not have to defend the Senate because it exists. I am sure that we all know that there will be changes in the Senate.
Besides, there are more senators here tonight, and at all the meetings, than is the case in the House of Commons. We do not have any lessons to teach, but we do not have any lessons to learn either. When the people decide to get rid of the Senate, to elect the Senate, to make it equal or otherwise, we will hold a debate and we will see what the people will decide, once they are fully informed.
For the time being, I am not here to defend the Senate, but I am asking you how you perceive the Senate. What are the 21 senators present doing here on a Monday evening? What is the role of senators? I always thought it was to defend minorities and regions.
[English]
I will not hang up. When I talk about minorities, I am tired of thinking only of French and English. There are all kinds of minorities that are supposed to be protected.
[Translation]
Why would the government suddenly proceed in a way you described and why would the government say all of a sudden that it will consult Parliament? This afternoon, one witness seemed to be flipping back and forth between the terms "Parliament" and "government." In my view, the two are not the same. Of course, they are not for you either. The government is the government, and Parliament is made up of the senators, the members of Parliament and the Queen, who signs through the Governor General.
How do you see the Senate and its role? Why are you minimizing the Senate in the last paragraph on page 3 of your brilliant paper, when you say that it is not very important? Mind you, I'm not shocked by this, I'm just asking the question.
[English]
Mr. Hogg: I believe you are placing too much weight on the decision of the question of whether a referendum question is clear. Let us suppose that Quebec asks this question: Should Quebec become a separate country? That, in my view, would be a clear question. It says nothing about the position of minorities. The protection of the position of minorities comes not from the assessment of whether or not the question is clear, but from the negotiations that will follow in reconstructing Canada and in arranging for the separation of Quebec. In that process, the Senate will play a role, as will the provinces and minorities, through their various organizations. That is why I say that the question of whether the question is clear is a relatively unimportant issue from the standpoint of all of the various details that will later need to be settled.
Senator Cools: Professor Hogg, I have a few questions. I am aware that the hour is passing and that other members want to get on, so I will be very succinct. My questions are twofold. My question relates to a passage in your own book, in a section on secession. I will come to that.
I have been listening to you carefully. I, like many, know your work quite well. You keep coming back to the essential question that the government of Quebec may be misleading or may obfuscate or may be less than honest or may involve something. My question is this: If, in this country, the federal government and the Parliament of Canada really believe that we have a government and a premier and a province that are less than forthright and honest with their population and who may be deceptive and dishonest, is there not a better way that we can speak to that problem directly rather than going through this tortuous route of dividing caucuses, and so on? If the question is, very narrowly, the potential deceptiveness or the potential dishonesty of a premier, should we not deal with that issue?
Mr. Hogg: That is a very good question. I think there is advantage in laying down some rules in advance that do not have to await the circumstance, which might be very difficult to deal with. If this bill is enacted, and if a later Quebec government were to ask a question that, in the judgment of the House of Commons, was deceptive or confusing, this bill provides a mechanism to deal with that. You are quite right. There would be ways to deal with it without this bill, but having the rules stated in advance in the way that this bill does carries some advantage.
Senator Cools: My concern is that one could still pass a bill that spoke to the issue of clarity without going the additional distance to give the government a power to negotiate secession. That is my first point, Mr. Hogg. You continue to say that the Quebec government may be capable of being less than, in our language, honourable. I leave that with you.
My second question to you is from your book, Constitutional Law of Canada, the fourth edition. Let me place your written words on the record and you may wish to respond. Under the section titled "Secession by amendment," you say the following:
The attitude of a federal government -- any federal government -- to a secession movement may be confidently predicted to be more or less hostile. The government may be expected to take the view that it did not assume office to preside over the dissolution of the federation.
Then you leave that and you travel on for a few words talking about the situation in Western Australia and the United States of America. Then you pick up the thought again. Your thought is following on the fact that in Western Australia, the majority of the people supported secession. Then you continue:
...yet this fact was not regarded as sufficient to justify federal cooperation or even acquiescence. Thus, even if a referendum showed that a majority of the people in a province wanted to secede, the referendum would have no constitutional significance of itself, and there is no basis in history or politics to suppose that the referendum would settle the policy of the federal government (or the other provincial governments).
My question, Mr. Hogg, knowing your thinking, is this: If you say, as a pre-eminent authority in this land, that there is no basis in history or politics, how was it that the Supreme Court of Canada was able to find a basis?
Mr. Hogg: Senator Cools, the Supreme Court of Canada, I regret to say, often disagrees with me. When they disagree with me, their view prevails.
Senator Grafstein: I agree with you, Mr. Hogg, this is an usual piece of legislation. It is extraordinary, in a way, is it not?
Mr. Hogg: Yes.
Senator Grafstein: It is not an ordinary piece of legislation.
Mr. Hogg: Let me wait and see where you are leading, senator.
Senator Grafstein: You said it is unusual.
Mr. Hogg: I agree.
Senator Grafstein: Thus, it is not usual.
Mr. Hogg: True.
Senator Grafstein: You are suggesting to us that the executive, constitutionally, can delegate this unusual responsibility to one House. You say that there is no doubt about the constitutional validity of a provision delegating decision-making authority to the House of Commons alone.
This is more than just delegation: it is a binding opinion. It is not a delegation; it is a binding or a fettering of the executive's prerogative.
Mr. Hogg: Whenever a statute remits a power to a delegated body, it is usually a binding decision that is contemplated. For example, when the Governor in Council make regulations, they are binding regulations. They are binding by virtue of the statutes. I do not think the fact that the House of Commons view would be binding changes my opinion at all.
Senator Grafstein: You do not see this as an abdication of power, you see this as still a delegation of power; is that right?
Mr. Hogg: Yes.
Senator Grafstein: Just to divert for a moment, there has been some debate here about the nature of the advisory opinion of the Supreme Court of Canada. Do you think that that advisory decision, which is the subject matter of this legislation, is binding?
Mr. Hogg: Yes, I do.
Senator Grafstein: In your text, you express more of a doubt about that. You seem to say that it really is not binding but in fact the practice for practical matters is. I refer you to section 8.6(d) of your text. You say:
It follows that the Court's answer is not binding even on the parties to the reference, and is not of the same precedential weight as an opinion in an actual case. This is certainly the black-letter law. But there do not seem to be any recorded instances where a reference opinion was disregarded by the parties, or where it was not followed by a subsequent court on the ground of its advisory character. In practice, reference opinions are treated in the same way as other judicial opinions.
Technically speaking, from a constitutional standpoint, it is not binding. However, from a practical standpoint or from practice, it effectively is binding; do you agree?
Mr. Hogg: Yes, I do.
Senator Grafstein: That is your position?
Mr. Hogg: Yes, it is.
Senator Grafstein: Are you familiar with the advisory opinion of the Supreme Court on the powers of Senate?
Mr. Hogg: I have not looked at it recently, but yes.
Senator Grafstein: Let me refresh your memory. As you know, judgment in that case was delivered in 1979. Let me refer to that decision. I assume that decision is practically binding. The Supreme Court, in a unanimous opinion, ruled on the question of whether the House of Commons could avoid the Senate by a piece of legislation.
In our opinion, the power given to the Federal Parliament by s. 19(1) was not intended to enable it to alter in any way the provisions of ss. 91 and 92 governing the exercise of legislative authority by the Parliament of Canada and the Legislatures of the Provinces.
So far, not a problem. The court goes on to say:
Section 91(1) is a particularization of the general legislative power of the Parliament of Canada.
Still it does not appear to be a problem. Then the court goes on to say:
That general power can be exercised only by the Queen by and with the advice and consent of the Senate and the House of Commons. Section 91(1) cannot be construed to confer power to supplant the whole of the rest of the section. It cannot be construed as permitting the transfer of the legislative powers enumerated in s. 91 to some body or bodies other than those specifically designated in it.
You have told us that the executive has a prerogative and it could delegate its power to whomever it chose, and in this instance it chose the other House. It could have done it to the nine provinces, is that not so?
Mr. Hogg: Not the executive, but the Parliament of Canada could have, including the Senate.
Senator Grafstein: In this bill we could have delegated. You are saying that the executive chose to delegate its power and that it could have recommended to the House in the other place, which it controlled, to delegate the power to the nine provinces. However, it chose one House.
Mr. Hogg: Yes.
Senator Grafstein: The court has this to say in that regard:
This Court, in Attorney General of Nova Scotia v. Attorney General of Canada and Lord Nelson Hotel Company Limited [[1951] S.C.R. 31], determined that neither the Parliament of Canada nor a Provincial Legislature could delegate to the other the legislative powers with which it has been vested nor receive from the other the powers with which the other has been vested.
We cannot delegate powers to another legislature. Then it goes on to say this:
The elimination of the Senate would go much further in that it would involve a transfer by Parliament of all its legislative powers to a new legislative body of which the Senate would not be a member.
Thus, in effect, we have created a new legislative body called the House of Commons without the Queen and without the Senate.
I will read a few more quotes and then you can conclude and tell me what you think. First, dealing with your earlier point:
As previously noted, the system of regional representation in the Senate was one of the essential features of that body when it was created. Without it, the fundamental character of the Senate as part of the Canadian federal scheme would be eliminated.
This is Senator Gauthier's point. Let me conclude with the final paragraph. These are all quotes from that decision.
...it is our opinion that while s. 91(1) would permit some changes to be made by Parliament in respect of the Senate as now constituted, it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process. The character of the Senate was determined by the British Parliament...
It goes on to conclude:
In our opinion, its fundamental character cannot be altered by unilateral action by the Parliament of Canada and s. 91(1) does not give that power.
In other words, the Senate cannot accede to this particular request if it fundamentally alters our powers by a legislative means as opposed to a constitutional amendment. That is what this case says.
Is it fair to say that this is a little more than just being awkward? You said it would be awkward to give the decision to two bodies that might reach different conclusions. This is not a question of awkwardness. This is a question of the Supreme Court advisory saying it is a question of the law of the land. This Senate, even if it chose to, could not give up its powers to that other body called the House of Commons.
Mr. Hogg: It would help me to answer the question if you read to me the question that was put to the Supreme Court of Canada in the Senate reference. If you do not have it precisely I will say what I think it was.
Senator Grafstein: Go ahead and we will see if we can generally agree. We are not here to read long decisions into the record. I will just refer to the case. It is [1980] 1 S.C.R. 54. Let me read the questions. They are very brief.
Is it within the legislative authority of the Parliament of Canada to repeal sections 21 to 36 of the British North America Act, 1867, as amended, and to amend other sections thereof so as to delete any reference to an Upper House or the Senate? If not, in what particular or particulars and to what extent?
Is it within the legislative authority of the Parliament of Canada to enact legislation altering, or providing a replacement for, the Upper House of Parliament, so as to effect any or all of the following...
It talks about the change of the House, changes of representation of members, changes of qualification of members, and so on. It deals with changes in the political arena different from the Senate arena.
Mr. Hogg: It seems to me that the court was being asked whether the Parliament of Canada could, without seeking a constitutional amendment, abolish the Senate or radically alter the Senate. The answer that the court gave was no, you need a constitutional amendment to do that. The power that was then in section 91(1), which has since been repealed, was not sufficient to allow the Parliament of Canada to abolish the Senate or to radically change the Senate, for example, into an elected body. That is a very different point from the point that is before us today.
Senator Grafstein: Is it?
Mr. Hogg: I believe it is, because the Senate is not being abolished, nor is the Senate being reconstituted. All that is happening is that the Senate is not being given a function that is being given to the House of Commons. The Senate's role in legislation is undisturbed. The Senate's role in constitutional amendment is undisturbed.
Senator Grafstein: However, you told us earlier that the power that the executive was using here was either section 44, which was to amend the powers of the Senate or alter them, or peace, order and good government, which, by tradition and practice, has always been by a decision made by both Houses.
Mr. Hogg: It will be made by both Houses. Bill C-20 must be enacted by both Houses.
Senator Grafstein: However, not the product.
Mr. Hogg: No, not the product.
Senator Grafstein: Let me conclude, Dean Hogg, because sometimes I find it difficult to distinguish between political viewpoints and constitutional viewpoints. You do not like the Senate very much, do you?
Senator Joyal: You are not under oath.
Senator Grafstein: We wish to be candid with one another. Sometimes I like professors and sometimes I do not.
Mr. Hogg: I would not say that I do not like the Senate; I would say that I believe it would be desirable for the Senate to be an elected body.
Senator Grafstein: Is that not a fair representation of your viewpoint? Again, we are here to differentiate between political views and substantive constitutional views. That is our problem. That is our constitutional responsibility. I have read your text from cover to cover, but let me read to you this paragraph, on page 241, which troubles me. You are talking about the Senate and in particular the plan to have equal representation of the four regions of the country in the Senate:
With hindsight, it is obvious that this plan was fatally flawed, because the senators were to be appointed rather than elected, and appointed by the federal government rather than by provincial governments. In any event, the Senate has never been an effective voice of regional or provincial interests.
That is my final comment.
Mr. Hogg: Did you want me to respond? I did write that, and I think the Senate would be a more effective body if it were an elected body. I cannot say more than that.
Senator Joyal: Professor Hogg, you mentioned candidly that it happened in the past that there was a difference of interpretation of constitutional rules between yourself and the Supreme Court of Canada. Did it happen that with the Senate reference you hold some views that in fact were set aside by the Supreme Court of Canada?
Mr. Hogg: In the Senate reference?
Senator Joyal: No, we are talking about the Quebec Secession Reference.
Mr. Hogg: I do not understand the question.
Senator Joyal: Has it happened that, on the issue of the Quebec Secession Reference, you had interpretations of the constitutional rules that were not followed by the Supreme Court of Canada?
Mr. Hogg: Yes. I did not believe that there was a legal duty to negotiate secession based on a referendum in favour of secession in the province. The passage that Senator Cools read out expressed my then views.
Senator Joyal: What about the majority? You stated in the House of Commons, in your testimony on February 22:
With respect to a clear majority, the second issue, the view I took before the secession reference and wrote in an article was that although it would be a good idea to insist upon a special majority for such an irreversible and important decision as one to secede, I could think of no principle of law that could be invoked to insist upon a special majority, so I took the view that one had to live with 50 per cent plus one as the constitutional rule.
That is very strong.
What has changed since I wrote those words in 1997 is the decision of the Supreme Court of Canada, in which the court said there must be a, quote, "clear majority."
In other words, if the federal government were to follow an opinion given by you on the constitutional rules pertaining to a clear majority, you would have said that 50 per cent plus one would have been enough and the country would have gone down the drain on just one vote.
Mr. Hogg: I thought at the time that 50 per cent plus one was a sufficient majority for a vote in a referendum. Whether the country would have gone down the drain would depend upon whether the question was clear and whether the Government of Canada chose to negotiate with the Government of Quebec, because I did not think there was a duty to negotiate. In any event, this is another area where the Supreme Court of Canada has taken a different view from me and, of course, their view that there has to be a clear majority prevails.
Senator Joyal: On those two fundamental issues, there is not a legal constitutional obligation to negotiate, according to paragraph 98 of the Quebec Secession Reference:
The respective roles of the courts and political actors in discharging the constitutional obligations we have identified follows ineluctably from the foregoing observations. In the Patriation Reference, a distinction was drawn between the law of the Constitution, which, generally speaking, will be enforced by the courts, and other constitutional rules, such as the conventions of the Constitution, which carry only political sanctions.
In other words, on the interpretation of the legal duty, the court did not follow your reasoning. On the issue of the majority, the court did not follow your reasoning.
Mr. Hogg: Correct.
Senator Joyal: It is just that I want to state clearly that on matters of rule of law, one can have differing opinion, and on matters of politics one can have differing opinions. To stay in the matter of rule of law, let me quote a statement you made on February 22. You said:
In my view, and as previous witnesses have said to you, the Government of Canada would be in breach of the Constitution if it were to embark on negotiations to break up the country without first being satisfied that there had been a clear expression on the part of the voters of Quebec of a desire to secede from Canada.
Tonight, let us read what you say on page 3 of your presentation:
Remember, first of all, that if Bill C-62 did not exist the Government of Canada -- meaning the federal cabinet -- would decide whether a question was clear and whether a majority is clear. Neither the House of Commons nor the Senate would have any role to play.
In other words, according to the judgment, a clear question and a clear majority, according to you tonight, could be decided by the cabinet alone and nobody would have legal grounds to complain because, according to you, it is a prerogative of the executive to initiate negotiations and determine, of course, a clear question and a clear majority. However, here, you state very clearly that, in previous evidence, the Government of Canada would be in breach of the Constitution if it were to embark upon negotiations to break up the country without first being satisfied that there had been a clear expression on the part of the voters of a desire to secede.
Is there a breach of the Constitution or is there no breach of the Constitution? In one case, you say there would be one, and in the other case you say no, because it is the prerogative of section 91 -- peace, order and good government.
Mr. Hogg: On your earlier points, I acknowledge that I often get things wrong. You may well decide to discount the things I have to say tonight, bearing in mind that I have been proved wrong in the past.
I do not think there is an inconsistency, though, on the last point, Senator Joyal, if I understand the passages that you have read to me. Am I not saying that if this bill did not exist, then the Government of Canada would be under a duty to negotiate secession because the Supreme Court of Canada says so, if it determined that the question was clear, but would be in breach of its constitutional obligations if it were to negotiate secession on the basis of an unclear question?
Senator Joyal: In other words, you make a distinction between the obligation of the Government of Canada to determine the clarity of the question versus the obligation of the Government of Canada to initiate negotiations.
Mr. Hogg: I make a distinction, but I take the one to follow from the other that, again, if this bill did not exist, the ruling of the Supreme Court of Canada would require the Government of Canada, contrary to my earlier opinion, to enter into negotiations with the Government of Quebec if the question was clear, and, in my view, the Government of Canada would be in breach of its constitutional duties if it were to enter into negotiations for the secession of a province if the question was unclear.
Who decides whether the question is clear? In the absence of this bill, it seems to me there would be no choice but that the Government of Canada, meaning the executive, the federal cabinet, would have to make that choice.
Senator Joyal: This is my last question. Again, I quote from the same testimony, February 22:
So the court clearly left to what it described as the political actors the question of whether the conditions for negotiation -- namely, a clear question and a clear majority -- had been satisfied.
Obviously those political actors include the Government and Parliament of Canada, which would have to decide whether to enter into negotiations for secession.
How do you reconcile that with the seven "whereases" of the bill, which say that, in light of the finding by the Supreme Court of Canada, it would be for elected representatives to determine what constitutes a clear question and a clear majority? You were of the opinion on February 22 that it was up to the Government and Parliament of Canada. Does Parliament include the Senate and the House of Commons? You certainly know the difference between the Parliament of Canada and the Government of Canada.
Mr. Hogg: All I say is that if no legislative provision were made, the decision would, by default, have to fall on the Government of Canada. They would decide whether or not a question was clear. They would then govern their actions accordingly.
Senator Joyal: However, you state that political actors include the Government and Parliament of Canada.
The Chairman: Senator Joyal --
Senator Joyal: This is important, Madam Chair. I know it is not your opinion that I am expressing, but this is an important question and the witness is on the record saying what I am reading.
Senator Lynch-Staunton: It will take only one more minute.
Senator Taylor: It is not a speed test.
Senator Prud'homme: It took three years in Charlottetown.
Senator Joyal: In a simpler form, Professor Hogg, in your opinion, what is a political actor, according to the Supreme Court reference?
Mr. Hogg: A political actor could be the executive government. It could be the House of Commons. It could be the Senate. It could be the Governor General.
All I am saying is that if no bill makes any other provision, I do not believe that the Parliament of Canada would need to be consulted on whether a question was clear, because that would be a judgment for the executive to make if no other arrangement had been made.
In other words, when the Supreme Court of Canada referred to "political actors," it did not stipulate who those actors would be but left it to the Parliament of Canada to decide who those actors were going to be. I take it that one of the things that Bill C-20 does is make that determination. If no determination was made, it would simply be the executive government.
Senator Beaudoin: My question is one of precision. You said that Bill C-20 is valid either under peace, order and good government or under section 44. I leave out peace, order and good government because it is a possibility. Section 44 reads:
Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to$ the Senate...
Section 42 reads:
An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1)...
And it includes the powers of the Senate. This is clear-cut. It means that section 44 is subject, of course, to the 7-50 formula of amendment. You set that aside and say that it is not necessary, we do not need that kind of amendment, which is a strong one, of course. It means that section 44 is for amendments that are less important than those coming under section 42.
I have some problems with that. When we are deciding the survival of a country, it is certainly a matter of great importance, and I am inclined to think that section 42 might apply in such a case. You say no, it is section 44.
We all agree that the Parliament may unilaterally, by a simple statute, reduce the powers of the Senate, the executive or the House of Commons. I must conclude that, in your opinion, Bill C-20, as far as the powers of the Senate are concerned, is of secondary importance. In my opinion, that goes directly against the Senate reference to which Senator Grafstein referred.
The authority of section 44 is based on the authority of 91(1), which has expired. It has been replaced. If we follow the logic of this, we are talking about the very great importance of this bill. I am ready to say that it was intended to be only a statute, and peace, order and good government may be invoked, but if we invoke section 44, which is an amendment, unilateral, it is difficult to reconcile that with section 44 and section 42 because of the importance of Bill C-20. Perhaps you can tell me that it is not very important and may come under section 44. Is it what you think?
Mr. Hogg: Senator, in my opening statement, I only offered the peace, order and good government power as the source of authority for the bill. In other words, I did not say that section 44 was the authority for the bill. That arose in response to your question.
Senator Beaudoin: That is right.
Mr. Hogg: I think that a change in the powers of the Senate would require a constitutional amendment under section 38(1), if it were one of the powers of the Senate that is now stipulated in the Constitution of Canada. In other words, if, for example, it was designed to remove the Senate from its role in approving legislation, which is a role that it is granted by the Constitution of Canada, any change in that would require, under section 42, a 7-50 amendment. Granting a power to the House of Commons and not granting the same power to the Senate does not seem to me to change any of the powers of the Senate that are stipulated in the Constitution of Canada. Therefore, I do not think section 42 is applicable, and probably section 44 is not applicable either.
Senator Beaudoin: That means that if you treat the two Houses of Parliament differently, in your opinion, that is not big enough to say that it is an amendment that changes the powers of the Senate. I am inclined to think that if, at a given moment of our history, when the whole country may be at stake, you say directly that the two Houses are not equal, it is very important. The whole country may be indirectly destroyed because of that. You say no, it does come under section 44 and is a minor amendment.
I have some difficulty with the distinction that is made here between a direct amendment under section 42, 7-50, and a minor amendment that is done only by a law. I agree that it may be done, but in my opinion, I do not think it was the intention of the constituent assembly at the time of the patriation of the Constitution to give such a power by a simple statute of the Parliament. I have some difficulty with that. Your conclusion is that it may be done even if the bill is very important, and even if it is an exceptional statute that is not treating the two Houses of our Parliament equally. I do not think the Fathers of Confederation had that in mind.
Mr. Hogg: I think it can be done because the powers that the Constitution of Canada does give to the Senate are not touched by this bill. It simply withholds from the Senate a new power that is granted to the House of Commons and that neither the Senate nor the House of Commons would have had, absent the bill.
Senator Beaudoin: It is quite a withholding.
Mr. Hogg: Yes, it is.
Senator Beaudoin: It is not little. You say it comes under section 44.
Mr. Hogg: No, I say it comes under peace, order and good government.
Senator Beaudoin: It is not even an amendment.
The Chairman: We have five senators on the list, and after that I am afraid we will have to stop questioning this very interesting witness because we have another interesting witness waiting.
Senator Bolduc: Professor Hogg, I am quoting the last paragraph of your presentation:
The role of the Senate in representing regions of Canada or linguistic minorities is not very important in dealing with such specific questions as whether the question is clear ...
Coming from the province of Quebec, being in the Senate, you tell me that it is not very important that we debate that as parliamentarians in the chamber? I have some difficulty with that, sir.
Mr. Hogg: The answer that I would give to that is that a clear question is very unlikely to say anything at all about the role of minorities. The protection of the role of minorities will be accomplished through the process of negotiation and amendment that would follow the referendum. In that process, the Senate would play its normal role, the provinces would play their roles, and minorities could be counted on to become effective and important players, as they did in the Meech Lake and Charlottetown amendments. I do not believe that the question of whether the question is clear is the point at which minorities need to be mobilized.
Senator Bolduc: In other words, we are just like a pressure group at that stage.
Mr. Hogg: Not at all. I simply say that the assessment of whether the question is clear or not is like a judicial decision, in a way. It is a simple application of a norm to a problem.
Senator Bolduc: A judicial decision taken by members of the House of Commons.
Mr. Hogg: It is not a judicial decision, but it is like that.
Senator Bolduc: The Supreme Court is acting like politicians when they decide that we have to negotiate.
Mr. Hogg: Perhaps.
Senator Bolduc: You will admit it is complicated for a layman.
Mr. Hogg: It is complicated for a lawyer.
Senator Murray: Dean Hogg, you said in reply to a question from one of our colleagues that a referendum in the seceding province was a precondition to negotiations on secession. I presume that is something you infer from the Supreme Court advisory opinion. It raises a question that is sometimes raised by Senator Joyal: Why not have a referendum in all the provinces whose people would possibly be losing the country they thought they had?
My second question has to do with this supposed legal obligation on all the parties to negotiate. As I read the advisory opinion, that obligation extends not just to a proposed secession but to any legitimate constitutional initiative from one of the parties. Since 1982, Quebec has refused to be party to any other constitutional amendments until such time as its political objections to the 1982 Constitution are resolved. Are you telling us that in the event of a legitimate initiative by one of the other parties we could oblige Quebec to come to the table? How is that legal obligation to be enforced?
Mr. Hogg: I have not made up my mind yet on the question of whether the obligation to negotiate extends to amendments other than amendments seeking secession. On the one hand, the logic of the obligation to negotiate would seem to say "Yes, it would apply to all amendments." On the other hand, secession is such an unusual and cataclysmic event that, perhaps, the reference should be read as simply addressing secession and not other kinds of amendments.
Senator Murray: I tend to think it is several pretty general statements they make on that point.
Mr. Hogg: You may well be right, senator. If you are right, I do not know how you bring to the table a province that is unwilling to go to the table. I cannot imagine a court issuing an injunction.
Senator Joyal: And the reverse, too.
Senator Gauthier: Dean Hogg, I understand your argument about the bicameral concept that we live here in Canada. I also know that in our rules, there is such a thing as a conference being held between the Senate and the House of Commons to settle problems. I believe we have a serious problem here by excluding the Senate. What do you think of the situation in France, for example, which may have a constitutional conference if something happens? Both Houses there, the Senate and the legislative assembly, meet to discuss and vote upon any proposal put before them. The clarity of the question is the proposal here. Why does the Senate not have a say? You say it is not important -- I say it is important. I am a senator and I like to be consulted. Why does the government not just call both Houses in and say, "We will discuss this and have a vote and then we will have a decision taken democratically, a vote that includes both Houses"? Do you not agree with that?
Mr. Hogg: I do not disagree with it. Obviously, that might be a way to solve the bicameral problem to which I alluded.
Senator Grafstein: Dean Hogg, you focused your attention on the first question, which is the question of a clear question. However, there are two questions. You seem to give equal weight to the treatment of both questions even though the second question, the question of the majority, could be very hotly debated and argued, in particular with respect to ensuring that in a clear majority the minorities are included. Would that not be a proper role for the bicameral system of our governance to be involved?
Mr. Hogg: I have never thought that there is anything improper in the Senate being involved in either issue. I am simply making two points. The first point I am making is that it is within the constitutional power of the Parliament of Canada to give the decision to the House of Commons alone. The second point I am making is that I can see that there is some awkwardness, although there may be some solutions to it, in giving the decision to a bicameral body with the possibility of getting two different answers from two different Houses of Parliament.
On the second point, that is a pure question of policy. I carry no more weight on that than anyone else. Indeed, on the constitutional issues, as several senators have pointed out, my weight is fairly light.
Senator Grafstein: What do you make of the argument, which has been presented to us by at least one witness, that under the Constitution there is an express means of dealing with provincial legislation that the federal government, the executive, feels is inimical to its interests? I refer to the disallowance power and the reservation power. I believe that you have concluded in your book as the courts have concluded: Having concluded that the power has lapsed, the court concluded that constitutional experts have considered that the power has lapsed. Thus, they have not come to that conclusion.
We have two express methodologies that have been weakened by disuse. A witness said to us that this is in fact a third, brand new and quite extraordinary method of constitutional amendment, that is, using one body, the House of Commons. In effect, it is a new and extraordinarily unusual measure using an extraordinary and unusual way to deal with a provincial piece of legislation, concluding that that would be, in pith and substance, an amendment to the Constitution as opposed to a simple legislative act.
Mr. Hogg: I agree that it is a very unusual measure. I agree that it is an unusual way of dealing with a piece of provincial legislation. However, I think the Government of Canada was faced with the question of how to define the political actors and who would determine whether a question was clear or not. What they are proposing, and what the Senate will have to agree to if the bill is ever to become law, is that the primary political actor would be the House of Commons. Yes, I think that is unusual; but it is a very unusual problem that the Government of Canada and now the Parliament of Canada have to solve.
Senator Grafstein: You do not think in coloration, in sort of pith and substance, it is, as one learned former justice said to me, "It smells more of constitutional amendment than a legislative delegation."
Mr. Hogg: No, I do not agree with that.
Senator Grafstein: Fair enough.
Senator Joyal: You conclude your presentation on page 3 by stating:
...the Senate will play its normal role in the amending process, at least seven of the provincial legislative assemblies will also have to approve the outcome...
Why did not you refer to Bill C-110 in your presentation? It, too, is an important legal element to the expression of consent from the provinces. You referred to the provinces of British Columbia and Alberta with their specific provincial legislation requiring them to do a certain number of things before acquiescing to a change. Why did you omit Bill C-110? Was that an oversight or is it because you feel that by that time the bill will have been repealed and the Government of Canada would not have to take it into account?
Mr. Hogg: No. I assumed that Bill C-110 would also have to be satisfied. I did not express that. It did not seem to be particularly relevant, although it, perhaps, strengthens the force of the point that I make there because it does provide more of a regional guarantee to the process.
Senator Joyal: Could Bill C-110 have been an additional element in your presentation?
Mr. Hogg: Yes.
Senator Joyal: We have been told that in any decision of a court there are a stare decisis and an obiter dictum. That is normally what is said by legal authors and observers of judgments. In the weeks to come, could you let this committee know what, in your opinion, are the stare decisis of the ruling on the secession reference and the obiter aspects of it?
Mr. Hogg: No, because I believe that all of the points that are relevant to this legislation are clearly part of the ratio decidendi of the Supreme Court of Canada.
The Chairman: Thank you very much, Dean Hogg, on behalf of the committee as well as visiting senators. This has been an extremely enlightening session. We are grateful to you for taking the time to come here. We know that this was not easy for you.
[Translation]
The Chair: Our next witness, Professor Guy Lachapelle, is a professor of political science at Concordia University, in Montreal. Welcome to the Senate. We are eager to hear your presentation.
Mr. Lachapelle, Professor, Faculty of Political Science, Concordia University: Thank you for inviting me to share my thoughts on the impact of Bill C-20. I will repeat some of the arguments I made to the House of Commons' Legislative Committee on February 21 of this year. The presentation made by the Honourable Stéphane Dion to your Committee and the relevance of your questions have confirmed many of my apprehensions. Bill C-20 is an attack on democratic freedoms and values of Canadians and Quebecers. It is also a denial of the constitutional principles that guided the birth of Canada and the relations between Quebec, the federal government and the provinces of Canada.
The federal government is involving the courts in what is an eminently political process. It is making a strategic reading of the Supreme Court's ruling on the Quebec Secession Reference, and it is making no commitment whatsoever to complying with the opinion of the Supreme Court. It is getting bogged down in secondary considerations regarding an extremely legalistic approach. The political ethics underlying the federal government's approach at the moment are clearly inspired by a protective mentality. I agree with Senator Joyal in saying that Bill C-20 is a partial, restrictive reading of the reference. It legitimizes the plans of the sovereignists and recognizes that Canada is divisible, but not Quebec.
Following the 1995 referendum, the Prime Minister of Canada said on CBC, on The National, that he intended to use section 91 to refer to Senator Beaudoin's questions on the Constitution, to pass laws for the peace, order and good government of Canada, in order to determine the question in the next Quebec referendum. Bill C-20 seems to be his attempt to do this, and may even be the first step toward other legalistic actions.
What is more, this so-called "clarity" bill states that the House of Commons is responsible for ruling on the clarity of the question and the majority obtained in the referendum before determining whether the Government of Canada is obliged to enter into negotiations on possible secession. In other words, the federal government has decided to deny the legitimacy of Quebec's National Assembly and the Senate. Elections and referendums held in the provinces do not come under its authority. In our view, Bill C-20 is unconstitutional, not to mention that it works toward the domination of an executive type of federalism.
In brief, the federal government is trying to set out a number of criteria that will be in place once the Quebec National Assembly has decided that it is time to ask the referendum question. These three criteria are: that the question in the next Quebec referendum must be clear in the view of the federal government, that is deal with secession only; that the majority must be clear; and that a question that refers to "association" or to "partnership" offer with the rest of Canada could not lead to negotiations.
Why does the bill limit itself to the wording of the question and the required majority, when other issues are just as important? The financing of umbrella committees, the role of television and airtime, government activities and compulsory voting are as much aspects in which the federal government might have expressed its opinion.
The purpose of Bill C-20 is primarily political, to dissuade many Quebecers from voting for independence. We will be trying today to better understand what the idea of a clear question and clear majority mean in a practical rather than theoretical sense.
We also question the logic of Bill C-20. Why can Quebecers not propose a partnership? Nowhere did the Supreme Court of Canada reference mention that the Government of Quebec could not consult its citizens throughout the negotiation process. In any case, that ruling was only an opinion; it was not mandatory, as Mr. Justice Antonio Lamer has pointed out. So why legislate when it is not necessary?
To begin, what is a clear question. Bill C-20 is relatively silent and deceptive on that point. According to Bill C-20, the House of Commons, not the Senate, will determine whether the question allows Quebecers to clearly express their intention to no longer be part of Canada and to become an independent State. The question of the next referendum could not be about a mandate to negotiate nor on an offer of partnership combined with, in particular, a political and economic agreement. In those two situations, according to Bill C-20 there would be no clear expression of will.
However, if Quebecers express a clear will to make a partnership offer to Canada before declaring independence, the bill cannot prevent them from doing so, unless the federal government decides, as it did in 1995, to state that it has no intention to negotiate. It is worth pointing out that recent opinion polls in Quebec show that Quebecers increasingly believe that a political agreement is not viable, but that an economic agreement is desirable. Bill C-20 is a roundabout way for the federal government to try to get out of its obligation to negotiate.
Historically, the federal government has never been able to define a clear question. When Newfoundland wanted to enter the Canadian Confederation, the High Commissioner for Canada said the question was ambiguous and equivocal, because it did not mention the conditions of union offered by Canada. The High Commissioner for Canada was concerned about the unfolding of the referendum campaign, because, in his opinion, and I quote:
Confederation was entering into the fight with a great disadvantage and, even if it won with a majority of votes, the basis of the union would probably have to be re-examined.
What is interesting here is that it is important for citizens to know what the basis of their future union or partnership will be before a referendum. Voters want to know on what basis, the negotiations will be held, in the case of a union as well as that of a secession. The right to information is also a fundamental principle.
We believe that the federal government is in error when it states that, in order for negotiations about secession to take place, a clear question on secession is required. Even with an ambiguous question, according to the political actors of the moment, which did not explain the terms of the union, Newfoundland became a Canadian province. According to the criteria set out in Bill C-20, we could say today that Newfoundland's entry into Confederation was done in an ambiguous manner.
There are many ways to hold a referendum. Bill C-20 gives no clear rule on this. Would it be possible, under Bill C-20, for the Quebec government to hold a referendum at the same time as an election? Would the following question be clear enough: "Do you want Quebec to become a sovereign country?" Could the Quebec government ask a two-part question, one on the offer of partnership and the other on independence? Could it offer, as was the case in the Newfoundland referendum, two options: independence or renewed federalism?
For political scientists, such a discussion is very trite since in reality it has been shown that the question has very little impact on the results of a referendum. The whole clarity debate is not a legal issue but a question of referendum or electoral strategy. The only concern of the lawmakers should to be ensure that the referendum campaign be an opportunity for debate where real issues are laid out. But this is more a function of the political actors involved. Nothing prevented the Canadian government to dismiss the 1948 referendum process in Newfoundland as those in Quebec in 1980 and 1995.
If the 1980 and 1995 questions were not clear, then what can we say about the many Quebec voters who said No in the belief that both times they were voting for a renewed and decentralized federalism? Were they duped by the referendum question or by the promises of politicians? If Quebec has been excluded from the Canadian federation in 1982, it is certainly not because of the 1980 question. Furthermore, the legitimacy of the repatriation process was questioned by Mr. Justice Antonio Lamer, who felt that Canadians should have been consulted in a referendum.
Turning to the clear majority, Bill C-20 leaves us with great expectations. It says that when considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account three factors: the size of the majority, the percentage of eligible voters and any other matters or circumstances it considers to be relevant.
In many respects, Bill C-20 is reminiscent of the April 1990 legislation of President Gorbatchev, the purpose of which was to dissuade the Baltic people from seceding. He had changed the rule of simple majority in cases of secession in favour of a two-thirds majority rule.
These new rules fly in the face of universally established principles. The federal government seems to agree with the concept of using of the absolute majority of registered voters on the electoral list as the baseline rather than an absolute majority. In the case of the 1995 referendum, this means that the required majority for a Yes vote would have been 54.5 per cent, given a turnout rate of 94 per cent. If this is so, why not state it clearly? The federal government has been actively involved in the 1980 and 1995 Quebec referendum, and never questioned the outcome of these two democratic exercises.
The case of Newfoundland in 1948 is also a recognition of this principle. On July 22, 1948, 52.34 per cent of Newfoundlanders opted for Confederation. A number of ridings voted for responsible government, that is against Newfoundland coming into Confederation. At the time, opinions were divided on what constituted a small sufficient majority. But the British government stated clearly:
...it would feel bound by any majority vote in favour of Confederation and it would take all necessary steps to proceed with the union.
For the British government, this was not an exacting process.
In addition, the British Parliament had left the Government of Canada with the full responsibility of determining what would be an acceptable majority for Newfoundland to enter Confederation. On July 19th, Prime Minister W.L. Mackenzie King consulted Louis St. Laurent, who said:
I agree that unless there is more than a narrow majority, Canada should not accept the province into Confederation. I said it was necessary to wait and see what would happen if the majority was narrow.
Even if many Newfoundlanders were deeply disappointed by the results, especially the Responsible Government League, the Canadian government nevertheless decided to:
...consider the majority sufficiently large (sic) to justify taking the required steps to obtain the assent of Parliament and the Senate to the admission of Newfoundland into Confederation...
...even if we can confirm that many Newfoundlanders wanted to remain Newfoundlanders. Afterwards, there were negotiations to finalize the last conditions regarding the union. On March 31, 1949, Newfoundland officially became part of the Confederation.
Since 1995, a quick opinion survey shows that many politicians and intellectuals in Canada and Quebec favour the 50 per cent plus one rule on the basis that equal voting is a basic democratic principle. I quote former Prime Minister Pierre Elliott Trudeau, who wrote:
Democracy truly proves its faith in man by letting itself be guided by the 50 per cent plus one rule. Because if all men are equal, and if each one is the seat of pre-eminent dignity, it follows inevitably that the well-being of 51 people is more important than that of 49; it is therefore normal that ceteris paribus, and given the impregnable rights of the minority, decisions wanted by the 51 be upheld.
Several jurists and political scientists have also expressed the opinion that by using the expression "clear majority," the Supreme Court of Canada did not necessarily mean "qualified majority." Professor Henri Brun is of the opinion that the Supreme Court was not talking about a qualitative majority established in terms of how the referendum unfolds. However, it is important to remember that no occidental democracy by that name foresees a qualified majority for a referendum. The rule of fair play is also a basic rule of any democratic exercise; to question it is to undermine a society. This principle should in fact be inscribed in Bill C-20. The federal government should also confirm that it plans to respect the laws and rules of the Loi québécoise sur les consultations populaires.
The requirement to negotiate was at the heart of the referendum discussions in 1995 and it is the sovereigntists who had an open hand because they believed and still believe that they have moral and political obligations towards Canada after independence. It was the federal government that stated at the time that it would refuse to negotiate regardless of the outcome of the referendum. Certainly no clause of Part V of the Constitution Act, 1982, foresaw such a situation, which obviously raises the issue of the indivisibility of Canada. All we can say is that beyond the law, there is a fundamental principle: that of justice between peoples.
As clause 55 of the United Nations Charter states -- and the Liberal constitutional critic, Mr. Pelletier, referred to it recently -- it is up to all peoples to take all necessary steps:
...with a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples...
This declaration is also in the Declaration on Friendly Relations of 1970, which clearly states that the first condition for applying for the right to self-determination is the recognition of a people. Everyone agrees that Quebecers are legally internationally recognized as a people.
Obviously, the Canadian government denies the existence of the Quebec people. However, Lester B. Pearson had understood that Quebec was a nation within a nation. However, Quebecers, to use the expression of John Rawls, have demonstrated on more than one occasion that they belong to a community of "respectable people," in other words a peaceful people, non expansionist, and whose system of justice, based on civil law, has all the legitimacy required to apply the laws. The Quebec people are free and independent. They have the freedom to choose their future and Canada has the obligation to respect that choice. Quebec and Canada are equal partners that can settle their differences through cooperation agreements. We have had the opportunity to demonstrate that certain political, economic and social conditions are necessary for this new Quebec-Canada partnership to succeed.
The government of Canada has chosen another road for itself. That of challenging before the Supreme Court the legality of an eventual unilateral declaration of independence and to propose Bill C-20. If the YES vote had won in the October 1995 referendum, the Primer Minister of Quebec, Jacques Parizeau, would have told the sovereignist forces on the night of the victory that the transition would be made without disrupting the services to citizens and in a manner that would not create a judicial void. Those two very responsible objectives are without a doubt major challenges for all Quebec and Canadian democrats who want to ensure, after a majority vote in favour of sovereignty for Quebec, that the transition can be as harmonious as possible. The bill on sovereignty in fact foresaw a negotiation period that could last no more than a year; in case of failure, Quebec believed it could declare its independence.
In fact, according to such a hypothesis, Canada and Quebec will then go through a period of reconstituting their states; Canada will have to eliminate all elements in its constitution related to Quebec and the Quebec government will have to write its constitution for the new State of Quebec. Some of the questions you asked of the Honourable Stéphane Dion on constitutional amending formulas and mechanisms and on section 46 of the Constitution were quite relevant. Between the legitimacy and the legality of any democratic process, certain principles must prevail. Right is not above societies; it can only legitimize an effective political reality. It must take note of the specifics of all societies that are in a situation of decolonization, modernization or reconstitution. The Supreme Court obviously did not define who would be the political actors, and we believe that the Senate should be mandated to establish the rules and mechanisms governing the transition period.
There are nevertheless some questions. During the transition and reconstitution phase of the State of Quebec, the fundamental issue will be if Quebec will have to rebuild its legal and political basis. Will the National Assembly of Quebec first have to pass a motion or a resolution stating that it accepts the verdict of the population or will it immediately make a unilateral declaration of independence? Will the governments of Quebec and Canada have to jointly name a committee whose task will be to plan the transition steps? Will the Canadian Constitution still be in force during this phase or do we have to foresee setting up a supranational tribunal to manage the transition? The answers to these questions are clearly more important than the ones raised in Bill C-20.
The political responsibility of the federal government is to negotiate the secession terms so that the transition can be done harmoniously and in a way that respects the rights of all citizens. Of course Ottawa hopes to make Quebecers back down by setting a lot of traps on the road to sovereignty. Whether the next referendum in Quebec is held in two, five or ten years, many questions are incontrovertible. That is why it seems to us that in the interest of all Quebecers and Canadians, the federal government should instead adopt and unambiguous policy. Bill C-20 has nebulous objectives and wallows in the arbitrary instead of being politically realistic.
We believe that Bill C-20 should be rejected. However, if you decide to amend it, you should clearly indicate that the majority rule of 50 per cent plus one should apply and provide examples of what is an acceptable question. The bill should at the very least establish some basic principles, and I will mention a few of them, including some which were in fact outlined by the American government when it criticized the action of President Gorbatchev.
The first principle is that if Quebec clearly votes for independence, the federal government will negotiate in good faith with the Quebec government in order to minimize the negative effects of the transition.
Second, that it rejects all violence and intimidation -- economic or other sanctions -- as a means of stopping the democratic will of the people of Quebec.
Third, that it will seek to set up, with the government of Quebec, after a majority vote by Quebecers for independence, flexible negotiation mechanisms, including the definition of committees and the identification of groups, natives and linguistic minorities outside Quebec which may be included in the negotiation process.
Fourth, that it accepts that the next referendum in Quebec be held under the auspices of the United Nations and, fifth, that a group of international experts be mandated to oversee the next referendum and the negotiation process. If the issue is sent before the courts, certain rules should also apply.
The sovereignty of Quebec requires a great sense of responsibility on the part of both sovereigntist and federalist actors. This, in fact, was contained in the Supreme Court's ruling when it said that if a majority of Quebecers voted in favour of sovereignty, all political actors were obliged to negotiate constitutional amendments reflecting this outcome.
I believe that the Senate should also play a role, in particular Senators from Quebec. Your experience will be useful during the transition period. Indeed, in 1995, the sovereigntist side had asked several political actors -- including one of your former colleagues, Senator Arthur Tremblay -- to join the negotiating team.
I would invite you to read Arthur Tremblay's memoirs, which I helped publish. They have unfortunately not been translated into English, but they amount to an extraordinary 600 pages of reading.
Bill C-20 is unfortunately based on uncertainty rather than on clarity and, in its present form, can only give rise to a confusing state of negotiations.
Senator Murray: In your brief, you rarely allude to the role of the other provinces. Can you reassure us that you do not believe that Quebec independence could be negotiated solely between Quebec and Ottawa? Otherwise, it would represent a very narrow interpretation of the Supreme Court ruling.
Mr. Lachapelle: I completely agree with you. I talked about the other provinces as well as the committees. In my view, the definition of the committees should be the prerogative of the Senate which mostly represents the provinces. Therefore, it should be up to the Senate to decide who will represent each province on the various committees.
I am convinced that some committees will be more interesting to certain provinces than others, particularly from a free trade point of view, because of each province's particular interests. For instance, Ontario may carry more weight than the other provinces. If there are negotiations in the future, it will be up to each provincial premier to decide on the role each province will play.
Senator Murray: Unless I am mistaken, I believe the Supreme Court said that every province should be involved in the negotiations. In your opinion, which amending formula should be used to affect constitutional change leading to Quebec's independence or the secession of a province?
Mr. Lachapelle: If a majority of Quebecers voted for independence, it would mark the start of a very difficult period whose outcome would be the creation of two countries. It is very difficult to say which rules would apply in that type of situation.
Would we have to ask the Supreme Court to set out the framework for negotiation? In the case of secession, I do not believe that Quebec would agree to letting a court decide. There are no current rules governing such matters. The Senate will have to see what the Supreme Court says and then determine the type of amending formula. That would mean automatically excluding Quebec. So the 7-10 formula is out of the question.
In the case of unanimity on the part of the provinces, would that rule apply to the rest of Canada? Since one province will be excluded from negotiations, it redefines the legislative and constitutional framework.
Senator Murray: The Supreme Court has imposed on the Confederation partners the constitutional obligation to negotiate a legitimate initiative advanced by another partner. You accept that. If the Constitution is amended upon an initiative of another province or the federal government, is Quebec obliged to respect this opinion?
Mr. Lachapelle: In Quebec, everyone agrees that the Supreme Court opinion must be taken into consideration. Since negotiation is central to the issue, in my brief I insisted on the essential aspects of partnership and negotiation, with partnership being an essential condition of negotiation.
The parties must take the Supreme Court opinion into consideration. I am not talking about the legal implications here, but the substance.
Senator Murray: In your interpretation of the opinion, does the obligation to negotiate apply equally to any initiative, any proposed amendment, and not only to secession?
Mr. Lachapelle: You mean with Quebec?
Senator Murray: To negotiate any initiative aimed at amending the Constitution, not only an initiative designed to achieve the independence of a given province.
Mr. Lachapelle: I would say that the Charlottetown precedent, comes to mind. The Supreme Court refers to Quebec's secession, but does not refer to all the constitutional debates, or to all parties that should be at the negotiating table for a constitutional amendment. In fact, the negotiation table is larger than it was in the past, because it includes more groups now. The Supreme Court did not define the political actors either. We will have to clearly establish who the political actors are. Provinces, minority groups and official language groups are important in the negotiation process, and should always play a role. At the outset, no group could be excluded from potential negotiations.
Senator Beaudoin: If I understand your brief correctly, and if I understand the conditions for a clear majority that you put forward, you would be happy with 50 per cent plus one.
We should bear in mind that the National Assembly has absolute authority to set a referendum question. A clear question could refer both to sovereignty and an economic or political association. Those are your three basic points, are they not? By contrast, I have heard nothing specific about the final amending formula that would follow negotiations. Am I right in thinking that, as far as you are concerned, the unilateral amending formula is not even an issue? In other words, any question put forward by the National Assembly and gaining 50 per cent plus one would settle the independence issue?
Mr. Lachapelle: You are going faster than I thought. That is not my opinion. It does not settle the independence issue, but is a stage that leads to negotiation. The negotiation period may take some time, depending on the political actors involved. However, Quebec would not be involved in amending the Canadian Constitution.
Senator Beaudoin: No, and that is very clear in your remarks. However, the issue of the debt would obviously come up, as would the issue of the territory, sensitive though it is. Both those questions would be on the table during a secession negotiation. However, I hear nothing about the amending formula. I am going far, that is true. You never know what can happen. You have never said anything about that. If I remember correctly, Bill 99 -- or any other bill that could supersede it -- does not mention it at all. However, the Supreme Court did mention, though it was never invited to identify the amending formula -- whether it be 7-50 or unanimity. As you heard, the question was put to Dean Peter Hogg. I have never heard an opinion from Quebec on the subject.
So I conclude that as far as you are concerned, 50 per cent plus one carries the day. The question is formulated solely by the National Assembly, and it is the National Assembly that determines whether it is clear. Of course, the debt and territory issues will still have to be settled. However, I have never heard anything more on how Quebec envisages its secession.
Mr. Lachapelle: To give a clear answer to your question on the amending formula, we do not have a Supreme Court ruling in this particular case. Consequently, we would have to go to the Supreme Court and ask for a ruling to specify the amending formula that would apply in the event of a secession. That is what you are asking.
Senator Beaudoin: Yes.
Mr. Lachapelle: We have no answer, so we are faced with overwhelming uncertainty. That is why I urge that the United Nations and a monitoring committee be present. If there is an impartial monitoring committee that tells us that the question is clear and the majority is clear, it will then be a question of determining the transition mechanisms. The political players, as well as everyone else, have a role to play in these mechanisms. It is as simple as that.
As for the constitutional issue, Quebec will be in the process of reconstituting itself. Some claim that Quebec already has its own constitution. Will the American Successor State principle be applied? In other words, will Canadian laws automatically apply in Quebec for a transitional period, which would mean, essentially, that we would include the amending formulas and other provisions that are applicable, or the parts that are usable in such a situation? The Supreme Court has not been of any assistance to date on this question, and will not help us to clearly define what these terms will be. I believe that it is up to us to define these terms of secession. I believe that the Senate has a role to play in this regard.
I refer you once again to Arthur Tremblay, whose 600-page book, which I have read, is as lengthy as Mr. Hogg's book. Mr. Tremblay also disagrees strongly on the type of amending formula that ought to be used. There was a difficult debate on this in 1982. I do not think that we will be able to determine a final solution to this problem tonight or in the coming days. We would have to determine the specific sectors to which amending formulas apply; this can become very complex. You mentioned a number of sectors, including the debt, citizenship, perhaps, and other kinds of negotiations, but there will be two negotiating teams that will have to agree on a certain number of items.
The Chair: Professor Lachapelle, I am a little puzzled. If I have understood you correctly, you are saying that someone will have to decide whether or not the question and the majority were clear. You do not want this to be the House of Commons. Is that what you really said?
Mr. Lachapelle: No. I said that someone must monitor the referendum process. Clearly, it will not be the House of Commons. The House of Commons has no lawful authority to monitor or to decide whether or not the referendum question is valid. We will have to turn to organizations, as for other referendums. The United Nations has always used foreign observers. Canada is on the team of foreign observers that validate referendum results. I think that the same kind of process could apply. We could have observers who would observe the outcome in an independent manner. We are quite aware that, if the question is limited to Bill C-20, the House of Commons decides whether or not the question is clear. In the 1948 Newfoundland referendum, the question was not clear. In 1980 and 1995, the questions were never clear, neither the questions on secession nor the questions on union. We will have to find, between ourselves, an organization or entity that is capable of validating the referendum results.
The Chair: All of the examples that you mentioned took place before the Supreme Court reference. It is the reference that changed our world somewhat, was it not?
Mr. Lachapelle: Exactly.
The Chair: And it has established that a clear question and a clear majority were of the process. Therefore, given this opinion of the Supreme Court, how can we claim that from the federal government standpoint, there should be no process to control the reactions of the federal government? I am not referring at all to the powers of the National Assembly. In order for the federal government to take action, there has to be some determination on the part of the political players, not just anyone but the political players, that the question is clear and the majority is clear. It seems to me that that can't be ignored now.
Mr. Lachapelle: That is exactly what I say in my brief. I agree with you completely. It is not Bill C-20 that will accomplish that. It will be other mechanisms. If you want to state clearly what a clear majority and a clear question is, say so. The rule is 50 per cent plus one. Or is it 52 per cent in Newfoundland? Is the majority 54 per cent of the vote? State something clearly. The citizens will understand.
The point is to ask the question. Do you want Quebec to become a sovereign country? That is Mr. Chrétien's question. It is also Mr. Parizeau's question. Include an example and that will clarify things. If you want to negotiate after the fact, let us negotiate. Let us set up a negotiating tribunal. Let us be clear on the procedure followed by those who will validate and enshrine this and who will have a stake in this decision process making. I think you have a role to play as senators.
I am against Bill C-20 in that sense as well. In the past, certain individuals took part in the 1995 referendum. With regard to the negotiating committee, one could mention Mr. Claude Castonguay and Mr. Tremblay. All of these people were appointed to form a committee that was to oversee the transition. They were not sovereigntists. They were not necessarily federalists. These were people who had the ability and, I would add, the moral standing at least, to pass judgement on the relevance of the debate. If you want to do it, let us do it, and Bill C-20 should state so clearly. That is one of aspect of democracy. If we want to pursue executive federalism, that is exactly what will happen with Bill C-20. Make the decision.
Senator Kinsella: Mr. Lachapelle, I would like to get back to the Court opinion which refers to the right to self-determination over several paragraphs. For instance, in paragraph 126, the Justices make a distinction between internal and external self-determination. What do you think of this analysis of self-determination?
Mr. Lachapelle: Could you ask a more specific question? Are you asking me if Quebec has the right to self-determination?
Senator Kinsella: In paragraph 126 of the Supreme Court opinion, the Court made a distinction between internal self-determination and external self-determination.
Mr. Lachapelle: I believe the Court was referring to States in colonial situations.
Senator Kinsella: That is external self-determination.
Mr. Lachapelle: Precisely.
Senator Kinsella: The Court also mentioned internal self-determination. What is internal self-determination? What is the basis for it in Quebec and what does this right to internal self-determination consist of substantially as referred to by the Supreme Court?
Mr. Lachapelle: There is no provision in the Canadian Constitution for secession. The Soviet Constitution did provide for it. Where can you go when you do not know whether secession is provided for in a country's Constitution? It remains quite nebulous! Is Quebec in a colonial situation? Everyone agrees that it is not. We are in a situation of reconstitution or evolution. That is why I look to John Rawls for a definition of the principle of justice of peoples. This principle is the only one that can apply here when we are talking international law and the right to self-determination. John Rawls has written a great deal about equity, legality, and in some ways we are going back to those principles. What are the principles that guide the self-determination of people? That is the most important element we have to bear in mind. The Supreme Court established a certain number of principles. Let us not forget the principles of federalism and democracy. What is democracy in Canada? The rule of law. Neither the government of Quebec nor the federal government is opposed to the rule of law. Everyone has recognized that. Quebec constitutes a people in the sense of respectable self-determination, in accordance with these prerogatives and its own laws. Nobody can challenge that. That is the definition that must be given, because the question put to the Supreme Court was specific about the external and internal right to self-determination. I do agree with the Supreme Court in that decision.
[English]
Senator Prud'homme: I have been in the Senate for only seven years, but I have been in Parliament for 37 years. It has been the practice to do so, but you do not need to state, every time, "We will now go to the non-members." We all agree that members have priority and then you decide who will go next. You are the boss of the committee. You can even take time for yourself. There is something in saying, "We will now go to the non-members of the committee" that I do not like. I would kindly ask you just to say who the next questioners will be. We are senators, you and I.
The Chairman: Yes, we are senators.
Senator Prud'homme: Someday I will chair a committee, at which time I will consider you a senator even though you are not a member.
The Chairman: Thank you for that kind thought. My only object here has been precision, so that everyone should know at what stage we are in the proceedings.
Senator Kroft: I am certainly interested in knowing at what stage we are in the proceedings. I have listened carefully to the exchanges here this evening. I confess that I may have missed some of the subtleties, but perhaps I should share with you what I have been hearing.
I have been hearing my colleagues searching to relate your point of view to the framework of the Supreme Court reference and to our understandings of how Canada deals with its components. On the other hand, what I think I have heard from you is, "Give me a number" -- and you suggest that it is 50 per cent plus one. "We will hold the vote and apply principles of fairness, but at that point the deal is done." I do not know the distinction. I do not want to tread onto legal ground with subtleties that will confuse us in this late hour, but I am not clear of the distinction between a unilateral declaration of independence based on that and what you are talking about. You are careful to suggest that mechanisms must be found to ensure principles of fairness, universal justice, effective dealing with international principles, respect for property and law, and so on, but these are administrative or accommodative measures that must be taken as one country leaves another.
You would help me a great deal if you could draw a distinction for me between a unilateral statement on the day after the vote that you are now a separate country and let us do what must be done to make this effective. Is that what you are saying when you cut right down to it, or do you yourself feel bound by any of the legal connections or constitutional niceties or lingering ligaments and tendons that would attach to you Canada in any way?
Dr. Lachapelle: It is never done legally, even after a vote. I did not say that in my paper. It is clear that there is a process of transition -- which probably leads to a declaration of independence, whatever form it takes in your Constitution or in the U.S. declaration of independence. It can take different forms. No one has ever said what this delay will be. I think what the Quebec government said in terms of its partnership -- and what I said as a scholar with Bob Young and others looking at different cases of secession -- is that, in general, it is a question of responsibilities on both sides, how the process will work, which committees. That is what I am suggesting. What committees will be involved and who are the political actors that will be involved? These are the important things in the process. The deal is not done after the vote. The vote is for information.
Senator Kroft: When we talk about political actors, we are talking about people who represent two different sides, and they are accommodating. You are talking about the word "negotiator" for the words "political actor." Our concerns for constitutional procedures are irrelevant the morning after the vote, is that not correct? It then becomes sort of settling the property settlements. I do not mean to demean them, because there would be many serious and complicated issues that would not fall into the category of "property," but there is not much point in our talking about constitutional procedure with you because that is not where your mind is; correct?
Dr. Lachapelle: My mind is there and somewhere else. I agree with you. However, I wrote about the moral obligations of an independent Quebec. I think we have responsibility in Quebec. Whatever happens, all Quebecers -- whether federalists or sovereignists -- have a moral obligation to the rest of Canada. I always said that if I vote tomorrow on independence I am not voting against Canadians, I am voting for Quebec. This is in that line. I think we always have moral obligations, both constitutionally and legally, in different documents. After a vote, those obligations are still there. They will not be removed by the vote. They are obligations that will continue to be there and will have to be negotiated. If the negotiations take two years instead of one year, I do not mind. It will take the time that is needed to ease the process, to make everyone happy, to minimize the cost on both sides, and to make everything feasible.
There is always a risk, I agree with you. The question is how we manage the risk. That is my main interest. Constitutionally, how can we manage that risk? At this point, is the Canadian Constitution giving us the assurance that all of those risks will be removed? I am not sure. I cannot give you a clear answer on that because I know the political actors. I know politicians are the players and I see the 1980 referendum and the 1995 referendum. The rules are changing each time, although the law is the same. The rules are changing and you now have another bill that is to change even the law for a third referendum. We have never known the rules in each of those referendums. Quebecers are used to that. Why? Because there are many political actors intervening. I am telling you that we might have a fine Constitution on paper; however, there are political actors who play different games and who have different interests because their interventions are not based on principle. I am urging you, in some way, to write the legislation, but make it clear what kind of negotiation we will enter into. Who will be the body that will be negotiating? Who will have the responsibility? Is it Parliament or the government? Is it the people of Canada, through another referendum? Who has the responsibility to act, or does the Constitution decide for everyone? That is my point. I am saying that, in those circumstances, I see many things that are not clear. Perhaps we should analyze how the United Nations has dealt with those cases in the past. This is what I am looking for. I want to know how the United Nations dealt with those situations for a single principle, a democracy with fairness and equity.
[Translation]
Senator Joyal: Mr. Lachapelle, on page 6 of your brief, in the first paragraph, you asked whether the following question would be clear enough. And I quote you:
Do you want Quebec to become a sovereign country?
And you continue at the beginning of the following paragraph:
For political scientists, such a discussion is very trite since in reality it has been shown that the question has very little influence on the outcome of a referendum.
I am somewhat perplex by this because you have just stated in answer to my colleagues that the question must be clear. You maintain that the bill does not define the question, whereas it should do so. You are saying that we should agree on the wording of the question, correct?
Mr. Lachapelle: An example should be provided.
Senator Joyal: All right. This afternoon, Professor Maurice Pinard appeared before us. As a matter of fact, he did mention that you and he had differing views. I asked him whether in his opinion the following question would be clear: do you want Quebec to become a sovereign State? He answered no, that would not be a clear question. You are telling us, in virtually identical words: do you want Quebec to become a sovereign country? The word country is substituted for the word State. In your opinion, that is an example of a clear question.
So put yourself in our place. How can we define an example of a clear question when two university professors who are eminently qualified have diverging views on two similar questions? Professor Pinard published all sorts of tables, he analyzed the vote in previous referendums and you support an article by journalist Denis Lessard published in La Presse on March 3, 1995. One lawyer can say white and the other one can say black. When that happens, you go to trial and the court renders a decision. Depending on the lawyer you hired, you will get the answer you want.
I believed that from a political science standpoint, we could have very scientific analyses, provide opinions and argue about subtleties, but there are at least two statistical elements to which we can refer. How can we be satisfied with an amendment to the bill that would add an example of a clear question in accordance with your request, if you do not give us more information or points of reference to determine what a clear question is? The previous witness stated definitively that the question was not clear. Could you refer us to any sources that could enable us to better understand the definition of clarity?
Mr. Lachapelle: The first important thing to read would be "Referendums: Guidelines for the Future" by David Butler. This study was conducted in part by the British Senate and members of the House of Representatives in order to study the questions. Here is an excerpt:
[English]
In fact, though Quebecers might deny this, worries over wording may be exaggerated. People do not read the ballot to make up their minds. They go to the poll in order to vote yes or no. Their decisions will be based on the broad issue and the way in which it has been presented during the campaign.
If the question is a loaded one, that fact will have been an issue in the debate. A loaded question may well boomerang in the face of its drafters. Nonetheless, fair referenda do require the question to be as balanced and unambiguous as possible.
[Translation]
I am giving you an opinion. We are asking the question: will you give the Government of Quebec the mandate to achieve sovereignty-association and negotiate its implementation? Maurice Pinard stated that the question was clear in 1980. If that is what you want, you have Maurice Pinard's question.
[English]
Senator Grafstein: Maurice Pinard changed his view.
Dr. Lachapelle: Maurice Pinard changed his view over time. Then what do we do as political scientists? We look to other referenda. In the Danish referendum, there were no questions, there was only the answer, "yes" or "no." It is even clearer when there are no questions. That is a perfect situation.
The answer is "yes" or "no" to what will have been the debate during the campaign. What we know as political scientists, however, is that a referendum campaign does matter. We see that all the time.
I was in favour of the amendment of the Liberal Party during the last referendum in Quebec when they were asking to have the question changed to state "a sovereign country." I think the Parti Québécois made a mistake by not including that in the question.
[Translation]
If this bill was drafted by a political scientist, I am surprised that so much emphasis is placed on the question when all empirical research, including that by Mr. Pinard, seeks to evaluate the result of a vote according to a question or certain parameters of the question such as partnership. Partnership is always an important element. Some colleagues will tell you that that was not the determining factor in the referendum results. However, partnership is a campaign issue. In 1980, the question was known six months before the referendum. The Government of Quebec had stated the question in December. Did that change anything? In the last referendum, the question was known two months in advance. Did that have any impact on the results of the referendum?
In my opinion, the question is one element that can give some direction to the campaign. There are preambles to inform citizens, as was the case in the Denmark referendum. The preamble in Denmark was almost two pages long and explained the meaning of that referendum. In my brief, I emphasized that what is most important is that there be an enlightened debate. As a democrat, in my opinion, it is important that the political players debate the true issues. Whether one is federalist or sovereigntist, I think we can all agree on that. The issue here is to have a clear question.
Let us recall the 1992 Charlottetown referendum. This was a question that led to important constitutional changes. Was it a clear question or a question whose interpretation varied a great deal from one province to another? It was a complex question. That is why I am telling you to include a question in the bill, to provide examples. Decide on the process. There are countries that did not include questions and others that did. You choose. You have a whole range of options.
The Chair: Mr. Lachapelle, you will have noticed that I often tell senators to ask brief questions. I am going to ask you to provide somewhat shorter answers as well.
Senator Joyal: Mr. Lachapelle, if I can follow your reasoning, the importance of the question is not what determines the outcome of the vote. Everything depends on the debate and the way it is conducted. Conversely, one could think that the question "Do you want Quebec to become a different country that is completely separate from Canada?" would not have all that great an impact on the referendum.
Mr. Lachapelle: You are leading a referendum campaign therefore you target the response so as to have a negative or positive connotation. That will give direction to the campaign. So you will get the result that goes with the type of campaign if you proceed with that kind of question. Saying that the government should ask that type of question is quite another matter. It should be as clear as possible for citizens, even those who are not well informed about the subject of the referendum, so that they can at least vote. One would have to talk about the implications of this question. The important issue is not so much the question as how one should answer it.
Senator Joyal: Yes, but the question is still on the table.
Mr. Lachapelle: Let us talk about substance. We have to know who will determine this type of question. What would be an acceptable question? Provide examples. If this example satisfies you, include it in Bill C-20. This would at least be an example and you could say that this question is acceptable. The question I took was Mr. Chrétien's, who said it was acceptable. So put it in the bill. I can live with that question.
[English]
Senator Grafstein: Thank you, Dr. Lachapelle, for a different and fascinating piece of evidence. If I understand you correctly, you say that the question really is not that important, but what you do emphasize in your statement is that the legitimacy of the process is important. Is it fair to say, since you have mentioned the Senate four or five times, that for greater political legitimacy, for greater constitutional clarity, for greater political reality, the Senate should be involved at the outset of this debate? Is that the substance of your evidence as it applies to the Senate?
Dr. Lachapelle: Absolutely.
Senator Grafstein: What we have in front of us is a piece of legislation that fights for political legitimacy and constitutional legitimacy, but both are equally important. What you say -- and I want to put this fairly -- is that the bill really does not go far enough, that the bill should have more items in it to deal with that particular issue: more detail, more subject matter, a more clear process, and so on. That goes to the question and to the nature of the legislation.
Let me deal with the second part, which has been the concern of senators from Quebec, and some senators that are not at this hearing. The argument that has been made to me by senators outside of Ontario and Quebec is that the process is not only constitutionally flawed because it excludes senators from the regions but it is politically flawed because the essence of the compact at Confederation was to ensure that senators outside Ontario and Quebec would have a say, hence the Senate.
Do you agree with that argument as well?
Dr. Lachapelle: I agree that members of the Senate and the regions should participate in the debate.
[Translation]
Senator Prud'homme: There are fascinating things about this 50 per cent plus one. I am a French-Canadian from Quebec. I have trouble identifying myself in any other way and in fact, I will never identify myself any differently. You know my past; a Quebec nationalist, that is for sure. That, at least, is clear.
On the night of the final results, there was this great apprehension throughout the country, and at one point, we even thought that the YES would win. My instincts told me: where are the votes coming from? I knew that as soon as the mass of votes from the Island of Montreal were tabulated, things would balance out. That was my impression. I like this process very much.
Why were we left hanging? We got a No vote with 50 odd percent. It was a triumph. You know that I am not afraid to go into the most nationalist circles, French-Canadian, P.Q. or B.Q. I voted No. That is obvious. How come we put so much stock in this magic number of 50? If the result had been reversed, we would have said that it was not enough, that the percentage was not clear. That is what I am trying to understand. I saw the results, and I am no longer a member of the Liberal Party of Canada caucus. Sometimes I suffer for that.
I know that this apprehension was apparent in the Liberal caucus of Canada. That is was led to all the other projects, the resolutions and now clarity. The MPs outside of Quebec said: Next time, our country is going to be at stake. And they are right. Why is it that on the one hand, 50 was the magic number that had to be reached -- and it was reached in the final hours -- and yet if the opposite had happened, some people would have said that it was not enough?
Mr. Lachapelle: During the last two referendums, there was a winner and a loser. The referendum strategies were very different. It was believed that the federalist forces would win 60/40. This is what was being said in Quebec for two years. For two years, we were being told repeatedly that we controlled everything, that politically, we were comfortable. In fact, they opened up the drawer, took out the 1980 strategy and applied it again. I will not list all of the strategic errors made by the federalist camp, but in large part, the results are that of a campaign that had been a success from the perspective of political adversaries. The worst decision that was made was that of not making a decision. Today, once again we are in a situation where there is no decision. You might say: yes but what would you say if the results were the same, but the opposite, without a decision? I am not saying that at 51 per cent it will be easy. It would be even more difficult than if it were 55 per cent. Except that in Ottawa, the federal government does not seem to have understood the message. In 1995, Mr. Chrétien made a promise to Quebecers. He said that a No vote was a vote for a renewed federalism. Verdun. Quebecers interpreted it that way. Polling from that time shows it. Even today, 70 per cent of Quebecers want federalism to be overhauled. The only way you could not be aware that something somewhere was not working was if you had your head buried in the sand. If Bill C-20 is the solution to the problem, then there is someone who did not see what happened last time and who will not see what will happen next time. If this continues, it will be up to you to make a decision. The bill before you does not help the situation one bit.
I understand people from other provinces, especially those from the West, who say they do not know what is happening in Quebec.
I have friends from British Columbia who come to Quebec and who ask if they will be able to exit Highway 40 without having stones thrown at them. It is the year 2000 and there are still people who think like this in Canada. Basically, I think that Quebec society has evolved; it was a French-Canadian society and has become a Quebec society, and I think that there is not much difference between the two concepts today. It is democratic, it has experienced the quiet revolution, elections, referendums and we export our democratic expertise.
Today, some people are looking for a way to deny this reality, and for purely electoral reasons. In the United States, this is called "raising the flag." It is the theory whereby when the American President raises the flag, everyone supports him. The same theory applies in this case, and that is why "raisin the flag" works in English Canada. However, that is not the problem, the problem lies elsewhere.
Senator Prud'homme: Thursday, there will be a big event in Quebec City in relation to Jean Lesage. There will not be many French Canadians, Quebecers or Canadians invited, only a few it would appear, and I have been invited. There will be speeches which will help me sort out my thoughts by Thursday.
People do not like talking about these things, because it is a slippery slope, but I do not mind going out on a limb because I am old. You mentioned "French-Canadians" and "Quebec people." I followed the results, poll by poll, throughout the province. In Mr. Dion's riding, I could mention all of the polling stations in his federal riding, as well as the referendum results, especially on the West Island. We are all Quebecers, that is for sure! But there is a number of different peoples within Quebec, and Marcel Prud'homme certainly did not invent Aboriginal people.
How can you say it without hurting people? Obviously everybody who lives in Quebec is a Quebecker. Eighteen percent of the population, will vote no 99 per cent of the time, and that is their right, however French-Canadian Quebecers make up 82 per cent of the population. It is clear, I will say it for Mr. Turp, because in the end it will come to that. Even though we are not allowed to use the expression "French-Canadian people," I recognize the Aboriginal people with a lot of passion. There are 11 Aboriginal peoples in Quebec, it is not complicated, there are 65,000 Aboriginals, and we get along. We have heard all kinds of things, and now we are francophones, instead of dealing with reality. But is it not up to the French-Canadians of Quebec? Those are the ones we need to convince. And clearly they do not want it. I am telling you they do not want it. Do you think this is offensive to talk this way? There are some people who find this offensive in Ottawa.
Mr. Lachapelle: In my opinion everyone who lives in Quebec is a Quebecker, everyone who feels that they are part of this political and sociological community. They are people who identify as such, minorities. As a professor at Concordia University, I can tell you that there are a lot of people who identify as Quebecers and who also identify as North Americans. We cannot forget that 10 per cent of francophones in Quebec have relatives in the United States, and who also identify as Canadians.
Identity varies: there is a strong national Quebec identity, a continental identity that free trade has no doubt strengthened, and that is the North American side of Quebecers, and thirdly, a constitutional or territorial identity which is Canadian. These three identities exist, however over the years, the Quebec identity has become a very strong identity.
In response to your question about peoples, I would refer you to the Dictionnaire des peuples published by Larousse. There you will find information on peoples of the world. There are a great number of them, they exist and they are defined. Perhaps I should send a copy to different libraries. And I would say that I like the idea of a "respectable people," in the sense that they recognize the rights of others, and they recognize that Canada was founded by two founding peoples, as we were taught in grade school. Is that still the case today? Those who wish to take this identity away from us do it at their own risk.
The Chair: I would like to thank you on behalf of the committee. Before you leave, because it is getting late, I would ask you to think a little bit. You said you would like to see samples of clear questions. One of the difficulties, obviously for us at the federal level, is to find examples of clear questions that would be acceptable to the other side, given that we have no right to legislate on the question that the National Assembly will ask. It is almost out of curiosity, but if you do find examples of clear questions, could you forward them to us?
Mr. Lachapelle: I would encourage you to read a nice little document published during the 1980 referendum in Quebec which is entitled, Pour mieux comprendre les référendums (A better understanding of Referendums), published by the Conseil de l'unité canadienne and which gives the questions asked in Australia, Newfoundland, Ireland, Norway, Denmark and the United Kingdom, in detail. It is full of examples of questions, it is the federal government that produced it and you could consult it.
One interesting example is that of Western Australia in 1938, which is a partnership, for the most part, and which is similar to the 1995 Quebec question, which was described by the Conseil de l'unité canadienne as being a clear and unambiguous question. So it is in fact your own documents that define this question as being clear.
The Chair: I thank you, you were very patient and we appreciate it very much.
The meeting is adjourned.