Proceedings of the Special Committee on
Bill C-20
Issue 7 - Evidence (Morning sitting)
OTTAWA, Thursday, June 19, 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 9:32 a.m. to give consideration to the bill.
Senator Joan Fraser (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, the tenth meeting of the Special Senate Committee on Bill C-20 is now in session.
[Translation]
Welcome to all those who are here as well as to those who are our television audience.
[English]
I should particularly like to draw to your attention that this meeting is being held in the Senate's Aboriginal Room. I believe this is the first function to have been held in this room since it was formally dedicated and blessed in a truly remarkable ceremony a few days ago. We are fortunate.
Today we continue our consideration of Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.
[Translation]
The bill was adopted by the House of Commons on March 15 and was read for the first time in the Senate on March 21. It was then read for a second time on May 18, which means that the Senate approved the principle of the bill. The bill was then deferred to this special committee for an in-depth study.
[English]
That consideration continues this morning with the appearance of three witnesses. We will hear first from Professor Michael Behiels of the Department of History, University of Ottawa, followed by Professor John McEvoy of the Faculty of Law, University of New Brunswick.
[Translation]
And then it will be Professor Jean-Pierre Derriennic from the Political Science Department of Laval University.
[English]
Each witness will make an opening statement, followed by a question and answer period.
[Translation]
Once the committee will have heard all of the selected witnesses, the bill will move to clause-by-clause consideration. The committee will then report to the Senate for its consideration.
[English]
Professor Behiels, thank you for appearing before the committee today. Please proceed.
Mr. Michael Behiels, Professor, Department of History, University of Ottawa: Madam Chairman, this is quite a historical day in the sense that this is a marvellous room, showing that the Senate is coming into the 21st century with really nice facilities, and long overdue, I would say. The last time I was here, the other committee rooms were rather run down and needed considerable attention. I am glad to see that that is being done.
I thank the committee for inviting me. I have been mulling over this piece of legislation for the past several months. I have given several talks on the legislation and have discussed it with various people. The more I discuss it, the more I find that it is highly problematic.
I do not have much time here. I am told I have 15 minutes. The clerk was very direct on that, and I appreciate that. I have a long paper. I will not read the paper. That would be foolish because you all have it in your own hands, and you can read it in greater detail at your leisure. If you have questions, I am sure you know where to get in touch with me.
My concern is that the legislation will not accomplish what I think the government wants it to accomplish, which is essentially to head off any potential unilateral declaration of independence by the Quebec government. That is how I understand the government's intent and the intent of the legislation. The big question is, will it do that? As it now stands, it probably will not accomplish that objective, if that is the objective, and I think it is.
This all goes back to the night of the referendum in 1995 and the scare that all Canadians had as we watched that little monitor on television move back and forth between 49 per cent and 51 per cent. It became a nightmarish scenario as we wondered what would happen and what would follow the next morning if indeed the separatists managed to win that referendum with 50 per cent plus 1 or a few more.
That really woke up the country, woke up the Prime Minister, woke up the cabinet and the caucus, and the people in the Privy Council to the fact that this was for real. This was not just a game. We were in big-stakes politics, and the future of the country was at stake. Therefore, there was a lot of discussion in the intervening years after 1995, with good reason. The government, eventually, after sort of humming and hawing, finally decided to come up with this piece of legislation.
I think it is not what it intended entirely, but many compromises, mostly political, had to be made for one reason or another. We end up with a bill that does not fully accomplish what the government hoped it would accomplish.
My point in the paper essentially is that we need three amendments. First, we must make it very clear that the threshold is a two-thirds threshold. The legislation as it now stands is in fact wide open. It is far too discretionary. It will give the federal government and, of course, the cabinet and the governing caucus far too much power to decide, after the fact, what it considers to be a legitimate vote. I think that in a democracy that is unacceptable. You cannot have that in a democracy. People going to the polls need to know what it is all about. Do they have to reach 50 per cent plus 1? Do they have to reach 57 per cent or 60 per cent or 66 per cent and two thirds? What is the threshold?
This is not a normal kind of referendum. It is not entirely consultative, as many people would like to indicate that it would be, because it would have momentous political consequences, far more than a normal referendum -- whether a plebiscite referendum like in 1942 on whether the government should rescind its promise for no conscription for overseas service or the referendum of 1899 on prohibition. It is not that kind of referendum. It is a referendum on the future of a country. Once citizens of a province have decided that they want to move down the road to secession, it is not a mere consultation. It is more than that.
I know that it is not in the Constitution and that it does not carry any kind of formal constitutional weight, but politically it would carry enormous weight. We must set a threshold now for that reason. We cannot wait until the moment of the referendum, and even after. The caucus would meet, and the cabinet would meet, and the Prime Minister would come out and say that it is not legitimate, it is only 58 per cent, and we will not go to the table.
I can tell you now that all hell would break loose in Quebec, as it probably would in British Columbia. People would ask why we went through that exercise. The fallout would be enormous.
People must know, before going to the polls, what they are doing. If it is not 50 per cent plus one, then say what it is. If it is 58 per cent plus one, then we could discuss that. This vague and ambiguous notion that it can be anything that the government decides after the fact is totally unacceptable. It will be considered unacceptable by most Canadians, not only those in Quebec.
The second amendment deals with clause 3, which is the one that I find most problematic of the entire bill. That clause is the most problematic because there is no clear indication -- and here is the heart of the ambiguity of this so-called clarity bill -- as to which amending formula or which ratification formula would be used to bring any deal into force, legally and constitutionally.
Any negotiated deal would be arrived at after months and months of difficult negotiations -- if they ever managed to arrive at a conclusion. I think that it is highly unlikely that a negotiated position could be reached, given the high stakes involved and given the vested interests involved. There is so much at stake that it is highly unlikely that men and women sitting around a table behind closed doors will ever be able to arrive at a deal that will stand the test of the people. No matter what formula is used under section 5 of the Constitution Act, whether it be seven provinces and 50 per cent of the population, or Parliament, or whether it be unanimity, or all of them together in different stages and different ways in a very complex process, I do not think that any negotiated secessionist deal would stand that test. It would be rejected in one forum or another.
It remains important that this legislation spell out to all Canadians the ratification process.There is a lot of debate amongst academics about that, as the work of Russell and Ryder indicates very clearly in their long article for the Institute of Public Affairs.
The Senate should think clearly about the second amendment proposed. This bill is a kind of, how should one put it, halfway house. It deals with the first two stages of the referendum process, the question of the question. It deals in an ambiguous way with the majority, and then stops. The most important aspect of any constitutional amendment, as we well know having gone through Meech and Charlottetown, is the ratification process. Everyone understands that it will require a constitutional amendment. That is apple pie and motherhood. The critical question is how will you bring about that constitutional amendment, which involves the secession of part or all of a province from the Canadian federation.
The third and final amendment that I propose is regarding a national referendum. There is no acknowledgement in this bill that sovereignty belongs to the Canadian people and that the Constitution belongs to Canadians. Having gone through the Meech Lake Accord and the Charlottetown Agreement, this Prime Minister insisted, and quite rightly so, that there be a referendum to legitimize what the politicians behind closed doors had been doing over months and months. Those politicians cobbled together a highly convoluted, highly complicated document, with 25 or 30 political accords that remained to be negotiated. Many questions remained unanswered.
The political instincts of this Prime Minister, I think, were right. He insisted that there be a national referendum. Fortunately, he got his way. Canadians, in fact, had the final word. They voted down the package, and it was their right to do so. Sovereignty resided in the hands of the Canadian people.
We should learn an important lesson from that process of mega-constitutional change that started way back in 1964 and went on through the Victoria Charter and the Constitution Act of 1982. At that time, then prime minister Trudeau stood his guns and insisted upon a referendum to legitimize 1982. Otherwise, we would not have had the reason for Meech and Charlottetown. Unfortunately, he backed down on that.
Having gone through 1987, 1990, Meech Lake and Charlottetown, we must understand that there is the larger issue here of the sovereignty of Canadians over their Constitution. This is not something to be worked out behind closed doors by politicians. I was taken aback by this government, especially this Prime Minister, having decided to forego what to me is the most important element in any major issue of secession. That is, the people must decide. That legitimizes the entire process.
If people do decide that they can live with the deal, the problems that follow would be far less. The prospects of violence and people rejecting and trying to scuttle the deal would lose all legitimacy. The Canadian people would have sanctioned the deal. After all, it starts with the process of a referendum.
The referendum, as it is now sort of built into this bill, is restricted to only one part of the country. It does not involve Canadians. Russell and Ryder understand that. They have a convoluted notion of a referendum based upon five regions, because we now have a bill in the House of Commons that tries to circumvent the Constitution and introduce five regions, rather than unanimity in seven provinces and 50 per cent of the population.
I do not think that that bill has any force in law. It is simply a bill. It has nothing to do with the constitutional amending formula in any formal sense. It was wishful thinking on the part of Prime Minister Chrétien's government. They tried to apply the referendum in that way. It is convoluted and unacceptable.
However, we do now have a constitutional convention of a referendum to ratify any major constitutional change. If secession is not a major constitutional change, then I do not know what is. I cannot envisage anything more major than that. If Canadians do not have their final say, then it will have no legitimacy whatsoever. Such a process would be followed by a lot of tension and disruption. It is not something on which politicians can, and should have, the final say.
Here again, if this bill is to be absolutely clear, the role of the Canadian people should be written into the bill because they have the ultimate sovereignty in this country.
Senator Beaudoin: Your three amendments are very interesting, and I am sure there will be many questions. I will focus on the second amendment. That proposed amendment speaks to which amending formula should apply in the ratification process.
The advisory opinion was on the question of negotiations, but, at the very end, it states that whatever the case, if this is successful we should have an amendment to the Constitution. Unfortunately, the question was not addressed at the Supreme Court, because the government was apparently not interested in knowing which formula of amendment would apply. As well, it was possible for the court to rule on this -- they have done that in the past, even when not invited to rule -- but they did not do it. In my opinion, it is important. If we reach that goal, will the formula be 7-50 or will it be unanimity?
If there is no successful referendum, then there is no point in talking about it, but we never know. What, in your opinion, is the amending formula? The jurists are divided. Some say it will be the unanimity formula and some say it will be 7-50. Clearly, those who came before us were also divided.
Mr. Behiels: Senator Beaudoin, you are absolutely correct. All of this begins with the government's decision not to include a fourth question, or maybe a fifth question, too, to the court.
I think that was very deliberate. It flows from the government's thinking that, somehow, if we just try to shock Quebecers into believing that, really, it will be on secession and nothing else, that will dissuade the present and any future Quebec government from ever contemplating a future referendum, because they would lose. I believe that is a false assumption. If you legislate, then you do it for the worst-case scenario, which is, in fact, a referendum on secession.
If you read that there can be a referendum on the question of session, then it must be understood that there may be a Yes vote. That is a possibility. It may not be probable at this time, but it is a technical possibility. People can be persuaded under the set of circumstances that we will go over the threshold. We have no control over that; we do not know what will transpire. Legislation has to take into account all of those contingencies.
The Supreme Court would have loved to address the issue. They are eager. If you read those lines, you will understand. They are asking, "Why did they not ask us?" Then they said, "À la prochaine," because they know that the question must be settled.
They also know that it is the formula of unanimity that applies. However, they began to understand that that is essentially a straitjacket, because with the formula of unanimity the chances of one part of Canada seceding in a legal way are not good; it will not happen. There will always be one reason or another for one of the constituent members to deny the process, and it opens the whole process to a form of blackmail: I will say Yes, but I want something for that Yes vote. Unanimity will lead to the chance of that happening. Therefore, they instead wandered off into a political quagmire, a political minefield, where they came up with the whole scenario that it is the principles of the Constitution that will determine the appropriate amending formula. We should be guided by this set of principles.
Thus, they tried to circumvent the straitjacket by proposing a set of principles for us to think about. Whether or not those principles are appropriate is another matter. Some are and some are not. It is not conclusive. However, in a sense, we are in a constitutional straitjacket with unanimity. The unanimity formula applies -- that is the tough nut. That is why they did not want to address it. It sends a message to Quebecers that they can have a referendum, but the really big test will be, in fact, ratification.
Senator Beaudoin: Mr. Hogg said that it will be the 7-50 formula and Mr. Magnet believes that it will be unanimity, if we reach that goal.
Mr. Behiels: I do not understand why you would say 7-50, because it involves some institutions that come under the unanimity rule.
Senator Beaudoin: Dean Hogg's argument is that the unanimity clause is not stated -- enumerated -- in section 41. Therefore, the preponderance of evidence is that it will be the 7-50 formula. It is very difficult.
Senator Kinsella: Professor Behiels, you made reference to the sovereignty of the people of Canada. In paragraph 85 of the advisory opinion, the court states: "The Constitution is the expression of the sovereignty of the people of Canada." I should like you to develop a little further for us the import of the sovereignty of the Canadian people.
Mr. Behiels: I think that it is at the heart of this whole thing. Unfortunately the amending formula, back in 1982, involved only the executive and the legislatures in Parliament. I think, in reality, in the realpolitik of day-to-day life, that cannot hold. All politicians understand that in their hearts. They know that it is the Canadian people who are sovereign, ultimately.
It would be fine for minor amendments -- the executive can proceed with the business, for example, as they did with Newfoundland and Quebec and the issues of the denominational schools, in a bilateral kind of amendment. However, it is different for something as fundamental as the future of the country. Just as the Rockies belong to every Canadian citizen in Quebec, so, too, do the Laurentians belong to every Canadian citizen in Alberta. The country is not simply parcelled off in geographic terms -- the Maritimes belong only to Maritimers and Ontario only to Ontarians. The entire country belongs to each and every citizen of Canada. We all have rights and obligations that flow from that, and, therefore, any amendment that involves a secession of part or all of a province involves all Canadians, because it is in fact part of their heritage, fabric and country.
I believe the Supreme Court understands that. I do not think they could address it, in any real sense, because the question was not put to them. I think that was done quite deliberately by the federal government. There were many arguments as to whether or not they should go forward on this. They have chosen, in fact, a minimalist position at the moment, and Bill C-20 represents that. That is the minimum that the government's caucus and cabinet could have accepted, although they probably would have preferred more.
We are in a quandary, because the Constitution Act of 1982 does not give a formal role to Canadian citizens. That is the problem. We have, by a convention now, an informal role for Canadian citizens that is established in practice -- perhaps not in law, but in practice. In fact, Bill C-20 should take that into account.
Senator Kinsella: As a senator from the province of New Brunswick and the Maritime division, my second concern is that of the numbers. They weigh heavily in my assessment, including a national referendum but equally with reference to this bill, when I look at the whole legal process that is being proposed. That process commences with the members of the House of Commons assessing the clarity of the question and then the clarity of the result. There are 301 members of Parliament and 103 of them come from the province of Ontario, which borders the west of Quebec. The province of New Brunswick borders the east of Quebec, where we have 700,000 people. The whole Maritime region has perhaps 24 members in total in the House of Commons.
What, in your view, was the genius of the Fathers of Confederation when they conceptualized an upper house to be composed of members chosen on the basis of senatorial division whereby the Maritimes has 24 and Ontario has 24? What was the genius in terms of protecting minority rights? As you know, because of section 16.1 of the Charter, New Brunswick has a special constitutional obligation to protect the equality of two linguistic communities. This whole process is very pressing for New Brunswickers and Maritimers. I should like your comment on that.
Mr. Behiels: You are absolutely right. I could not quite understand the language of the Supreme Court when they talked about limited numbers of political actors. They then wrote that into the bill and in the process they wrote out a role for the Senate at the very early stages. I believe that is unacceptable. Honourable senators are quite capable in their positions to defend your institution and you should do so with tremendous vigour. Indeed, you should go to the Canadian public with that concern, because the Senate is an integral part of Parliament. It has been and should continue to be an integral part of Parliament, especially on such a crucial issue as the breakup of their country.
I believe the Senate was designed to do that sort of job -- to protect the weak, to protect minorities, to protect regions that could not have the kind of power and sway of numbers in the House of Commons. That was understood clearly back in the middle of the 19th century. I do not know why it is not understand at the end of the 20th century. Unfortunately, over a long history the Senate has been abused. It has been used, and its role has been distorted in ways that I do not think the Fathers of Confederation could fully understand.
The upper house does need to establish a new sense of legitimacy, which would happen through the development of an elected Senate. That is my personal view and has been my view for a long time now. That would give the Senate a considerable amount more clout to defend the interests of the regions and the minorities, and that is its role. In a mature democratic society I am sure we would be able to find the rules and regulations to do that.
I fully understand your point of view, and on this point you should insist upon amendment that in fact writes in the role of the Senate from the beginning. Otherwise, why are you here? What is your role? You have been reduced to floor sweepers.
I could not quite understand that aspect of the bill. I am trying to fathom in my own mind why the Prime Minister has such a negative view of the Senate. That was not my initial impression of the Prime Minister, but somehow he has been persuaded at this early stage that the appropriate political actors ought to be limited and that, since this is not a formal part of the amending process, there is no real requirement, constitutionally, to have the Senate involved. That is narrow thinking, however. If the Senate is not involved from the outset, it will give the government a great deal of trouble down the road. It is better to have the Senate on board right from the outset than to bring them in late in the game when they can cause enormous amounts of problems, as is the case with this bill.
Senator Christensen: Regarding your third amendment, when do you see a national referendum being implemented? Would it be to receive approval for the negotiations and the amending formula that would be used, or would you see it used after the negotiations to approve the negotiations?
Mr. Behiels: I thought about that for a considerable period of time, and I have discussed some of this with Senator Joyal. If it is made very clear in the bill that the Canadian people ultimately hold the veto, in a sense, over any deal that might be arrived at, it comes at that stage. Once all of the political actors have done their formal work to the best of their abilities, under far more difficult conditions than Meech or Charlottetown, and if in fact they manage to cobble something together that they think would hold, then, of course, that is when you give the Canadian people the final say.
That keeps everyone honest, because they know that, at the end of the day, if it does not stand that test of the sovereignty of the people, the matter is finished. It will not be implemented. That is the way to keep everyone in the entire system honest, because they know that a deal must be ratified by Canadian citizens from coast to coast. That is the point at which I would see a national referendum coming into play.
Senator Christensen: If it were not ratified, what then?
Mr. Behiels: Then it is not ratified. Everyone goes back to status quo. The political fallout must then be dealt with, but those are risks that we take in going down this road. We are a mature, developed, democratic society and we will need to deal with those consequences.
Senator Lynch-Staunton: Professor Behiels, you are the only witness I can recall who has actually suggested a figure as a minimum threshold before the negotiating process can start. You are suggesting two thirds. I think you are right, and we can quarrel about the number, but I think it is important that, if a bill of this sort is to be acted on and to become law, not only should the minimum Yes vote be specified but also the question should be specified. You have not touched on that.
Would you see a bill of this nature including the question and saying that we do not need to go to the House to get approval or to analyze the clarity of the question, because here is the only question that you can ask and the only answer that we will accept before the negotiating process starts? Do you not think that would make a better bill than this rather awkward procedure that Bill C-20 is asking us to approve?
Mr. Behiels: That is a very good point. Who decides the question? In a federation, the government's instincts and its best advice was probably, on this issue, correct. There is a role either for the National Assembly of Quebec or for the British Columbia legislature or for the Newfoundland legislature to frame the question if it is clear and only directed to secession, period.
At one point, Patrick Monahan argued that we should not do this. I believe we must do that. It must be on secession and nothing else. The bill is quite clear on that. It is perhaps not as clear as you would like it to be, but it is as about as clear as you can get it at this point in time, I think.
The next step you could insist upon -- but again I have some qualms about this -- is that the question be approved by a two-thirds majority in the National Assembly or in the British Columbia legislature, because that would force the participation of all parties in the assembly or the legislature. In other words, there would need to be a kind of unanimity in Quebec on the phrasing of the question. The government could not simply pose the question that it wanted on its own terms: it would have to involve all political actors in the assembly or in the legislature.
I do not believe that is the role for the national government to play. This must be debated within the province where the secessionist movement is taking place. I think they have the appropriate democratic instincts and they have the guideline that has been given on the question, that it must be on secession and nothing else. They have sufficient indications as to what would be acceptable and what would not be acceptable.
Senator Lynch-Staunton: I agree with you that the national government and Parliament have no say in the decision by the National Assembly or any provincial legislature. The Referendum Act in Quebec covers conditions for a referendum. However, we are not talking about an ordinary constitutional negotiation, a wish for Senate reform, or more powers for the provinces. We are talking about the possibility of a province voting, by a vast majority, to break away from Confederation and become an independent entity. Surely the national government will not entertain any such negotiations unless it stipulates to that province the only question and answer that it will seriously consider in a secession discussion.
I maintain that if the question and the required majority were included a bill, the debate would be over. The Government of Canada and Parliament would have confirmed that this country is not to be played around with and that you had better be serious when you ask the question and ensure that you get the two-thirds majority. The debate would be over. We would not have to worry about a negotiating process, the agony of five years of negotiations, or a national referendum. Can you imagine the chaos this country would be in after a favourable vote on a question of which the House of Commons had the responsibility to decide the clarity?
Mr. Behiels: Senator, I wish you were right, but I do not think that would necessarily stop the process. Life is not like that. The Quebec government has made it very clear that this clarity bill means nothing to them. Mr. Bouchard is fond of saying that it does not exist for him, that it is not even on his radar screen. Someone like that will do what they think they must. Imposing the wording of the question on a province is not respectful of its autonomy.
Senator Chalifoux: We have heard from many witnesses concerns about this bill relating to the process and to consultations with the Senate and with the aboriginal nations in Quebec. The only purpose of this bill is to say that the question and the majority must be clear. That is all the bill does. However, it excludes the Senate and aboriginal people from consultation and as political partners. I should like to hear your comments on those two issues.
Mr. Behiels: If the Senate amends the bill to state that it must be included in the bill from the outset, that will in part address your concern about lack of protection for the aboriginal communities and other minorities, because that is in large measure the mandate of the Senate -- regional and minority rights.
If the Senate were a political actor in the process from day one, that would, I think, go a considerable distance. I listened to the arguments made by the aboriginal communities here last Thursday. Their notion that the Senate is part of the federal government's fiduciary responsibility is appropriate. It hits the nail right on the head. I believe that the bill could be struck down as unconstitutional by the court because it does not allow the Senate to play its fiduciary role from the outset. It excludes the Senate. Although it is not a formal constitutional process at the outset, it is part of the informal process leading to an eventual constitutional amendment. Therefore, I think the aboriginal communities and the Senate must be involved in the very early stage. I believe that both of their arguments on that score were bang on.
The Senate can do what it has to do in terms of proposing the appropriate amendment, which would go a long way toward addressing your concerns.
Senator Furey: Professor, I am a bit confused about your comments in response to the last question of Senator Lynch-Staunton. Perhaps you can clarify for me. Are you saying that Parliament should include in the clarity bill a specific majority and a specific question?
Mr. Behiels: No, I am saying, contrary to what Senator Lynch-Staunton would like, that the question must be on secession and only secession, and the bill says that. That, to me, is acceptable.
In terms of clarity, it does not say that the threshold is two thirds, period. In other words, we will not wait until after the vote to decide that today we think the majority should be 54 per cent, and next week we might think it should be 58 per cent. That is not acceptable. That is ambiguity in black and white.
Senator Furey: However, it is an analysis of the question that is put forward that you still agree with, as opposed to framing a question.
Mr. Behiels: That is right, yes. It does put certain parameters on how a question should be framed, and those parameters are quite clear. If the question does not fit within those parameters and is not addressed directly to secession, the House of Commons will not accept it.
Senator Murray: Professor, on page 3 of your brief you say: "Following the opinion, Ottawa's only political option is to enter into negotiations with Quebec if the court's stated conditions are deemed to have been satisfied." Surely you are wrong about that. What is to prevent the federal government from holding a federal referendum in Quebec, or a national referendum, or dissolving Parliament and calling an election under those circumstances?
Mr. Behiels: I think that it can do every one of those things.
Senator Murray: So there are other political options?
Mr. Behiels: Yes, there are other political options, but, in the real world of the dynamic that goes on at the time, it could delay, it could try to circumvent in one way or another.
Senator Murray: An election and a referendum of our own are not unreal possibilities.
Mr. Behiels: They are real, but they would be perceived as delay, obfuscation, and not addressing the question directly.
Senator Murray: Why do you say that Ottawa's reference to the court and the subsequent opinion pertained only to secession, that the court has imposed on Ottawa an obligation to negotiate only the terms of secession and not the renewal of the federation? How can you say that in light of paragraph 69, which states:
The Constitution Act, 1982 gives expression to this principle...
-- the democratic principle --
...by conferring a right to initiate constitutional change on each participant in Confederation. In our view, the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces. This duty is inherent in the democratic principle which is a fundamental predicate of our system of governance.
That seems to me to have much broader application than simply to a secession vote.
Mr. Behiels: I agree with you, but you must separate apples and oranges. I think any province can initiate a movement for constitutional change.
Senator Murray: So can the Senate.
Mr. Behiels: Yes, so can the Senate, within the framework of the existing federation.
Senator Murray: And the others are obliged to come to the table and discuss it.
Mr. Behiels: That is right. I see no objection to that. If it is for renewal of the federation in any way, shape or form, that is fine. For the breakup of the country, that is like mixing apples and oranges again.
Senator Murray: My point is that the obligation to negotiate, which is now identified as a constitutional obligation by the court, seems to me, from that paragraph at any rate, to apply much more broadly than simply to an initiative for secession.
Mr. Behiels: Yes, but I do not quite understand where you are going with that. What is your point?
Senator Murray: My point is that, if Quebec or any other province had a referendum --
Mr. Behiels: On?
Senator Murray: On anything, or passed a resolution through their legislature to amend the Constitution, if you follow strictly the Supreme Court advisory opinion, all of the other parties are obliged to come to the table to discuss it.
Mr. Behiels: You are applying an opinion on one issue of secession to the broader question of the reform of the federation.
Senator Murray: I understand the court is saying that.
Mr. Behiels: I would want to go to the court for clarification on that matter.
Senator Murray: Good luck.
Mr. Behiels: I think you are meddling in that area. I do not think that was the court's intention, although it may very well have been so. You can go back to the court and ask them, "Was that your intention? Will this apply to the broader changes in the Constitution or not?"
Senator Murray: On the question of referenda, as you well know, in 1982 there was a proposal, which fell off the table, to make referenda part of the amending procedure. British Columbia and Alberta now have legislation that effectively constrains the minister of the Crown from putting forward a resolution to amend the Constitution, unless there has been a referendum first in those provinces. I suppose that is the realpolitik of which you speak in the other provinces.
I am curious to know whether you weighed in on the question of the Nisga'a treaty. Under the relevant British Columbia legislation, that ought to have been put to the people of British Columbia in a referendum.
Mr. Behiels: Yes.
The Chairman: You suggest that the Senate should write in a role for itself. Do you mind telling me precisely what role? Do you have in mind that we would have, as we do with normal legislation, the ability to kill it, that is, to veto negotiations on secession?
Mr. Behiels: No, I do not see it as entirely a veto. It could be a six-month hoist to get everyone to sort of wake up. At the moment, a pure veto with an unelected body would be questionable. A suspensive six-month hoist would be, at the moment, about as far as you could go. If you had the legitimacy of being elected members of the Senate, that would be another matter. You would have full rights of vetoing anything that you found to be amiss in some way, shape or form.
The Chairman: I am not sure that constitutionally we could write in a six-month hoist for ourselves, but perhaps we could.
Mr. Behiels: You do have that power under the Constitution now.
The Chairman: For constitutional amendments.
Mr. Behiels: My argument is that in this whole process the informal and the formal come together. You cannot think of the Constitution strictly in a narrow sense as the formal document.
The Chairman: You are a historian, are not you, not a lawyer, bound by the narrow terms of the law?
Mr. Behiels: I was brought up in the Alan Cairns school of the Constitution as a living tree involving everything that has come down to us since Confederation, including a lot of things that are not found formally in the document but that have to be complied with. The court said that again in terms of creating a constitutional convention in 1982 on the patriation issue. The court took a broader view of the formal and informal processes coming together. You cannot, in fact, ignore one dimension at the cost of the other. It is all part of a whole package. That is where the referendum, as I see it, will be a very important informal part of the process, which in time will become, in a sense, formalized.
Senator Taylor: You mentioned three amendments and then you came along with a fourth one, ensuring that the Senate be put in there. That could be easy, because, like Senator Furey, even you have slipped into using the word "Parliament." Parliament means both Houses.
You are a bit sanguine and maybe even eastern-oriented, although I notice you were educated in Alberta, but maybe that has rubbed off. You have assumed that Ottawa is the fount of wisdom and that it will always be trying to stop a separation and that we will be the anchor or the tree that holds the country together.
You must remember that when it was voted in the House, every party, except the party now in power, thought that 50 per cent plus one was fine. You must also remember that one of the major parties in Canada now at one timed recommended to Quebec, "If you want to go, beat it." You could easily have in the House of Commons a party that wanted Quebec to go, as well as Quebec wanting to go. Together they could have more votes by far than the rest of the opposition. Whether there is a minority or a majority government does not matter. In that case, the Senate would probably be the tree or the anchor of which you speak. That is one argument you seem to have overlooked. In other words, when the House goes all to hell, all we have left is the Senate.
Mr. Behiels: As well as the Governor General, you are absolutely right.
I am somewhat concerned about the way the official opposition acted in this case. Back in 1982, the official opposition, led by Joe Clark, played its role in a marvelous way. It played the appropriate role and it opposed the government on principle, because that was its role. It forced the government to the wall. In this case, we did not get that role played by the Official Opposition. I was very disappointed about that. It sort of walked away from its responsibility to push the government to the wall on this piece of legislation, because, like you say, it has its own political agenda.
Senator Taylor: Would it change if it becomes government?
Mr. Behiels: It will not change when it becomes government, absolutely not, and that is why, to protect against this kind of very quick deal that would be made to go ahead, we will go to the table, because we have somehow, for different political reasons, decided that this is quite legitimate, and so there have to be built in counterbalances to the role that the House of Commons would play. You are right, the Senate is there to play that counterbalance in this situation. The way the numbers can break in the House of Commons, with a multi-party system emerging, it is anybody's guess as to what would be decided and for what reasons.
Senator Joyal: Professor Behiels, I should like to come back to your third proposal of amendment. Would it not be better to introduce that amendment in the bill with a statement that the Constitution of Canada belongs to the people of Canada?
Mr. Behiels: Absolutely.
Senator Joyal: As you will recognize and as was stated by my colleague Senator Kinsella, in paragraph 85 of the secession reference the court made it quite clear that the Supreme Court of Canada recognized 50 years ago that the Constitution of Canada does not belong either to Parliament or to the legislature, it belongs to the country, and it is there that the citizens of the country will find the protection of the rights to which they are entitled. That being said, if the Constitution belongs to the people of Canada, is it not the role of the federal government to uphold the constitutional order, as that is where the citizens get their protections, their rights and their freedoms?
In the second sentence, would it not be that the Canadian government has the sole duty to maintain the constitutional order? If the government wants to be relieved of that duty, the government has to go back to the people of Canada, because what it will be embarking upon is not a rearrangement of the constitutional order within Canadian territory, it is a dismantling of the constitutional order based on the Canadian territory.
I contend that the Government of Canada does not have the prerogative of initiating Constitutional discussions whose ultimate objective is not secession of the province but the dismantling of the country and the rearrangement of the constitutional order, for which we do not know at the end exactly what it will be. You do not embark upon a course when you do not know where you will end up without first being authorized, when, in fact, what you are seeking is the destruction of the constitutional order.
I therefore contend that the first element of anything would be to reaffirm the supremacy and the sovereignty of the people of Canada. Second would be the duty of the Government of Canada to uphold the constitutional order. Third would be the obligation of the Government of Canada to go back to the people, if the government wanted to be relieved of that duty to maintain and protect the rights and freedoms of citizens as they are presently entrenched in the constitutional order.
The Prime Minister himself said in 1982 that we have given the Constitution to the people of Canada and that will be the test of any change in the future. This to me is where lies everything that we are discussing this morning on the whole of this.
Mr. Behiels: I accept both of your first points. I am not quite clear as to the third point, to have the government relieved of its mandates to defend and uphold the Constitution. At what point do you see that happening? Does that happen after the referendum has been held and before negotiations start? Or do you see an election happening for the federal government to get a mandate to go to the table? Is that when you see that process happening?
Senator Joyal: Exactly, because one majority in Quebec will have spoken, as determined by the Parliament of Canada, and the Parliament of Canada, once it has considered that there is a "legitimate majority" in Quebec, as confirmed by the decision of both Houses of Parliament, would go to the people of Canada and say, "Now we need to reconcile the legitimate majority of Quebecers with the legitimate majority of Canadians in order to seek a different constitutional order." The reconciliation of the two legitimate majorities, to me, is essential to maintain and uphold the democratic principle.
Mr. Behiels: Would that be done through an election or a referendum?
Senator Joyal: It could be done through an election or a referendum, but on a consultation basis, where each Canadian has his or her say. I would prefer a referendum but the government always has the power to trigger an election. The government can decide to resign and then ask the Governor General for an election. That is always the prerogative of the government. In the bill there should at least be provision for a national referendum. That is where we feel that the sovereignty of the Canadian people is at stake.
Mr. Behiels: Are you then envisaging the possibility of two referenda, one at that point and then another one, if negotiations are successful, after the negotiations?
Senator Joyal: There is no doubt in my mind that there has to be a second referendum. The Prime Minister of Canada is on record on this, in a letter that he sent to the Right Honourable Brian Mulroney on August 17, 1992, in which he stated:
Canadians also want to decide for themselves to approve an agreement. And because the constitution belongs to the people, the Liberal Party wants any agreement to be ratified by the people in a national referendum.
It is signed by Jean Chrétien on the letterhead of the Leader of the Opposition. This is quite clear.
Mr. Behiels: I am open to be convinced and I think you have a strong argument.
Senator Kinsella: Could we have that document tabled, please?
Senator Joyal: Certainly.
The Chairman: Professor Behiels, we are grateful for your appearance.
Senator Lynch-Staunton: Madam Chair, we have a letter from the Premier of P.E.I. Have we heard from all the provinces? Have they all acknowledged our invitation?
The Chairman: The clerk has been keeping track. When last I checked, we had heard from most of them, in the negative, about appearing before this committee. They were all invited. The government of every province and territory was invited. I now have the list in front of me. A slight majority of them actively declined and a number, despite repeated callbacks, did not give us any answer.
Senator Taylor: What about Alberta?
The Chairman: Alberta is one of the provinces that did not respond.
Senator Taylor: That is what I was afraid of.
The Chairman: British Columbia did not respond. Manitoba declined. New Brunswick did not respond formally. Newfoundland declined. No answer from the Northwest Territories. Nova Scotia declined. Nunavut did not respond. Ontario declined. P.E.I. declined but, as you note, has written to us. Quebec declined, but the Minister for Canadian Intergovernmental Affairs set out his reasoning about the bill in his letter declining the invitation to appear. Saskatchewan declined. Yukon did not respond.
Senator Lynch-Staunton: Did we follow up?
The Chairman: We followed up several times with every government. They were given every opportunity to appear or to communicate with us in any way they chose.
Senator Grafstein: Is this letter from Prince Edward Island the only one so far? Are we expecting anything else from anybody?
The Chairman: As I said, we have also had a letter from Minister Facal of the Quebec government.
Senator Grafstein: But nobody else at this juncture?
The Chairman: No, despite ample opportunity.
Our next witness is Professor John McEvoy. Welcome and please proceed.
Mr. John McEvoy, Professor of Law, University of New Brunswick: Honourable senators, I appreciate the opportunity to share with you my thoughts on Bill C-20, the so-called clarity bill. I do understand that I am perhaps the only Atlantic Canadian to appear before you.
I will state at the outset that, in my opinion, Bill C-20 is constitutionally valid.
In the Quebec Secession Reference, the Supreme Court did not confine its opinion to the narrow sense of constitutional law but directed its responses at the Constitution defined in its wider sense, as including conventions, customs, practices, et cetera. It is because the law of the Constitution provides no set answers that the court finds guidance from the basic values underlining the Canadian constitutional order. However, even the court acknowledges that application of those underlying values to any negotiations on secession is not a legal issue for the courts; rather, it is a political question. The court is also conscious that lurking behind any secessionist movement is the possibility of illegality or revolution against the constitutional order.
Responding to the first reference question, the court saw its role as identifying the constitutional framework in which the political decisions may be made. In my view, the opinion of the court reads very much like "Yes, it can be done; secession of a province can be achieved, but look how difficult it is to accomplish consistent with constitutional values." The difficulties inherent in any negotiated secession are well illustrated by the creation of the provinces of Ontario and Quebec from the former province of Canada. While formally achieved in 1867, negotiation on the division of assets and liabilities between the two provinces continued for another 20 years.
I recognize that some may consider the bill a first declaration that Canada is divisible, but the Supreme Court opinion has already said as much. At the same time, the Quebec response has recognized that Quebec itself is divisible.
Legally, secession of a province is achieved by application of the existing amending formulae. The court itself recognizes that, while neither the original nor the modern framers expressly provided in the constitutional text for secession or for dissolution of the federal union, the Constitution itself provides for all constitutional amendments. There is no constitutional gap or lacuna.
It would appear that the general amending formula, section 38(1) of the Constitution Act, 1982, would generally apply to the secessionist amendment -- that is, resolutions to the House of Commons and the Senate and resolutions of the legislative assemblies of two thirds of the provinces representing 50 per cent of the population. I use the word "generally" because it may well be that particular elements may fall under specific amending formulae. For example, modification of provincial boundaries is, per section 43, subject to the resolutions of the assemblies of each province to which the amendment applies.
To be clear, I do not regard any secession amendment as "in relation to...the office of Lieutenant Governor of a province" or any other matter listed in section 41 so as to render the unanimity formula applicable. Further, it seems logical that, if the addition of new provinces, which itself can have significant impact on existing provinces within the federal structure, is subject to the general amending formula, so too should secession.
I should also state that Bill C-20 is not itself intended as a constitutional amendment, and the section 44 amending formula pertaining to constitutional amendments in relation to the executive government of Canada, the Senate or the House of Commons is not applicable. I particularly draw attention to the fact that the amending formulae govern amendments to the Constitution of Canada, which should be understood by reference to section 52 of the Constitution Act, 1982. Bill C-20 does not purport to amend any provision of the Constitution, so understood, so as to trigger an amending formula.
The bill identifies its purpose as giving effect to the requirement for clarity in accordance with the Supreme Court reference opinion. Yet, the clarity given by the bill is a political clarity reflecting political and not necessarily legal choices. Parliament is not, by virtue of the Supreme Court opinion, required to enact this bill. Rather, the bill represents a strategic move that shifts attention from abstract statements of opinion to the realism of politics. It provides a more immediate and comprehensible focus and is more accessible to the public than is the opinion. It declares what the present Parliament considers factors in determining whether a question and a supporting majority are clear but it cannot bind a future Parliament, which may amend the bill to reflect its own conceptions. At the same time, the bill shifts the question from the political arena, where the court sought to leave it, to the potential judicial arena, because Bill C-20, once enacted, provides the legal basis for judicial review of any decision on clarity.
I have no particular comment on the first six preambular paragraphs of Bill C-20, which repeat propositions found in the Supreme Court opinion. The seventh is more interesting. It is the declaration that the House of Commons is the only political institution elected to represent all Canadians and, thus, has an important -- read exclusive -- role to play in identifying what constitutes a clear majority and a clear question.
Did the Supreme Court find that it would be for elected representatives to make these determinations? The court's opinion repeatedly refers to "political actors," and I did not regard the use of the court's phrase "democratically elected representatives" in paragraph 88 to necessarily exclude the Senate. I note, for example, that the court states in the same paragraph that "the initiative for constitutional amendment is the responsibility of democratically elected representatives." That this must be understood as a general statement rather than as a pronouncement of exclusivity is supported by the fact that section 46 of the Constitution Act, 1982, provides that an amendment may be initiated at the federal level by the Senate or the House of Commons.
Why, at the federal level, would Parliament reserve to the House of Commons this important function? After all, determination of whether the question is or is not clear cannot be binding on each of the provinces, which also have a clear role in the negotiation of any secession or asymmetrical reconfiguring of federal-provincial jurisdiction in response to secessionist pressures. The determination of whether a question or majority is clear could be decided at a first ministers meeting or by resolutions of Parliament and each of the provincial legislatures.
Bill C-20 speaks only for federal Canada. It represents a determination by Parliament that the House of Commons -- not the executive and not the House of Commons and the Senate together -- will determine issues of clarity and decide whether the federal executive will enter into negotiations with a secessionist provincial government for the terms of secession or renewed federalism. Exclusion of the Senate means, happily, that the possibility of a divided Parliament -- the Senate and Commons making opposite determinations -- is avoided. There is nothing to prevent the Senate declaring its view on the clarity issue, but its view is relevant to determination by the Commons only as one factor for its consideration.
Exclusion of the Senate also reflects its own failure to fulfil its institutional role in the Canadian constitutional order. The Senate is the originally intended representative of regional interests to counterbalance the population-weighted Commons. Constitutional proposals to reform the Senate as the House of the Federation point to the true role of the Senate, a role usurped by preference for party affiliation. The legitimate role of the Senate is not as a second voice of the people but as the voice of the regions of Canada within the most basic federal institution, Parliament. As a political actor, the Senate surely has a legitimate voice to determine issues of clarity.
May Parliament declare by statute that a determination by the House of Commons is a condition precedent to ministerial action? I do not see any impediment such as an impermissible delegation. Delegation by Parliament is a regular and accepted feature of legislation. Here, the delegation is to a House of Parliament rather than to the Governor in Council or some other body, and the delegation is not of some law-making authority such as the power to promulgate secondary legislation such as regulations: It is the authority to decide whether ministers of the Crown may engage in negotiations -- not that they have to do so, but that they may. Without this restriction on their authority, Crown ministers would make this determination on their own. In Reference re Resolution to Amend the Constitution -- the patriation reference -- the majority of the court held that how Houses of Parliament proceed and how provincial legislative assemblies proceed is, in either case, a matter of self-definition, subject to any overriding constitutional or self-imposed statutory or indoor prescription.
I do not believe that Bill C-20 infringes either the Parliament of Canada Act or section 18 of the Constitution Act, 1867. The key limitation for section 18 of the Constitution Act, 1867, is that the privileges, immunities and powers must not exceed those held and enjoyed by the British House of Commons. I do not understand how this delegation could possibly exceed the privileges, immunities and powers of the British House of Commons, nor do I believe that the sovereignty of Parliament is negatively impacted. This is not an external limitation on parliamentary sovereignty, as discussed in Reference re Canada Assistance Plan, but an internal limitation made by and subject to parliamentary control.
May Parliament declare by statute that Crown ministers may act only upon certain conditions? There seems little doubt of that authority. For example, the Constitutional Amendments Act, 1996, provides that no minister may introduce a resolution to authorize a constitutional amendment not previously consented to by the requisite provinces. That is the regional veto.
Bill C-20 establishes a two-step process. The first is the determination of whether the referendum question is clear. Suppose that the Commons, after considering the factors and views enumerated in clause 1 of Bill C-20, declares that the question is clear and the Yes side in the referendum campaign then promotes the question in a way that is not clear by, for example, assuring voters of continuing Canadian citizenship and access to federal social programs. May the Commons, having determined within the 30-day period -- or the extension, if in the midst of an election -- that the question is clear, then decide that the majority is not clear because of its understanding of how the question may have been understood by voters? Is this a matter falling within "any other relevant matters" in paragraph 2(2)(c) of the bill?
I am not a fan of referenda. Voters may choose to cast their vote for a myriad of personal reasons not related to the actual question on the ballot. It is often difficult for voters to make informed rather than emotional choices because of the manner in which referenda campaign are presented by the opposing sides.
Clauses 1 and 2 provide that there will be no federal mandate to negotiate if either, before the referendum vote, the question is found not to be clear or if, after the referendum vote, the question is not supported by the expression of a clear will to secede.
Assuming that the question is both clear and supported by a clear majority, it does not follow, says the Supreme Court, that secession is inevitable. Grounding itself in the four underlying constitutional values, the court declares the obligation of good faith political negotiation by the province seeking secession and by the federal and other provincial governments. The result might be agreement on the terms of secession, renewed federalism, the status quo, or a stalemate. In the event of a stalemate, the court warns that the conduct of the parties during negotiations may be considered by foreign states when deciding whether to recognize sovereign status for a secessionist province. This, of course, would involve a unilateral declaration of independence and be linked to the effectivity or de facto principle under which foreign states would look for effective control of its territory by the secessionist province.
The Supreme Court was not concerned and was not asked about the extra constitutional or revolutionary unilateral declaration of independence, which would necessarily involve post-secession negotiations of matters of common interest. The court directed its attention solely to secession under the Constitution of Canada. That is a cumbersome process.
As I interpret the court's opinion, the court envisages a two-referenda process. First is presented the question "Are you in favour of secession from Canada?" Success on this referendum would be followed by negotiation on the terms of secession, federal renewal, et cetera.
Clause 4 of Bill C-20 provides that no federal minister may propose a constitutional amendment in relation to secession unless negotiations included the terms of secession that are relevant in the circumstances, including the four key elements: division of assets and liabilities, change in borders, rights and claims of aboriginal peoples, and the protection of minority rights.
After the first referendum on the clear question, there would follow a second referendum on the actual terms of session or federal renewal. The first referendum simply expressed the democratic freedom of proposing a constitutional change: in other words, an exercise of freedom of expression relating to an idea, secession. In the second referendum, the actual terms of secession or renewed federalism would be presented, and the double majorities consisting of the populations of the secessionist province and of Canada as a whole would be required. The second referendum would follow because the political actors would undoubtedly feel bound to consult the electorate on the actual terms they had negotiated.
On the constitutional plane, it is an open question whether, after the Charlottetown Agreement and the New Brunswick and Newfoundland constitutional amendments, there is a constitutional convention requiring popular approval of proposed constitutional amendments before the strictly legal requirements of institutional consents are followed. As well, as you know, both British Columbia and Alberta have legislation requiring a referendum before a government motion may be introduced regarding a constitutional amendment resolution.
Finally, I do not believe that the absence in Bill C-20 of any provision detailing a role for aboriginal peoples in any negotiations on secession is a legal deficiency. The focus of the bill is whether federal ministers may commence negotiations and propose a constitutional amendment; it does not detail the parties to the negotiation, nor their respective roles. While consultation with aboriginal peoples concerning any negotiation on secession would be essential, given the Crown's fiduciary relationship to the aboriginal peoples, the absence of any provision in the bill specifying a direct role for aboriginal peoples is not relevant to its constitutional validity.
Senator Christensen: At least one of our witnesses in the last week or so has suggested -- and others have certainly suggested it but not as directly -- that the Senate does not have the constitutional authority to delegate its authority, as is set out in this bill, to the House of Commons. Would you give an opinion on that, please?
Mr. McEvoy: The key element is what is being delegated. This is not like the 1980 Reference re Authority of Parliament in relation to the Upper House. This is not an attempt to have an amendment to the Constitution without the consent of the Senate, or to have the House of Commons enact laws without the approval of the Senate. This is simply a delegation of a particular function, a fact-finding function: Is the condition precedent satisfied to permit government ministers to engage in negotiations? That is all. It is not a law-making function.
I absolutely agree that any derogation of the law-making function of the Senate as prescribed by the Constitution is inviolable. However, Bill C-20 does not confer upon the House of Commons a law-making function. That is the short and the long answer, I guess.
The Chairman: I have a question that goes a little beyond the purview of this committee's direct responsibility. However, I noticed with interest your remark that Quebec's Bill 99 has recognized that Quebec itself is divisible. Could you expand on that a little bit, please? I ask because your expansion is in the footnote, and I am not sure that the people watching on television would have heard that.
Mr. McEvoy: I have brought the bill with me; however, I will not refer to it at the moment. There is a provision in the bill, which was introduced by Minister Facal, in which he states that the territory of Quebec is indivisible except with the consent of the National Assembly, which of course means that it is divisible. It is a recognition that if Canada is divisible, then Quebec is divisible. That is something remarkable in the bill, because, as I recall, during the last referendum campaign former premier Parizeau's had very articulate arguments as to why the territorial limits of Quebec were secure. This, of course, is recognition that they are not. New Brunswick has great interest as a neighbouring province.
The Chairman: Perhaps you pay closer attention than others.
Mr. McEvoy: I believe the historical boundary of Acadia was the Canada River, which is now the St. Lawrence. We in New Brunswick would be very interested.
The Chairman: Perhaps we had better not go there right now.
Senator Taylor: Turning again to the House of Commons, you, too, seem to take the position many others have taken, which is to say that the House of Commons will be the anchor, the one that will stop separation or be tough. Please suppose, as I mentioned to the previous speaker, that we have a government that is all for Quebec paddling its own canoe and taking off. Therefore, they will drop the approval needed to 50 per cent plus 1, and perhaps there will be a low voter turnout and even a soft question. If that were to happen, and I think it is much more likely to happen than many want to think, what would be the role of the Senate? How could the Senate then say, "No, that referendum was not good enough; the turnout was poor and the question was soft"? What would they do then? Would they go to national TV? Or is there any sort of constitutional set-up they could use to try to get the administration and the House of Commons to look at separation with more seriousness than they would appear to have at that time?
Mr. McEvoy: If I could rephrase your question, senator, I believe you are setting forth the scenario that the House of Commons has made a determination on clarity, a clear majority and a clear question with which the Senate disagrees. Perhaps there has been a debate in the Senate and a resolution passed by the Senate that has been considered and rejected by the House of Commons and they have gone ahead. You are asking if there is a role for the Senate. There is a role when the constitutional proposals are presented for the approval of the Senate.
Senator Taylor: In the west we call that closing the barn door after the horses have left.
Mr. McEvoy: The barn door has already been closed, if you will.
Senator Taylor: Or burned down in that case.
Senator Grafstein: Professor McEvoy, you have been very fair in trying to divide your political opinion from your legal opinion. It is difficult for some not skilled in law to separate a legal opinion from a political opinion. I should like to stick to the legal side of the equation as opposed to your political views, which I respect but which in a way are not the subject matter of these hearings for the moment.
I want to start with your legal opinion, which seems to be shared by practically everyone, that there is no constitutional inhibition to have included the Senate in this bill. Do you agree with that?
Mr. McEvoy: Absolutely.
Senator Grafstein: The question now is whether or not excluding the Senate from the bill is a constitutional inhibition or flaw. Let us start for a moment with the position that you have taken that the decision of the House is binding only on that House at that time. You have that said a subsequent government could change the legislation.
Mr. McEvoy: I said a subsequent Parliament.
Senator Grafstein: Not a Parliament, the House. It is binding on the House at that time. Let us separate the Senate from the House. Therefore, in effect, the provinces are not bound by this decision, this fact-finding mission. Therefore, the Senate would not be bound by this fact-finding mission, would it?
Mr. McEvoy: No.
Senator Grafstein: Let us lay that aside and come back to the heart of your analysis, that is, sections 17 and 18 of the legislative powers. Please take a look at section 18 of the Constitution, which I believe is in front of you. You make a very good point, although I do not agree with it. You say that the privileges, immunities and powers to be held by whatever came from the privileges, immunities and powers of the House of Commons of Parliament in England. However, my interpretation is, and see if this is fair, that what that section said was that those privileges, immunities and powers of the House of Commons of Parliament in 1867 devolved on not the House of Commons but on the Senate and the House of Commons to be shared in some particular fashion. The House of Commons and the Senate could not exceed those particular powers.
How would you then conclude that the House of Commons exclusively can deal with this question once the government decides, from whatever power we hear about, that it can exclude in a bicameral system one House? How can it do that unless it is an administrative matter?
Mr. McEvoy: Senator, I agree with you in terms of the law-making function. The Parliament consists of the Queen, the Governor General, the Senate and the House of Commons. This is not a law-making function, however.
Senator Grafstein: Fair enough. That is your position. Let us explore that now. We must thread the needle here. The question that you have put to us is that, notwithstanding the minister having told us, and every witness having told us, and you having told us that this is the most extraordinary legislative matter ever tabled before the two Houses, that this thing is so large, all the poop is just an administrative matter or a little fact-finding mission.
Let us get at the question of fact versus law. We have heard from other witnesses, including former Supreme Court justice Mr. Estey, that the product of this bill is, in effect, in pith and substance, law as opposed to fact, as opposed to arbitrarily rearranging the dishes on the plate. Okay. Now, let us explore that theoretically and look at the matter of the nature of a question.
There could be a huge debate, different in the two Houses of Parliament, as to the nature of the question itself. It is not a simple fact-finding mission. It is a highly complicated mission. Mr. Pinard has told us how complicated it could be. Sovereignty is a different word in Quebec than is in the rest of Canada. It cannot be just a simple fact-finding mission. How can it be a simple fact-finding mission?
Mr. McEvoy: Senator, I will respond by quoting from Mr. Estey. This is in response to a question from Senator Christensen. He said: "As I read the bill, it is a fact-finding, decision-making assessment of clarity, and so on." He then goes on, but he was talking about a different element.
The question is one of a condition that has been established by Parliament, the Senate and the House of Commons, as a condition precedent to the executive doing something. That is the fact-finding mission: Has that condition precedent been established? The bill establishes the conditions. The House of Commons is being given the authority to determine whether those conditions have been satisfied. There is no law there, if you will, other than interpretation of a statute.
Senator Grafstein: We are arguing about whether the fact is, in pith and substance, law or a fact. Let me deal with a more complicated second question.
Mr. McEvoy: That is why I draw to your attention that the bill, once enacted, does permit the courts to review that question. As you are saying, it is law, but it is also fact; it is in the statute.
Senator Grafstein: You are tending to make my case as opposed to yours, but that is for argument. Let me deal with the second question, which is much more difficult. I must commend my colleague, Senator Gauthier, for causing me to focus on this aspect of the question, and also my colleagues from the aboriginal political actors. The nature and essence of a clear majority could be, as it ran through the Senate, much different than in the House of Commons, as Senator Gauthier and other senators have reminded us.
Senator Joyal: Senator Finestone has reminded us of the English-speaking minorities in Quebec.
Senator Grafstein: My point is that the minorities, which the Senate represents, may have a distinctively different notion of what a majority is when it comes to determining this fact-law question. Do you recognize that?
Mr. McEvoy: Absolutely. That does not mean that the law is invalid in a constitutional sense, but it means that there may be some difficulties in a political or practical sense, yes. As I read Mr. Estey's evidence, I do not see him saying that the bill is unconstitutional in a legal sense.
Senator Grafstein: Perhaps you should reread the evidence.
Senator Finestone: We will give you a reading test.
Senator Kinsella: I have been looking at this bill and at the opinion of the Supreme Court as a fellow New Brunswicker and as a senator from the Maritime region, which has 24 seats. Ontario, which borders the province of Quebec on the west, also has 24 seats. In a determination of any kind in federal matters by the House of Commons, we are represented by 10 MPs as opposed to 103 in Ontario -- that is 103 members from Ontario out of the 301 members of the House of Commons.
Considering section 16.1 of the Charter of Rights and Freedoms, which recognizes the rights of the two linguistic communities in New Brunswick, would you not agree that any secession of Quebec from Canada would have an adverse impact greater for our part of Canada than for any other part of Canada?
Mr. McEvoy: On so many levels, not just language.
Senator Kinsella: You have alluded to the preamble and focused on the seventh preambular paragraph of Bill C-20. Senator Grafstein has underscored the second preambular paragraph, which reads:
Whereas any proposal relating to the break-up of a democratic state is a matter of the utmost gravity and is of fundamental importance to all of its citizens...
The bill is telling us this is the most critical issue, the issue of the greatest gravity that we would ever consider in Parliament.
On page 3 of your presentation, in the third paragraph, you state that Bill C-20 speaks only for federal Canada. That is correct, but as a senator from New Brunswick I feel that I have a tremendous responsibility, together with my Maritime colleagues, to counterbalance the awesome power that would be exercised if only half of our bicameral Parliament addressed something that can speak only for federal Canada.
Can you appreciate the need that members of this house feel to amend this bill? Would you find any offence in the bill being amended so that the Senate would be able to meet its responsibility and do its duty?
Mr. McEvoy: In a perfect world, the Senate, as the House of the Federation, should make this decision, not the House of Commons, for the very reason that you give. If you must make a choice of one House over the other, I prefer the Senate as the voice of the regions of Canada rather than the House of Commons, as the Commons is weighted by population in the centre.
Senator Kinsella: I am interested in your reflections on and analysis of the seventh paragraph of the preamble. That paragraph reads:
Whereas, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question...
That is what they wrote. That is what is written in the bill. My reading of the advisory opinion does not substantiate that. The Supreme Court's opinion did not say that it would be for elected representatives.
Quoting from paragraph 153:
However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken.
Would you not agree that we should expunge that paragraph because it is not true? Also, would you not agree that the advisory opinion of the Supreme Court does not speak to excluding the Senate from this process?
Mr. McEvoy: I would agree with you. As I said in my statement, there is some cause for doubt about whether or not that preambular paragraph is an accurate statement of the Supreme Court's opinion.
Senator Furey: I must say I agree with your assessment, as I do with the assessment of many people who came before you, that the process that has been used for this legislation does not in any way derogate from the constitutional authority of the Senate.
I want to give you a scenario and ask for your comments on it. Let us say we were to amend the bill so that the matter comes back to the Senate for final say. We could find ourselves in a predicament where a provincial legislature presents a question, the elected House of Commons decides that it is a clear question, and then it comes back to the Senate and the Senate says "no." Where would that leave us?
Mr. McEvoy: You have the bill, which has been amended to say that the federal ministers may negotiate only if Parliament has said that there is a clear question. There would be no authority for federal ministers to enter into those negotiations. The bill does not say that they have to. It is a condition precedent to them doing so. Are you then asking the next question: What would happen constitutionally?
Senator Furey: Yes.
Mr. McEvoy: The Supreme Court very clearly set out the framework within the constitutional order -- the rules, the fundamental values that must be followed if you have a secessionist project in any province or territory of Canada. But if there is a stalemate, the court did not answer that question, except by reference to the effectivity principle or de facto. You would then place the secessionist province in a position of saying, "Do we have sufficient support of our population to risk at international law a declaration of independence, and would that then be recognized at the international level?" If the answer was "yes," they might do it. If the answer was "no," then of course they would not.
Senator Furey: Quite a practical quagmire, then.
Senator Lynch-Staunton: I should like to pick up on two statements in your fine presentation. The first one is in the middle of page 3 where you quite rightly point out -- and I do not believe it has been discussed enough here -- that Bill C-20 speaks only for a federal Canada and that the question, whether it is clear or not, cannot be binding on any province. You suggest that perhaps the best way to approach this is the following:
The determination of whether a question or a majority is clear could be decided at a first ministers meeting or by resolutions of Parliament and each of the provincial legislatures.
That is a much more difficult and awkward process, but at least everyone would know ahead of time the rules of the game, whereas here one party to the game is imposing its rules, by which the other parties need not abide. Is that alone not a reason to rethink Bill C-20?
Mr. McEvoy: That is a policy choice that must be made. Of course, the government has presented that to you and it is for your determination. All I am trying to point out is that this bill is directed to the federal executive and says when the federal executive may enter into negotiations. All of the other players that the court recognizes also have a role and they will have to make that determination.
The government and Premier of New Brunswick will have to decide, "Shall I go to the table and negotiate? What will my position be? Should I stay away?" All of those questions are open. This bill does not bind, in any way, the determination by the government and the people of New Brunswick as to whether or not they will engage in any kind of constitutional renewal or secession of any other province.
Senator Lynch-Staunton: This bill is dividing the federalist forces and unifying the separatist and ultranationalist forces because it is being imposed rather than conditions being come at collectively. That is a major fault of this bill. It is an imposition.
I am intrigued by the statement at the bottom of page 2 of your brief:
...the Bill shifts the question from the political arena, where the Court sought to leave it, to the potential judicial arena as Bill C-20, once enacted, provides the legal basis for judicial review of any decision on clarity.
I do not understand what you mean by the idea that the court sought to leave the bill in the political arena.
Mr. McEvoy: Not the bill, but the question.
Senator Lynch-Staunton: "...the Bill shifts the question from the political arena, where the court sought to leave it..." What is the definition of "political arena" in this statement?
Mr. McEvoy: In the Quebec Secession Reference, the court repeatedly said that the question of whether there is a clear majority and a clear question is for political actors. All I am saying is that by presenting a bill to be enacted by Parliament, you then have a statute. That statute can be subject to judicial review. The court may well have an action for a declaration. Did the House of Commons conform to the clarity bill in making its determination or did it not?
Senator Lynch-Staunton: Could you explain how a judicial review could be initiated and by whom?
Mr. McEvoy: A declaration can be initiated by anyone, subject to the standing requirement that there is an interest, if you will, in the public interest standing. If you remember the Borowski litigation dealing with abortion, there was an individual if there was no other effective way to bring this matter before the courts. Here, of course, there is no penalty provision. No one will be charged with violating this act. So any citizen of Canada who demonstrates an interest could bring an action before their superior court for a declaration that this act has been infringed.
Senator Lynch-Staunton: Would that in any way delay the procedure included in the bill? Would it delay negotiations or anything, or would the review and the ensuing results of a clear answer continue?
Mr. McEvoy: You have time frames involved in this particular bill, which would continue. You simply have an action for a declaration, which would be parallel.
Senator Lynch-Staunton: Finally, do you feel that we should have left the question in the political arena where the court has kept it and forgotten about a bill that takes it into new terrain?
Mr. McEvoy: That is not a constitutional law question.
Senator Lynch-Staunton: It is a very fine political answer.
[Translation]
Senator Gauthier: I was convinced that after the Meech Lake Accord and the Charlottetown Agreement we had set aside the concept that the federal government, as the executive branch, has the right to do what it wishes with the Constitution. Do you not agree?
[English]
Mr. McEvoy: Senator, I am not a fan of executive federalism, if you will, in the sense that the Constitution does provide that an initiative of constitutional amendments is to be by the legislative assemblies and Parliament. It does not say by whom. We discussed this problem in New Brunswick with our members of the legislative assembly when Charlottetown and Meech Lake were being proposed. Members of the legislative assembly of New Brunswick were concerned about how these amendments can be proposed. Is there not some process to designate who can do it? Anyone can do that. Anyone can propose. I can propose a constitutional amendment that the institution of the Queen be abolished. I can do that. I would need to gather support.
What we have, though, is a system where first ministers meet and make the seamless web approach or package and present that to the people for a yes or a no. There is not necessarily a system of openness and involvement in producing the package.
[Translation]
Senator Gauthier: In your opinion, are all of the provisions of the Constitution legal? It is not a trick question, since I am referring here to decisions made by the Supreme Court on Quebec's secession.
[English]
Mr. McEvoy: In general, one would have to say that all constitutional provisions are constitutional. Our laws are equals in that sense, just as in international human rights law. There is no difference between civil and political rights and economic, cultural and social rights. A right is a right. A law is a law. I say "in general" because, of course, under the Charter there is the notwithstanding clause, which permits Parliament to override certain rights. While they are equal, they are subject to derogation.
Senator Gauthier: I detest section 33, the notwithstanding clause, and I do not understand why we have one in this country. The point I am trying to reach, though, is the minister's response to this committee in answer to a question of mine. I asked why he included in Bill C-20 the aboriginal right to give their opinions, their statements, their recommendations but did not do the same for the minority language groups, a minority that is very important to the existence of Canada because they are in every province and every territory. I thought he should consider that. He answered that the only reason he included aboriginal people in Bill C-20 was that they were mentioned in the Constitution, in section 35.
I was very surprised at that answer. I did not follow up because I did not think it was the political thing to do. Afterward I thought to myself that this fellow does not understand what I am talking about. I am talking about our rights, as you say, found in sections 16, 17, 18, 19, 20, 21, 22, and 23. Those are our language rights in the Constitution, and I think they are equal.
In your mind, is there a distinction or a difference between the nine language rights in the Constitution and the aboriginal rights in section 35?
Mr. McEvoy: There is no real difference except a practical one. There are sufficient people around this table and in the other House to represent language interests and to be very conscious of language issues, but there is not sufficient representation of aboriginal peoples in the central institutions of the state to simply include them with all of the others. Recognition of the aboriginal peoples in the bill, if you will, is a form of affirmative action or justified recognition of their special place in Canadian constitutional law.
Senator Joyal: Professor, I should like to come back to page 3 of your text. You state that "Exclusion of the Senate means happily" -- and I underline happily -- "that the possibility of a divided Parliament is avoided." It strikes me, and I say humbly to you, that you do not understand the role of the Senate in the Parliament of Canada. As you said, to a point, there is one elected House of representatives, but the Fathers of Confederation knew that it would be carried by the simple majority rule of 50 plus one. The Senate is needed to protect smaller provinces like yours. Your province was especially vocal during the discussions on federation that there should be a Senate and there should always be a Senate and not only to represent the regions.
I insist that your brief is defective and I should like you to correct it. You say that "The legitimate role of the Senate is not as a second voice of the people but as the voice of the regions." I should like to ask you to add the words "and the minorities." That is why I am a senator with a district in Quebec. We are the only province with districts. There is a reason for that.
Our House is to protect very specific areas -- the minorities and the regions. So when you say to me that, happily, there are no differences of opinion in the House of Commons on this, you applaud a negation of the federal principle. At this very moment, the future of the state is under debate. The court has said quite clearly that the majority must be qualified, that democracy is more than a simple majority rule.
In the House of Commons, on the other side of this building of Parliament, four parties have advocated that 50 plus one is enough. Removing my right to vote on the qualifying majority causes me to fail in my duty as a senator to protect the region and the minorities. You say "happily," but I am not happy at all with this.
I do not understand how you can describe the problems in theory, in the abstract, and yet not live it on a day-to-day basis, the way it is entrenched in the political parties of Canada. Four parties out of five have agreed to a simple majority of 50 plus one; they are already on the record. One party, the Alliance or so-called Reform, wants to send the issues of language and culture to the provinces. Then the federal government would have no right to say anything on language. I take exception to your definition of the entrenchment of a federal principle excluding the Senate as meaning a happy ending for this bill.
Mr. McEvoy: I accept absolutely and humbly the correction on the use of the word "happily." I used the word simply to refer to the avoided irony of having a clarity bill that would produce a situation of conflict between the two Houses of Parliament. It was simply to avoid that. It was not in any other pejorative sense of "happily." I also accept fully your admonition on the role of the Senate in representing the voice of minorities within the regions. I agree with everything you said.
Senator Taylor: Then you would be even happier if there was only one person making the decision?
The Chairman: Thank you, Professor McEvoy. It has been an extremely interesting hour. The senators pressed you hard and you were most interesting in your responses.
[Translation]
We have with us Professor Jean-Pierre Derriennic of the Political Science Department of Laval University. Professor, following your presentation, we will move to the question period.
Mr. Jean-Pierre Derriennic, Professor, Political Science Department, Laval University: I have a written version of my brief which has been distributed. In a few moments, I will have to give you a brief overview of my remarks, without being able to go into detail.
When Bill C-20 was made public, it appeared to me to say things that should have been understood from the outset. The objections which have been made since lead me to believe, more and more, that this bill is necessary in order to dispel the misconceptions that are the source of some of these objections. Those which have been raised question the legitimacy of the procedure set forth by the bill in its principle and its processes, and they question its usefulness. Very briefly and schematically, I will go into these issues, namely matters of law, justice and prudence.
Those who feel that Canada is indivisible hold an opinion that must be taken seriously. Several large democratic countries declare themselves to be indivisible. It is not through ignorance of the principles of democracy, but rather for reasons that stem from democracy. And I will give you a brief idea of the logic behind their conclusion.
In a democracy, a large number of decisions are made by voting, but certain decisions should not or could not, without serious risks, be voted upon.
For decisions to be taken by a vote, we have to know the limits of those who have the right to vote and we cannot use the vote to modify these limits. To vote is to act individually, as citizens, and to stand up and be counted. Those who vote must not fear that those they oppose will withdraw from the political community or threaten to exclude them.
These issues are a very clearly analyzed in books such as those by Allen Buchanan and Margaret Moore -- you will find the titles in my written brief -- or in the classic and even older works of Karl Popper and Jean Baechler. Quebec separatists are forever calling on democracy to back up their demands, and claim that the right to secession is a self-evident consequence. If we think about the principle of democracy, we realize that the opposite is true. For a democratic regime to work appropriately, each one has a moral obligation to accept all of his or her fellow citizens. The possibility of modifying the limits of the citizens' community should therefore be excluded.
We can oppose this argument, which is a very powerful moral argument, with the idea of consent. A democratic State could not survive if it is imposed on a segment of the citizens against their will. This argument is weaker than it appears at first blush, as is demonstrated in Buchanan and Moore, but has been long accepted, more or less explicitly, by the government of Canada, by the Supreme Court since 1998 and by a large number of Canadians.
Most of them have long accepted the idea that, in the case where a large majority of Quebecers would want to become independent, the duty of the Canadian government would not be to oppose independence, but to implement it, while limiting the costs and the injustices which could result from such a transition. They therefore do not believe that Canada is indivisible.
It was very difficult for a long time to know which of these two hypotheses was in conformity with legality in Canada. In 1998, the Supreme Court settled the issue just about definitively, in my opinion, against the theory of indivisibility. We could undoubtedly maintain that the Supreme Court Reference is not a decision and is therefore not binding, but the reference is a very important fact and political prudence must take it into account.
Similarly, if we feel that Canadians make a questionable moral choice in accepting the divisibility of their country, we must take into account the existence of their opinion on the issue. The Canadian government could not credibly defend the position that Canada is indivisible, against the majority of Quebecers who would have decided in favour of secession, against the profound feelings of the majority of Canadians, and against the reference of the Supreme Court. This argument, which is a prudent one, is the one in my mind that settles the issue and that would compel us to renounce the principle of indivisibility for Canada.
For a long time, the federal government hesitated between two strategies, or two types of argument, with respect to those who wish independence: either refuse all negotiations in advance, or show Quebecers the difficulties that would stem from such negotiations. These two types of arguments were obviously contradictory, and that was one reason for the inconsistency and the weakness of the federal position in 1995. The main benefit of the Supreme Court Reference was to put an end to this ambiguity, which would allow the federal government to adopt a strategy that is more consistent, which is what it appears to be doing.
I will deal more quickly with the objections which deal with the provisions of Bill C-20. These objections, in my view, stem from an overestimation of the scope of the legislation, which would cover only one part of the future secession process, the period that would go from the announcement of a referendum by a provincial government to the time negotiations are begun. What would happen afterwards remains undetermined, and some of the problems raised in your assemblies are pertinent, but undoubtedly premature.
For example, it is very improbable that the people would accept that things be done the way they were Czechoslovakia in 1992, where a separation agreement was reached between two governments and implemented without being put to the approval of the people. People want to be consulted, not only on the intent of separating Quebec from Canada, but also as to the specific provisions of separation. The suggestion that a Canada-wide referendum is required is quite reasonable, but I think it would be difficult to hold such a referendum at the beginning of the process, merely to authorize the federal government to recognize the validity of the question and the result of a provincial referendum, which is the object of the present bill.
In conclusion, I would like to deal briefly with the question of the political repercussions of Bill C-20. Obviously it is a hypothetical question, and any reply can only be incertain. Let us begin by looking at the worst-case scenario. A referendum is held in Quebec on a question which, in the House of Commons' opinion, is unclear. A very small majority vote in favour of the bill, the House declares that this number is inadequate, and the federal government refuses to negotiate.
If the provincial government then tries to make a unilateral declaration of independence and tries to obtain international recognition, it would undoubtedly fail. The problem of the recognition of an independent Quebec is actually quite simple: as soon as the Government of Canada decides it will accept secession, Quebec will be recognized throughout the world and admitted to the UN without any problem.
As long as the Government of Canada maintains that independence has not been achieved and that its sovereignty continues to apply on Quebec territory, no State will recognize an independent Quebec. It is pointless to hope or to fear that things might happen otherwise. The Government of Quebec will therefore have to choose between two paths: either, at least temporarily, give upon its intent, or attempt to reverse the federal government's decision. For that to happen, several means may be used: the holding of a second referendum, the calling of elections, or calling upon the people to act in some type of civil disobedience. The result would depend on how the people would evaluate the arguments presented on both sides. If the referendum question were truly convoluted and the majority was very small, support for the provincial government will evaporate and they will have to take a step back. If, on the contrary, objections were not very convincing and the majority was clear, the provincial government would be able to increase its popular support, and it is the federal government that would have to change its position. It would be very uncomfortable for both governments to end up in this situation. And they will try to avoid reaching that stage.
In the future, a PQ government will hesitate before trying for a surprise secession as in 1995. If they decide to hold a referendum, they will try to frame the question so that its clarity cannot be challenged. The federal government may perhaps have reservations on the question, but would prefer to avoid condemning it categorically, which would place it in an embarrassing situation if the citizens voted Yes with a large majority. If the majority is too small for the issue to be convincingly settled and provide sufficient political momentum to secession, the provincial government will be relieved to know that the federal refusal to negotiate will prevent them from getting into an impasse. They will not say so of course, and will denounce the federal decision for propaganda purposes, but they will not try to reverse the decision. From the point of view of a citizen who would hope that such a serious political decision would be made without too much confusion, and that our governments would not act irresponsibly, I see only advantages to the eventual repercussions of Bill C-20.
The Chair: You know that we have spoken at great length of the role of the Senate, and that certain witnesses have suggested that the bill should be amended, so that rather than just having the House of Commons determine whether the question and the majority are clear, it would be up to Parliament, including the Senate. This would essentially provide a veto to the Senate. Would you be in favour of such a change, and what would be the political consequences of such a change?
Mr. Derriennic: I was surprised, as many people were, that this problem was raised. I do not think it is a very important issue. Not because I underestimate the importance of the Senate, but because I think that people who do so overestimate the importance of Bill C-20.
The bill only covers part of the process. The issue here is to guide the federal government in the statement that it will make before the referendum and its acceptance regarding negotiations. The resolution of the House of Commons or the resolutions which would be made in this matter are not legislation, these are not constitutional amendments. These are merely steps in a process that would lead to a constitutional amendment if it were followed to its conclusion.
Therefore, the Senate has to vote to approve Bill C-20 and that is normal. The Senate may or may not have been involved in the consultation process immediately before and immediately after a Quebec referendum. Furthermore, if I understand the legislation correctly, the Senate is involved in a minimal way in that the House of Commons is asked to take its advice into account, but is not bound by it. I believe that the Senate is not compelled to provide its opinion; it is up to the Senate to decide whether it will do so or not.
I think that to increase the number of precautions at this stage of the process would be to overestimate the importance of the process. Much more important decisions will have to be made later, should the negotiations occur and lead to a result. It is at that time that the most important decisions will be taken.
The other political difficulty is that these consultation procedures, just before or just after the referendum, must not take too long. That would cause a very serious situation of political inconvenience when, the morning after a Quebec referendum, the federal government would remain without a position for some length of time as to the value of the result of the vote.
That is why that what is stated in Bill C-20 is reasonable, even though it was not compulsory to set it down. It could have been a little bit different and equally acceptable. I am very much an agnostic as to the heart of the problem in this matter.
[English]
Senator Grafstein: Thank you, professor. I take it that your evidence is that, dealing with the Senate, you see no constitutional barrier for the Senate having the same power as the House of Commons but it would be inconvenient or awkward or might involve some conflict or some delay. However, from a constitutional legal standpoint, you see no barrier to the Senate participating.
[Translation]
Mr. Derriennic: The Senate has the same powers as the House of Commons in legislative matters. A custom that the Senate almost always respects means that this equal jurisdiction with the House of Commons is exercised with moderation and with prudence. The Senate must avoid becoming a systematic obstacle in legislative matters to the will of the people, as it is expressed by the House of Commons. That is how I understand Canada's practice in the matter of adopting legislation.
In terms of constitutional amendment, the powers of the Senate are no longer equal to the powers of the House of Commons, and that is a decision which was made, rightly or wrongly, in 1981. It is something that was settled in 1981. When we are dealing with constitutional amendment, the powers of the Senate are inferior to those of the House of Commons.
Should we then say that the resolution provided for in Bill C-20, which is neither legislation nor constitutional amendment, is closer to the ordinary legislative process, or closer to a constitutional amendment process? I would tend to believe it is the latter. Therefore, the inequality of jurisdiction between the House of Commons and the Senate as set forward in Bill C-20 does not run contrary to the Constitution, and stems from the fact that the Constitution provides less power to the Senate than to the House in matters of constitutional amendment.
[English]
Senator Grafstein: Turning to the question of a majority, do you agree with some parties in the House of Commons that 50.1 per cent is sufficient, assuming the question is clear, to trigger an obligation on behalf of the government to negotiate secession?
[Translation]
Mr. Derriennic: No, I do not agree with that for two reasons. The first reasons are technical in nature. If we have seven people vote on a topic, let us say that there are four on one side and three on the other, and there the majority is very clear. The greater the number of people who vote, the more difficult it is to have such certainty, even in a parliamentary assembly containing several hundred members. In an assembly, we have people vote on several occasions on a bill to ensure that an important vote will not be taken on a day when so and so is absent. Inasmuch as millions of people vote in a referendum, if we end up with a result very close to half and half, obviously, there is incredible uncertainty as to the number of ballots which were cancelled, as to the number of people who were not correctly registered on voters' lists, et cetera. A result of 49.9 per cent to 50.1 per cent, which actually represents a difference of several thousand votes, is a result that does not mean a thing. We might just as well have tossed a coin. If we voted again the next day, the number of people who would vote would not be the same, and the result could well be the reverse.
That is why I think that it is reasonable, in our constitutional tradition, that referendums be of a consultative nature, in other words when we see the results we take note of them. We do not make a decision based on a result which is not significant. That is the first element of my answer, which appears obvious to me.
Had the Government of Quebec in 1995 had the opposite result, they would have been in a terrible situation, because they could not have acted on it, if only because of the number challenged spoiled ballots in certain ridings. That is the worst-case scenario and must be avoided. To claim 50 per cent plus one at all times is completely irresponsible in this situation, because there are people who believe it and they will then not understand why, with a very tight result, they cannot move forward.
We can ask the question on a second level and say that for a change as important as the independence of Quebec or the adoption of a new Constitution, you cannot set one half of the population against the other. Most of the cases of independence which occurred were quite reasonable over the past 20 years or so -- some were not reasonable of course, such as that of the Baltic States in Slovakia -- Slovenia caused a catastrophe for other nations, but not at home -- and were always carried out with enormous popular support, always above 75 per cent and almost always above 95 per cent. It is not a legal problem, it is a political problem stemming from the difficulties of transition, and the strength of popular support required to effect the transition.
In today's Canadian context, if we had tried to set a figure in Bill C-20, we probably would have set the figure too low. A large majority is probably necessary if Quebec independence is to occur without major difficulties, and nobody can decide in advance as to how many votes would be required. We could agree on a number, but that is a matter of total political supposition. And that is why the lesser of two evils was to say that governments, the morning after the referendum, will have to look at the results and what they can do, or what they must do with these results, as is logical with consultative referenda.
I would draw your attention to the fact that the 1977 Quebec white paper, which justified the Quebec Referendum Act pursuant to which referendums in Quebec are held -- pursuant to which three referendums were held, in 1980, 1992 and 1995 -- written by Minister Blackburn, explains that in a consultative referendum you cannot set the rule of majority in advance. This would lead one to believe that 50 per cent plus one is not the rule. And it is an absurdity, a very unwise statement that we hear from Quebec nationalists. The morning after a referendum that they would win by a hair, if they cannot go anywhere with it, half of the Quebec nationalists would not understand and would feel that they had been treated very unfairly. Dangerous and irresponsible things have been said on the topic of the majority in Quebec.
[English]
Senator Grafstein: I think the professor should remind himself that, in this bill, the mechanics of the resolution will be one vote as opposed to first, second and third reading of a legal measure. I leave that for him to consider, because he made a very eloquent statement about the importance of first, second and third reading. However, that will not be the case here.
Senator Taylor: Professor Derriennic, you make a good explanation on 50 per cent plus one. I think most people would agree, too, that you make a good political explanation that it would be ridiculous to try to separate a country when 40 per cent or 50 per cent of the population is against it. However, the clarity of the question is one of the things I want to raise with you. You also assume this is a bill about Quebec. This is a bill for all provinces. In Alberta, a separatist won an election at one time. He won the second highest number of votes back in the 1970s. If the price of oil keeps increasing and they have big finds off Newfoundland, they might decide that they want to leave, too.
Bearing in mind that nearly 60 per cent of members of the House of Commons are from Ontario and Quebec, and after the next census, or the census after that, their representation will be moving up to two thirds, why do you want to see the House of Commons be the sole arbiter on the clarity of the question? Are you not setting up a possibility down the road -- and I ask you to forget Quebec for the time being -- that small provinces that perhaps suddenly become rich might want to take off for other reasons? If there were a referendum in Alberta asking its citizens if they wanted to separate or have gun control, you might be surprised at the response. The point is that silly little things can happen. Would we not be wise to have an amendment saying "Parliament" rather than just "the House of Commons"?
[Translation]
Mr. Derriennic: It is true that I look at these problems from a Quebec perspective. I am a professor at Laval University, therefore the people whom I discuss this with on a day-to-day basis are in a position you can well imagine. Given the consequences of the decision on other provinces, is it fair that the House of Commons decide that issue, while 60 per cent of those elected to the House of Commons come from Ontario and Quebec? That is basically your question.
I think that the question should be framed in the following way: how do we decide to accept some future separation agreement and the conditions set forward it? The decision which will follow at the end of a process will be a much more serious and a much more difficult decision to make than the decisions which are pretty much standard at the beginning of the process. We are not deciding whether we will accept Quebec's independence with Bill C-20. We are deciding whether we accept to negotiate and to see what that negotiation would imply. Again I am repeating what I said before, it appears to me that all the objections that you are raising, which are pertinent, become pertinent at a future stage in the process. I think that you have reacted as a chamber, as if at the end of the application of Bill C-20 the problem is settled; that the Canadian decision regarding the independence of Quebec has been made and that the problem is settled. In my view that is not at all the case; Bill C-20 deals with limited yet important problems. If things start off on the wrong foot they will also end on the wrong foot. It is a matter of launching a process which may later lead to much more important decisions than the decision as to whether the question was clear or whether the majority was clear. The issue will not be settled when negotiations begin between the federal government and some future government of Quebec. Your objections become very relevant during the course of the negotiations and as to how to accept the results of those negotiations.
[English]
Senator Furey: We have had witnesses come tell us that it is really not fair to a population who want to go out and vote on a particular issue, be it secession or whatever else, if the rules are not clear and if they do not know what the majority is that they have to attain. I am hearing from you that that is not important at the beginning stage, it is only important when you go to the negotiation stage for secession. How do you respond to that?
[Translation]
Mr. Derriennic: The problem with the majority exists in terms of the decision itself. The problem of the majority is an issue for the Quebec referendum which achieves a majority. Let us say that there is sufficient demand for independence within Quebec for other Canadians to feel morally and politically obliged to follow up or at least to consider very seriously and to accept to negotiate with all the costs that stem from such negotiations.
I am tempted to repeat what I said earlier, namely that if we set a specific threshold, we still have the problem of a referendum where the results are very close. I believe that if the result is 50 per cent plus one, the sovereignist government is in a very bad position because they can't really go forward with that and negotiations are bound to fail. That is why it is irresponsible of them to constantly refer to 50 per cent plus one. If the federal government decided to set the bar at 60 per cent and the result was 59.9 per cent, then would be the federal government who would be morally in a very bad position to refuse to go along when the vote of the people was so very close to the threshold that was set. We have to realize that the vote is not something that must go completely unchallenged as a decision-making tool within a democracy. We vote to elect individuals and we accept very close election results because they do not really change things very much. If a Parliament had been elected and all the members were undergoing a judicial recount, then we would have a very serious problem. And if a referendum were subjected to a recount, whether at 50, 60 or 80 per cent, the political significance would be the same as the election of a Parliament where all the members would have to undergo a judicial recount, and not just one or the other.
I think that the issue of the majority is a very serious problem. And one has to recognize that it is a very serious problem. The people have to be told and they have to understand this. You cannot let the people believe that things will work very easily with a 50 per cent-plus-one majority or with any other level of majority which would be set arbitrarily in advance. It is appropriate to inform the people before the referendum of the implications of this, it is a democratic requirement, so that people can vote with full knowledge of the facts. You have to explain to the people why this requirement for clarity cannot be expressed in terms of a specific number, whatever that number may be, whether 50 per cent or something else. That is how I see the problem.
Senator Joyal: I have two questions for you, Mr. Derriennic. The first deals with the issue of the majority. As we know, any exercise proposed by the government is presumed to clarify the rule of law. Everyone is talking about secession, but what we are really dealing with here is the dismantling of the country. When you look at it from Quebec's perspective, it is secession, but when you look at it from the perspective of the country as a whole, we are talking about dismantling a nation. So let's try to see a little bit further than the trees.
You say that when we are dealing with issues such as this, the 50 per cent-plus-one rule is irresponsible. Yet you know that there are two parties in the National Assembly of Quebec, the Liberal Party of Quebec, through its leader and as confirmed by Mr. Ryan, and the Parti Québécois, who both think that 50 per cent plus one will be the rule of the majority. In the House of Commons, as my colleague Senator Grafstein stated, there are four parties who are on record as having stated that 50 per cent plus one is enough. Therefore, for six parties out of seven within Canada, 50 per cent plus one has been settled. As far as they are concerned, it is clear. So we are placed in a situation where we have to vote on the second question; basically, the result is already clear, if one of the four parties forms the government has entered into a coalition to form the government.
If the vote in the House of Commons is divided equally, the Speaker must vote to break the tie. Legally, you will tell me that that is clear. Politically, it would be a nightmare.
If this were to happen, which chamber of the Parliament of Canada could say: "No, it is not clear"? That is the Senate. That is why the Senate is one of the two chambers that make decisions about the fundamental interests of the nation.
I do not understand how you can argue so strongly that the simple majority rule is unacceptable on the issue of a clear majority. You do not advance the same argument on the question, because if the House of Commons were to come to a majority vote to say that the question is clear, the implications are also devastating.
At the end of the process, the clarity we are seeking would not only be achieved, but it would also have confused all the issues on the basis of the political parties in Canada. I fail to see how you can be logical and state that you want to maintain clarity, but that in practice, in such a question, you do not acknowledge the Senate's responsibility specifically to achieve clarity. In the process in which we are involved, the Senate is an essential institution for determining and guarantying clarity.
Mr. Derriennic: The Senate could have had a different role from the minimal one that has been provided for it. I do not think that was essential. Fundamentally, It will be up to the government of Canada to make the decisions. The government could have chosen not to put forward Bill C-20. It could have assumed its responsibilities on the basis of the Canadian law, the Constitution and the Supreme Court opinion.
By announcing ahead of time that this position on the results of the Quebec referendum will be determined on the basis of an opinion of the House of Commons, the government seems to be stating officially that it will have a say. We are constantly told -- in Quebec -- that the breakup of the country has nothing to do with the Canadian government, and that it would be a violation of democracy if the Canadian government were to get involved.
This tells the people of Quebec that the Canadian government will be involved by officially consulting the House of Commons. With a majority vote to take a stand on the Quebec referendum question or the results of the Quebec referendum, we definitely will be in a difficult situation. Politically, this would be bad. It is always bad politically to have a Parliament in which there is not a clear majority, particularly in the case of a serious problem.
We know that in a Parliamentary regime, there can be strong governments or weak governments. We have to hope that we will have a government that knows what it wants, and that there will be a majority in the House of Commons to support this government, something that generally happens in Canada.
The Senate could indeed add some wisdom to this whole process. If the Senate were to take a stand opposed to that of the government and the House of Commons, that would exacerbate the situation terribly, and would make the Quebec referendum crisis much more dangerous. There would be no positive results from that. The fact that the Senate has been given a rather modest role in this process is not a tragic problem.
Senator Joyal: My opinion is different from yours. If there were a majority vote in the House of Commons and if the Senate were opposed to the decision on clarity, I think it would be helping to clarify things, because it is specifically not clear that the government would have a mandate to negotiate. In such a situation, it would be preferable that the government of Canada go to the people in an election.
I think you are cutting short our country's political and democratic processes. To come back to the second point in your statement, you devoted considerable effort to discussing the indivisibility of Canada. I do not share your views. The Supreme Court of Canada never said that Quebec has the right to demand negotiations of the rest of Canada that would result in the end of Canada. The Supreme Court said that Quebec does not have the right to self-determination. That is what the Supreme Court said. Successive Canadian prime ministers have responded to this question as follows: "We do not have a mandate to negotiate the break-up of the country." That is fundamental in Canadian law.
The Supreme Court said that the right to self-determination does not exist, that the right to dismantle Canada does not exist. However, Canadians are the masters of the Constitution of the country, and if some day they want to authorize their government to dismember the country, governments will have to take into account the views of the majority of Canadians. That is what the Supreme Court said, no more and no less.
What I dislike in your presentation and other previous ones is the shortcut you take when you say: "We have an obligation to negotiate, that is therefore the end of Canada, therefore the territory is not indivisible." I think your interpretation of the rule of law contained in the Supreme Court opinion is incorrect.
Mr. Derriennic: If I may, I would like to start by making a distinction. You say that the Supreme Court said that Quebec did not have the right to self-determination. I think you are making a terminological error that is very harmful to us in Quebec. The point is that Quebec does not have the right to secede. Quebec has the right to self-determination.
Senator Joyal: The question was clear, professor. Read the question asked of the court.
Mr. Derriennic: Let me finish my answer. In all this legal discussion, we will get nowhere if we do not distinguish between "self-determination" and "secession."
The right to self-determination entails a right to establish a new State for individuals in a colonial situation. The right to self-determination for others does not imply the right to secede. It would be astonishing if we could find a sentence in the Supreme Court decision stating that Quebec does not have the right to self-determination.
We can certainly find a sentence that states that Quebec does not have the right to make a unilateral declaration of secession. That is not synonymous with self-determination. By confusing "secession" and "self-determination," we are doing a great deal of harm to our position. We have the same stand on this point -- we do not want to see Quebec independence. All of the PQ's arguments are constantly based on the confusion between "self-determination" and "secession." It is in the details, so to speak.
The Supreme Court said that if there is a clear majority of Quebecers who want independence, the government of Canada is obliged to negotiate independence in good faith. That does not mean that it is obliged to accept it under any conditions. This does not prejudge the legal procedure that would have to be followed. What constitutional amending formula should be used? The Supreme Court was careful not to comment on that, and I will do the same. I really have no opinion on that.
Would there have to be a referendum throughout Canada first? I have said that I think that that is an extremely reasonable view, and that it may be something essential in political terms.
Legally, there is no obligation to hold a referendum in Canada on any subject. We have constitutional rules that allow for changes to the Constitution without referendums. Thus, the Supreme Court does not comment on the way in which the process would be completed. That is left up to the judgment of our political decision-makers.
In my opinion, the Supreme Court is saying that if the majority of Quebecers want to stop being part of Canada, we must negotiate with them in good faith. If we negotiate in good faith, that means accepting the possibility that it might happen. The assumption is then that Canada is divisible under certain conditions. I do not see how I can interpret the Supreme Court opinion in any other way.
Senator Kinsella: I would like to continue this reflection on self-determination from a human rights perspective. If I remember correctly, the Supreme Court stated that we must also make a distinction between the right to internal and external self-determination. Could you give my committee colleagues some examples of what this right to self-determination contains? I think it is very important to recognize the fact that regardless of the outcome of this bill, the Quebec people's right to self-determination will remain.
We received a very interesting letter from the Premier of Prince Edward Island, Mr. Binn. I will quote a passage for you.
[English]
Premier Binns writes that one of his legislative committees --
...recommends strongly that the political leadership concentrate on initiatives which restore the capacity of Canadians to dialogue in the language of accommodation rather than focus on actions which are an effective denial of the constitutional and social history of our Nation.
Premier Binns' letter continues:
Lastly, from the point of view of the proper functioning of the Senate, I share the concerns of those who see the implementation and functioning of Bill C-20 as a realistic threat. Until other arrangements are in place, Prince Edward Island should be true to its historic position: the Senate is important in defending the Island's representation in both Houses of Parliament. To the extent that Bill C-20 either directly or indirectly undermines the validity and functioning of the Senate, a province like Prince Edward Island must register concern.
[Translation]
There are two issues there: the continuity of the right to self-determination as well as some comments on the content of this legislation, and the wishes expressed by the Premier of Prince Edward Island with respect to the importance of maintaining the critical and central role of the Senate of Canada. That was expressed by the Premier of Canada's smallest province.
Mr. Derriennic: On the right to self-determination, it seems to me to be quite clear, in today's world, that it means the right to external self-determination. The right to external self-determination is the right for people to have a government that considers them citizens and that gives them equal rights as citizens. That is why in colonial situations it was accepted that people were governed by one authority, but were not citizens of the country -- even in the case of Algeria, France claimed that Algeria was France, but Algerians were not French citizens prior to 1958 and did not have the same right to vote as others in France before 1958. And of course, for the other colonies, they did not have the right to vote at all. So that is the situation for people who are governed by a political power that does not recognize their citizenship.
So you have the right to be a citizen, and if the country that is governing you does not recognize your citizenship, you have the right to create another country to become a citizen. It seems to me that the same logic applies to the Palestinians. The Palestinians are not and do not want to be citizens of Israel, and Israelis would not want them as fellow citizens at any rate. So the Palestinians' right to create a State is and has been recognized almost throughout the world for a long time. Perhaps wrongly so, the same right is not recognized for the inhabitants of Kosovo, because they are considered to be citizens of Yugoslavia. Perhaps our opinion on that should change;, they may not really have been dealt with as citizens, and perhaps we should accept that they would have the right to create a State for that reason.
It seems to me that that is the international practice for the second half of the 20th century. If you are unhappy with your political situation in the country in which you are a citizen, you have the right to attempt to change the political situation, but you do not have the right to create a new State. You can create one if the others agree, if it is done through mutual consent like the Czech and the Slovaks; there is no reason for the rest of the world to be opposed to it. That explains the application of the right to external self-determination.
I do not really understand what the right to internal self-determination means. Perhaps it means people's right to not be discriminated against, in which case it goes back to the political and social rights that are proclaimed in international declarations and that are poorly applied in some countries today, as we know. Does it mean that societies have the right to considerable whole autonomy when they are culturally very different from others? That argument can perhaps be made if we look at places in the world where this right to internal self-determination is respected the most, that is the case of Quebec within Canada.
It is difficult to find a society that has more autonomy, more decision-making power over its own culture, over the development of its institutions, than Quebec within Canada. It can be compared to Bavaria, in Germany, and to other places. There is some uncertainty for the Swiss cantons and perhaps some uncertainty today for Flanders, which is also becoming very autonomous. For those who mention Catalogna or Scotland as examples, the Catalans and the Scottish would very much like to -- or the nationalists among them would like to -- have the same degree of autonomy as Quebec. However, the notion of internal self-determination in the world today remains very imprecise, to my mind.
My opinion on the position taken by the Premier of Prince Edward Island is contained in the answer I have provided on several occasions to the effect that the role of the Senate and the other provinces in the process will be very important when the process reaches the substantive decision-making stage, in other words, after the negotiations have begun.
Obviously, in negotiating the criteria and the acceptable or unacceptable nature of Quebec independence, the Canadian government will be required to take the other provinces into account. Moreover, the other provinces will have a say at some point in the procedure used to ratify the constitutional change. The federal government will therefore be required to take that into account, whether these provincial demands are expressed via the Senate or not. Is it absolutely necessary for this highly-complicated consultation on the process to be undertaken by the federal government right from the beginning, not on a question that is as simple as: Is the referendum question clear or not? What position should the Canadian government take on the referendum question? Should the Premier of Prince Edward Island or the Prince Edward Island Legislative Assembly be consulted? I would not be scandalized by that. Would it be necessary? I am not sure it would be. Especially since the Canadian government might well end up in a situation where because of the time frame and the need to act quickly, because of the people's reactions, because of concern, financial difficulties and who knows what, it would have to make some decisions very quickly, right before or immediately after a Quebec referendum.
Senator Gauthier: Professor, you are at the negotiation stage. You went a lot farther than me, because I am still at the consultation stage. I have not yet reached the constitutional stage. Are you for or against Bill C-20?
Mr. Derriennic: I am leaning in favour of it. If it had not been introduced at all, would I have thought that not having a bill like that was a serious situation? I am not so sure. Once it was introduced, if it had not been adopted, I would have found that very serious.
Senator Gauthier: You support the bill. In your opinion, who will determine the clarity of the question and the majority? The House of Commons? What percentage, in your opinion, should be established beforehand? If I have understood you correctly, all of that should be established before the vote and a majority of 50 per cent plus one should not be accepted. Moreover, you made a good point on that. What majority is required for a question to be deemed sufficiently clear, by the majority, to negotiate?
Mr. Derriennic: With the support or on the recommendation of the House of Commons, the Canadian government will say whether or not the question is clear. Obviously, the Canadian government will ask the House of Commons for its opinion one way or the other even if it can be influenced by the process. It will obviously happen that way. It is not what the Canadian government will say that is most important, but how the people will receive it, because if the Quebec government decides to hold a referendum, it will do so regardless of what the federal government says. Do not kid yourself on that. They will try not to give their opponents too many good arguments. Their question will be a little less dishonest than last time, but once they have announced the question, they will hold a referendum. Nothing will stop them then. The value of the statement made by the federal government will be its influence over the way people vote. The credibility of the statement will be what is most important.
Senator Gauthier: Bill C-20 does not say that the decision is up to the government. It says it is up to the House of Commons. The House of Commons is represented by the majority that makes up the government. The government will not have the last word in saying: "The question is clear, we will proceed." It will have to go to Parliament first.
Mr. Derriennic: Yes, and that is good, because it makes the statement more solemn and credible. One of the bad habits of Quebec nationalists is turning everything into a personal problem. We had problems because Mr. Trudeau was prime minister. We have problems because Mr. Chrétien is prime minister. And we have problems with Stéphane Dion. They are always making even the most important political problems personal. Making the federal government's position more solemn by consulting the House of Commons seems like a good idea to me, so that they cannot say that it is just a whim on the part of someone we do not like.
Senator Gauthier: What would be an acceptable majority for you? It would not be 50 per cent plus one, would it?
Mr. Derriennic: It depends where and how the vote takes place. Obviously, in the House of Commons, it will be a majority vote. The rules of the House of Commons will not be changed for that.
Senator Joyal: I would like to quote the Supreme Court's opinion on the right to self-determination. In question one, the court says:
[English]
Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation.
[Translation]
Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation.
As regards the second question on international law, the court says:
...a right to secession only arises under the principle of self-determination of people at international law where "a people" is governed as part of a colonial empire...
[English]
...a right to secession only arises under the principle of self-determination of people at international law where "a people" is governed as part of a colonial empire...
[Translation]
The Court clearly says that Quebec does not have the right to self-determination in domestic or international law. So why are you saying this morning that the Supreme Court has said the opposite?
Mr. Derriennic: No, excuse me. Reread the text carefully, especially the second part that means that the right to self-determination does not mean the right to secede. The court is denying Quebec the right to secession and not the right to self-determination.
Senator Joyal: You are playing with words. Question 1 very clearly says:
Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination...
We are under domestic law when it comes to dictating to the other parties to the federation.
Mr. Derriennic: No, you have to finish reading the sentence. It cannot invoke the right to self-determination and arrive at the consequence. The "could not" deals with the consequences of secession. You stop reading in the middle of the sentence.
Senator Joyal: I am sorry, I am not stopping in the middle of the sentence. I am reading the full sentence.
[English]
No right to self-determination. It is clear.
[Translation]
Mr. Derriennic: I would like to settle that in private.
Senator Joyal: No, it is too important, we will settle it in public.
[English]
The Chairman: Senator Joyal, I think the positions of the two sides are perfectly clear here.
Senator Grafstein: I just want to read into the record in English the second question that was posed to the Supreme Court of Canada in the reference.
Does international law give the National Assembly, legislature or Government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or Government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
The answer by the Supreme Court of Canada was a resounding "no."
[Translation]
Mr. Derriennic: I interpret the text as meaning "the right to self-determination exists." The answer to the question "Does the right to self-determination give the right to effect secession unilaterally?" is no.
Senator Joyal: We are talking about secession.
Mr. Derriennic: That is what the opinion of the Supreme Court means. If you are saying that the Supreme Court opinion has denied Quebecers the right to self-determination, you have a terrible problem with all of the international texts that proclaim the universality of the right to self-determination, and you have just offered an absolutely extraordinary propaganda argument to all PQ members. The Supreme Court is not saying no to self-determination. The "no" refers to the statement that the right to self-determination leads to the right to secession. Reread the text that you have just quoted.
Senator Joyal: We will continue the debate in other forums.
The Chair: Mr. Derriennic, it has been very interesting having you before us today, and we thank you very much.
The meeting is adjourned.