Proceedings of the Special Committee on
Bill C-20

Issue 1 - Evidence, May 29, 2000 (afternoon sitting)

OTTAWA, Monday, May 29, 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 1:35 p.m. to give consideration to the bill.

Senator Joan Fraser (Chairman) in the Chair.

[English]

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

We begin today with our consideration of Bill C-20, an act 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 passed by the House of Commons on March 15 and was read in the Senate for the first time on March 21. It was then read a second time on May 18, which meant the Senate approved the bill in principle. Bill C-20 was then referred to a special committee for in-depth study.

[English]

That consideration continues today with the appearance of the Honourable Stéphane Dion, President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs. Mr. Dion will give an opening statement, after which senators may question him.

The committee will hold another meeting later today to hear from two constitutional law professors, Mr. Patrick Monahan of Osgoode Hall Law School and Mr. Patrice Garant of Laval University. Other witnesses will be heard in the coming days and weeks.

[Translation]

Once the committee has heard from all the witnesses it has selected, it will proceed to clause-by-clause study of the bill. At that time, the committee will decide whether to adopt the bill in its present form, if it recommends any amendments or if it recommends not to proceed with the bill. The committee will then report its decisions to the Senate for consideration.

[English]

Minister, we are very glad that you are here. We thank you for coming. Please proceed with your presentation.

[Translation]

Mr. Stéphane Dion (President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs: Thank you very much for inviting me to appear before the committee. It is an honour to be here. I would like to start by introducing my officials. First is Mr. George Anderson, the Deputy Minister of Intergovernmental Affairs. Mr. Anderson has been working with me on these issues for close to four years now. Next is Ms Mary Dawson, the Associate Deputy Minister at the Department of Justice. A number of you know her, because she has been working on the Canadian Constitution for much more than four years. She has a great deal of experience on all these issues. Finally, this is my legislative assistant, Mr. Geoffroi Montpetit.

Honourable Senators, I could not give a better description than some of you already have of the rationale for Bill C-20, which gives effect to the requirement for clarity set out by the Supreme Court of Canada in its opinion of August 20, 1998 in the Reference re Quebec's Secession). As Senator Lise Bacon so aptly put it on April 11, the object is to ensure "that the rights of every Canadian are respected". The Clarity Bill gives effect to the opinion of the Court only with respect to the obligations incumbent upon the Government of Canada. Indeed the bill states the obvious: the Government of Canada must not enter into negotiations on secession in the absence of clear support for secession.

[English]

By approving this bill, the Senate would make it possible to establish a framework that would prevent any federal government from entering into negotiations following a referendum on secession unless a clear majority of the voters of a province had expressed their will to secede in response to a clear question. The question would have to make clear that the province would actually cease to be part of Canada and that it was not merely a desire to explore such a possibility. It could not obscure the issue by mixing independence with other questions such as political or economic association or partnership. In other words, Bill C-20 articulates, in a manner completely consistent with the court's opinion, both guidelines and procedures for establishing clarity.

Honourable senators, for several weeks now you have been debating the clarity bill and thus Canadians' rights to Canada. Your deliberations have been inspired by the demanding quest for democracy and justice that so characterizes our country. Thanks to your support, the clarity bill is now at the committee stage, but a number of you have expressed some concerns, which I believe can be categorized within four fundamental questions.

First, is Canada indivisible? Second, what is the legal import of the Supreme Court's opinion of August 20, 1998? Are we bound to respect it, given that it is an opinion rather than an ordinary judgment? Third, is the clarity bill relevant, given that the Government of Quebec says that it will not heed it? Fourth, does the bill allow the Senate to play its role? With your permission, I shall proceed to give the government's answer to these four questions, in that order.

[Translation]

I will be quite prepared to discuss other subjects such as minorities or Aboriginal people during the question period. Since I was asked to make a brief statement, I will limit my remarks to the four questions that I think are at the heart of your discussions over the past few weeks.

The first question is: is Canada indivisible? I understand that deep attachment to our country that makes us hope it will never have to be divided. I share it as well. However, the fact is that Canada is not indivisible from a legal standpoint. The Supreme Court has confirmed that.

Essentially the Supreme Court has confirmed that Canada is divisible, but not in any which way. Secession is legally possible only on condition that it be effected within the framework of the constitutional amending process. As the Court noted in paragraph 84 of its opinion:

The fact that those changes would be profound, or that they would purport to have a significance with respect to international law, does not negate their nature as amendments to the Constitution of Canada.

Anyone who intends to respect the Supreme Court's opinion, as I am sure Senator Joyal does, must acknowledge that Canada is divisible. Otherwise, the Court would not have confirmed the position of the Government of Canada that secession could be effected by an amendment to the Constitution. Nor would it have concluded that there would be an obligation to enter into negotiations on secession in the event of clear support for secession.

However, in addition to the legal aspect, let us consider the moral aspect. Is it really possible for a democratic State to retain a population that would clearly want to leave? I know that in Canada there is not a single major political party that has said it wants to keep Quebecers in Canada against their clearly expressed will.

If we Canadians acknowledge that our country is divisible, it is not because we feel that our citizenship carries with it any fewer values than that of other countries. On the contrary, we value the fact that we belong to Canada so highly that we find it inconceivable that our belonging could be based on anything other than voluntary adherence. Our political culture leads us to conclude that our country makes sense only if it is based on mutual consent.

In my written text, you will find quotations from various political actors confirming that Canada's political culture is based on mutual consent. That includes the comment made by Mr. Rock when he announced to the House of Commons his decision to go to the Supreme Court on the issue of unilateral secession.

In short, from both a legal and moral viewpoint, one cannot say that Canada is indivisible. However, its divisibility would be acceptable only under conditions of justice and clarity. That is the state of the law, and that is what our political culture calls for.

The second question is: But must this opinion by the Court be respected? The Government of Canada's answer is yes.

[English]

But must this opinion of the court be respected? The Government of Canada's answer is yes. Some of you have suggested that the Government of Canada should simply ignore the Supreme Court's opinion in the Reference re Secession of Quebec since it is an advisory opinion and not a binding judgment. I have a summation of your debates in my written speech, but since you know what you have said, let me give our answer.

[Translation]

The fact is that an opinion rendered by the Supreme Court in a reference is, for all practical purposes, binding on the lower courts.

[English]

As Dean Peter Hogg has written: "In practice, reference opinions are treated in the same way as other judicial opinions."

[Translation]

Professors Henri Brun and Guy Tremblay stressed that, "the opinion" expressed in a reference "is in reality a true judgment." The same view has been expressed by Professors François Chevrette and Herbert Marx:

Advisory opinions have the value of a precedent in practice, if not in theory.

[English]

Professor Patrick Monahan, from whom you will hear later today, for his part notes that these advisory opinions have always been treated as binding by the federal and provincial governments.

[Translation]

The Supreme Court's opinion of August 20, 1998, applies to all constitutional actors in Canada. The Government of Canada stated its intention to respect it fully in its entirety. While it is unfortunate that the Quebec government has not chosen to do the same, this does not change the fact that the opinion has legal consequences for both the Quebec government and for the Government of Canada.

That leads me to my third question, which is whether the bill is relevant, if ever it were to be passed into law, given that the Government of Quebec has said that it would not abide by the Clarity Act and would not take it into account at all.

To date, the Government of Quebec has declared that it would ignore the Clarity Act and would not respect the Supreme Court's opinion. It maintains that a majority for the Yes side, however small, in response to a question as unclear as that asked in 1995, referring to sovereignty with an offer of partnership, would oblige the Government of Canada to agree to secession.

"C-20 could not do anything to stop that," my counterpart in the Government of Quebec, the Minister for Canadian Intergovernmental Affairs, Mr. Joseph Facal, said on May 2. Also, some Senators have expressed scepticism about the relevance of Bill C-20. For example, Senator Rivest stated on March 23:

The Parti Québécois, regardless of this bill, will continue to promote sovereignty-association.

Senator Nolin made the same argument in his comments. It is true that Bill C-20, as Senator Rivest himself acknowledges, does not in any way infringe on the prerogatives of the Quebec National Assembly and leaves it free to determine the wording of any question it might want to ask in a provincial referendum. The Clarity Bill does not set guidelines for a provincial referendum; it sets guidelines for the Government of Canada. It prohibits the Government of Canada from undertaking negotiations on secession unless there is clear support for secession.

It would be impossible to conclude that such clear support existed on the basis of such an unclear question as that in the 1995 referendum. Bill C-20 states that if there is no clarity then there is no negotiation. And if there is no negotiation, there is no secession.

To this, some senators respond that a separatist government could declare independence unilaterally and, through this means, obtain international recognition. Doesn't the Supreme Court itself in its opinion, Senator Beaudoin argued on April 10, contemplate the possibility that secession "may come about illegally, indirectly, if I can put it that way, and based on international recognition?"

So, does this mean that the Clarity Bill is useless? Should we not we resign ourselves to working according to the unclear rules decreed by the PQ government, while disregarding the right Quebecers have to Canada?

[English]

Senator Kinsella, in a statement he made on March 30, asked the following question: "The court has told us in black and white that a UDI secession is still a possibility. If it is still a possibility, then of what benefit is this law?" I will try to answer that, senator. It is a rather curious line of reasoning, tantamount to saying that, since it is always possible to break the law, there is no point in having any laws at all. No, no, please. There is no reason to take on such an attitude of resignation that is so contrary to the rights and interests of citizens.

One must realize the extent to which, in a democratic country such as Canada, a unilateral declaration of independence would not only be incompatible with constitutional and international law, but would also be impossible in practice. Such a move would be irresponsible, inapplicable and doomed to failure.

Bill C-20 will apply in practice while a unilateral declaration of independence would not. Let me explain why.

[Translation]

Bill C-20 will apply in practice, while a unilateral declaration of independence would not. Let me explain why.

To be sure, the Court cannot rule out a priori the possibility of a separatist government being so irresponsible as to act in a way that is "contrary to the rule of law" by attempting unilateral secession. However, the court clearly established that such a unilateral move would have no basis either in international law or under Canada's Constitution. The secession of a province would require a constitutional amendment (paragraph 97), "which perforce requires negotiation" (paragraph 84), "principled negotiation with other participants in Confederation within the existing constitutional framework" (paragraph 149). An attempt at unilateral secession would not be "under colour of a legal right" (paragraph 144), and would take place in a context in which Canada would be entitled "to the protection under international law of its territorial integrity" (paragrah 130).

What does this mean? This means that the government of a province does not have the right to unilaterally proclaim itself the government of an independent State. Such a right is not recognized under either Canadian constitutional law or international law. It has no such right, either before or during negotiations; nor would it have any more right to do so should negotiations break down. One must read paragraph 97.

If such a government did try to proclaim independence unilaterally, with all the risks that such an action would entail, it would not be "under colour of a legal right". In my written text, I explain the very concrete problems that would have to be dealt with by a government that attempted unilateral secession without legal authority, while millions of citizens demanded to remain Canadians, and who would be entitled to remain Canadians.

I can summarize the argument in the following way: to be effective, unilateral secession would require the expulsion of the federal authority from the province's territory. It would require the extinguishment, against its will and the will of millions of citizens, of all of its constitutional responsibilities toward the citizens living in that province.

A provincial government has neither the legal means nor the political means to proceed with such an expulsion, such an extinguishment. In a democracy, secession cannot be effected through expulsion. It can result only from negotiation.

If the Government of Canada believed it was duty-bound to refuse to negotiate and to continue to peacefully exercise its constitutional responsibilities in Quebec, it would be for three reasons. First, because Quebec voters had not clearly indicated their desire to renounce Canada in order to make their province an independent State.

Second, because secession had not been duly negotiated. And third, because the Government of Canada could not ratify an illegal and unconstitutional act, namely unilateral secession.

These are three perfectly reasonable considerations, which are in keeping with the Supreme Court's opinion, and which would certainly be seen as such by the international community. Under such circumstances, a provincial government that unilaterally proclaimed independence would surely not obtain international recognition. Such recognition would be entirely inconsistent with State practice.

The Supreme Court has made a prudent and realistic assessment of the role of the international community -- I refer you to paragraph 103. It makes the obvious points that: (1) there would have to be clear support for secession within Quebec; (2) the Government of Quebec, in its negotiations, would have to respect the constitutional principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities; and (3) the Quebec government would need to encounter unjustified intransigence on the part of other participants for it to be more "likely" to have a chance to be recognized, in the Court's words.

We can understand this prudence by the Court in light of the international community's extreme reluctance to recognize unilateral secessions. Since the end of World War II, a recognized right to secession has existed within the colonial context. Outside that context, no -- I repeat, no -- political entity has ever been admitted to the United Nations against the will of the government of the State from which it wished to separate.

And so our fellow citizens who opt for Quebec's secession ought not to count on international recognition exercised against the will of the Canadian State. Instead, they should count on the integrity of Canadians. They should count on the values of tolerance that we all share in Canada, and which would be more necessary than ever if we had to conduct those painful and difficult negotiations. And therein lies an important contradiction in the secessionist movement: since we Canadians are such open and tolerant people, why should we separate?

The negotiation of the breakup of a modern democratic State would be a mammoth undertaking, a source of "considerable upheaval and uncertainty," as the Court describes it in paragraph 96, not because of bad faith attributed by the parties to one another, but because it would be very difficult to break such close-knit ties forged over some 133 years of democratic life together. Such an operation would certainly necessitate respect for the law and clarity.

I now come to the fourth question, the role of the Senate.

[English]

Because of the concerns expressed by a number of senators -- Senators Pitfield, Taylor, Joyal, Kinsella and others -- I want to set out why I am convinced that the clarity bill respects fully the role of the Senate in our parliamentary system. That is the conviction of the Prime Minister and of the whole government. In this respect, as in all others, Bill C-20 complies with Canada's Constitution. The most eminent constitutional experts confirmed that before the Legislative Committee of the House of Commons on Bill C-20. For example, Dean Peter Hogg considers that "the Clarity Bill is consistent with Canadian constitutional law, and in particular with the ruling of the Supreme Court of Canada in the Secession Reference."

It is totally appropriate that the clarity bill not confer on the Senate the same role it confers on the House of Commons. The reasons for this have been well explained by some of you, including Senator Boudreau. I should like to outline them in my own words.

We need to ask what would happen in the absence of the clarity bill. The Government of Canada could then decide on its own how to respond to a provincial government that asked it to negotiate secession. There is no legal obligation and it is not the political practice for the Government to consult Parliament, or to hold a national referendum as Senator Joyal has suggested, prior to entering into constitutional negotiations. Nor do such obligations exist for a constitutional negotiation on secession. The Supreme Court stated in paragraph 88 of the Quebec Secession Reference that:

The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.

If there were an additional constitutional requirement for the Government of Canada to consult Parliament or to hold a national referendum before entering into such negotiations on secession, then that requirement would have been identified prominently by the court. It was not. Instead, the court confirmed that, while it is always open to the elected representatives to seek the views of citizens in a referendum, "In Canada, the initiative for constitutional amendment is the responsibility of democratically elected representatives of the participants in Confederation."

Consequently, in the absence of the clarity bill, the Government of Canada is not required to consult either the House of Commons or the Senate prior to entering into negotiations on any constitutional matter, including secession. But, whereas the Senate would have no recourse if it objected to such negotiations, the House of Commons would. The House of Commons could defeat the government through a vote of non-confidence. Consequently, a House of Commons that disapproved of a decision to enter into constitutional negotiations currently has the power to put to an end to those negotiations.

The Senate has no such power to prevent constitutional negotiations from taking place or to put an end to them, since it lacks the power to defeat the government on a vote of non-confidence. As the late senator Eugene Forsey explained, under our system of responsible government, cabinet, the ministers, are "...responsible, answerable, and accountable to the House of Commons...." The constitutional principle of responsible government leads to very different duties and roles for the two Houses of Parliament. The Supreme Court, for its part, has recognized responsible government as one of the pillars of Canadian constitutional democracy. That is found in paragraph 65.

The clarity bill is in the spirit of the current constitutional relations between the government and Parliament. In fact, it recognizes the serious impact of a decision to enter into negotiations on secession and, for that reason, it requires the Government of Canada to ensure, prior to entering such negotiations, that it has the confidence of the House of Commons. Moreover, the bill creates an obligation for the House of Commons to take into account any formal statements or resolutions by the Senate with respect to the clarity of the question and majority. Such an obligation will exist only if the bill is enacted.

In assigning different roles to the Senate and the House of Commons, the clarity bill in no way creates a precedent. At times, the two chambers do not have the same role to play, and for excellent reasons. The Senate cannot initiate money bills. It cannot bring down governments. It does not have a say on all House of Commons resolutions. A number of laws confer specific responsibilities on the House of Commons alone, and the Senate does not have a full veto in constitutional amendments.

Let us consider the latter point. If the Senate can delay, but not defeat, a constitutional amendment, there is a reason. The Senate's normal roles of sober second thought and of protecting regional interests are met in part in other ways through our procedures for amending the Constitution. The majorities required for most amendments establish high thresholds that ensure due deliberation. Provincial legislative assemblies, in the approval of constitutional amendments, have the ability to protect provincial interests directly.

With respect to the decision to enter into constitutional negotiations on secession, it is clear that the provinces would have an independent role in assessing clarity. Thus, provinces would directly protect their interests in deciding whether to enter into negotiations on secession.

Were Bill C-20 to give the Senate a decisive role in assessing clarity, this would, in practice, give it a veto over a constitutional amendment to bring about secession. This would bestow on the Senate an additional power to veto a constitutional amendment, a power that it does not currently possess under our parliamentary system. There is nothing in the Quebec Secession Reference to indicate that the Supreme Court of Canada intended to effect a restructuring of the respective roles of the two chambers.

In short, Bill C-20 is entirely consistent with Canada's Constitution and our parliamentary traditions in providing a determining role for the House of Commons and in obliging it to take into consideration any official declaration made by the Senate in respect of assessing clarity.

In conclusion, I can summarize the Government of Canada's point of view as to the pertinence of the proposed clarity act in two propositions. First, in a democratic country such as Canada, secession is acceptable only in clarity and legality, meaning only if the voters of a province clearly want it and only if it is negotiated within the constitutional framework.

Second, a democratic country such as Canada has the right, the duty and the peaceful means to ensure that a unilateral secession would not occur, because it would be too contrary to the interests and rights of all its citizens, especially those living in the affected province.

These are the two propositions or two convictions of the Government of Canada that I now submit for discussion, along with any other aspects that you may wish to raise.

[Translation]

I would just like to conclude, as I do at the end of all my speeches on the Clarity Bill, by reiterating this other profound conviction of the Government of Canada: clarity is the ally of Canadian unity, confusion and ambiguity are not. And for one simple reason: with a clear question we Quebecers will always answer that we want to stay in Canada. We have contributed too much to this country, we want too much to improve it further, for us to turn our backs on it.

If you choose to vote in favour of the Clarity Bill, you will be strengthening the unity of our country. For clarity draws attention to the will of Quebecers to be both Quebecers and Canadians, rather than Quebecers without Canada.

And so, in Senator Bacon's words, you will be ensuring "that the rights of every Canadian are respected." You will do this by voting for a law that respects the rights of all Canadians, the opinion of the Supreme Court of Canada, and our parliamentary system.

The Chair: Mr. Dion, you will notice that there are a great many people, including several senators, who follow the hearings closely.

[English]

On the first round of questions, members of the committee will be given an opportunity to ask questions and then senators who are present but who are not members of the committee will get their turn to ask questions. Since there are so many of us and since all of our questions are important, each senator should make every effort to keep questions brief and focused -- not to denude them of their meaning, but to avoid accessory speeches and lengthy preambles. Similarly, we should keep our questions focused on one topic at a time and save separate topics for another round. That will help everyone have a fair chance to participate in this important session of the committee.

Senator Lynch-Staunton: Minister, I will certainly set the example by asking you a very clear question. After listening to you and reading along with you, I think your forceful presentation with the new argumentation was very stimulating. Whether one agrees with it or not, it is certainly a fine effort from that point of view. Will you entertain amendments to this bill, or do you feel that, in its present form, the bill is satisfactory and should be passed by the Senate untouched and unchanged?

Mr. Dion: I think this is an excellent bill. If you point out improvements, I will be open to listening to you.

Senator Lynch-Staunton: So you are open to amendments?

Mr. Dion: If they are good amendments, yes; but, please, I am listening to you.

Senator Lynch-Staunton: It is important to know that because, as you know, quite a few senators, particularly on the other side, have suggested amendments, perhaps at this stage or at the third reading stage. It would be nice to know that at least you are open to listening to them. You may come here with a view that the bill is excellent, in your definition, and so additional amendments would just be superfluous and unnecessary.

Mr. Dion: I want the best clarity bill for Canadians.

Senator Lynch-Staunton: Fine. So you are open to amendments.

One aspect was missing from your presentation, and that was an answer to the federalist forces in Quebec who, as you know, are led by Jean Charest. Mr. Charest's party has taken the official position that they are opposed to Bill C-20. I need not remind you that Jean Charest played an important role in the 1995 referendum. All Canadians were happy to see him go to Quebec to lead the federalist forces there, and he is still doing so.

In early May, Mr. Charest tabled in the National Assembly a declaration with a covering letter in which he writes that certain events in recent months, particularly the passage by the House of Commons of Bill C-20, challenged all Quebec parliamentarians to affirm the authority and legitimacy of the National Assembly. The declaration itself is quite lengthy. I am sure you are familiar with it. The first part reads:

This Assembly:

Reaffirms that Quebecers have the right to choose their future and to decide their constitutional and political status, and that this right must be exercised in conformity with the constitutional or international legislation, conventions and principles which apply to the territory of Quebec.

Once one finishes reading the declaration, it is quite obvious that there is no room for Bill C-20 in that declaration. Thus, the leading and only federalist party of Quebec has taken a position against this bill. That can only lead one to conclude that this bill, while unifying separatists and ultra-nationalist forces in Quebec, is dividing federalist forces. What is your answer to that?

Mr. Dion: Mr. Charest has said that he is not supporting the clarity bill because he thinks that the bill is useless. I would agree with him if he were the premier of Quebec. The necessity of the clarity bill comes from the fact that the current premier of Quebec does not recognize the Supreme Court reference. The Government of Canada must make clear that the Government of Canada will respect, in its entirety, the Supreme Court reference. I would agree with Mr. Charest if he were the premier of Quebec.

Senator Lynch-Staunton: I want you to explain to me why, in answer to a question on Bill 99 in an interview only a few days ago, Mr. Charest replied:

[Translation]

Well, in Quebec, I believe that there is a very strong majority opinion regarding C-20. Among other things, a political issue is being made into a legal issue.

I consider this to be a very bad idea, and we oppose that bill. Since we are consistent, we are also opposed to the reaction of the Parti Québécois government, which also wants to make what is a political issue for Quebec into a legal issue.

I believe that this is a huge mistake, that there is a danger of creating another legal saga that will last a number of years, and we proposed some alternatives.

[English]

Whether he is premier or not, he is the leader of the major federalist party in Quebec, a party that will be called to play a key role in the next referendum, whenever it is held. Right away he is telling us that Bill C-20 will be an impediment rather than a support to the referendum campaign.

Mr. Dion: I think he is criticizing much more Bill 99 than Bill C-20, but I will not speak on his behalf.

I know it would be a shame if we Quebecers were to lose Canada in a process like the one that occurred in 1995. The leader of the Quebec Liberal Party in 1995 was Mr. Johnson. He said that the question at that time was a trick. In the 1980 referendum, the leader of the Quebec Liberal Party said that the question was a fraud. The point is that one should not lose one's country by a trick or by a fraud. It is as simple as that.

Senator Lynch-Staunton: I am not asking you to defend the position of Jean Charest. I want you to reconcile his position with that of the federal government, which is an opposite view. He said in his interview:

[Translation]

...the great majority, and I am reflecting the positions that were defended in the Caucus. They opposed C-20 as I was opposed to the Supreme Court Reference.

[English]

Mr. Charest is telling the federal government to go back to Plan A. I will finish with the quotation, if I may.

[Translation]

We have the decision today and we have to live with it; however, I am amongst those who believe that we should expect the federal government to assume some leadership aimed at enhancing the Canadian Federation, and not to come up with B plans. As far as the B plans are concerned, we formally object to them and the response from the Parti québécois government is not surprising.

[English]

He is saying that the Parti québécois is thriving on Bill C-20 while his own party is opposed to it. This bill is being imposed on him and his party by the federal Liberal Party. I am not asking you to defend his position. I am asking you to reconcile the position of your government with his. How can you reconcile it?

Mr. Dion: Okay. According to public opinion in Quebec, most Quebecers support the content of the bill.

Senator Lynch-Staunton: I am asking you about Mr. Charest's position, please. I do not want to hear about polls.

Mr. Dion: Do you want me to speak about my position or about his position?

Senator Lynch-Staunton: I want you to reconcile your position with his. He says that he does not want Bill C-20 and you say that yes, he must live with it.

Mr. Dion: Your premise is that Quebecers do not support the content of the clarity bill. I am ready to say that that is not true. That Mr. Charest and Mr. Chrétien are not in agreement on everything is a fact. That is not new. Yet Canada is united. We may have disagreement among allies. Yourself and your leader in your own party are in disagreement about the majority that is needed.

Senator Lynch-Staunton: That is not the question. That is out of order.

Mr. Dion: Excuse me, you are still a part of that party. It is the same. I consider Mr. Charest a great ally, but sometimes we have disagreements. I just want to point out that he never said that Bill C-20 is bad. He said that it is not useful. I would agree with him if he were the premier of Quebec.

Senator Lynch-Staunton: So that is what you call an excellent bill.

Mr. Dion: Yes, it is.

Senator Furey: Minister, I share the Chair's earlier comments in welcoming you. Thank you for taking time out of your schedule to be with us.

I want to go back to one of your initial comments on the indivisibility of Canada. During second reading debate, we heard a number of arguments. One argument was based on the preamble to the Constitution to the effect that Canada is indivisible. At the same time, we heard that, during the patriation debate, the inclusion of the word "indivisible" in the Constitution was specifically discussed and rejected.

I understand quite clearly the desire to maintain that Canada is indivisible; unquestionably, I do not want to see Canada divided. However, in the face of a clear majority on a clear question in favour of secession, what would happen, Minister Dion, if we simply said, "Sorry, Canada is indivisible"? Where would that leave us as a country?

Mr. Dion: First, we would be saying something that is inaccurate, according to the law of the land. We would not have the support of the Supreme Court of Canada. The court would not contradict itself. When you are not supported by the law, you have a difficulty.

That is why we went to the court. We thought it was the Quebec government that was not supported by the law. We must remember that the Quebec government was saying that, after a Yes vote, international law would right away remove Canadian law. The Quebec government might decide to be an independent state right away or after the beginning of negotiations, but, at that moment, all the citizens in Quebec would be under an obligation to consider this government as the government of an independent state, as would be all the citizens and governments in Canada and abroad.

The Government of Canada was saying that there is not a paragraph, line or comma in international law that supports this claim. We need to stay always within the legal framework, especially when dealing with things like that that are so touchy and difficult.

Senator Murray: I have written out my questions, having anticipated your admonition. My questions are written out in such a clear and succinct fashion as to invite clear and succinct answers. They relate mostly to the reference of September 1996 and to the arguments made by the government lawyers before the court and the advisory opinion of the court. My first question is this: What is the position of the federal government with regard to the amending formula that would apply to the secession of a province?

Mr. Dion: The court has said --

Senator Murray: What does the government say?

Mr. Dion: The government has said that it must respect the court, and the court has said --

Senator Murray: Minister, I think we can save some time here. Your lawyers went before the court. Notwithstanding the fact that various interveners made representations about what the formula should be, the government's lawyers told the court not to go there. Therefore, telling the committee what the court said is not helpful. The government either has a position as to what amending formula applies or would apply, or it does not. If it does not, say so and we will move on.

Mr. Dion: The government said to the court that it is impossible to decide which exact amending formula would apply outside the context.

[Translation]

In article 105, the court stipulated, and I quote:

...each option would require us to assume the existence of facts that at this stage are unknown.

Hence the court is telling us that once we have the known facts at this stage, the courts could possibly help the politicians should they be unable to agree on the applicable amending formula. In the absence of a precise context, the government has refrained from speculating on the applicable amending formula.

Senator Murray: But why did your reference not include the question about which amending procedure will apply should there be a secession?

Mr. Dion: We believe that we have to know the context. The court has confirmed that the context must be known.

[English]

Senator Murray: Minister, the stated objective of the government is clarity. It seems to me there will be a great lack of clarity if we do not know, the morning after a referendum in Quebec, what amending formula would apply and who would be at the table. That leads me to my next question.

With regard to the aboriginal peoples of Quebec, in the view of the Government of Canada, could their constitutional status vis-à-vis the federal Crown and Parliament be changed without their consent? Could they be moved from the jurisdiction of Parliament, say, to the new republic of Quebec, or do they have a veto over any such change in their constitutional status?

Mr. Dion: The court has said that nothing would be decided in advance.

Senator Murray: Pardon me?

Mr. Dion: Nothing would be decided in advance of the negotiations. When you go to the negotiations, you cannot say that this has been solved by the court. Nothing has been solved in advance. The court has said that there would be an obligation on all participants to respect minority rights and especially aboriginal rights and territorial claims. Thus, this would be a big difficulty for the negotiators. We know that because of section 35(1) we would need to have a constitutional conference with aboriginal leaders. The clarity bill said that the Government of Canada would need to respect its responsibilities towards them.

Senator Murray: You declined an amendment that would have assured the aboriginal peoples of a seat at the negotiating table, minister. That amendment was suggested to the committee in the other place by Grand Chief Fontaine. It seems to me that the government is taking a very generous view of aboriginal rights in the situation of the Nisga'a, where you are purporting to entrench the treaty in the Constitution by virtue of section 35 of the Charter, and you are taking a very narrow view of aboriginal rights in Quebec. You will not even give them a seat at the negotiating table.

You have not answered my question. Do they or do they not have to consent? Can you change their status vis-à-vis the Constitution without their consent?

Mr. Dion: We cannot avoid talking to them or negotiating with them. The result of these negotiations is unknown, as all the negotiations surrounding a secession are unknown. There is no guarantee that the border of a province would not move during this type of negotiations. If you have a population that is clearly requesting to stay in Canada, with a clear majority and clear support, it will be very difficult to avoid moving the borders, but it is not a certainty. The court has said that nothing is certain in advance.

However, it is certain that the Government of Canada has an obligation towards aboriginal peoples, a fiduciary obligation, and would have to respect it. We would need to respect section 35(1) of the Constitution of our country. According to Chief Fontaine, it is the view of the government that the clause already allows for their participation in such negotiations if for no other reason than that section 35(1) of the Constitution mandates their presence and participation at the table. Bill C-20, therefore, cannot do less.

[Translation]

The federal and provincial governments are bound by the principle whereby the representatives of the Aboriginal peoples would be invited to participate in discussions on any constitutional amendment that would affect the provisions of the Constitution mentioned in section 35.1. The Clarity Bill respects this principle by clearly stipulating that negotiations on secession would specifically include the provincial governments as well as the Government of Canada.

[English]

Senator Milne: Minister Dion, there have been many rumours that claim that the purported unequal treatment of the Senate in this bill reflects your own personal views on abolishing the Senate. Would you care to comment?

Mr. Dion: I would comment by quoting Senator Pitfield, who said that we may have different views about the future of the Senate and it is all completely legitimate. I am not sure that you senators have the same view about the future of the Senate, all legitimate, but it is a debate that we must deal with if this matter becomes a constitutional debate among Canadians. Outside that, we need to respect the Senate. I agree 100 per cent. The clarity bill respects the roles and prerogatives that the Constitution gives to the Senate as well as those traditionally given to the Senate.

[Translation]

Senator Beaudoin: Mr. Minister, I would like to ask you a question about the role of the Senate. In the Confederation debates, Sir George Étienne Cartier filled many pages devoted to the Senate. Section 17 of the Constitution clearly states that we have legislative Chambers: the Senate and the House of Commons. In legislative terms, it is clear that the two Chambers are equal, but in constitutional terms, the veto is only suspensive. We all agree on that. There is, however, a paragraph where you refer to paragraph 88 of the Supreme Court Opinion, which reads as follows:

In Canada, the initiative for constitutional amendment is the responsibility of democratically elected representatives...

Obviously, the Supreme Court is supreme, but the Constitution is also supreme.

Section 52(1) of the Constitution states:

The Constitution of Canada is the supreme law of Canada;...

Section 46(1) of the Constitution clearly states:

The procedures for amendment under sections 38, 41, 42 and 43 may be initiated by the Senate or the House of Commons...

There is already a slight hitch in the Supreme Court Opinion and section 46 of the Constitution. The Senate is clearly a political actor. It is not elected, however it is political. The Senate may initiate a constitutional amendment. Section 46 is not very well known, but it exists.

In my opinion, every time we legislate, both Houses are equal and, in order to respect the principle of the bicameral system, which is one of the cornerstones of the Federation, we have to respect the equality of the two Houses. The Senate has to approve Bill C-20 for it to pass. Although we have an absolute veto, you are asking us nicely to vote in favour for the bill knowing full well that once it is adopted, we will be excluded. That is asking a lot from a senator. If we are to abide by the main principles of the bicameral system and if we are to respect not only the letter but the spirit of the Constitution, then the Senate and the House of Commons must be afforded equal treatment. If we are dealing with a constitutional amendment, it is not equal, however, if we are dealing with an act and a role resulting from an act, it seems to me that equality must be respected.

Mr. Dion: The Senate has a role to play in approving the Clarity act. If, unfortunately, we were to reach that stage, and if the negotiators were to arrive at a separation agreement, the agreement would have to be framed in constitutional terms, and the Senate would have a role to play. In the meantime, the Senate would be free to comment, advise and attempt to influence the negotiations. It does not have the power that you are asking me to give the Senate, the possibility...

Senator Beaudoin: Of recognizing.

Mr. Dion: ...of stopping a constitutional negotiation process. You are asking me to do something that runs counter to our political traditions, and I cannot do that.

Obviously, if the Senate had the same role as the House of Commons with regard to evaluating the clarity and the majority, and the Senate were to say that it is not clear, the Senate would be given an absolute veto over the start of any constitutional negotiations, a power that it does not have.

Senator Beaudoin: Just a minute. I agree that you would be giving the House of Commons additional power. You chose to proceed by way of legislation. You could have proceeded differently, but you are perfectly entitled to proceed by way of legislation. However, from the moment you start down the legislative road, you must comply with the principles of Canada's bicameral system. Why give power to the House of Commons and not the Senate? We have 30 days. There are fewer of us than there are of you in the House of Commons, but we can certainly comply with the same time frame.

The Senate is a legislative house that has always existed. Cartier was very categorical in that regard: equality for Quebec and Ontario in the Senate and equality of the two Houses. We are not complying with the principles of the bicameral system that is an integral part of our Canadian Constitution.

Mr. Dion: I would like to convince you, because in January when I launched my book, you told me that you adored the Clarity Act.

Senator Beaudoin: I do not adore legislation. Just a minute.

Mr. Dion: You liked it.

Senator Beaudoin: I said that I agreed that the question must be clear. We are not discussing the question here today, we are discussing the Act.

Mr. Dion: This Act respects the Senate's role, because it does not give new powers to the House. The House already has that power. The government is accountable to the House. It is not accountable to the Senate. If it is accountable to the House, the government can say: I am going to start by ensuring that I have the confidence of the House before getting involved in such serious negotiations. It is not giving the House any power. The government knows that the House has this power and that is why it has proceeded this way.

Senator Beaudoin: Once Bill C-20 has been adopted, we are going to go from being the Legislative Chamber we are today to a kind of lobby group. That is all.

Mr. Dion: The Clarity Act does not diminish in anyway the prerogatives and roles of the Senate. The Senate will be able to use them. The Act does, however, give the Senate something that it would have had without the Clarity Act: the requirement for the House to take into account the Senate's point of view. And that would not exist if it were not for the Clarity Act. The government could proceed without consulting the Senate in any way.

[English]

Senator Chalifoux: I should like to clarify one statement made by Minister Dion. Aboriginal rights are not part of the definition of "minority rights" but are totally separate. In Quebec, there are the Inuit Nation, the Cree Nation, the Mohawks and many other nations. There is also the Métis Nation. I understand that none of those nations was ever consulted or taken into consideration when you were negotiating.

The treaties were signed by the First Nations, the Queen of England, and Canada. The Province of Quebec was not involved. There is the Cree-Naskapi Act. Did you consult them? I understand that is part of the Constitution. The Mohawks have never joined anyone. They are separate and distinct. Some of them are in the United States, some of them are in Canada. Were they consulted in all of this?

If they wish to secede -- and I pray that never happens -- what will happen to the First Nations, the Inuit and the Métis? How will the borders be determined? If those groups all want to stay in Canada, then the separatists will have only a little bit of land around Montreal. I should like your comments.

Mr. Dion: First, you are right that aboriginal peoples have a specific role and a recognition in the Constitution of Canada that is not the same for minorities. That is why I mention the fact that if, unfortunately, we were negotiating the breakup of our country, we would be under the obligation to call a constitutional conference because a vote for secession would put their rights at risk. I cannot state with certainty today what the results of those negotiations would be, however.

Personally, I think that when a group of human beings says that they are distinct and that because of that distinctiveness they wish to get out of the country, it is very difficult for them to deny the same claim coming from others who may say they are even more distinct and have been so for a longer period of time. Aboriginal peoples in a seceding province would have a very strong claim to make and it would be very difficult to ignore. The Government of Canada would have a duty to ensure that their point of view would be respected and that we would need to negotiate with full effort in order to respect their rights.

Senator Chalifoux: Would the aboriginal people who have signed treaties with the Queen and with Canada even be part of the separatist movement, because of the treaties? I should like to have your comment on that.

Mr. Dion: I cannot provide a legal answer to your question. A political response would be that it would be difficult to go against their claim because they have a strong claim. That is the political response. The plural response is this: How can you remove a people from one state to another state without their will? The situation is somewhat arduous. It would be one of the major difficulties of the negotiations. It is something that people must know before the fact.

I remember that of the people who voted on October 30, 1995, almost nobody in the south of Quebec knew that in the north of Quebec there were three referenda with a clear majority of 95 per cent of voters saying, "We will stay in Canada, whatever the result of your referendum." I remember that after the referendum, when some journalists asked Mr. Parizeau what he would have done with the referenda in the north of Quebec, his answer was extraordinary. He said that those referenda were not legal.

Therefore, I urge everyone not to have a double standard. Everyone must respect the law, including the premier of Quebec.

Senator Chalifoux: Were these people consulted when you were developing this bill: the Inuit, the First Nations, the Métis and the Mohawks?

Mr. Dion: Many of them came to the Legislative Committee in the House.

[Translation]

Senator Nolin: I have two questions. In your opening remarks, you refer to the government's decision to follow up on the opinion of the Supreme Court in the Quebec Secession Reference. In what paragraph of its decision does the Supreme Court tell the government that it should resolve this political issue by way of legislation?

Mr. Dion: The Court did not ask the government to prepare legislation, but it did not preclude that either. The Court left it up to the political decision-makers to decide which procedures they would use to fulfil their obligation to negotiate in the event that the question is clear. The government was not obliged to draft legislation. If it decided to do so, it was for political reasons, because the Quebec government did not commit to complying with the Supreme Court opinion.

If the Quebec government had accepted the opinion of the Supreme Court in its entirety, without choosing the sections that interested it; if the government had agreed to never ask other Canadians to negotiate the separation of Quebec, unless there was a clear expression of Quebecers to separate -- not a majority pulled off through the repeated use of unclear questions that were chosen and cooked up through one focus group after another; if the government had said that people wanted to separate, that the people were not very divided on that, and if it had asked other Canadians to negotiate within the constitutional framework, and if at the end of the negotiations, we would end up with a country on a legal footing; if Mr. Bouchard had said that, Mr. Chrétien would have replied that he profoundly disagreed with him as to the possibility of separation, and he would have told him that he fully agreed with the procedure by which secession could be carried out.

It is unfortunate that in a democracy, not only do we not agree on the substantive issue, but we do not agree either on the procedures to use to resolve a substantive problem. The court has provided us with the procedure; the Quebec government rejected it. The Canadian government, by way of the Clarity Act, is confirming that it is respecting the procedure.

Senator Nolin: I have a second question. As you said, this issue is highly political. Let us go back to 1995. At the time, I was one of the players in the federalist campaign in Quebec.

On September 11, 1995, Mr. Parizeau tabled the question in the National Assembly. That is when the debate on the question started. The polls, both public and internal, showed that we had taken the lead during the debate on the referendum question. Mr. Chrétien, like Mr. Trudeau in 1980, declared that the question was not clear. Mr. Johnson did the same. Everyone on the federalist side underestimated the consequences of the ambivalence of the question; despite all of that, we, the federalists, won the debate on the question.

There was a happy ending to the 1995 referendum, despite a close race. In light of the historic facts, let us take Bill C-20 back to 1995. The debate in the House of Commons on Bill C-20 should have drawn to a close around October 10. In reality, on October 10, 1995, Bill C-20 did not exist. At that time, we were lagging behind in the polls, whether they were public or internal, we were at less than 1.8 per cent; how could your bill have helped us reinforce Canadian unity, as you so clearly state in your conclusion?

When you say that by voting in favour of your bill, we will be promoting the unity of our country, I would reply that even if I vote against it, I can still work for the unity of the country.

It is 1995. Every morning, by 7 a.m., with some of my colleagues and your friends in the Liberal Party, we are preparing to defend Canada. One fine day, the House of Commons decides that the question is not clear, and as a result, the government decides that it will not negotiate, regardless of what happens. How could this decision help us?

Mr. Dion: Clause 1.(1) of Bill C-20 stipulates "...within 30 days...". It is within 30 days of the tabling of the text of the question. The question in 1995 was so blatantly fraudulent that the House of Commons would have deemed it out of order within half an hour.

Senator Nolin: Would you still have considered the Senate's opinion?

Mr. Dion: I think the Senate would have given us its answer in five minutes. It would not have taken several days, first of all. The question was so blatantly fraudulent that the Senate, the House of Commons, and the provincial legislative assemblies would have all agreed, like Quebecers, moreover, who stated in the polls that the question was unclear.

You say that we still won the debate, but a few days before the referendum, approximately half of Quebecers thought that sovereignty was linked to a partnership. A Yes vote was a vote for sovereignty-association.

In fact, the procedure was so confused that when Mr. Parizeau, two years later, when his book came out, said that he had been ready to declare independence unilaterally in the days following a referendum victory, he surprised not only ordinary citizens, but also Mr. Bouchard, Mr. Landry and others. Mr. Duceppe even said, while he was campaigning, that he did not want to be seen near Mr. Parizeau. Mr. Parizeau had to show them the tripartite agreement signed by the three political parties, which demonstrated that it was a maximum of one year and he could therefore declare independence unilaterally very quickly, if he so desired.

They had not even understood that themselves. They had put together something that was so complicated that they tripped themselves up, to the point where one of the three Yes leaders, Mr. Dumont, told us last February that he had never been a sovereignist. He did not say that he was one in 1995 and that he had stopped being one.

Do you know another country in the world that would agree to negotiate its own breakup when one of the three separatist leaders tells us that he is not a separatist? So, as to the answer to your question, Senator Nolin, I would like you to be the one to provide it, and I would like you to tell me that, naturally, your party and yourself would never agree to being duped into losing your country. People must be told this clearly, not after the referendum, but before.

[English]

Senator Cools: Madam Chairman, on a question of order. There is simply not enough capability for translation from French to English around this table. I hate to do this, but Senator Grafstein and I have been sharing one little translation device. I know that Mr. Dion does not want me to miss anything that he is saying, and I am afraid I am missing a fair amount.

The Chairman: I have already said that we will see what we can do so that at future meetings there will be even more facilities for interpretation.

Senator Prud'homme: I have the same problem as Senator Cools, Madam Chairman. There are not enough translation devices around the table.

The Chairman: I have already said that we will see what we can do for future hearings of the committee.

[Translation]

Senator Hervieux-Payette: Mr. Minister, I would like clarification on whether an ambiguous unilateral decision would be recognized or not. In paragraph 109 of its opinion, the Supreme Court says that it does not have legal jurisdiction, that it therefore does not purport to act as an arbiter, and that its opinion is only advisory in nature. However, a large part of the activities of the government which advocates secession are already, at this very moment, being carried out at the international level. This same government, which was elected with less than 50 per cent of the votes, is spending a great deal of energy and Quebec taxpayers' money on promoting this idea on the international scene.

Could you explain, in broad terms, the process of recognition? We are familiar with the principle of the right to self-determination. Of course, this is the principle that is being promoted on the international scene. I would like some clarification of this principle for the greater good of Quebec and the Canadian voters.

Mr. Dion: The procedure is as simple as that one, with a few minor differences. If the Canadian government announces to the world that one of its provinces will become a State, recognition follows automatically. If the Canadian government says that this is an internal matter that is being negotiated with one of the provinces, other nations do not get involved. They can indicate their preference, debate the subject, provide moral support and hope that everything will be settled peacefully. However, it is a domestic matter.

Senator Hervieux-Payette: Is international recognition effected by means of a press release published by a given country in the newspapers, or is there a United Nations procedure? What type of measures are used to recognize a State?

Mr. Dion: It is not the only one, but the best form of international recognition is for a country to be accepted into the United Nations. I can tell you that, since the United Nations came into existence, there has never been a case of a country that has separated from another country joining the United Nations without the consent of the other country. Outside the colonial context, this does not happen. This does not mean that there have been no intervention in nations for humanitarian reasons. For example, in the case of Kosovo, Kosovo has not yet been recognized as an independent country, even though everyone knows that over 90 per cent of the population wants independence, and even though the government has not behaved in an exemplary manner toward the people of Kosovo.

[English]

Senator Kinsella: Minister, we were delighted to have your statement at the beginning of our study that you are open to looking at possible amendments as we continue our study. Ours will be a profound and detailed study.

I should like to go to paragraph 153 of the Supreme Court's advisory opinion, where they state:

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.

The seventh preambular paragraph of your bill provides as follows:

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 and what constitutes a clear majority in a referendum held in a province on secession...

There is an inconsistency in the "clear wording" of paragraph 153 as I have just read it. You stated in your presentation to us earlier this afternoon and it is also stated in the seventh preambular paragraph of the bill itself that this bill is based upon what the Supreme Court has said -- "in light of the finding by the Supreme Court$." However, the Supreme Court has said that it would be for political actors to make that determination. It did not say that it would be for elected representatives. Why the discrepancy here?

Mr. Dion: In fact, the court used the words "political actors" and "elected representatives" a bit interchangeably throughout the court reference. For instance, the term "elected representatives" is used in paragraphs 35, 82, 65, 66, 74, 85, 88, 100 and 101.

My main argument to explain why the Senate has a different role than the House of Commons is not connected with the phrases "elected representatives" and "political actors," which are used interchangeably. It is connected with the fact that the government is responsible to the House of Commons.

Senator Kinsella: Minister, my second topic has to do with the question of the indivisibility of Canada, which is the premise that I sustain. I have listened to you. You seem to be sustaining the proposition that Canada is divisible. Did your argument on divisibility come about as a result of what the Supreme Court opined in its advisory opinion? Is that why you say that, in your view, Canada is divisible?

Mr. Dion: I knew that Canada was divisible before the court reference. I think that very few people are arguing the reverse. The point with the court was not to be sure that it is true that Canada is divisible: the point was to be sure that secession cannot be done outside the constitutional framework, because that would be against the rights of citizens.

Senator Kinsella: If I understood your argument this afternoon, it was that there are both legal and moral arguments as to why, in your view, Canada is divisible. Are our American friends in the United States less moral or less respectful of the rule of law? That great federation rests upon the principles of democracy, constitutionalism, federalism, rule of law and the protection of minorities; yet, the United States Supreme Court, in Texas v. White, ruled clearly that that federation is indivisible. What about the Crown itself? When Nova Scotia sought in the 1800s to secede from the early Confederation, it was denied by the Crown. Are the Mexicans less moral or less respectful of the rule of law, when, in that great federation, secession is not admissible? What is it about us in Canada that makes the situation different?

Mr. Dion: That is a good question. First, this explains to us how much an act requesting that a province of Canada be recognized as an independent state against the will of the Government of Canada is completely out of the practice of states. There is no risk of this kind, because most of these countries are indivisible for themselves and have no interest in encouraging this kind of unilateral gesture from another state, certainly not a G-7 country that is very respected, like Canada.

However, I am not answering your question. I am commenting about the argument that the UDI will lead to international recognition, something that I think is completely unrealistic and untrue.

About the fact that many respected democracies, not just dictatorships, have said that they are indivisible -- you mentioned the United States, France, Italy, Spain, Australia and others -- I respect their point of view. I am not saying I am more moral than they are. I understand the rationale for saying that every inch of the territory of the country belongs to every citizen of the country, that no one citizen may lose his or her citizenship against his or her will, and that all citizens have the right to give it to their children. That is what these democracies have said, and I strongly respect that. However, if they were in the situation where a population in their country, with the strong consent tradition on the part of the country, clearly said, "We want to leave," I am not sure that the sole answer of these democracies would be to say, "You cannot because it is against the Constitution." I am not sure that the United States of today would go to civil war if they were facing that situation. Democracies have evolved, and maybe, faced with the fact that you have a population that clearly wants to leave, you might accept to negotiate and to amend the Constitution to make that negotiation possible.

One thing I know is that I am in Canada, not in another country. In Canada, all parties that I know, including yours, have said that they would not keep Quebec in Canada against the clearly expressed will of Quebecers.

Senator Kinsella: Minister, do you not think that there is a failure in the paradigm under which the academic community and indeed the political community have been operating, that we have indeed failed to make the preferential option the indivisibility of Canada but have very strongly and creatively and energetically promoted the right of self-determination of peoples? The right to self-determination is an internationally recognized human right, and our court, in this opinion and others before, has said that that right should be fulfilled, creatively and dramatically, programatically, with various kinds of modifications to our federation. Is it not therefore consistent to be promoting the right of self-determination, in this instance of the people of Quebec, while at the same time insisting that that is done within the parameters of an indivisible Canada? Would that not be the preferential option?

Mr. Dion: I never thought that Canada was indivisible, for the reasons I just mentioned. May I ask you a simple question? Is it your position that Quebec should be kept in Canada against the clearly expressed will of the population of Quebec?

Senator Kinsella: That is my option, yes.

Mr. Dion: It is your position.

Senator Kinsella: Yes.

Mr. Dion: It is not the position of your party.

Senator Kinsella: It is my position, and it is a principled position.

Mr. Dion: I will read to you the Conservative Party resolution of 1991.

Senator Kinsella: Minister, with all due respect, in the Senate we have not conducted our debate on a partisan level, and this is really off course. However, as you are the witness, you can say what you wish.

Mr. Dion: I do not ask you to accept your party position. I just want to show you how much the idea that Canada was divisible was accepted by an important party -- I assume it is not your party -- when it stated:

Be it resolved that the recognition of the right of Quebec men and women to self-determination be confirmed.

I hope that, in the mind of the Conservative Party, self-determination did not mean unilateral secession. The problem, though, is that Mr. Parizeau and Mr. Bouchard are using this resolution to say that the Conservatives accept the Parizeau way to break up Canada. It would be very helpful for the clarity of the debate if Mr. Clark were saying, "Obviously not."

[Translation]

Senator Gill: Mr. Minister, my question obviously deals with Aboriginals. I am very happy that we can discuss these questions between Aboriginals and non-Aboriginals. We don't often have the chance to do so, so this is a good opportunity.

Following the Royal Proclamation, 1763, which you know, and which confirms Aboriginal rights, and the Quebec Boundaries Extension Act of 1912, you will remember that when the James Bay decision came down, Justice Malouf stated that the Aboriginals of this region had rights and had to be consulted, and that one of the sine qua non conditions to extend the boundaries of Quebec would be to sit down with the Aboriginals of James Bay. In addition, when the Constitution was repatriated, the inherent rights of Aboriginals were confirmed.

I assume that this came from the Royal Proclamation to extend the boundaries. Do you think, Minister Dion, that we have to go beyond the vocabulary that has been used until now, in other words that we need to consult with Aboriginal peoples? In my opinion, we need the consent of Native peoples. This was done to extend the boundaries. If ever Canada's configuration changes, Native people would have to be consulted and we would have to have their input. I would like your comments, please.

Mr. Dion: Your question, Senator Gill, is similar to Senator Murray and Senator Chalifoux's question regarding aboriginal peoples. On the legal front, I cannot answer you with any certainty, because the Court has not thoroughly decided the aboriginal issue. There are legal experts who say that you cannot change the country Aboriginal peoples reside in without their consent. The Court does not say that. And so I cannot say that. I am cautious. What I am saying is that politically, the Liberal Party of Canada would have a big problem accepting to negotiate separation if there were aboriginal peoples who wished to remain in Canada, and we signed an agreement against their will. I do not see my Prime Minister, as I know him, accepting such a thing. That would go against his deep moral conviction.

Senator Gill: You are referring to the government, and not only the Liberal Party.

Mr. Dion: I'm talking of the Liberal Party, the position of my party and my government, as well as my Prime Minister. However, I cannot base that on legal certainty. That has not been thoroughly tested in court.

Senator Pitfield: Why not?

Senator Gauthier: Mr. Dion, I agree that the referendum question must be clear, but like most Canadians, I am against dividing my country. If it came to that, what Bill C-20 proposes would worry me from a political perspective. As far as I am concerned, I believe that the bill must make a clear and specific statement regarding official language minorities, or linguistic minorities if you prefer, specifically with regard to the province that would want to separate from Canada, and in particular for French-speaking or English-speaking Canadians who would remain in this new Canada, if one day it were accepted.

You answered earlier that you would accept amendments. You accepted one amendment in the House regarding aboriginal peoples. I would like to ask you specifically if you would accept an amendment regarding official language minorities, in order to give them a right to speak?

Mr. Dion: You might have asked me why, at the outset, the government did not specifically mention aboriginal peoples in the sections regarding the assessment of the clarity of the question and of a majority. We did this following a request by Liberal and NDP members, as well as aboriginal leaders. The reason why we had not done this was because it was self-evident that we would take into consideration the opinions of groups as important as linguistic minorities and aboriginals. We agreed to mention aboriginals specifically only because they have a specific role in the Constitution under section 35.1.

Otherwise, it is unnecessary to explicitly mention such or such a group, because it goes without saying that their opinions will be taken into account. The Clarity legislation commits us to negotiations which respect the rights of minorities as well as, in terms of the clear majority, official positions taken by the Senate which, as you know, is particularly interested in the issue of minorities. If ever, unfortunately, separation did occur, the minister proposing a constitutional amendment to that effect will only be able to do so by upholding minority rights. This idea is contained in the bill and in the Supreme Court's Quebec Secession Reference. The minister must take into account minority rights. It will be up to the Senate to assess whether these rights have in fact been upheld during negotiations. Will this be an easy task, can we be reassured? Of course not, the process would be extremely serious and fraught with uncertainty. But the government of Canada would not be proposing secession. The government is simply saying that to deal with such an explosive situation, everything must be done within a legal framework, because if we don't, it will be a thousand times more dangerous!

Senator Gauthier: You have already said that Bill C-20 would protect Quebecers from an abusive provincial government which would try to take Canada hostage. Outside of the law and the idea of clarity, I would ask you who will protect linguistic minorities throughout Canada, since they will certainly be harshly affected by the separation process? Based on my past experience, I can assure you that it will not be provincial governments. Twenty years after the 1982 Constitution, we still have to fight for our basic rights. A million French-speaking Canadians live outside Quebec and 800,000 English-speaking Canadians live in Quebec. What is going to happen to these people and who will speak for them?

There is no guarantee you will be around in another two or three years. After a federal or provincial election, the bill will not guarantee that minorities like ourselves will have the right to be heard in the case of a referendum in Quebec.

Mr. Dion: Section 3 of the Clarity Act does not enumerate every potential negotiation partner. It is not the place of federal legislation to set out who can and who cannot negotiate; that will be up to the Federation partners. As Senator Murray could tell us, during the Charlottetown Accord negotiations, it was decided who could sit at the table and who could not, and they ultimately agreed to bringing in certain Native groups. The federal government cannot legislate this type of decision. Bill C-20 simply lists the actors who must negotiate, based on what the Supreme Court ruled, in a clear situation, and these actors are the federal and provincial governments. They are mentioned in the bill, but there is nothing to prevent the political actors from bringing in other parties representing various interests. The proof lies in the fact that the Clarity Bill specifically mentions the provincial and federal governments. This means that other parties which play a crucial role in our country, and which would be deeply affected by the break-up of our country, such as official language minority groups, would be able to sit at the table. Who will fight for their rights? First and foremost, they will. Do not believe for a moment that this type of thing will be quietly negotiated between technocrats. The country would be in an uproar, everyone would be concerned about their rights and their future. That is why governments will have to lead by always acting within the law. When the government of Quebec insinuates that it might try to achieve secession through political means and outside of the law, it means that it is willing to tolerate anarchy. When it says it is willing to tolerate anarchy, what kind of example does a government set for its citizens, who have legitimate fears for their future?

[English]

Senator Taylor: I am a little puzzled by your answers about the aboriginal peoples and the linguistic minorities. If there ever was a body set up to look after these groups, it is the Senate. Why would you cut out the one body that has a good aboriginal representation and one whose whole purpose is to represent the regions equally, as well as linguistic minorities, to rely on an improbable situation down the road? That is to say, why would you want a situation where the government or the House of Commons of the day, which is elected by one person, one vote, would be the sole way of expressing the rights of the regions and the rights, in particular, of the aboriginal peoples and minority language groups? You already have the mechanism to do so. Why you would throw it out?

Mr. Dion: Yes, but, once again, we are not weakening the role of the Senate by the clarity bill. Without the clarity bill, the Senate would not have the capacity to be consulted by the government. The government would negotiate and the Senate would have a capacity to assess the results of those negotiations, because of its suspensive veto of six months and because a secession was begun by constitutional amendment in order for it to be lawful. With the clarity bill, the House has the obligation to take into account your views about clarity. During the negotiations, you will retain all the capacity that you have to influence the negotiations, to comment on what is happening, and to give your voice to the citizens of Canada in order to ensure that their interests are properly protected. At the end of the day -- that is, if we go there and if there is an agreement of separation -- you will assess whether or not this agreement respects both minorities and aboriginal rights.

Senator Taylor: You and I have attended the Calgary Stampede. There is an old western saying which could be applied to the system you are talking about that says "That sounds like you are closing the barn door after the horse has run away."

There is a second area on which I would appreciate an answer. This bill deals with clarity and separation, but perhaps B.C. or Alberta may want to separate in the future. What about other issues? Is this bill creating a precedent whereby the representation by population in the House, which is dominated by Ontario and Quebec, could easily put in place legislation that would affect regions such as the West and the Maritimes? For example, there could be a new national energy policy that you are interested in pursuing, whereas we are interested in producing. The Maritimes and the provinces in the West would normally have a veto in the Senate. Are you setting up a precedent here? If not, can you point out some examples where this has been done before?

Mr. Dion: Some laws give specific roles to the House and not to the Senate. However, that is not my main argument. My main argument is that it is not a precedent. If we were giving the Senate a veto at the beginning of constitutional negotiations, that would be a precedent. I have a list of different bills that have been accepted where the House has a specific role that the Senate does not have. I will give that to you later.

Senator Taylor: Perhaps we do not need to discuss this now. Maybe you can submit that list to the committee.

Mr. Dion: Yes. That is not my main point, though.

Senator Grafstein: Reference has been made to a document. I agree that we should not take the time now to look at it, but it would be very useful if that document were tabled so that we could have that list to peruse at our leisure.

The Chairman: Can you provide that for us?

Mr. Dion: We will provide the list.

Senator Taylor: Minister, you mentioned that the Senate has a different role from the House of Commons because the House of Commons can defeat the government. The Senate can stop the government, as you well know. It did so in the GST case. The distinction between stopping a government and defeating a government is a very fine one indeed.

Mr. Dion: No, I think it is clear. Your stop is a political power struggle between the Senate and the government. The government is not under an obligation to go to an election because you stop it from acting. The government can decide to forget about a law because the Senate does not want it.

The government can decide to go to an election in order to hear what the people of Canada say. If the people support the efforts of the government, then the government can pressure the Senate to listen to the people of Canada, but you have no obligation to change your mind, legally speaking. You may decide not to change your position, despite what the Canadian people say by their vote. However, you likely will change your mind for political reasons.

If the government has a vote of non-confidence in the House, a convention exists. By that convention, the government goes to a vote in response to the motion of non-confidence.

Senator Taylor: There are many more cases of the government ignoring a lack-of-confidence vote than there are cases of senators ignoring such a vote.

[Translation]

Senator Joyal: I should like to begin by saying that I supported the government's initiative during second reading to launch a national debate on the future of Canada. I support the government's legislative initiative to allow all Canadians to debate the basic principles of our Constitution.

However, there is a gap between your position as outlined today on the indivisibility of the country and my own. I believe your interpretation of the ruling is partial and limited. The Court basically said no in answer to the question: Does Quebec have the fundamental right to secede? The Court said no. Therefore, the Court has ruled that Quebec does not have the right to self-determination even though, as you said, the political culture in Quebec and Canada have always taken this possibility into account. You alluded to this in your reply to my colleague Senator Kinsella. Since the Court ruled on the matter nearly two years ago, we now have a judgment. In my view, it is extremely dangerous for the Canadian government to say that the divisibility of the country is not based on the sovereignty of Canadians.

You finished your presentation by saying that every Canadian has the right to be respected in such an event. My assertion is that the rights of Canadians do not end with the desire of some Quebecers to breakup the country. Every Canadian has this basic right, no matter where they live. That is why it false to say that, legally, Canada is divisible. The sovereignty of a country is an issue for every individual Canadian to determine.

This is the basic principle underlying our Constitution and it was not contradicted by the Supreme Court opinion. On the contrary, the Supreme Court clearly stated that both majorities had to be reconciled. First, we must recognize the rights of the majority, that is, the right of Canadians collectively to decide whether they want to give their government the mandate to breakup the country.

Mr. Trudeau and Mr. Chrétien never said they had the mandate to breakup Canada. Do you believe that has changed since the Supreme Court's reference on Quebec's secession? They do not have that mandate. Who will give it to them? Why does your bill not recognize the fundamental role and right of every Canadian to be heard before the House of Commons of Canada ultimately holds a simple vote on the future of their country?

Mr. Dion: The Supreme Court stated, as was the Canadian government's position, that secession was possible through a constitutional amendment.

At one point in its opinion, the court said that the Constitution is not a yoke. In my speech, I quoted a section which said that simply because secession would represent a huge upheaval, that does not mean it would not require a constitutional amendment. The court said that it was incumbent on our elected representatives to propose a constitutional amendment. Senator Beaudoin was involved in a debate on this matter.

The court said that if a province clearly wanted to secede, there would have to be negotiations over a constitutional amendment to allow secession to go ahead. Since it did not say how negotiations should be resolved, it would be possible for us to find ourselves at an impasse. There is no obligation to take matters to their logical conclusion, but there is an obligation to negotiation within the framework of the Constitution.

If there were a principle whereby governments would have to consult Canadians through a referendum before negotiating secession, the court would have said so. However, it did not.

Senator Joyal: Paragraph 88 says it clearly:

[English]

Those representatives may, of course, take their cue from a referendum....

[Translation]

The court has left it up to the politicians to determine if they should consult the Canadian public before negotiating, and that is where the political interpretation of the Supreme Court decision comes into play. That is what is missing from the bill. The government has not used all the tools given to it by the Supreme Court to ensure that secession would not be a shortcut used to deprive all Canadians of their rights. That is where you and I differ in our appreciation of Bill C-20. I agree with the part dealing with the clarity of the question and the majority, but I would have wanted Bill C-20 to recognize the fundamental principles of the Canadian constitutional order. These principles were not disputed by the Supreme Court. The Court said clearly that these principles do make up for some omissions in the Canadian Constitution. Paragraph 53 clearly establishes the nature of the Canadian constitutional order's preamble.

Mr. Dion: Senator Joyal, let me read the section you've just mentioned. The French version is as follows:

[English]

Those representatives may, of course, take their cue from a referendum....

[Translation]

It does not say "must," but rather "may," as you will see in the English version:

Those representatives may, of course, take their cue from a referendum....

It does not say "must take their cue." It goes on to say:

...but in legal terms, constitution-making in Canada, as in many countries, is undertaken by the democratically elected representatives of the people. The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table.

The Court did not say that a referendum must be held to determine if these representatives have the support of the people to enter into negotiations.

I do agree with you that following a referendum where the Yes side had clearly won, if the result is considered clear by all members of the Federation, we recognize our obligation to negotiate. However that does not tell us anything about the problems mentioned here. Who would negotiate? Would the minorities be included? Who would represent the minorities? There are no answers to these questions. It does not tell us anything either on the positions that the various participants might have on the topic of these negotiations. It may well be that some parties to the negotiations might want to consult the public before establishing their position.

It is one of the most important unknown variables in a secession process and not one that can be dealt with in a federal act on clarity. All that this bill does is respond and give effect to the requirement for clarity as set out in the opinion of the Supreme Court. I do not agree with you that we would have to hold a referendum on a referendum; I can picture us saying to Canadians: "There has been a referendum in a province; we will now hold our own referendum to see if you want us to recognize the result of that referendum."

I do not think that that would be in accordance with the opinion of the court.

Senator Joyal: Would you be ready, in an election campaign, to ask Canadians if they are willing to give the Canadian government the mandate to split up the country without first consulting them? Would you be ready to debate that issue in national forums in an election campaign to come?

Mr. Dion: First of all, let us be honest, that is not the question that would be asked. Rather, the question would be whether the Canadian people would be ready to keep a group of persons within Canada against their clearly expressed wish and what means they would be willing to use to do so. That would not be a Canadian question and, therefore, that is not a question I would ask Canadians.

Senator Joyal: How do you understand the right of Canadians to express their views on their future, on their choice to remain in a united country on a united territory and to keep their citizenship, regardless of where they are or where they choose to live?

Mr. Dion: The Clarity Bill protects this right. Its aim is to ensure that any negotiation on secession would take into account the rights and interests of everyone within the constitutional framework of our country. No one would be allowed to act unilaterally without taking into account the rights of others. The court stated that there is no absolute right to secession and that the rights of everyone must be taken into account in accordance with constitutional principles. The government is committed to enforcing those constitutional principles in all circumstances.

[English]

The Chairman: Next we have Senator Grafstein, followed by Senator Pitfield.

Senator Cools: Where I am? At the bottom? I am at the back of the class.

The Chairman: The questions are coming in strict order, Senator Cools, in the order that honourable senators asked to place questions.

Senator Grafstein.

Senator Grafstein: Minister, welcome. I, too, support the objectives of this bill. I welcome your comment that if this bill can be improved you would be open to those improvements. We are here to make this bill more excellent, so in that sense we are in violent agreement. Let me just turn to some other quotes where we are in violent agreement.

You assume that it applies to the federal government as well as the Province of Quebec. On page 7, you say the Government of Quebec would have to respect "the constitutional principles of federalism" -- which sounds good to me -- "democracy," which sounds even better, "constitutionalism and the rule of law, and respect for minorities, during the negotiations." I assume that those principles would apply with respect to this bill as well. We are in violent agreement.

Let me turn to the next proposition, with which I also I think we are in violent agreement, referring to Senator Forsey. He indeed said that in our system of responsible government ministers are responsible to the House of Commons. That is very narrow. I do not actually accept it. It is a narrow construction of that principle, but we will accept that. You go on to say that the constitutional principle of responsible government leads to very different duties and roles for the two houses of Parliament.

Now, rather than deal with the technicalities, because we do not have your list of exceptions, and we can deal with those seriatim when we see them, let us have a conversation about the constitutional conventions dealing with the Senate and the constitutional principles. The Supreme Court of Canada over and over again opined that the federal principle under the Constitution is inseparable from Parliament, which means in effect that the federal principle as articulated by the regions and the minorities in the House of Commons is different, as Senator Taylor pointed out. That too is a federal principle.

So, let us take a look at practice and precedent. Why is it that, under the Emergency Measures Act, the government of the day chose to ensure that in order to determine an emergency the government required both houses to give their opinion? Why is it that previous governments have decided that when there was a declaration of war both houses would be required? Minister, in the case of a civil insurrection, under the Emergency Measures Act, would in fact not both houses be required to give their opinion? Why, therefore, minister, as a preamble to what could be the most tragic event in Canadian history, the possible separation of this country, would not those constitutional principles and conventions be applied in this case without harming the principle of accountability or responsible government, which, by the way, minister, I think is much broader than just being accountable to one house?

Mr. Dion: It is very true that many situations will give the Senate a very important role in our political and parliamentary system, but we are speaking here of a constitutional amendment. The Emergency Measures Act does not deal with a constitutional amendment. The clarity bill deals with a constitutional amendment. I am very respectful of the tradition, very conservative about the tradition, and the tradition is that I cannot give to the Senate a power that it does not have regarding the capacity for the government to initiate constitutional negotiation.

Senator Grafstein: Let me divert and come back to that. You seem to make a powerful distinction between the ability to amend and the ability to suspend. A current example would be when the popular house decided to pass the NAFTA bill. The Senate took the position that the will of the public was not expressed and that the government of the day had no mandate to do that, so it chose to defer approval of that bill until there was a popular mandate. Once there was a popular mandate, the Senate quickly approved that bill.

How different in political nature is this question of clarity when it applies both to the popular house and the house constitutionally established to reflect not the popular will of the day but the narrow will of the sections, the regions, as the Fathers of Confederation said, and the minorities, including both aboriginal and minority rights? How different is that?

Mr. Dion: That is why the list that I just mentioned is not my main argument. My main argument is that we are in the process of negotiating a constitutional change, and we must respect the tradition by which this process must be made. The Senate has a role different to the house in this process.

Senator Pitfield: This is heady stuff. I never thought I would see the day when the Liberal Party came down in favour of the disunity of the country.

Some Hon. Senators: Hear, hear!

Senator Pitfield: I wonder, Mr. Minister, if you are in favour of a bicameral system of government in our federal state.

Mr. Dion: All of us have various ideas about it, as you said in your speech.

Senator Pitfield: That is not on the table now.

Mr. Dion: Exactly.

Senator Pitfield: It is not the government's intention to raise essentially a substantive matter?

Mr. Dion: Exactly.

Senator Pitfield: It would be most unfortunate to crowd the agenda with a new major proposal of substance.

Mr. Dion: I agree.

Senator Pitfield: Well then, why in the name of all that is glorious are we bringing in Senate reform at this point?

Mr. Dion: We are not.

Senator Pitfield: Well, sir, I can only tell you that when you go through a major institution of the Constitution and you propose to give it different treatment than it has historically received, and you treat it apart from other constitutional instruments of the time, it seems to me you are effectively changing it. You change as effectively by what you do not do as by what you do do.

I find it difficult when it is argued that the bill is not very significant, because actually when you go through it, it does not do very much. It does not change very much. I noticed you said that there were some rights that had been given to voters that they did not have before, but the truth is that this is a very ingenious use of the legislative power, very effective, very useful, and supports a principle that I like, but what does it do?

It says that we will not allow our employees to speak for their employer officially in the negotiating chamber if they have not followed these prior steps in getting approval for what they intend to do. Is that really what it does?

Mr. Dion: No, senator. With due respect to your point of view, let me explain how we are fully respecting the Senate by the clarity bill, because this bill does not remove one prerogative of the Senate.

The Senate will still have the capacity to access if, unfortunately, one day we come to the point of assessing if an agreement of separation may become a constitutional change. If it is not, then there is no secession. A constitutional adjustment would be needed; therefore, the negotiators would have the capacity to come with something fair that the Senate would have the capacity to assess. The clarity bill does not change that at all.

The clarity bill does not change anything except that it gives the House of Commons the obligation to take into account the point of view of the Senate about the evaluation of clarity, not about this legislation. You must vote for this legislation, otherwise the bill will not be enacted. The Senate keeps its right concerning the legislative part of the process, and about the past constitutional process. Between the two, the Senate still has its role to influence, to make representations, resolutions and motions.

Senator Finestone: I would give up my time to Senator Pitfield if he wishes to continue with another question.

Senator Cools: Chairman, I think Senator Pitfield should have as much time as he needs.

Senator Finestone: I agree.

Senator Prud'homme: I give him my time, too.

The Chairman: Senator Pitfield, did you wish to continue?

Senator Pitfield: I am very grateful for the offer and the thoughtfulness. I would only accept in order to elucidate this question, if I may.

Sir, it is often said that in our parliamentary form of government everything countervails. For instance, the right to appoint countervails the right to set allowances. What countervails, in the government's view, the power and the responsibility of ministers?

Mr. Dion: In a democracy?

Senator Pitfield: No, in our government today.

Mr. Dion: In our system, as you well know, ministers are responsible to our representatives elected by the people; therefore, at the end of the day, it is the people.

Senator Pitfield: I do not suppose there is a phrase more common in the history and the legislative books of our country than the formula that is used in terms of parliamentary approval: The Queen, by and with the advice and consent of the Senate and House of Commons. That, in essence, is the phrase at issue here, and it seems to me that when you say that the House can bring forward these measures and that accountability is switched on and off at the will of the government we have a situation of a government that is not responsible.

Mr. Dion: The government is made responsible much more by the clarity bill than without the clarity bill. If there were no clarity bill, during a scrum the Prime Minister may say, "Yes, it is clear, we will negotiate." With the clarity bill, there has to be a deliberation.

Senator Pitfield: Who, sir?

Mr. Dion: You need a deliberation where the House of Commons would have the obligation to take into account the point of view of the Senate.

Senator Pitfield: Who will authorize the beginning of a negotiation for the separation of the country?

Mr. Dion: The government will negotiate if there is a clear support.

Senator Pitfield: Who will give the authorization?

Mr. Dion: The House will determine if there is a clear support. The government would then have the confidence of the House, to which the government is responsible.

Senator Finestone: I have a point of order, Madam Chair. On a point of order, Madam Chair.

I have the right to ask a point of order.

The Chairman: No, unfortunately, Senator Finestone, you do not. You are not a member of this committee.

Senator Prud'homme: On a point of order, I will tell you that you will not be able to sit if you have this attitude. It was clearly said by the Speaker in the Senate, perhaps prior to the Senator Fraser's arrival, that there is no difference between senators. The only difference among senators is the following: Out of courtesy, a non-member should remain silent until members of the committee have spoken; at that time, the non-member can be recognized. There is no difference in the Senate among senators. We are all equals. Therefore, if a non-member of a committee wishes to raise a point of order, he or she has the right to do so. I have told the chairman that I am ready to cooperate today. I asked to be put second on the next round in order not to embarrass anyone. I am a courteous man, however, I am strict with the rules. I intend to follow former senator Frith in the strict use of the Rules of the Senate of Canada, which were used against the Conservatives in the old days.

There is no difference between senators, members or non-members, so much so that if the committee sits in camera I would insist on sitting. If you were to say that only the members of the committee could sit in camera, you will not have the right to sit, you must report to the Senate and only the Senate as a whole can disbar someone. I see at least seven senators agreeing with me here today.

The Chairman: Thank you for your comments, Senator Prud'homme. Senator Finestone wished to ask a question, I believe, and the minister wishes to make a point.

Senator Finestone: I beg your pardon, Madam Chairman, you do not know what I wanted to do. I asked for a point of order. When you allow me to take the floor, I will tell you what my point of order is about. Are you prepared to allow me to speak?

The Chairman: I am prepared to allow you to speak, Senator Finestone, but perhaps you could phrase it in a way other than a "point of order." That would simplify our lives considerably.

Senator Finestone: I thought a point of order would be the easiest.

I wanted to point out, Madam Chair, that I gave up my question period because I believe that the Government of Canada, the role of the Senate, the House, elected and non-elected members are all based on fundamental values that are found in the Constitution of Canada, under section 15, which has to do with the right of the disabled to equality of treatment and fairness of treatment.

We have wonderful living proof of the value of that right with Senator Jean-Robert Gauthier sitting here, assisted by marvellous new technology that allows someone with a hearing impediment or difficulty to be able to participate.

Now we have someone who has an illness, a handicap. The reason I absolutely insisted on giving my speaking time to Senator Pitfield is because he, too, has a certain disability. When there are disabilities, we must take them into consideration. I did not think you had done this when you ruled for Senator Pitfield to move and the question period to be over.

The Chairman: I thank you, Senator Finestone. I think Senator Pitfield thanked you for your generosity.

If you were to close your eyes and listen to Senator Pitfield, you would have heard very acute questions posed without any difficulty whatever. I believe that he was given a good platform to make some important points. We will, if the minister has time, have yet another round of questions, for which the list is already growing.

Senator Cools: I am sure the minister knows we want to hear from him. If there is insufficient time today, I am sure the minister would be happy to come back again and again.

I have several questions. I will list them and the minister can answer them. They are quite easy to answer.

Yesterday, I attended the funeral for the unknown soldier, and I would like to say, minister, that when he went off to war the only thing that was certain about him was the fact that he was young. He went off to fight for God, King and country. Minister, he did not know that Canada was divisible. No one told him.

You have said that we must respect the law. My questions are in respect of the law. As the minister knows, ministers are supposed to be accountable to known legal process.

The minister has told us, as has Senator Boudreau, that the government has a prerogative to enter into negotiations in respect of secession without consulting the House or the Senate. Could the minister tell us which prerogative it is that he is relying on? Can he name and identify that particular prerogative?

Mr. Dion: I would like you to repeat the question, please.

Senator Cools: Very well.

You have said, as has Senator Boudreau on the floor of the Chamber, that the Government of Canada has a prerogative to enter into negotiations in respect of any matter, including secession. My question to you is, which prerogative is that? I would like you to identify that prerogative by name.

Mr. Dion: The capacity of the government to enter into negotiation, including secession, has been confirmed by the Supreme Court reference in its ruling. The court has said that in our system it is elected representatives that initiate constitutional changes.

Senator Cools: The court has no say in the exercise of the prerogative whatsoever and the government -- including you and Senator Boudreau -- has been emphatic that you can rely on the prerogative. I am asking you to identify by name the particular prerogative that the government is relying upon.

Mr. Dion: You see, senator, this prerogative is plenary and can be limited only by legislation.

Senator Cools: I am asking you to name the prerogative. Is it the prerogative of mercy, for example? Which prerogative is it? I want you to name the prerogative.

Mr. Dion: I will let Ms Dawson answer.

Senator Cools: No. The Royal Prerogative is the exclusive domain of the cabinet and the King; therefore, I would like to hear from the minister. I do not wish to hear from a civil servant.

Mr. Dion: Excuse me, what is the answer?

Senator Cools: It is a serious matter.

Mr. Dion: It is a Crown prerogative.

Senator Cools: I know that. I am asking you which one.

Mr. Dion: That prerogative is exercised by the government and limited only by legislation.

Senator Cools: We are asking you to name the prerogative. There are many. We are asking you to name the prerogative. There are some of us who know a little bit about the prerogative.

Very well. Let the record show that the minister has not been able to tell us the prerogative that Senator Boudreau has relied upon.

Mr. Dion: If you do not want to hear the answer of the civil servant, I will quote the court from paragraph 87:

Our political institutions are premised on the democratic principle and so an expression of the democratic will of the people of a province carries weight in that it would confer legitimacy on the efforts of the Government of Quebec to initiate the constitutional amendment process in order to secede by constitutional means.

Senator Cools: With all due respect, minister, the same courts of this land, just a few weeks ago in the case of Conrad Black, ruled that the courts have no role whatsoever in the exercise of the Royal Prerogative. Minister, with all due respect, your answer is very wrong.

I will proceed with my next question.

Mr. Dion: I think it is a good one.

Senator Cools: No, because the court did not speak to the question of Royal Prerogative at all, minister. You do not seem to know what I am talking about.

Senator Hervieux-Payette: We do not know either.

Senator Cools: Very well. I explained it in my speeches. I will move to my next question.

You say that Bill C-20 is before us. As we all know, the total powers, 100 per cent of the powers of Parliament and the Government of Canada are contained in sections 91 and 92 of the Constitution Act of Canada, 1867. Could the minister tell us the exact provisions of the BNA Act or the Constitution Act, 1982 he is relying on to bring Bill C-20 before us?

Mr. Dion: It is section 91, the general power to enact legislation that deals with federal institutions.

Senator Cools: Federal institutions?

Mr. Dion: Yes.

Senator Cools: I see. Very well.

My next question is: The court has said that the government has a legal obligation to negotiate secession. Could you tell me which specific provisions of the Constitution Act the court relied upon to come to that conclusion?

Mr. Dion: Four non-written principles of our constitutional law are democracy, federalism, constitutionalism in the rule of law, and respect for minorities.

Senator Cools: I understand that you have those documents right in front of you, but I do not think we are on the same wavelength, minister. I asked you for the provisions of the acts, the Constitution Act. The Constitution of Canada is the BNA Act, 1867, the 1982 act and a collection of other acts.Which provisions or what constitutional legal authority did the court rely upon when it came to the conclusion that the Government of Canada had an obligation to negotiate a secession?

Mr. Dion: If you read the Constitution Act, 1867, it says one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom. This allows the courts to say that part of our Constitution is unwritten, since it is all unwritten in Great Britain.

Senator Cools: Are you saying, then, that the court relied on no law, the court relied --

Mr. Dion: No, unwritten principles of our Constitution. If I may add, they are wonderful principles. I think the Supreme Court reference is a wonderful thing. It will help not only Canada but, perhaps, other countries in the world that are facing this kind of difficulty.

Senator Cools: You are saying, then, that --

The Chairman: Senator Cools, we have to move on. I will put you down for a second round.

Senator Cools: They are all related questions. There are four or five.

The Chairman: As I have said, there are many senators in the same position.

Senator Cools: I quite agree. All we have to do is bring the minister back again. My questions are very simple.

The Chairman: He has been with us for a long time already.

Senator Murray: Minister, you have gone further than you ever have before -- and further, I think, than anyone in the government has -- in stating that the Supreme Court's advisory opinion is binding on us. I had not heard that before from the government. I find it striking. I cannot help but put on the record a statement made by the Right Honourable Antonio Lamer in an interview he gave just after leaving office.

[Translation]

In Le Devoir of January 11, 2000, Justice Antonio Lamer was quoted as saying:

The Quebec Secession Reference, as is the case with all references, is but an opinion. Neither Quebec nor the rest of Canada is forced to follow our opinion.

[English]

You can comment on that, sir, or reconcile it if you wish. However, in assuming the earlier statement of the court, to the effect that these obligations are legally binding under the Constitution, and your acceptance of that, how are these legal obligations to be enforced, in particular the so-called obligation of all parties to come to the table in the event of an amending initiative launched by one of them?

Mr. Dion: You have asked two questions, senator. You asked, first, if it is binding. Second, you have asked how it would apply in a case not on secession but on another constitutional amendment.

Senator Murray: Secession or another constitutional matter. It is clear that the obligation the court identifies applies not just to secession but to other constitutional initiatives.

One of your chief advisors, minister, is shaking her head. I can put those statements on which I rely on the record. They are from the Supreme Court opinion.

Mr. Dion: I have many questions from you, senator. I will try to answer them seriatim.

Your first question was about Justice Lamer. I will not comment on a newspaper interview. Your colleague, Senator Beaudoin, has already commented on it, and I think his comments were very clear. However, I will not comment on it. The intervention of a judge that carries with it legal consequences is when he is a judge.

[Translation]

In a reference to the provincial court justices, in his capacity as Chief Justice of the Supreme Court, the Right Honourable Antonio Lamer wrote in 1998:

...the opinion of our court will have an eminently persuasive value.

and

...binding for the courts....

This is in accordance with the opinion of the legal experts that I quoted before and this is a known fact. Clearly, this opinion is binding, and were a government to ignore it, its decision would be challenged in court, with almost certain success. The government of Canada has always respected the opinions of the Supreme Court, and it intends to respect its opinion in this case as well. I guess this is your position also; it cannot possibly be otherwise.

[English]

Senator Grafstein: Madam Chairman, I do not mean to interrupt the flow, but it would be useful if the minister could give us that citation so that we may look at it.

Mr. Dion: It is in a part of the speech that I did not read.

Senator Prud'homme: A well written document.

Senator Murray: My question to the minister is this: How are these so-called binding legal obligations, in particular the obligation to negotiate, to be enforced? If it is a legally binding obligation, there must be a legal remedy. What is it?

Mr. Dion: I explained in my speech that the question you have asked is a problem for the separatist government. The Government of Canada is there on the territory of the province. It has a role to play. It is giving services, spending money, collecting taxes and protecting people around the world. Today, a Quebecer is as Canadian as any other Canadian. If I go to the Rocky Mountains and break my leg skiing, I am a Canadian and as such have the same rights as other Canadians to be helped. If I go to a Canadian embassy abroad because I have a problem, the staff will not say to me, "You are no longer a Canadian because your premier decided that he is the president of a republic." I have rights. These rights cannot be removed from me by my premier. He does not have that ability. The question for him is how he would remove these rights.

Senator Murray: The question for you, minister, is this: The court has found that the existence of the right to initiate constitutional change, which extends to all the partners in the federation, including, by the way, the Senate, as you well know, imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and to address democratic expressions of a desire for change in other provinces.

What that says to me -- and there are other citations -- is that not only an amendment regarding secession but an amendment initiated under some other matter imposes an obligation on the other partners in Confederation to come to the table. Frankly, I cannot believe that that is so. Some of us around this table voted on that amending formula in Parliament in 1982. If the first ministers had wanted to impose such an obligation, they would have done so. They did not. If we in Parliament had wanted to, we would have done so.

How is that so-called binding legal obligation to be enforced? If the federal Parliament and nine other provinces have decided they want a constitutional amendment to effect such and such a matter but Prince Edward Island says, "No, we are imposing our veto; we are not coming to the table," how are they to be legally bound to come to the table?

The federal government has a veto over any and all constitutional change. If 10 provinces come up with a proposal, the federal government can tell them to get lost. That is the meaning of the veto, is it not? Where does this binding legal obligation arise from?

Mr. Dion: The binding obligation has been found by the court in the case of a secession demand by a province, which demand is backed by clear support. That is what the court has said regarding the four unwritten principles I have mentioned. However, the court did not say that there is an obligation to secession. There is no absolute right to secession. The court has said there is an obligation to negotiate in good faith under these circumstances and that "you must come to a constitutional amendment." That is why it is not indivisible. The constitutional amendment may make this province leave Canada. Apart from this case, the court has been very brief. The court did not say anything we did not know. If a province said, "We want to negotiate something," whatever this something may be, "and we have the support of those in the province to negotiate it," the others before, as after, the Supreme Court reference would come to the table. That does not mean they would agree. They may disagree.

Senator Murray: You are not even obliged to table an amendment that comes from a province. You know that. You can ignore it. It has been done.

Mr. Dion: But you come and say why you cannot accept the amendment, and the negotiations are over.

Senator Milne: Fortunately, my questions are always short. There has been a lot discussion at second reading in the Senate, as well as here today, that Canada is indivisible. Personally, I hope that is so. What would you propose if a clear majority of the population of a province voted massively for separation on a clear question? Countries have shed blood over precisely that type of thing; families have shed blood over precisely that sort of thing. The wounds last for generations.

What would be the practical, legal or moral consequences if we told those who had separatist ambitions that there was no lawful way to pursue those ambitions, because Canada is indivisible?

Mr. Dion: I would suggest to a separatist premier facing this situation to go to the courts.

Senator Milne: Your answers are even shorter than my questions.

Mr. Dion: My point is that in a democracy, especially when dealing with things as important for the rights of citizens, governments must show the example. They must always say that they will stay within the legal framework and that they will work to find a solution to the disagreement while respecting the law of the land.

[Translation]

Senator Nolin: Honourable Minister, you haven't answered the question I asked you earlier. Lets say I'm a federalist organizer in Quebec. Take your decision, for example, at the end of the debate on the 1995 referendum question where you said that we were leading in the internal polls by 13.4 per cent. So you tabled your decision at the House of Commons saying that the question is not clear. As a federalist organizer, what can I do? Do I just go home?

Mr. Dion: I am not sure I understand your question.

Senator Nolin: Let met repeat it then.

Mr. Dion: What can you do if I tell you that the question is not clear? At that time, the politicians of the day have different choices. One thing is for sure though, everybody knows that we will not lose Canada over an ambiguous question. That is unacceptable. That would be a violation of people's rights.

Senator Nolin: As Quebec federalists, must we continue to work for Canada and defend it?

Mr. Dion: Absolutely. However, this referendum will not lead to separation on the basis of an ambiguous question. No country in the world, no democracy in the world would accept that. We will not accept that in Canada either. Come on, I am sure that you will not accept that either, Senator Nolin.

Senator Nolin: We continued to work in 1995, even if the Prime Minister of Canada said at the time that the question was not clear.

Mr. Dion: The Prime Minister of Canada said that the question was not clear. The leader of the No side said that the question was not clear. We could not lose our country on the basis of a question that was not clear. Now that this is provided for in legislation, it is even clearer.

Senator Nolin: You know which tactics were used and which tactics would be used by our adversaries in the Yes camp to blow out of proportion the House of Commons's interference in a decision taken by the National Assembly. You can't ignore this fact.

Mr. Dion: Join me in saying that it is not interfering. You cannot let people say the House is interfering when that is not the case.

Senator Nolin: Mr. Minister, I do not know what you are going to say, but that is what our friends in the Yes camp will allege.

Mr. Dion: Well, just tell them the opposite, that no one is interfering.

Senator Nolin: You can be sure we will tell them precisely the opposite. Mr. Minister, let us say they manage to inflame Quebecers; after all, this has already happened in the past. Remember the election which followed the repatriation of the Constitution in 1980; we all remember the repercussions. What would we have done if, in answer to the fuzzy 1995 referendum question, the answer had been just the opposite?

Mr. Dion: The difference, Senator Nolin, is that the Prime Minister and myself both feel it is important that the clarification debate unfold in a period of calm, not during a lively referendum campaign. Many people told us to do just the opposite: "Do not say anything since there is no referendum on the horizon." However, it is precisely because there is no referendum on the horizon -- although we never know when Mr. Bouchard will hold one, although it seems likely there will not be one in the coming weeks -- that the government should proceed with its legislation on clarification. We can all reflect on it. We can all go over the 1995 question, but let's not talk about it, let us not bring it out into the open. However, that is unacceptable when the issue is as serious as the breakup of a country. Therefore, if ever it should happen again, we will be prepared. People will realize that that type of question is not acceptable anymore.

Senator Nolin: That is indeed what you are being told, that it is not acceptable. It is a political debate, not a legal one.

Mr. Dion: No. Every democratic decision is both political and legal, as you very well know, otherwise, we would be living in a state of anarchy. People have the right not to lose their Canadian citizenship because of a confusing question. I am sure you agree with me, and we have to get the message out without feeling bad about it, with openness and honesty.

Senator Nolin: We do not feel bad about it. Mr. Minister, even the court ruled that it was a political issue and that it did not have jurisdiction to make political rulings. That is exactly what we are doing by drafting a bill; we are opening the door and this is what Mr. Charest even admitted to the government of Quebec. We are turning it into a legal debate, although that is precisely what the Supreme Court asked us not to do.

Mr. Dion: The court explicitly stated that the issue of secession was both political and legal. It has a political aspect and a legal aspect. Regarding the issue of clarity, the Court said the Canadian government had to negotiate if there was clear support for secession. All that would need to be determined is whether the question and the majority were clear, which would be interpreted by the "political actors." The government of Canada is most certainly a "political actor." No one could contest that. Therefore, the assessment must be made.

The court said that a clear question was a question on secession. It states explicitly that the people would have to vote to leave Canada. In any case, Senator Nolin, we all know what a clear question is. If Quebecers wanted to leave Canada, there would not be a debate on the clarity of the question. It is precisely because Quebecers do not want to leave Canada that we are having this debate, and also because the Parti Québécois government is so irresponsible as to use underhanded means to bring a majority of voters onside, when in fact there is no majority.

[English]

Senator Furey: Mr. Minister, I am trying to understand the opposition that some of my colleagues seem to have to this bill, the process that it is taking, and tying that into the diminishment of the constitutional authority of the Senate. I do not quite see it.

When the Senate passes bills, orders in council or regulations do not always seem to come back to the Senate for approval. Indeed, the Supreme Court of Canada in the Sinclair case held that an order in council is part of the legislative process. Again, the Senate is not required to pass each of these orders in council. The order in council, as part of the legislative process, does not suggest that there are parts of the legislative process in which the Senate does not play a direct role.

The second point is that we can probably accept that any negotiated terms of a secession would require a constitutional amendment. The Supreme Court of Canada has been fairly clear on this. In that event, at present, the Senate has a clear but limited role. We would only have a suspensive veto.

If Bill C-20 were amended to provide the Senate with an equal role, my question is: Would that require a further change to the amending formula?

Mr. Dion: On your second point, you are right, we cannot change the suspensive veto of the Senate with legislation. That is not something that could be done through legislation. That would be a constitutional change.

Senator Furey: If we were to amend Bill C-20, to give the Senate equal power in terms of this legislation, would that require a change to the amending formula?

Mr. Dion: If we give the Senate the power to stop a constitutional negotiation, while the Senate does not have an absolute veto, I am not sure that we would be on solid ground from a legal point of view, but I know that it would be completely against the tradition that we have followed in Canada.

In regard to the Sinclair case, I spoke with Senator Beaudoin and Ms Dawson at length about this. To those who do not know, this case involved the merger of Rouyn-Noranda. The government of the time was challenged in court because there was some sense that the government was trying through piecemeal orders in council to subvert the linguistic rights provided for in the Constitution. The court said that you cannot do something by order in council that is not constitutional. I do not think it applies in this case because we are doing something that completely respects constitutional law.

Senator Lynch-Staunton: Minister, had this bill been in force during the 1995 referendum and, in particular, during the debate on the question, the majority of members of the House of Commons from Quebec, which then, as you recall, formed the official opposition, would no doubt have voted massively in favour of clarity of the question, whereas no doubt members from the rest of the country would have decided that the question was not clear enough. Can you imagine the chaos, the confusion and the negative impact on the federalist forces in Quebec? Can you imagine that kind of division in the national Parliament, that is to say, where Quebecers stood alone against the rest of the country or the rest of the country stood alone against Quebec? Is this what you want to create?

Mr. Dion: That seems strange, because poll after poll --

Senator Lynch-Staunton: No. Answer the question, minister. Can you imagine what would have happened had this bill been in effect at the time of the 1995 referendum, when Quebec members would have voted in favour of clarity of the question and the rest of the members from the rest of the provinces would have voted against the question being clear? Can you imagine the impact at that time?

Mr. Dion: First, the Quebec Liberal Party said that the question was not clear.

Senator Lynch-Staunton: Am I not being clear in my question to you?

The Chairman: Senator Lynch-Staunton, please let the minister answer; then can you come back.

Senator Lynch-Staunton: I do not want to hear what the Quebec Liberal Party said in 1995.

The Chairman: Let the minister answer.

Mr. Dion: Are you not speaking about federalist forces?

Senator Lynch-Staunton: I am saying that had Bill C-20 been in effect during the 1995 referendum and had the House of Commons been called on to declare whether or not the question was clear, the vast majority of Quebec members --

Mr. Dion: In the House?

Senator Lynch-Staunton: Yes, in the House. The vast majority of Quebec members would have voted in favour of clarity, whereas the members from outside of Quebec would have voted against clarity of the question. Can you imagine what divisions that would have caused in Canada, and, particularly, in Quebec, to have such a negative reaction to a Quebec decision by the rest of the national Parliament of Canada? This is the kind of chaos that you would like to create and it is the kind of chaos that you might create by this bill.

Mr. Dion: I do not think we would create chaos because the Bloc would say that an unclear question is clear.

Senator Lynch-Staunton: That is right.

Mr. Dion: You are saying that you are willing --

Senator Lynch-Staunton: The National Assembly has voted on the question already. The provincial assembly is saying that the question clear.

Mr. Dion: The 1995 question was felt to be unclear by the official opposition of the time. The official opposition of the National Assembly voted against --

Senator Lynch-Staunton: That is right; 44 members. I am talking about the national Parliament.

Mr. Dion: I ask you the following.

Senator Lynch-Staunton: You do not ask me questions.

Mr. Dion: Do you know one country in the world that would negotiate its break up with the 1995 question?

Senator Lynch-Staunton: I am saying that the Bloc Québécois, in 1995, no matter what the question, would have said that it was clear enough under Bill C-20.

Mr. Dion: Are you saying that since the Bloc finds the question clear Canada must accept the possibility of its breakup on this question?

Senator Lynch-Staunton: That is not the question. The question is a hypothetical one, but it is this: What would have been the impact of one province saying Yes in the national Parliament and the others saying No?

Mr. Dion: But these "Blocquiste" members are not Quebec. Quebec is much more than that.

Senator Lynch-Staunton: If you cannot answer that question clearly, then let me ask another one.

Mr. Dion: They are part of Quebec, but they are not Quebec. You cannot say that, because they say that the question is clear, Quebec, as a monolithic entity, has said that the question is clear.

Senator Lynch-Staunton: When you read the transcript, perhaps you will have a better understanding of what I am trying to get at. I will now go to my next question, which flows from the first one.

In November, the Prime Minister quoted from the September 3, 1998 issue of Le Devoir, in which Jacques Parizeau suggested that the question be the following: Do you want Quebec to become a country? The Prime Minister said, "I have no problem with a clear question like that." That is found in Hansard for November 24, 1999. There you have the arch federalist and the arch separatist agreeing on the question.

To eliminate any confusion, or chaotic debate, or lengthy wrangling in the Commons, why not prepare a bill with a question in it? That will be clear enough. Here is the only question that the national government will accept, the answer to which we will decide whether we will initiate negotiations. Why not put a question in the bill?

Mr. Dion: It is not --

Senator Lynch-Staunton: You are dictating, at any rate, by telling the House whether they like the question or not.

The Chairman: Order, please!

Mr. Dion: Thank you, Madam Chair. It is a provincial law and it is a provincial referendum. It is not the role of federal law, a federal bill, to come with the exact wording. The bill said: Show me clear support, shaped by a clear question on a clear majority, if you want me to negotiate. With this bill, the Government of Canada does not suggest that we must decide what will happen in a provincial referendum. We are saying that, if the government of a province wants to invite us to negotiate separation, we will do it only if we determine that the question is clear and the majority is clear.

You have given an example of something that may be considered clear, but many other wordings may be considered to be clear. For example, do you want Quebec to separate from Canada and do you want Quebec to cease to be part of Canada to become an independent state may be considered clear questions. We know what is clear and we know that sovereignty partnership is not clear.

Senator Lynch-Staunton: If you know what a clear question is, then what is "a clear majority"?

The Chairman: Senator Lynch-Staunton!

Senator Lynch-Staunton: I have one final question, please.

The Chairman: Very quickly, then.

Senator Lynch-Staunton: You have defined what a clear question is, and we all understand that. What, then, is "a clear majority"?

Mr. Dion: We would have to assess it, as we have always done -- that is, no change of rules, always in Canada. The results of a referendum would be assessed by the political authorities according to criteria that are mentioned in the clarity bill.

Senator Lynch-Staunton: One vote may be more valuable than another by that qualitative judgment.

Mr. Dion: I did not read that in your speech, Senator Lynch-Staunton. In your speech, you said 66 per cent of eligible voters.

Senator Lynch-Staunton: That is right.

Mr. Dion: That is your suggestion.

Senator Lynch-Staunton: Yes, it is. I have not put it in the form of an amendment yet, but I may do so.

[Translation]

Senator De Bané: Mr. Minister, I agree with you about what constitutes the foundation of a country. Ultimately, it is neither a common language, nor a common religion, nor the same skin colour nor all kinds of contingent criteria that form the foundation of a country, but the will of a people to live together. This is what forms the modern foundation of a country, and we came to this conclusion at the beginning of the 19th century.

Ernest Trenant said that a country, a nation, was a daily plebiscite.

In a country, a group's decision to secede has an impact on the entire country. Let us take the following example. Let us say that tomorrow, Quebec becomes an independent country. Will Quebec tell a region in Quebec that it is the only one that can determine its destiny? No.

All Quebecers will have to participate in this decision, because it has an impact on the entire population. It is not because the people living in the Gaspé want to separate from Quebec and join the Maritimes that only their opinion, if it is expressed clearly, counts. This has an impact on everybody.

When the Jura region expressed the desire to form a separate canton from the canton of Berne, all of Switzerland participated in the referendum, and not just the people who were 100 per cent in favour of forming their own canton.

There is one issue that has not been given sufficient attention. Should the largest Canadian province withdraw from Confederation, what impact will this have on the entire country? I go back to what my colleague Senator Joyal was saying. How can the secession of a province, which is located in the middle of a country, not have a deep impact on the entire country?

Why would the Western Canada, whose economy is focussed on foreign markets, continue to remain part of a country that would be even more dominated by the remaining central province, namely, Ontario? We can easily imagine that if a central province such as Quebec were to separate from Canada, little by little, all the provinces would ask to join the United States of America. The question of what impact the secession of a province would have on all other Canadians is a very significant issue.

I cannot imagine the situation whereby Quebec, being an independent country, would tell a region: Yes, yes, if you all want to separate from us and join either New Brunswick, Northern Ontario, et cetera, go ahead, because you are free to leave us. If you, in northern Quebec, want to leave, go ahead, no problem.

No. People will say that all of Quebec would have to participate in the decision. This is the fundamental issue: the fact that a province that is in the centre of the country and which is so big, might leave. This has an impact on everyone and, finally, perhaps on the country as a whole.

Mr. Dion: I fully agree with you. There would be some extremely serious consequences. This is one of the reasons why the government asked the court whether or not unilateral secession was possible, whether or not the government of one province could unilaterally decide to withdraw the province from the country, given the fact that the consequences of doing this would be serious for all of the country and not just for this province.

That being said, this is not the main reason why I have been so insistent about this clarification: The fact is, that consequences would be even more serious for the citizens of the province concerned. Let us never forget that if Quebec, since unfortunately it is in Quebec that we have this problem, were to secede, it would first of all divide Quebecers amongst themselves, and divide them from Canadians as well. The idea that this division can take place outside of a legal context is quite unfair for this population, as it is for the rest of the country. This is why we brought the matter to the court, and why everything must take place in accordance with the legal proceedings indicated by the court.

You say that there are regions in Quebec that would like to continue to be part of Canada. You must understand that a change in the borders, if it were to come to that, would be part of the separation agreement. The negotiators would tell the secessionists' representatives: you want to secede, then look around you; to make it manageable, the solution that would cause the least disruption among you would be to move the borders so that the people who have clearly stated that they want to continue to be part of Canada may remain within the country. That would be negotiated before the separation agreement and would be part of the constitutional amendment. The new country, if there is to be one, would have different borders, to accommodate as many people as possible. That is exactly what the Swiss did in Jura. These things will be negotiated, and they cannot bring about secession without a constitutional amendment, and for the constitutional amendment there will be formulas to respect, consultations to undertake, and the entire country will be involved.

Senator Beaudoin: You said that there were precedents to the effect that certain acts grant powers to one House but not to the other. I am somewhat interested in that, but in any case, it does not change the legal and constitutional issue. It is not because in the past, on three, four or five occasions, different powers were given to one of the two Houses, that it was legally or constitutionally appropriate. Especially when it involves the secession of a province, because no such precedent exists. You will mention Nova Scotia, but in Nova Scotia, it was settled quickly, and it was a matter of money, for the most part. I examined the issue, and the law officers of the Crown in London said that we could easily change such a clause, and the matter was quickly settled. It could perhaps have ended with a secession, but having three or four precedents would change nothing, because the precedent that could be created -- and I hope that will never be the case -- is itself unprecedented. There has never been a secession in the history of Canada.

As to the amending formula, you seem to be saying that you did not ask the Supreme Court to deal with that. I believe that the Supreme Court, even if it was not asked to do so, could have done it, but decided not to. I think it is one of these two formulas: unanimity or the 7-50 formula. Mr. Minister, you seem to have come to a different conclusion. Did you say it could vary according to the negotiations? Secession is secession.

Mr. Dion: There are two broad formulas: unanimity or 7-50. And that is what he have to play with.

Senator Beaudoin: But if it is as simple as that, why --

Mr. Dion: It cannot be bilateral for the reasons mentioned by Senator De Bané.

Senator Beaudoin: If we have one of two choices, why did we not ask the Supreme Court to rule? There will never be a secession without the constitutional amendment.

Mr. Dion: We told the court that in our opinion, the specific determination of the required amending formula would have to be done under the circumstances. The court was not obliged to agree with us, but it did.

Senator Beaudoin: On what exactly? If there is a Clarity Act --

Mr. Dion: It is paragraph 105 of the Court's decision:

Each option would require us to assume certain facts that are unknown at this stage.

The court, for that reason, says that, since the facts are at this time unknown, it will not decide.

Senator Beaudoin: I still think it is strange that the bill whose stated objective is clarity does not seek to determine what amending formula would apply, what single formula could bring about this secession.

Mr. Dion: Obviously, there are many unknowns with secession -- Mr. Charest refers to these unknowns as black holes -- that much is clear. The Clarity Act does not purport to make everything clear, it clarifies where it is possible to do so, in the absence of context. And in the absence of context, the Clarity Act tells us what we must do to give effect to the obligation to negotiate, as established by the court opinion.

Senator Beaudoin: And should we ever find ourselves in this situation -- of course this is not what I am hoping for -- would we have to go to the Supreme Court to find out what amending formula is to be used?

Mr. Dion: That is possible, but perhaps not. Perhaps everyone will be delighted with the separation agreement. I just do not know and I hope that I will never know.

Senator Beaudoin: We will give some thought to the matter then, but --

[English]

Senator Kinsella: Minister Dion, for clarity of the record, one of my colleagues alluded to the Senate, and the matter of regulations and regulations are, of course, subject to scrutiny by both the Senate and the House of Commons. Indeed, that scrutiny is done by a joint committee. Perhaps that model of a joint committee of the House of Commons and the Senate could be used in addressing our problems with this bill.

My question turns, however, to the last substantive paragraph of the opinion of the court. Paragraph 155 states:

Although there is no right, under the Constitution or at international law, to unilateral secession$this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada....

It is the conduct of Canada as well as the conduct of Quebec that determines whether to grant or withhold recognition.

Minister, as you know, the Declaration of Independence in the republic to our south was both unconstitutional and illegal. If the court is right in what it writes in this last paragraph, having itself gone through the whole scenario that it went through and thus now your bill, do you not think, as we go through the three steps that are envisaged in your bill, that this indeed increases the success of a sessionist movement?

For example, in your first step, the determination of the clarity of the question, if the House of Commons determines that the question brought forward is clear, then is it not true that a gift has been given to the secessionist movement, in that it has co-opted into this process for secession half of Parliament?

Let us say you go to the second step, the determination of the clarity of the result. Let us assume that it is 50 per cent plus one or greater. I take it that there will be no further proceeding if it is 50 per cent less one. However, if it is at least 50 per cent plus one, would that, if not accepted by Parliament, not also play into the secessionist movement's hands in terms of what the court has described in paragraph 155? The secessionist movement will turn to the international community, particularly many countries that make up the francophonie today. Some of these countries are headed by heads of state that have far less than that, in some cases 13 or 14 per cent, but they have the army. They will say, "My goodness, if only I had 50 per cent plus one."Again, it is a gift to the secessionist movement.

Your final step is negotiations. What is the history of constitutional negotiations? Indeed, what is the history of federal-provincial negotiations on things upon which we agree, such as grain? Is it not true that it is more the history of failures in negotiations? Once again, the secessionist movement is able to turn to the international community and say, "We followed Mr. Dion's federal law, and they are negotiating in bad faith." The court said the conduct of Canada would be a determining factor in whether or not the international community granted secession.

What do you say about those three steps and whether or not they facilitate a sessionist movement that could, as the court has indicated, make an unconstitutional and illegal unilateral declaration of independence?

Mr. Dion: Thank you, senator. I answered all these aspects in my speech, but I will repeat. The court did not say that there is a right to unilateral secession. That is not what the court said. It is a possibility, and the possibility may come from international recognition. The court said that if one is very intransigent it will increase the claim of the other one. The court said no more than that because it knows that it does not have a way to regulate the world. Its authority is in Canada, not outside Canada.

You need to consider state practice. Outside the colonial context, there is no right for secession. There is a big disincentive. More than that, the countries around the world do not like unilateral secessions; they are against that most of the time. They do their best to avoid that because they do not want it in their own country. They think it is a recipe for turbulence around the world, with 3,000 groups claiming to have an identity. That is why the scenario you have described has never appeared in the United Nations.

What would happen if the international community said, "We will recognize this province as an independent state"? The Government of Canada would say, "Give me one other example like this." It is completely outside of what we know about state practice. It is the myth that the separatist leaders are espousing in Quebec, and it is not the truth. The truth is that internationally there is reluctance to recognize secessions, even where there are populations that obviously want their independence, unanimously, and are victims of powerful actions from the state in which they presently exist. Despite that, the international communities do not recognize them as independent states. Perhaps that is wrong, but that is the practice of today.

There have even been cases around the world where populations that have controlled a territory through the use of weapons have said, "Now we are a state." The response by the international community has been, "No, you are not a state. You are still officially part of the state out of which you have claimed your territory."

International recognition is very difficult to obtain. If we have a disagreement in the negotiations with the population in Quebec, the rest of the world would say, "Good luck, Canadians. We know you are a peaceful people and that you will solve it properly. It is your business."

[Translation]

Senator Bolduc: Article 1 of the Parti Québécois program talks about sovereignty-association. Let us suppose that the government asks Quebecers a question about sovereignty-association. Should we not all be debating the issue to the best of our ability, including the secessionists?

In the final three days prior to the 1995 referendum, I recall that I gave 24 speeches in an attempt to neutralize the results of the vote. In Quebec, we managed to neutralize the opinion to 50-50.

Suppose that the final result is 53 per cent. What do we do the next day? What does the federal government do?

Mr. Dion: If the question is confusing, the government of Canada will refuse to negotiate separation, since it would be unfair to negotiate in confusion without really knowing that this is what the people want. Accordingly, there would be no negotiation. What would happen after? We live in a democracy. I do not know what would happen afterward. The separatist government has choices to make. It may call an election, initiate another referendum with a clear question, but we cannot break up the country over a confusing question. I am sure that you agree with me.

Senator Bolduc: I do not need to answer that question for the time being, I am the one asking the questions. Should there be a referendum result of 53 per cent, what would this bill resolve?

Mr. Dion: The bill guarantees to Quebec citizens that they will never lose their country on the basis of a confusing question. If the question is confusing, there will be no negotiation on separation. There will be no separation.

Senator Bolduc: In other words, the federal government is maintaining its hard line with respect to the provinces. Where will this lead us?

Mr. Dion: You call that a hard line! This is a fundamental right of citizens. Would you agree to lose Canada under confusing circumstances?

Senator Bolduc: If 53 per cent of the people could not care less, that is certainly indicative that there is a problem somewhere in federal-provincial relations. Why do we not instead focus on resolving this problem? This is perhaps outside of the debate, but I am asking you this question because you are the boss on this issue.

Mr. Dion: There are different ways to improve Canada, you have your ideas and we have ours, which we are sharing with you, but the first condition of clarity is to never confuse proposals designed to improve Canada with those designed to get out of Canada. If a government claims to have won a referendum on a proposal designed to get out of Canada, the question has to have been clear, otherwise there can be no negotiation.

Senator Prud'homme: Mr. Minister, in founding Canada, the Fathers of Confederation met for three years in Charlottetown. It took them three years. In the province of Prince Edward Island, where the discussions were held, the citizens did not even want to join Confederation. I am not surprised that they took the time that was needed.

I know who I am, Mr. Minister. I am a French Canadian nationalist from Quebec. I fully agree with the wonderful arguments that have been made by my colleagues. As far as I am concerned, Canada is an indivisible country. My opinion has hurt me considerably in some nationalist circles. I repeat that I am a French Canadian nationalist from Quebec. After hearing everything that has been said over the past two days about Maurice Richard, who will be sadly missed, I feel very comfortable using the expression that everyone seems to want to destroy: the expression French Canadian. This exists, it breathes, it sings, cries, gets excited, as you can see, but it exists.

I have given nearly -- this may be a source of amusement for some, but that does not bother me, because I am very serious -- 300 speeches in the Canadian West since 1964. There is not a single member of Parliament or minister from Quebec who has gone to Western Canada as often as I have.

[English]

No one can teach me a lesson on that.

[Translation]

Alberta, British Columbia and the Yukon are fed up with the central government. And if a very clear and very precise question is asked, and if the results of the vote are overwhelming, what are they going to do to separate from Canada?

Mr. Dion: If we follow the opinion of the Court, we need to do this, and separation is not possible until there has been negotiation where the interests of everyone have been taken into account, including minority interests, just as in the Quebec case.

Senator Prud'homme: So the conclusion for me, as a French Canadian nationalist from Quebec, is that I am what Mr. Lalonde, a good friend, recently called, and I quote: "There are only the Saint-Jean Baptisters." So I am a "Saint-Jean Baptister." That does not bother me. Would we not be better off, Mr. Minister -- and I have listened to all of my colleagues for 35 years -- devoting our energy to make to making those who live in Quebec, this majority, understand that there are several nations in Quebec. My friend, Senator Gill, who represents the First Nations of Quebec, and Ms Fraser, who represents the English minority, have constitutional rights, as do Mr. Warren Allmand of Quebec, Senator Lynch-Staunton and Ms Finestone, who also have constitutional rights. I think that we should spend more time conveying this message, rather than always coming up with something provocative which merely plays on the sentimental heartstrings of those referred to by certain people as the Quebecers, in order to better confuse us. They should instead say that the French Canadians of Quebec have a problem amongst themselves. You know how 18 per cent of the population will vote because you represent them, just I represented them. You know how they are going to vote, and they have the same right that I do. Do not you think that this bill will serve to provoke, rather than as a bill to be used should the circumstances arise, although that is what I am hoping for? After paying careful attention to the debates in the Senate, the Prime Minister, my long-time friend, Jean Chrétien, could waive the bill and use this bill to show all Quebecers how difficult it is to dismantle a country.

Mr. Dion: Clearly, one of the most wonderful things about Canada is that we may have different identities without imposing anything on anyone else. I therefore respect the way that you have defined yourself. This is what my country is all about. It is also clear that we are together because we want to stay together. It is a question of the will to stay together. It is not because you say that Canada is indivisible that Canada is indivisible. It is because we want to stay together. The Clarity Bill says that we will remain together as long as we want to. That is the point. We cannot take this country away using tricks or artificial means. This is all that it does. As for the rest, the debate is open. What is the role of the federal government? What is the role of the provincial governments? How do we account for minorities? How do we help the aboriginal people? The country continues to improve and to debate this issue. We cannot lose this country as long as we want to keep it. That is all.

[English]

Senator Joyal: Mr. Minister, you have quite attentively studied the book of another party with regard to its constitutional stance. Could you check the record of the conventions of the Liberal Party of Canada over the last 35 years to see whether a resolution has been passed relieving the leader of the party of the obligation to maintain that Canada is one and indivisible, and report back to us later in our hearings?

Mr. Dion: Canada is not indivisible.

Senator Joyal: I maintain that you make a fundamental mistake in interpretation between the right of a province to secede unilaterally and an obligation. The court has said that Quebec does not have the right to secede unilaterally. As such, there is no way for the Canadian government to escape the duty to maintain the integrity and unity of the country. You have transformed the obligation that the court has said exists into the form of a right by refusing to recognize that the answer to the first two questions was that Canada is one and indivisible.

Could you ask your officers to check the difference between a constitutional right and a political obligation. To me, that is the fundamental issue at the foundation of the fact that Canada is one and indivisible.

Mr. Dion: There is no right of secession in a democracy like Canada. The court said that. There is an obligation to start a negotiation facing clear support, and there is capacity to make a constitutional amendment at the end of the day that would allow separation. In this way, Canada is not indivisible. By a constitutional amendment, you may remove a province from Canada.

Senator Joyal: In your own statement, you say that Quebecers should not be deprived of their rights to stay in Canada. Why do you want to deprive Canadians living elsewhere in Canada of their right to maintain the country one and united? Why do you not recognize the two similar obligations?

Mr. Dion: Because of the Supreme Court reference and the clarity bill, there is no capacity for the premier of a province to decide unilaterally that he is the president of a republic. That would involve the entire country.

The Chairman: I thank you very much, Mr. Minister. This has been an unusually long and extremely interesting session. We are very grateful that you have given us this much time.

Senator Lynch-Staunton: Madam Chair, could you ask the minister when he is prepared to return. It would be preferable that he not be the last witness.

The Chairman: The steering committee will try to work that out.

Mr. Dion: I was very pleased to be with you today and I am willing to return, although I suggest that it would be more helpful to do that once you have heard other witnesses.

The Chairman: Thank you. The steering committee will be in touch with your office.

The committee adjourned.