Proceedings of the Special Committee on
Bill C-20
Issue 4 - Evidence
OTTAWA, Thursday, June 8, 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 6:08 p.m. to give consideration to the bill.
Senator Joan Fraser (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, the sixth meeting of the committee on Bill C-20 is now in session. I should like to welcome all of you, including our television audience, to our hearings.
[Translation]
The bill was passed by the House of Commons on March 15, 2000 and was given first reading in the Senate on March 21. It was then given second reading on 18 May, meaning that the Senate approved the bill in principle. Bill C-20 was then referred to this special committee so that we could study it in depth.
[English]
That consideration continues today with the appearances of Marshall Miller, executive director of the Association for Non-Resident Quebecers, and by Robert Howse, professor, University of Michigan Law School. The witnesses will each make an opening statement, following which there will be a question-and-answer period.
[Translation]
Once the committee has heard all the witnesses selected, the bill will be reviewed section by section. Then, the committee will decide whether it approves the bill as it stands, whether it is going to recommend amendments, or whether it will recommend not to proceed with the bill. The committee will then report its decisions to the Senate for its consideration.
[English]
Mr. Miller, thank you for appearing before the committee today. We look forward to your presentation. Please proceed.
Mr. Marshall Miller, Executive Director, Association for Non-Resident Quebecers: Honourable senators, thank you for agreeing to hear our views. The objective of the Association for Non-Resident Quebecers is to gain the right for all Quebecers to vote in any referendum that could lead to the secession of the province of our birth from the country of our birth.
We seek no voting rights naturally when the Government of Quebec is exercising the powers assigned it under our Constitution.
We do not welcome the lamentable divisibility of Canada. The Supreme Court has told us that, in a legal context, it is divisible, and we accept that. We also look forward to a vigorous and Canada-wide debate on the divisibility issue at the political level. However, in the context of the divisibility of Canada, we are in substantial agreement with Bill C-20.
In the 10 minutes or so I have, I would like to cover the following issues. There are implications attached to the province of birth in the new context of a divisible Canada. Until now, residency has been the main determinant of a person's voting rights. Supporting mobility rights helps national unity, but are these rights real or hollow?
The Supreme Court opinion means all Quebecers should be heard, not only those resident at the time. There is powerful international support for the view that democratic expression regarding secession requires that the views of non-residents be included.
Regarding jurisdictional cracks, to whom should non-residents turn for the protection of our rights -- a provincial government that seeks to secede and who controls the consultation process, or the federal government, which seeks to preserve the unity of our country? How does Bill C-20 not address these issues and how does it not follow the guidance provided by the Supreme Court reference.
Finally, I will address how to correct this patently unfair and undemocratic situation where large numbers of Quebecers risk falling between jurisdictional cracks in a way that does not violate the principles of Bill C-20, with which we are in substantial agreement.
There will necessarily be some issues I can only touch upon briefly. They can be considered in the more depth in the question phase, if that is your wish.
I shall now turn to the issue of mobility rights. When a Texan moves to New Jersey and proudly proclaims he is a Texan, a native of New Jersey can rightly say, "So what?" In a federation that is not divisible, where you are born is at best a social comment. It has few legal implications.
[Translation]
Secession would change all that. The Minister has indicated -- and this is correct -- that a referendum on secession is different. Because secession is permanent.
[English]
When we move from Quebec to live in other provinces, we left as both Quebecers and Canadians. People born in Quebec remain Quebecers, no matter where we may be residing. It is a quality we are born into, just as our quality of being born a Canadian endures no matter where we may reside nor for how long we are absent. Under current rules, secession could force us to choose between them without ever having had the opportunity to vote on that change. That is not only undemocratic, that is a quandary not faced by other Canadians. Someone born in New Brunswick or Nova Scotia will remain both Canadians and New Brunswickers or Nova Scotians after any secession of Quebec.
Canada is a place where we want people to be able to move freely. This is a right guaranteed in article 6(2) of the Canadian Charter of Rights and Freedoms. If a consequence of our interprovincial mobility is the effective loss of secession referendum voting rights, then those mobility rights are hollow because they disenfranchise voters from, perhaps, the most important vote of their lives.
We also say there is more to mobility rights than narrow points of law or fundamental democratic and human rights. Mobility rights not only prohibit discrimination primarily on the basis of province of present or previous residence, to use the language of the Charter, they help weld a nation together.
Denying the right of non-residents to vote in a referendum on secession is tantamount to saying that a person has not necessarily moved to another province, for example, to further their careers. It is tantamount to saying that person has quit the place where they were born.
Life is more complicated than that. Many of us have ties in Quebec -- family, business and friendship ties. We have not quit Quebec, we have moved. By supporting those ties and encouraging the retention of an interest in the affairs of the province of our birth, Canada is made stronger. This is true for any province in Canada, not just Quebec. To understand that, imagine the contrary -- it is a formula for increasing regional and provincial isolation.
The Supreme Court meant that all Quebecers should be heard. We studied carefully the Supreme Court opinion in the reference, but we also looked at an earlier case that the Supreme Court considered in 1993, namely, Haig v. Canada, which dealt with the Charlottetown constitutional referendum, eligibility to vote and residency issues.
Let us assume the courts in general and the Supreme Court in particular do not like to waste their time. The referendum on the Charlottetown Agreement was held in 1992. Why, then, did the Supreme Court deal with an appeal in 1993 on an issue that was already moot, since the referendum had come and gone? It was a signal to us that the old days of the narrow view of voting eligibility based on residency had passed. Why else did a case whose decision was moot warrant the time and effort? The Supreme Court wanted to tell us something.
In speaking notes, the Minister for Intergovernmental Affairs cited how often the word "clear" is used by the Supreme Court as a measure of importance to have clarity. We would like to do the same with respect to residency.
Did the Supreme Court intend a narrow residency-based right to be heard for a result to be clear, or a broad, inclusive right to be heard? In our written brief, at page 12, we show a table listing the frequency with which the Supreme Court referred to phrases with narrow, precise interpretations, such as "domicile," which is an important concept in Quebec law, even more powerful than mere residency, "residents," and also to broader inclusive concepts such as "Quebecers" and the "people of Quebec." We also tabulated the expression "population," the expression used in Bill C-20, a word with more than one meaning and which appeared eight times. The broad, inclusive "people of Quebec" and "Quebecers" appeared 26 times, while "resident" or "residents" appeared six times, making a margin of over 80 per cent in favour of a broader, inclusive interpretation. The narrowest concept of "domicile" or "domiciled in Quebec" was not mentioned even once.
It seems clear that the Supreme Court means all Quebecers, not just those resident in the province at the time of a referendum.
If Bill C-20 bases its foundation on the Supreme Court opinion, we believe we have a right to insist that Bill C-20 reflect the requirement that the entire population of a province, including non-residents, and not only those resident at the time of a referendum, be heard for any result to be considered a clear expression of the desire to secede.
For this subject, there is powerful international support. Non-resident voting rights are widespread. The European Union, which also embraces the concept of mobility, allows non-resident voting as a matter of course. The United Nations supports extensive non-resident voting rights in referenda on secession. The Government of Canada also supported non-resident voting rights when it was a member of the Security Council of the United Nations at the time of the East Timor referendum, in 1999.
It is inconceivable that a higher standard of democratic rights can be endorsed in Indonesia and East Timor on a referendum on secession than is permitted in our country. The same standard for non-resident voting rights as the Government of Canada has supported for others should be available to all Quebecers.
To whom do we turn, though, for protection of our democratic rights? The minister wrote to us following our presentation to the legislative committee. We are grateful that our views received his attention. The minister suggested that our concerns could be met through clause 2(2)(c), relating to any other matters. I should like to return to that in a moment.
The minister also expressed a concern that our suggestions for amendment went against the spirit of the bill of non-interference in how a province carries out a referendum. We respectfully disagree.
We had suggested that Bill C-20 be amended to include after each reference to the "population of the province" the words "no matter where they may be residing." We still would like to see this change. This amendment does not force the province to comprehensively include their non-resident population. It merely makes it clear that, if they do not, the evaluation of the clarity of the result may be affected, especially in the case of a close vote.
Let us explore that possibility further. A province may choose to run the risk that by effectively excluding the non-resident population they may win a close victory that would not, however, be recognized by Parliament. Their gamble would be that they could win recognition of independence in the international court of public opinion. I believe they would have difficulty winning that recognition if Bill C-20 explicitly calls for the inclusion of non-residents. That is because, internationally, the practice of non-residents voting in referenda, especially on secession, is so widespread it is effectively the norm. This is particularly true for the United States and France, which support broad non-resident voting rights.
Many observers have commented that Quebec would need the support of both these countries to have a unilateral declaration of independence succeed. How could either of those countries agree that the result was fair and clear if it effectively excluded most of the non-resident population.
The situation changes if the requirement to include the voice of non-residents is omitted and left silent, perhaps as an "any other matters provision," to be used later, if necessary. Separatists could then easily argue that refusing to include the requirement when they had the opportunity amounted to rejecting the argument. They could argue that trying to use it after the fact of a winning result amounts to laying a trap. It is not so clear how the international community would view that possibility. Is it worth running the risk?
Moving to a more personal level, what about our rights as individuals? Our experience is that a provincial government seeking secession has no inherent incentive to enfranchise non-residents. Our provinces of residence have no jurisdiction. Only the federal government, the government of all the people, is in a position to protect the secession referendum voting rights of its citizens from loss through interprovincial mobility.
Finally, Madam Chair, before making specific recommendations, I should like to make another comment regarding mobility and the notion of frontiers.
When I visit the United States, I expect to have to cross a frontier and to be subject to their conditions of entry. They have a sovereign right to decide for themselves, and their history is that those decisions can change from time to time. That is what sovereignty means.
When I go to Quebec, I do not feel I am crossing a frontier, in the sense that I am a guest; I have a definite feeling that I am returning home. I do not want that to change. When I return to visit my two children, who still live in the Montreal area, I do not want to feel that I must cross a frontier.
We look to this committee, to Parliament, to the Government of Canada to ensure that our voices must be heard before they will consider any result in favour of secession to be valid, because we will not get that protection from the seceding province.
Our recommendation is a two-branched recommendation. If Bill C-20 is to be amended, we would like to see it amended to require the inclusion of non-residents. However, if such amendments are not possible on the grounds that they will interfere potentially with the prerogatives of a province with respect to their residents, then Parliament and the federal government should, in connection with the adoption of Bill C-20, make clear its intention to require and, if necessary, provide for the democratic expression of the non-resident population of any province seeking to secede at the same time and with the same question and, if necessary, under the supervision of the federal government.
Senator Beaudoin: On the question of a referendum in Quebec, obviously, the voters list is drafted by Quebec. I would like you to explain to me why a person born in Quebec who has left Quebec and a person who is born outside Quebec but whose parents were born in Quebec should have the right to vote in such a referendum. I understand that you are interested in discussing this with Quebec authorities, that, if there is a referendum, you are considering your rights.
Do you want us to speak about that in Bill C-20? This bill is restricted to areas in which the Parliament of Canada is interested in saying what kind of negotiations should take place, if the question and the verdict is clear. In other words, we have the right to legislate. There is no doubt about that. We may say -- and this is what the advisory opinion stated very clearly -- that we have a statute and this is how we will negotiate, if the question and the verdict is clear. Do you want us to intervene in the area of the provincial legislative field concerning the voters list? Is that what you want?
Mr. Miller: My preference is that we not be required to vote under the Quebec voting regulations, something that we can talk about if you wish. I consider them to be very disadvantageous for non-residents on technical matters. I can go into them later if you like.
On the broad principle, the question is: Is Canada to follow the international norm, where someone born in a province has the identity of that province by virtue of birth? In other words, is being a Quebecer a birthright, or is it something that someone decides some people may have through some mechanism or other? Is it a sort of litmus test? I would be very much against that.
If the principle that someone born in Quebec is a Quebecer is accepted, then why should the voting entitlement be less in Canada than it is, for example, in East Timor or than it is in many other countries that have had secessions where they have broadly consulted non-resident populations? Why is the situation in Canada so different?
Senator Beaudoin: We are all Canadian citizens. At the federal level, we vote as Canadian citizens. Of course, the laws in the Parliament of Canada should respect that. Obviously, this is what they do. Once you are concerned with an election or with a referendum in Quebec, for example, then we must admit that in the legislative field they have the right to legislate on this, as well as on the conditions.
I cannot understand how a person who has left Quebec completely, and for all of his or her life, can say to Quebec, "You must put me on the voters list, even if I do not live in Quebec and even if I left the province." By virtue of what obligation in the Canadian Constitution could you reach such a conclusion? Obviously, if you leave a province and you go to another province, it changes your status, not as a federal voter but as a provincial voter. This is what federalism is about. By virtue of what do you conclude that you may invoke the international rules and conventions, et cetera? In a federation like Canada, you are in Quebec or you are not. Your country is everywhere, that is, in all provinces. That is something with which I agree.
Let us consider civil law and common law. I was born in Montreal and I have lived in Quebec since birth. I am glad that I come under the Civil Code. However, if tomorrow I move to Ontario, that is the end of it. I will be subject to the common law principles that apply in Ontario. If I want to vote in Quebec, I have to respond to the obligations set out in the Quebec elections legislation.
Mr. Miller: Senator, I must disagree with you. I agree that the Government of Quebec is exercising its powers under the Constitution. Under the Constitution, according to some, Quebec does not have the right to secede simply on its own terms. I tend to agree with that. This is what Bill C-20 and the ruling of the Supreme Court told us. My feeling is that, as a Quebecer, if I have left Quebec to live in Ontario for an undetermined period of time -- and I have been back and forth more than once -- then as long as Quebec is restricting its laws to the Constitution I have nothing to say about it because they do not affect me. Besides, every four years the electorate can change its mind. It can put in another government. That government can change the laws of the previous government. It can do what it wants, as long as it is following the Constitution.
If Quebec were to secede and then say "Anyone who is out must declare if you want to be in," that is another issue. Bill 1, the law that would have come into effect had they won the referendum, would have given an automatic right to Quebec citizenship. No other Canadian had that. You had to be born there.
Senator Beaudoin: You say that if you leave a province and go to another province then you may still vote in Quebec because Quebec is doing something that is illegal. Is that your argument?
Mr. Miller: No. I am arguing that I can vote in Canada on the secession of Quebec, not on any other matter.
Senator Beaudoin: But what if the referendum is only in Quebec?
Mr. Miller: If the House of Commons and the Senate deal with the fairness of the result, it must consider the views of all Quebecers, not merely the residents. That is what the Supreme Court has told us. That is the international practice.
Senator Beaudoin: I do not see that in the advisory opinion.
Senator Milne: Following through on what Senator Beaudoin has been asking you, Mr. Miller, do you contend that there is an international precedent for people who live outside an area to vote within an area?
Mr. Miller: That is correct.
Senator Milne: Then your contention, if I follow your reasoning through, is also that Quebec has already set the precedent in the 1995 referendum by allowing some people who lived outside Quebec to vote within Quebec on that referendum?
Mr. Miller: No, not to vote on the referendum, but to become citizens of an independent Quebec if the local residents voted for an independent Quebec.
Senator Milne: You say here that you first learned of the right of non-resident Quebecers to vote in the 1995 Quebec referendum on secession when you read in a local paper in Toronto that it was the last day to register, and you rushed down to register.
Mr. Miller: I must explain in some detail how Quebec handles the non-resident issue. Quebec allows non-residents to vote in any election or any referendum, including a secession referendum, if they have left Quebec within the past two years effectively. After that, the right to vote is lost. There are exceptions made for a class of people -- people who obviously represent the Quebec government who have been sent outside of the Quebec to represent the interests of the Quebec government. I was a military man myself. I can understand that. I served outside of Canada and I was grateful to be allowed to vote at that time.
There is also a more interesting exception, and that involves people working for the Government of Canada. The Government of Canada is not necessarily working for the Government of Quebec, but they make an exception for that. They go even further: They make an exception for anyone who chooses to work for an international organization to whom either Quebec or Canada makes financial contributions.
I have not searched to find the most absurd example of what kind of organization is there where a person could spend 50 years outside of Canada, outside of Quebec, and still be allowed to vote. It is also our opinion that that effectively amounts to a class discrimination, against people in the private sector. Huge exceptions were made for people who choose public-service careers, but they make a huge failure to permit that for private-sector career choices.
Our lawyer has advised us that it is on the mobility issue that in a court of law, as opposed to the issue of public opinion and the sense of fairness and justice, and so on, we would have the best grounds.
Senator Milne: Your contention, then, really is that Quebec has set a precedent. In some cases, they have gone too far; and in the two-year rule for private-sector people, they have not gone far enough. Therefore, you think that the federal government should allow all these people who were born in Quebec to vote, in addition to a referendum held in Quebec that might already allow some of them to vote? I am beginning to see a problem here of a double vote.
Senator Taylor: Exactly.
Mr. Miller: If I can address the issue of the double vote, this is a concern that arose in the legislative committee. I had not considered that situation, but I have given it quite a lot of thought subsequently. The answer is basically to have people who leave a province make a declaration that they want to remain to be considered a Quebecer, or a Prince Edward Islander or a British Columbian for the purposes of any secession of those provinces from Canada. In that way, it is in the interest of the Province of Quebec to coordinate their list with the list that would be developed by the federal government, to prevent this double voting. It would put the federal system in charge of protecting secession voting rights and mobility. The seceding province has no interest. There is no other way to gain it other than the Supreme Court saying, "Yes, you must make this provision."
Senator Milne: It would also put the federal government in a difficult position, though, in running an election for people who were voting on the secession of a province when it completely disagreed with the secession of that province.
Mr. Miller: I do not see the difficulty. If you are registered, the method of voting, for example, for non-resident Quebecers who are eligible is by mail. In France, you must present yourself to the local consulate. You can preserve your voting rights indefinitely in the case of France by showing up at the consulate every three years and registering. In my discussion with them, I asked if this was evidence of a continuing interest in the affairs of France, and they said that it was.
Canada is a federation. Quebec was and could be in the future independent. In our kind of federation, what the Supreme Court is telling us is this: If you allow the secession of any of the units, they take on the quasi-citizenship, to which Senator Beaudoin referred. There is no, in a narrow sense of the law, provincial citizenship.
Senator Beaudoin: I did not use the term "quasi."
Mr. Miller: No. I am not saying that the Supreme Court used that expression either. I used the expression.
Senator Beaudoin: I am sure they did not.
Mr. Miller: They did not, but they did say that we should vote.
[Translation]
Senator Nolin: As a federal member of Parliament, I am very reluctant to discuss a provincial act, particularly as the Supreme Court, in its opinion, attached a great deal of importance to democratic principles. As you pointed out in your brief, many of the expressions used revolve around the qualification of the people of Quebec.
Do you intend to appear before the National Assembly in connection with the review of the bill currently in progress as to their position on the Supreme Court's opinion?
Mr. Miller: No. I do not for the time being intend to appear before a National Assembly review committee to discuss the issue of Quebeckers living outside Quebec who have the right to vote.
[English]
It is unfavourable for non-residents for this reason: The result of my consideration is that we will take it, if that is the only option available, but we would prefer a federal protection of our voting rights. In order to have the right to vote, they use the same law as they do for elections -- that is, ridings-based, even though the result of a referendum is total-vote-based.
In fact, in the East Timor situation, they did not even want to disclose the localities of the vote, for obvious reasons. In the Quebec case, to prove where you live, you must supply two pieces identification.
Here is where the timing becomes an issue. Anyone in the local riding is able to challenge the eligibility of someone who says that they are entitled to vote on the non-resident list. If you are in British Columbia and you learn that your right to vote is being challenged, you may learn that there are only a couple of days available to you to respond, before the time to respond is closed.
If we think there was abuse in certain ridings in the last referendum, I can just imagine an army of people challenging non-resident voting and there being effectively no response.
Hence, it is preferable that Parliament accept that people move around. It is absurd that someone who may have been born and raised in Quebec, lived there for decades, perhaps, moves, is transferred, whatever, has no vote, whereas someone who has moved into Quebec from another province, has only lived there for 12 or 18 months, say, is entitled to vote on the loss of Quebec from Canada. I find that intolerable.
[Translation]
Senator Nolin: I understand, but the fact remains that it is a Quebec act. We would be the first to oppose a federal act that imposed rules on a province concerning the eligibility to vote . That is my opinion. I respect yours, but in my view, you should ask to appear before the National Assembly to state your point of view because the Quebec Election Act already has provisions for non-residents to vote. I understand that the two-year rule may be somewhat limiting, but the right place to speak about it is in Quebec, certainly not here.
You referred to East Timor and to the referendum rules there. I am reluctant to accept this comparison. The people who left East Timor did not do so for business or sentimental reasons; I think they left because they were oppressed and their life was in danger. It is perfectly appropriate for those who left for reasons beyond their control to be asked whether or not they wanted their former province to secede. I don't see how we can compare a country like Canada, which propagates its democratic principles around the world, with East Timor. What are your comments on this matter?
[English]
Mr. Miller: You are quite right, in part, in your comment. As I understand it, many of the East Timorese were moved to West Timor and placed in camps and so on. In any event, quite a number of people left voluntarily. Records of the United Nations show that they were able to get as far as New York, London and Lisbon. As you know, East Timor is a former Portuguese colony.
I accept that East Timor is not the ideal example, except that Canada may know opposition to the principle. If we used the same rules in Quebec as they have in France, non-resident Quebecers would be allowed to vote for the Leader of the Government in Quebec, which is the closest Quebec has to the president of France. We would be allowed to vote for the members of Parliament from Quebec who sit in Ottawa. That is what France allows for its non-residents.Why is Canada inferior to this?
Senator Nolin: You can already do that under the provincial law.
Mr. Miller: I said "non-residents."
Senator Nolin: Non-residents can vote in Quebec.
Mr. Miller: Is your point that the period of two years is the issue?
Senator Nolin: It is not up to us to decide whether two years is too short. The place to argue that is not here, it is Quebec City.
Senator Kroft: I endorse the concerns that my colleagues have expressed so far.
One aspect of what you have said bothers me as a Canadian and a Canadian legislator fundamentally, and that is this birthright concept, the idea that there is a distinction between the rights and status of someone born in a particular part of Canada and those of someone who comes there from somewhere else, be it another province or another country. That is inconsistent with the way in which we view our country. The United States, that great melting pot and symbol of freedom, has a restriction that the President must have been born in the United States. I think that most of us would consider it "unCanadian" to suggest that our Prime Minister has to have been born in Canada.
Senator Murray: The first six would not have been eligible.
Senator Kroft: That is entirely foreign to my thinking as a Canadian. Therefore, I do not get beyond that principle in looking at your petition. With regard to this right-of-return concept, if Quebec wants to be an independent country, they will naturally develop things to attract people back. However, that is not what we are about. We believe that Canadians are Canadians are Canadians, and that is where your principle fails.
Mr. Miller: The expression I have used in conjunction with that is: "a Canadian is a Canadian is a Canadian," therefore: "a Quebecer is a Quebecer is a Quebecer." All Quebecers are the same. My interpretation of what the Supreme Court has said is that we are both at the same time. That is the only concept that works if we allow divisibility. If you are going to say that Canada is not divisible, there are many things with which I would agree. However, in the context of the divisibility of the country I am saying that that changes everything in terms of: "Who we are?"
Senator Murray: Mr. Miller, there are a couple of senators to whom I can refer. One is Senator Eyton, who was born in Quebec City. Senator Eyton had a chance at a big job on Bay Street when he was 18 months old.
Hon Senators: Hear, hear!
Senator Murray: Senator Meighen, who was born in Montreal, ran for Parliament a couple of times in Montreal and then decided to move to Ontario. He has been out of Quebec for as long as you have, about 20 years.
This is a provincial matter and therefore I do not think there is much we could do about it anyway. However, you are suggesting that not only should Senator Eyton, who did leave as a very young boy, and Senator Meighen, have the right to vote in the referendum, but also that their Ontario-born children and their wives, who, so far as I am aware, are not and never were Quebecers, ought to have the right to vote.
Even if I sat in the Quebec Assembly, I would find it very difficult to support that proposition.
Mr. Miller: I learned early in my career in business that, when putting a negotiating position on the table, you never start with your minimum position. Frankly, we would settle for the right to vote in a referendum on the secession of Quebec regardless of where that came from, even if it came from a statement in one of the houses. We prefer it to be in the law. However, if it is not in the law, we think it is in the Canadian national interest to foster this feeling of attachment in the constitutional future of the place where you were born and moved from. We think that encourages unity as opposed to being uninterested in what goes on there.
Senator Murray: Do you happen to know, or some of my colleagues might know -- I do not -- what other provinces have, as Quebec now has, a right of non-residents to vote in elections and referenda? Do any other provinces have that?
Senator Nolin: We have it in Canada.
Senator Murray: I am aware of the fact that it applies federally.
The Chairman: We will ask the research staff to check that out, Senator Murray.
Senator De Bané: Are you saying that, if a province wants to secede and the majority of the people of that province vote for that option -- say, in the case we are discussing, Quebec, if three million people of Quebec vote for separation -- that will not have a negative impact on 27 million Canadians, wherever they live? There can be no doubt that a province the size of Quebec, in the centre of Canada, that separates will have a negative impact all Canadians.
When the Government of Quebec tabled their bill on that issue last year, the first clause stated that Quebec was indivisible. Like many other countries, the first section in their Constitution states: "Our country is indivisible." That does not mean that their borders are eternal. It means that if Quebec, tomorrow, becomes an independent country, it is not sufficient for the people of the Gaspé to say, "We want to secede. Ninety per cent of us want to go with part of the Maritimes"; or "We in Northwest Quebec want to join with Ontario"; or for those who live in Montreal to say that they want to separate from Quebec. The president of that republic would say, "If you want to separate, the whole country must concur because you will have a negative impact on all of us."
When the francophone people of Jura wanted to get out of the German-speaking canton of Berne, the whole of Switzerland had to vote in favour of it in order to allow it to happen.
Does it make sense to say that only Quebecers can make a decision that has a negative impact on all of Canada, or that all Canadians should concur in that decision? Do you not think that proposition is more stable than to say, as Senator Murray said, that because Joe Blow was born in a province, he, and not other Canadians, has the right to participate in that referendum? Other Canadians are as negatively affected as Joe Blow who was born in that province. Is that not correct?
Mr. Miller: If the thrust of your question is: Should all of Canada have a say, my heart tells me it should, but my head -- and I will explain why -- tells me to be careful of that.
I was in Montreal in 1963, before I left on military service. I can remember sitting on our porch and hearing the bombs going off. This is not an answer. Trying to somehow legislatively prevent Quebec from seceding, whether it is by adding another 400,000 votes, which is what we think this will do, largely federalist -- we have no way of knowing for sure -- is not an answer. Even if only 20 per cent of the Quebec population were unhappy enough to leave, and they had absolutely no hope of working towards that, I fear what that would lead to because I see what it leads to in other places in the world. The only reason democracy works is because the losers are willing to accept the result because they can get another shot at it.
However, I feel that Canada needs this debate on the divisibility of the country. I am somewhat supportive of this. I think we have tolerated the separatists' gain for so long that we have lost some of the ability to claim the initiative. What I see in Bill C-20 is an effort to do that. It is an effort to say to the separatists, "It will not be on all your terms."
Should it go further? We think it should include the right of people born in Quebec to speak on that issue, if not the rest of the country. We would have a better chance of winning in law, and if we were to debate this in Quebec with the same resources for and against, under the same rules that a referendum is voted on, I am absolutely confident that the people of Quebec would agree that you are born a Quebecer, and if you are to secede, all Quebecers should be heard. We would not win that today. We have not had the debate.
The Chairman: Mr. Miller, could you tell us something about the Association for Non Resident Quebecers? What are you? How many members do you have? Who are your officers? What do you do? Where are you? How long have you been in existence?
Mr. Miller: We have been in existence for approximately one year. The only officer is myself. We have members as far away as Georgia, California, and British Columbia, many in Quebec, and many with francophone names, although I learned long ago that you cannot judge the maternal language from the sound of the name.
As far as the number is concerned, if it were an impressive number, I would have volunteered it.
The Chairman: Nevertheless, I am asking.
Mr. Miller: At this point it is certainly under 1,000.
The Chairman: Well under 1,000?
Mr. Miller: Yes.
The Chairman: Under 500?
Mr. Miller: Yes.
The Chairman: How does one become a member of the association?
Mr. Miller: We have a Web site: "www nonresident quebecers.com." You can pay $10 or more, if you wish, for a one-year membership. We are building a legal war chest. We are not spending a lot of money on interim opinions, if you will. The advisory I have from our lawyers is that we must assume that whoever wins or loses at the early levels, we do not want to insult judges by going the court route and taking the stand: "We do not care what you decide. We will go the Supreme Court route anyway." However, we have to be prepared to go all the way to the Supreme Court for this to be decided.
The Chairman: Is your principal activity preparing for the Supreme Court challenge?
Mr. Miller: No, my principal activity is to try to avoid that by winning politically.
Senator Joyal: Mr. Miller, you point out the risk of a clash in a national referendum in the context of Bill C-20. We know quite well that the question the Quebec government will want to ask in a future referendum will be a soft question, to put it through, meaning that the federal Parliament might not vote that it is a clear question. The majority might be as slim as 51 per cent and it will not be considered a clear enough majority by the Parliament of Canada.
You have all the risks therein for a situation such as you have just described. It is not because the bill is there that your fear or your expectation that there might be violence in Quebec disappears. That should be made very clear.
As long as we maintain democratic rules and a large majority of citizens abide by them, we maintain stability and peace, order and good government.
I would stress that the same risk exists with the pronouncement of the Parliament of Canada on the clarity of the question and the clarity of the majority if it happens that, in a the eyes of the average people of Quebec, the majority is clear and the question is clear following a referendum.
Mr. Miller: I do not know that I have a response to that because I agree with your point. There is the question of how the losers take a refusal to negotiate if they have "won" the referendum.
There is a difference between winning and winning sufficiently, which is why any referendum must be fought to win, and you win by 50 per cent plus one. You must be in a position of saying, "We have won." Both sides recognize that. If the side to secede wins 50 per cent plus one, the other side can easily say -- as Bill C-20 says, and I agree with it -- "That is not enough." It is not enough.
Senator Joyal: I am still of the opinion, Mr. Miller, that one way to meet your desire to have Canadians pronounce on the future and on divisibility of this country is still through a national referendum. The best way to meet your objective to have a right to pronounce on this -- and you feel you have a right to pronounce on this -- is to have a national referendum with no distinction of birth, place of residence, voting age, citizenship, or anything, that is, where all citizens are equal. It would be under the federal law and apply all over Canada. That is the best answer to your request.
Mr. Miller: I agree with you, in this sense: I had written to one of the reporters who follows this file quite closely and expressed the idea that what we need in this country is a national referendum where every constituent body -- provinces and territories -- agree to remain in a united Canada or to secede. We should avoid a situation where it appears the rest of Canada is ganging up on Quebec. A federal referendum that calls for a declaration of commitment to a united Canada establishes the debate and the political basis for reversing what we have slipped into, a situation where a referendum is used, at best, as a negotiating chip for more powers, and at worst, maybe a secession itself. A national referendum would do that. It was not responded to. Who wants another referendum? There is referendum fatigue everywhere.
My answer to all of these issues is a national referendum, in which the people of every constituent body of the country commit themselves to a united Canada. After that, there is no secession, or leave. That is what killed Charlottetown. It was easy to say no.
The Chairman: Mr. Miller, I am very sorry to have to cut you off but I am afraid our time has run out. We appreciate the fact that you were here and we found your testimony to be a different perspective on the issue.
Our next witness will be Professor Robert Howse of the University of Michigan Law School.
Welcome, professor. Please proceed.
Professor Robert Howse, University of Michigan Law School: Because I will be making some critical observations concerning the constitutionality of Bill C-20, I should state at the outset that, generally speaking, I have been a supporter of the overall approach of the current Canadian government to issues of national unity, and, in fact, I think I have been one of the few academics who actually wrote an entire article defending the general approach to federalism and the unity problem of the government and the current minister. Whatever critical comments I make must be viewed in that perspective.
Before I draw on my written notes, I should like to make a couple of general remarks about the debate over this bill and some of the comments that the minister has made about the secession reference.
Obviously, what has triggered my concern is this unusual step of creating a mechanism whereby the House of Commons would somehow be making a determination that could bind the executive as to whether it engages in constitutional negotiations or not in the aftermath of a referendum about secession. As I go on to discuss in the written remarks, this is an unusual thing to do. It is quite unprecedented to give one house this kind of role. One might wonder why the government is doing it.
One notion that comes through in some of the statements the minister has made is that somehow the secession reference democracy at the federal level is identified with the elected people in the House of Commons. To the extent that this is the impression that the minister is giving of what the Supreme Court said, I think it is important to know that the Supreme Court said many other things about democracy in the reference.
Democracy is also about discussion, about checks and balances, and about the protection of various kinds of rights of minorities. In all these respects, it is hard to imagine that the Senate would not be, therefore, part of the picture of democracy at the federal level when it comes to these issues that deal with the possible break up of Canada.
I see nothing in the secession reference that would suggest that the Supreme Court's conception of democracy at the federal level is somehow obsessively focused on the House of Commons. Quite the contrary, there are several paragraphs in the judgment where the Supreme Court, in extenso, discusses the fact that democracy in our system is not just about elections and elected representatives but about all these other things, including full deliberation and discussion before decisions are taken.
The second general observation I should like to make relates to the impression the minister seems to have that the secession reference stands for the proposition that Canada is divisible.
After reading these statements, I reread the judgment of the court a number of times, because what the minister was up to mystified me since the court had said, in many places in the decision, that, under the constitutional framework of Canada, there is no entitlement to a secession. What the court did say is that a clear referendum result on a clear question would trigger some type of obligation of all the parties to sit down and negotiate. What it did not say was that there would be any point in that process where anyone -- the federal government, the provinces, any of the actors at the table -- would have to offer secession or accede to the idea of secession. It said there had to be talks or negotiations, and it said that the negotiators have to "contemplate the possibility of secession," but it also clearly said that there is no obligation on anyone to offer secession or, if the negotiations are not successful in addressing the issues within the framework of Canada, that, at that point, the federal government or any other actor is under a duty to basically throw up its hands and say, "We tried to persuade you. Now we must give you secession."
In fact, at one point in the reference the court is extremely skeptical as to whether the negotiations could possibly succeed in producing a viable agreement on secession that would take into account all of the legitimate interests discussed in the judgment -- the interests of aboriginal peoples, minorities, and Canadians as a whole. At that point, the court says that it might well be the case that you will have an impasse.
What happens in the case of an impasse? Is the court's answer to an impasse the proposition that Canada is divisible? No, that is not the court's answer to the possibility of impasse. It does not say that, if there is an impasse in the negotiations, Quebec can secede. It says that, if there is an impasse, the matter passes from constitutional law to the forum of international law, and then from a perspective of international law the world community will make judgments about the reasonableness or unreasonableness of the positions of the parties.
In sum, the proposition that Canada is divisible forms no part whatsoever of the decision of the Court in the secession reference. I am quite shocked -- because I know the minister and have talked to him on occasion when he was a professor of constitutional law -- that the minister could possibly read such a proposition into the judgment. It is no nowhere to be found there. I read it about eight or nine times after reading the statements of the minister, and I could find nothing like that proposition there.
Some of you who perhaps have the text of the judgment in front of you or remember parts of it might want to ask me if this or that paragraph suggests that Canada is divisible. We could talk about that. However, I can find that nowhere in the judgment.
Let me turn to the bill. I start from a basic proposition which is that, under the current constitutional framework in Canada, only legislation by Parliament can effectively constrain or compel future action by the executive branch of the federal government. Of course, the Constitution itself can do that. That proposition is stated by the Supreme Court in the Canada Assistance Plan Reference. A clear and obviously relevant example to this issue of the manner in which legislation can constrain the executive in the context of constitutional negotiations is Bill C-110, with which I am sure you are familiar. It essentially says that no minister can put a resolution for constitutional amendment unless the amendment in question has achieved what one might call a certain level of consent among what you would describe roughly as the regions of Canada.
We now come to the clarity bill. The clarity bill seems to want to create a mechanism where the House of Commons alone could, in some circumstances, determine, as a matter of law, the actions of the executive. In particular, the provision of most concern is the one that would purport to allow a determination of the comments to be decisive as to whether the executive is permitted to enter into constitutional negotiations following a referendum about secession.
One theory about how this could be legally possible is that it is a matter of delegation. In the Canadian constitutional system, there is a lot of delegation. The courts have generally been quite tolerant of administrative delegation where it was quite clear that the delegated authority was revocable. Here, what are we delegating? We are delegating a determination that could ultimately result in a chain of events that could end the Canadian political regime as a whole. To square this with the notion of delegation as the conferring of a temporary and revocable authority for purposes of administrative convenience is very difficult.
The particular and peculiar mechanism that is proposed in this bill does not strike me as consonant with what the courts have been talking about when they have been tolerant of "delegation" in the past. Some of you might have examples of where you believe there are other delegations that have this same sort of general character or implication. Again, we could talk about those in the question period.
There is a deeper reason to worry about the constitutionality of what this legislation tries to do. Most delegations basically say to another level of government or to some officials, "In our name, you exercise our authority over citizens or over various matters that are normally in the ken of government to deal with." Here one is purporting to give some other body the ability to impose a limitation or condition on the powers of the executive, which is a constitutionally established branch of government in the Canadian system.
To my mind, however broad the permissibility of delegation, when the delegation violates some independent principle of the Constitution, namely, that the only restraint on the executive is a restraint or constraint imposed by legislation, then you will have a real problem unless you try to accomplish what you are attempting to do through the route of a constitutional amendment.
In fact, when you look at what this bill is about, it is really about creating a new kind of institutional mechanism or procedure or hurdle to the constitutional amendment process, at least in as much as that process could be triggered by a referendum on secession, and that again looks a lot like what is contained in Part V of the Constitution Act. If one wanted to create such a mechanism by constitutional amendment, probably one would have to do it through the unanimity formula.
This sounds pretty forbidding, but I come back to the basic question: Why create this unusual, unprecedented mechanism in the first place? You can achieve the basic goal of constraining the executive through a means that is quite consistent with the existing default of the Canadian Constitution, namely, through a determination of both houses of Parliament. There is no ambiguity. You can constrain the executive when both houses of Parliament are acting in their legislative capacity.
To some extent, you would say to me, "Why are you putting all these amazing obstacles before as salutary a project as the clarity bill?" I would say to you that the obstacles have been put there by the drafters of the bill. They have tried to create an extremely unusual mechanism to something that can be done in a manner that is quite conventionally acceptable within the Canadian system -- the joint exercise of legislative powers by the House of Commons and the Senate.
It has also been suggested -- and this comes back to my earlier remarks about democracy -- that somehow the secession reference itself would give some special authority to pass into law this kind of new mechanism giving this unprecedented new role to the House of Commons.
Having read the reference many times, I can see nothing in the reference that says that, because of the four principles that are discussed in that decision, anyone can do anything outside of the written legal framework of the Constitution. Again, I fail to see that there is anything in the reference that could provide some extraordinary legal authority for creating this unusual kind of mechanism.
Finally, I should like to come to the issue of democratic consent in the context of negotiations that might lead to the break up of Canada and to secession. It is fairly clear from the Supreme Court's judgment that it subscribes to a two demoi theory of Canada. That is to say that there is, in as much as this is a bid by Quebecers or some Quebecers for secession, a Quebec majority and then a majority of the people of Canada as a whole.
In my written remarks, I have quoted a passage from the judgment that says, basically, these two demoi or majorities are equal and neither can trump the other.
One of the points that the court insists on most forcefully in the judgment is the equal status and symmetry between the functioning of democracy in Quebec under the Canadian Constitution and the functioning of democracy throughout Canada.
The only way that one could preserve the symmetry that the court says is required by the constitutional principle of democracy is to give the people of Canada the same kind of democratic right with respect to consultation about the possibility of secession as the people of Quebec, otherwise, you would not have the equality of these democratic majorities that the court says is required by the constitutional principle of democracy.
If you look at the reference itself, the court explicitly mentions the possibility of consultation with the people of Canada through a referendum, saying that the elected representatives can take their queue from such a referendum.
Senator Beaudoin: My question is about the mechanism referred to in the advisory opinion.
To me, Bill C-20 is either an ordinary statute or, if not, a constitutional amendment. If it is an ordinary statute, I have problems with Bill C-20 because the two Houses of Parliament in the area of legislation are equal. If a power is given to one of them, and is not given to the other, in my opinion, it goes against the principle of equality of two houses in the bicameral system.
If you take the other thesis, it is a constitutional amendment, but it is a constitutional amendment under section 44, which says that the Constitution may be amended by a simple federal statute. In the cases provided for in section 44, that relates to some powers that are not fundamental in either the Senate or the House of Commons.
My problem with section 44 is the Senate has a complete veto, not a suspensive veto. Section 44 says "Subject to sections 41 and 42..." Section 41 is the unanimity clause and section 42 is the 7-50 clause.
In my opinion, when you are dealing with a subject such as the secession of a province, obviously it is a very important matter. If there is to be a constitutional amendment, either the unanimity rule or, at least, the 7-50 rule applies. I cannot see how you may accept the secession of a province by an amendment that is inferior to that. Section 44 says: "Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to$the Senate$"
As I said at the beginning, I think it is intended to be a statute. Then, we have equality or we do not have it. I think we do not have it in this bill; or it is not an ordinary statute, it is a constitutional amendment and, in my opinion, for an important case like this, we must at least accept the 7-50 formula. What would your reaction be to that?
Mr. Howse: As I said in my written remarks, for the kind of reasons that you give, it is hard to imagine that, given the effects outside of the federal government of what you are dealing with, you could go through section 44 in this case.
Then we have the question: If it is not section 44, is it 7-50 or unanimity? At first, I looked at Part IV which creates a requirement that the Prime Minister call certain constitutional conferences. Perhaps this fits within Part IV. That would be something that you do by 7-50. The 7-50 rule is the default for anything that does not fit the unanimity requirement.
It then seemed to me that, because the effect was to allow the House of Commons, in some circumstances, and indeed require it, to actually prohibit proceeding with a constitutional process, that was more like a change to Part V of the Constitution, the procedure of amendment. Thus, there would have to be unanimity. It is a difficult question whether it is, in some sense, 7-50 or unanimity, simply because this is such an unusual and peculiar type of mechanism.
Senator Beaudoin: Then there is a flaw somewhere. If it is an ordinary statute, equality is not respected. If it is a constitutional amendment, obviously Bill C-20 is not adequate because there is no 7-50 or unanimity requirement. If this is a constitutional amendment, you need the agreement of every province. If it is the residual form of amendment, then it is 7-50 and obviously a simple statute would not suffice. In both cases, the bill does not respond to what the Constitution seeks.
Mr. Howse: Part of the problem is that in the Canada Assistance Plan Reference, the Supreme Court suggested that, in some rare cases, you could have something in between an ordinary statute and a constitutional amendment, which is a statute that could clearly express Parliament's will to be bound in the future, sort of specifying, for example, that the statute could only be repealed by a supermajority vote or something like that. Although the government has sometimes presented the clarity bill in those terms, there is not the kind of express language in the clarity bill that would suggest that Parliament is attempting to tie its own hands in the future. I refer to the kind of express language that the court said would be needed to elevate a statute beyond ordinary legislation in the Canada Assistance Plan Reference.
Thus, we are left with an ordinary statute. You could ask yourself: What is the significance of this being an ordinary statute? One significance is the whole question of whether you can use an ordinary statute to alter the relationship between the Senate and the House of Commons in a matter such as the process of constitutional change in Canada. You know my opinion on that.
The other view would be: Since it is just a statute, what are you worried about? If, at the end of the day, it turns out that we do not like it, we can just amend the statute.
The problem there is that it may be too late. Once the House of Commons has, as it were, opened the gate to a process that could lead to the breakup of Canada, in practical terms, and perhaps even in legal terms, it would be very difficult to recapture the authority of Parliament as a whole at a later time.
That, again, distinguishes it from other kinds of more conventional, garden variety delegations.
Senator Furey: Professor, I wanted to follow up on that last line of reasoning. When you quoted the Canada Assistance Plan Reference, you said that, under the Canadian constitutional framework, only legislation by Parliament -- and of course the Constitution -- can effectively constrain or compel the executive. You then said that the clarity bill appears to attempt to create a mechanism whereby the House of Commons alone could, in certain circumstances, determine as a matter of law certain actions of the executive branch.
Are you meaning to imply that the clarity bill is not effective legislation by Parliament?
Mr. Howse: I am meaning to imply that I do not believe that Parliament could confer through this method this kind of legal power on the House of Commons.
Senator Furey: If your premise is that legislation by Parliament and, of course, the Constitution can do that -- and clarity bill is legislation by Parliament -- why could it not do that?
Mr. Howse: What you would be doing is creating a new kind of power in the House of Commons, a power that does not exist under the Constitution today.
Acting alone, the House of Commons does not have the power to make the kind of determination set out in the clarity bill. What is more important, and more precisely, the House of Commons does not have the power to make a determination that would essentially bind the executive.
If you do not want to bind the executive, then there is no problem: You could have this legislation, and put in it, "The House of Commons shall make a determination as to whether the question and the result are clear." They are free to do it, but then the executive continues to be controlled by Parliament as a whole -- which would be fine.
Senator Furey: What is your definition of divisibility or indivisibility of a country? In your opinion, is Canada divisible or indivisible?
Mr. Howse: As a matter of political philosophy, my opinion is that Canada is the product of the will of the entire Canadian people. Therefore, in one particular sense, it is divisible. If Canadians as a whole decide they no longer want to live together in a single country, they have that right. I think that is implicit in the very idea of liberal and democratic constitutionalism. If we are all here by the will to live together in a single country, then the only way you can unmake that is by changing our collective will and saying that we, the Canadian people, no longer want to live together in a single country.
Senator Kinsella: Like many others, including yourself, I have read and reread the advisory opinion. Many of us have also read the submissions that were made to the court when it was receiving testimony and argument.
I have not been able to find in either the argumentation made before the court or after many, many readings of the opinion where the court is recommending that a piece of legislation, such as Bill C-20, be advanced. Have you found such advice in the advisory opinion?
Mr. Howse: No, I have not.
Senator Kinsella: In reference to paragraph 88 of the opinion, where the court states that there would be this obligation to negotiate, how does one make the jump from that explicit proposition, which is clearly articulated in the opinion, that there is in the court's opinion a constitutional obligation to negotiate secession to the position that the minister and the government seem to be advancing that there is a right to the divisibility of Canada?
How is that jump made? Would you explain the logic from the first proposition, which is explicit, to the inference or implication, if it is even that strong a conclusion, that Canada is divisible according to our Constitution?
Mr. Howse: This is a question both of us should be putting to the minister. As I said in my opening, general remarks, like you, senator, I cannot see anywhere in the reference where the court is saying there is a right to secession. I can see many places where it says there is no entitlement to secession, but I cannot find any place where it says that Canada can be divided.
Senator Kinsella: Mr. Howse, I am also a university professor. I challenge my students to try to find a way to get to an objective that one would want to get to.
I find it more than passing strange that the Government of Canada would be mining this opinion to try to come up with a discovery that Canada is divisible, if it is not obvious. Is it your opinion that, in the opinion of the Supreme Court, which has been given to us in the Quebec reference case, it is not obvious and that, indeed, it is hard to reach the conclusion that the court is advising that Canada is divisible and, therefore, it is more than passing strange that a federal government would go trying to find that conclusion if it does not jump out from the opinion?
Mr. Howse: In order to understand this somewhat, one has to understand the position taken by the government in arguing the secession reference before the Supreme Court of Canada. The position the government took, which was one that, as you might know, Ms Malkin and I opposed in an article that we wrote, was that the amending formula in the 1982 Constitution was the alpha and omega of this issue. Anything, including secession, could be accomplished if you used the amending formula.
The Supreme Court said two things: First, the court said that there is much more in the Constitution that applies to this issue than just the technical amending formula; second, the court said that if you were to get to the point where there was an agreement on secession amongst all the political actors, an agreement that satisfied all the legitimate interests the court mentioned, then the agreement could be legally executed through the use of the amending formula.
Perhaps there are those in the government who are trying to put the best face on the result, to make it look, as much as possible, like what they were arguing for in front of the Supreme Court of Canada. That might be one explanation. Another explanation may be that people sometimes can differ about the meaning of a legal decision. However, I am just speculating; it is a question that really ought to be put to the minister.
Senator Kinsella: For those of us who articulate a preferential option that our objective ought to be always the indivisibility of Canada as a political objective, as our social objective, I take it that you argue the following: The constitutional law of Canada today does not lead us to the conclusion that there is a right to divisibility; therefore, at the very least this bill, should be amended in clause 3 where it speaks to the end of the process, that there must be a constitutional amendment, that the amending formula must be the unanimity formula.
In other words, having as your political objective the integrity of Canada, you are driven and drawn by a principle, which may be a socio-political principle, of indivisibility, it would follow that the amending formula must be the unanimity formula. Can you comment on that, Mr. Howse?
Mr. Howse: Part of the problem is that the court refused to discuss which formula would apply.
The question of which formula would apply is not one of those questions that the court deemed political. In other words, you could have a subsequent reference to the court on the issue of which formula would apply, and it would depend upon the exact settlement what needed to be changed.
Again, it is important to emphasize that the court did not view the amending formula as the guarantee that secession will be democratic. That guarantee must come, significantly, through a democratic process that I actually do not see as possible unless you have referenda in Canada as a whole, as well as in Quebec. The amending formula applies in order to do the necessary housekeeping once you actually have the needed degree of democratic consent to the breaking up of the country.
The Chairman: I am trying to clarify my understanding of your position and its implications. As I understand it, you say that the proposition that Canada is divisible forms no part of the Supreme Court opinion, and you would favour, therefore, a national referendum before negotiations on secession. Are those two understandings of what you said accurate?
Mr. Howse: Before negotiations on secession, yes, that is right.
The Chairman: I am looking at the Supreme Court opinion -- and there are various passages that I could have chosen -- at paragraphs 150 and 151, where the court says:
...a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all the other participants in Confederation would have to recognize.
A little further on:
The other provinces and the federal government would have no basis to deny the rights of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential after secession as well as its possible terms should in fact secession proceed.
That seems to me to entertain the concept that Canada is divisible. However, more pertinently, I do not see how we can square an obligation to negotiate, if Quebecers have said clearly that they want to go, with a whole different prior set of referenda that would, in effect, give the rest of the country a veto over whether Quebec could go, even before the negotiations began. I do not see how you square that with this opinion.
Mr. Howse: If you look at paragraphs 86 to 88 of the opinion -- and I have cited some of this in my notes -- the court suggests that there are two majorities, the majority in Quebec and the majority of Canadians as a whole, and that these are equal majorities. Neither can trump the other.
If the court were saying what you interpret it as saying, the effect would be that the majority of people in Quebec would, in fact, have the veto because they would be able to say, "We can vote and therefore determine that Canada no longer exists, because we can compel negotiations that lead to the outcome of secession."
With respect, where the interpretive mistake lies is in reading what the court is saying, when it is that saying there is a duty to negotiate, as saying that there is a duty to negotiate the terms of secession. The court does not actually say that. The court says that you must negotiate, taking into account the desire of the people of the province of Quebec to pursue secession. It says that the people of Quebec can pursue secession, but it does not say that the necessary or required outcome is secession.
In fact, the passage that you just read contemplates the possibility that negotiations would be entered into but that secession would not proceed. I will just read that passage again.
The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed.
There is nothing in the court's judgment that would require the Government of Canada or the people of Canada to accept as an opening proposition in those negotiations that secession is an acceptable outcome.
The Chairman: That was not my question. My question is this: If the court says that we must at least open negotiations once Quebecers have said clearly they would like to go, how then can we impose another level of approval before we even open negotiations, that other level of approval being able, in effect, to veto the negotiations?
Mr. Howse: What does "negotiation" mean? It means you go to the table with some kind of position. The court is certainly not suggesting -- and I do not think you, senator are suggesting -- that opening negotiations means that people from the Canadian government go into a room with empty briefcases and say, "Tell us what you want." The process of opening negotiations is the process of coming to the negotiations with some kind of position on the fundamental issues. Surely, that would be what would be involved in a referendum. The Canadian people would have a voice on the fundamental issues and on the position that the federal government would be taking into the negotiating room when those negotiations are opened. It is inconceivable to me that they will walk into the room and say, "Tell us what you want."
The Chairman: I cannot conceive of what would be a clearer referendum question for an opening position in negotiations.
Senator Murray: Professor Howse, my question is not unrelated to the discussion that you just had with the chairman. In your brief, you say how the Supreme Court accepted the four principles that have put been forward by you and your colleague, reworked it and added it on to the amending formula. I would like to explore briefly with you this business of adding things on to the amending formula.
I invite your attention to paragraph 69 of the Supreme Court advisory opinion, where it says:
The Constitution Act, 1982 gives expression to this principle, by conferring a right to initiate constitutional change on each participant in Confederation. In our view, this existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces. This duty is inherent in the democratic principle which is a fundamental predicate of our system of governance.
Mr. Howse, do you agree with me that this duty to engage in constitutional discussions applies, on the basis of this and other paragraphs, not only to an amending initiative approved in a referendum but also to an amending initiative, however it is put forward, by one of the partners to Confederation? Do you agree with me that the so-called duty to negotiate or to engage in constitutional discussions applies not just to secession but to any constitutional amendment that may be put forward? If that is the case, then how is this duty or obligation to be enforced? What does Parliament have to say about this?
My colleagues have heard me on this point before. There are people at this table who voted on that amending formula less than 20 years ago, and there are more of them in the Senate who voted. If we had intended to add to the amending procedure an obligation on the parties to negotiate we would have put it there, but we did not do so.
There was considerable discussion of the amending formula, as you know. Referendums were on the table and they came off, and so on. They then came up with the formulae that are in the Constitution. I am somewhat baffled that we would now be told that these additional wrinkles are to be added to the amending procedure, since we clearly did not contemplate them at the time we were voting on them.
Senator Grafstein: It is only an opinion from the court.
Senator Murray: Only an opinion from the court?
Mr. Howse: I have puzzled also over this paragraph, particularly because, if you read it in isolation, you would think that you would not need a clear referendum result on a clear question to trigger a duty to negotiate constitutional changes. You would think to yourself, "What was the court talking about when it said that, in the case of secession, the duty to negotiate is in part triggered by a referendum result?" There is that puzzling feature of this paragraph.
The other puzzling feature is the one to which you have drawn attention. It is even more puzzling because we have Part IV of the Constitution Act, which does seem to have the purpose of ensuring that the process of constitutional development of Canada is not unduly held up by any particular government refusing to negotiate, right? The framers of the 1982 Constitution put in the Constitution that you would have to have some periodic constitutional conferences. They seemed to be providing for the underlying concern the court is referring to here, which is that one or more of the participants in Confederation would hold up the development of the country by refusing to enter into constitutional talks.
The question would be: Why does Part IV, those requirements for those conferences, not essentially exhaust this duty as is mentioned here by the court? I do not know the answer to that.
[Translation]
Senator Poulin: In my 30 years of work, I have often asked for the good advice of lawyers and often heard the phrase, "the letter of the law says this, but the practice has been that..."
You say that Canada is not divisible. I wonder if we are somewhat in this situation. Let me explain my current thinking to you. I represent Northern Ontario in the Senate, a Francophone community that is very much attached to Quebec and that feels it needs Quebec to continue to progress. Because of distance and many other factors, Northern Ontario takes a very pragmatic approach.
In theory, Canada may not be divisible, but in practice, Quebec has after all held two referendums. Quebeckers were asked to vote on the question twice. If there were a third referendum, would it not be necessary for the federal government to perform its role in protecting the rights of all Canadians by ensuring that the question is clear? Am I wrong in saying that you are in favour of Bill C-20?
[English]
Mr. Howse: It is clear from the reference that the federal government does have a duty -- inasmuch as it has a role -- to represent the interests of the country as a whole. In terms of the question of the division between theory and practice, of course, in practice, Canada is divisible. We know from the various examples of secession and dissolution of federations that have occurred in the last 20 years that federations are divisible.
I was addressing whether it is a principle of Canadian constitutional law or it is implied in any principle of Canadian constitutional law that Canada is divisible. In that respect, I would say no. It is a legal opinion that I am providing, not a political or military or strategic opinion.
The Chairman: Let me clarify my understanding of that. It is your legal opinion that Canada is absolutely not divisible or that it is not automatically divisible?
Mr. Howse: My opinion is that under the Constitution of Canada as interpreted by the court, including in this reference, there is no principle of the divisibility of Canada. I cannot express it any differently. I do not think that is unclear.
At the same time, the court has said that, even though the Constitution does not have a principle that implies the divisibility of Canada, a negotiated agreement among a certain range of actors that satisfies the four principles and which is an agreement could create the legal effect under the Constitution of the secession of a province, but that does not flow from any self-standing constitutional proposition that Canada is divisible. Indeed, the court expresses considerable skepticism about whether you would ever be able to get an agreement that would satisfy all the legitimate interests and would be consistent with those four principles and, therefore, would be a legal route to secession.
The Chairman: However, all conditions being perfect, it could happen.
Senator Kroft: Once again we are having a wonderfully challenging session. We are stretching our minds around some very difficult questions. To me, some are more difficult than others, and that does not include the one posed by Senator Kinsella when he asked whether it is not a huge jump from the direction to negotiate to the concept of divisibility.
You asked us to search for something that you had not found. I cannot suggest that I have done that. However, I will begin by reading two lines from paragraph 85 which create my dilemma.
The Constitution is the expression of the sovereignty of the people of Canada. It lies within the power of the people of Canada, acting through their various governments duly elected and recognized under the Constitution, to effect whatever constitutional arrangements are desired within Canadian territory, including, should it be so desired, the secession of Quebec from Canada.
That is quite clear to me. That is a direction to negotiate.
Nothing in my experience, and no negotiation that I have ever undertaken politically, in business, or with my children, ever began with an assurance that it would conclude successfully. At the same time, I find it impossible to believe that the court is so clearly, so explicitly, and so frequently, directing a negotiation and creating the constitutional framework for it, without the clear implication that that negotiation might arrive at a conclusion. To say that not only the right but the duty to negotiate has been set down by the court, but also that there is no implication that that negotiation might succeed, is a very odd proposition, from my point of view.
We have heard a number of comments that bear on this. I think it was you who said that you do not go into the room with an empty briefcase. Where the opening position paper for each party is drawn from is a very interesting and important question. There is in the act the call for reference to the provinces. Clearly some of the provinces, including Alberta, B.C. and others, have the obligation to hold referenda, and there may be many more that would quickly form up. This would be a complicated process. There would be enormous inputs coming to the government to help create this opening position.
The idea that the government would rush off and begin to negotiate from a blank page and just record a set of demands from Quebec seems to me to be a proposition that no one would find credible.
However, to begin by setting the precondition that there should be a national referendum -- although I believe at some point in the process that may be an option, as indeed an election may be -- seems to me to be equally implausible. While we are asking that Quebec have a completely clear question -- Do you want to have a separate country? -- we, Canada, would also have a duty to come with a clear position and not with one so fuzzy and complicated that it was not understandable.
Both parties will have a duty to come with a negotiating position and it is inconceivable to me that the Canadian government, as a representative, would not come with a complete portfolio for negotiation.
However, that being done, to say that the court is not implying at all that that negotiation might be successful is just not a logically sustainable argument.
I should like you to take another try at convincing me how you can say that you must negotiate but there is no implication that that negotiation should ever be successful.
Mr. Howse: On the last point, perhaps the easiest thing is to read to you the passage I had in mind when I was expressing the notion that the court had serious doubts as to whether you would ever get to such a successful negotiated agreement.
Paragraph 97 reads:
In the circumstances, negotiations following such a referendum would undoubtedly be difficult. While the negotiators would have to contemplate the possibility of secession...
Not accept it but merely contemplate it.
...there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached.
Senator Kroft: I find that absolutely consistent with what I said. I do not think we are at odds at all. I agree. They did not promise us a rose garden. It will be a difficult negotiation. All they are saying there is that there is no guarantee it will be successful.
Mr. Howse: I think they are saying a bit more than that. In the next sentence they say:
It is foreseeable that even negotiations carried out in conformity with underlying constitutional principles could reach an impasse.
It seems to me that they are saying that, at the end of the day, there is some possibility that one could reach such an agreement in conformity with underlying constitutional principles, but it might actually turn out to be the case that, when you look at all the interests that are at stake around the table and you try to implement these constitutional principles, you will come to impasse, you will not get a legitimate agreement to break up Canada.
Senator Kroft: Very possibly but, on the other hand, you might.
Mr. Howse: That is right.
Senator Kroft: Your line of argument seems to exclude that possibility, and that is what I do not understand. You are saying that the court never says that it might happen.
Mr. Howse: I never said that the court said it could not happen. In fact, I said quite the opposite. I said that, where the amending formula would come in, according to the court, is on the possibility that it would happen -- that if you got agreement among all the actors that was consistent with the four principles, then, at that point, you would use the amending formula to change the Constitution of Canada to effect secession. I never suggested that the court was saying it was impossible that you could arrive at such a negotiated settlement, only that the court was expressing skepticism as to whether it could be done.
Senator Milne: It seems to me, Professor Howse, that what you are suggesting is that, if there were a clear answer to a clear question, the Government of Canada could go into negotiations with the Government of Quebec, and negotiate in bad faith.
Mr. Howse: That is a conclusory statement. It begs the question of what is a requirement of good faith. The court says one thing that is very clear, that the Government of Canada does not have to offer secession. In other words, the Government of Canada can be negotiating in good faith if it walks into the room and says, "We will talk about the underlying concerns that might have motivated Quebecers to vote in this way. We will talk about changing the Constitution, but our bottom line is that we do not believe that the principles the court has enunciated in this decision, given all the legitimate interests that we have to protect as a Government of Canada, can lead us to offer you in this negotiation the possibility of secession."
Senator Milne: That, to me, is a definition of bad faith.
Senator Banks: It seems in the very few weeks that I have been here that it has been my lot to set up arguments between lawyers, and I love it.
Mr. Howse: You do not have to pay the bill for the lawyers.
Senator Banks: That is what I love about it. I will set one up now with Professor Joe Magnet in absentia. I am sure you are familiar with him.
I will tell you the question that I asked him a week ago tonight and read you his response to it. I will ask you to amplify the extent and the way in which you disagree with it, which I take it from your opening remarks you do.
I asked him a question with regard to the separation of authority principle of government, that being that a single legislature ought not to make a law on which it then subsequently adjudicates things that arise from that legislation. I asked if it was his view that an adjudication on the question that arises out of Bill C-20 -- deciding whether the question is clear and whether the subsequent vote is sufficiently clear -- would be binding on the government.
I had in mind, in the case of Bill C-20 as it stands, the situation of a future House of Commons made up perhaps differently from the present one. In that circumstance, it would not be impossible to contemplate a situation in which the Commons would vote in such a way as to either prohibit the executive branch of the Government of Canada from doing something which it wanted to do, or to compel it to do something which it did not want to do. That seemed to be not a very good idea.
Professor Magnet said, and I will quote him:
Constitutionally I do not see it that way, but you have raised points of very practical politics and wrapped them in a constitutional blanket. I cannot see that this binds the government in a way that is constitutionally impermissible, but I think that your point about a differently constituted chamber in the House may well come back to haunt the government.
Would you talk about the constitutional permissibility and amplify on that a little bit?
Mr. Howse: This really comes back to the beginning part of our discussions where I suggested that, in creating this kind of power to make a legally binding constraint on the ability of the executive to engage in constitutional negotiations, conferring such a power on the House of Commons would require a constitutional amendment. That is not something that falls within the normal meaning of delegation of legislative authority to some other body or to some individual.
I am not sure that I can say much more to try to persuade you than what I have already said about what I think are the constitutional problems with creating this new kind of legal power in the House of Commons.
The Supreme Court has said that the determination of the clarity of the question and the result is a matter for the political actors. In light of that statement of the court, we need not be worried about the division of powers between the judiciary and the political branches. In fact, in some real sense, the court has given the green light to the political actors to find a way to determine this.
My concern is with the means that has been adopted, not with the general notion of what the court had in mind, that using as a means a mechanism whereby the House of Commons, in effect, makes binding legal constraints on the executive is problematic, unless, of course, you want to amend the Constitution.
Senator Banks: To be specific, you disagree with Professor Magnet's view that the determination by the Commons in this case would not be binding on the government. That is his view. It is his view that it would not be binding on the government. It is your view that it would be binding on the government and is, therefore, for all intents and purposes, a law; is that right?
Mr. Howse: I am sorry. I may have misunderstood what he was saying when you first read his statement. With your clarification, I understand it a bit better.
What he is saying is that we may not need to worry about the constitutionality of this legislation because, at the end of the day, the House of Commons can make this determination, and Parliament is free to accept it or not accept it.
That might be true, but what bothers me still is this notion that the legislation purports to be able to allow a determination of the House of Commons to actually prohibit the executive in proceeding in negotiations. I do not see how you could accomplish the creation of such an authority or power in the House of Commons without a constitutional amendment.
Maybe what he is saying is: Do not worry about it because it would not be binding. The House of Commons would merely be giving advice to the government that it could take or not take.
My reading of the explicit wording in the bill is that it has some word like "prohibit" in it. In other words, the government will be legally prevented from entering into the negotiations if the House of Commons makes a certain kind of determination.
Senator Banks: Could that determination not also compel the government to do something?
Mr. Howse: I had this discussion with several people about whether the determination could actually compel the government to enter into such negotiations.
On balance, I am persuaded by the view that it could not in and of itself. It could indirectly in the sense that, once that determination has been made, you could argue that the constitutional duty to negotiate that the court is talking about kicks in, as it were. In that sense, you could say that, if the House of Commons makes the determination that the question is clear and the result is clear, then, at that point, in effect, there is a constitutional duty on the executive to proceed with the negotiations.
That is not the same thing as saying that the bill itself has language that suggests that the House of Commons could compel the negotiations.
This is something that is debatable, I think.
Senator Banks: I must have misread the bill, because I thought it did compel the government.
The Chairman: For clarification purposes, Senator Banks, I think the compulsory aspect is negative. There is no compulsion to negotiate that would come from the Supreme Court. What the bill says is that unless the resolutions of the House of Commons say this is a clear question and a clear majority, the government shall not negotiate, which would also, I believe, in the government's view, follow the advice of the Supreme Court.
Senator Joyal: Mr. Howse, I took a note of something you said. You said that no one has the right to divide Canada. In other words, no province or territory has the right to divide Canada.
If I take your statement to be a legal one, it means that, in Bill C-20, we could state or add a substantive clause saying: Subject to this act, Canada is one and indivisible, and the Government of Canada will always act in conformity with that principle. Do you think that such a statement or such an affirmation of principle in the substantive body of the legislation would be in conformity with the reference ruling, as you interpret it?
Mr. Howse: I interpret the ruling as saying that the ultimate say is with the people of Canada as a whole. Therefore, I suppose that, if the people of Canada as a whole decided in a referendum that they did not want to live together as a people, then the democratic principle, as I understand it in the reference, would require the representatives of the people as a whole to act on those instructions from the people as a whole.
My preference would be -- and I think it is right to say -- is that Canada is only divisible if the Canadian people as a whole will that to be the outcome.
Senator Joyal: In other words, you would reaffirm the sovereignty of the people of Canada and their ownership of the Canadian Constitution?
Mr. Howse: Yes.
Senator Joyal: To re-quote you, you say that any authority to put an end to the Constitution would have to come from a clear expression of the will of Canadians as a whole; is that correct?
Mr. Howse: That is correct.
Senator Joyal: If we maintain that principle as a fundamental element of the Canadian constitutional order, when the Prime Ministers of Canada in 1980 and 1995 said that they had no mandate to dismantle the country -- Prime Minister Trudeau said it and Prime Minister Chrétien said it on referendum night -- they were affirming that, in fact, if the divisibility of Canada is possible, they did not have the clear authority, either through legislation or through the political body of Canada as a whole, to take any initiative that would end up in dismantling the country.
I will ask you the following question: Suppose there is another referendum down the road. Taking into account the ruling, would the next Prime Minister of Canada, facing that situation, be in a position to restate exactly that statement?
Mr. Howse: Yes, they would, unless they had already gone out to the people of Canada as a whole and somehow gotten the mandate.
Senator Joyal: In other words, in your view, for the Prime Minister of Canada to be relieved of his responsibility to maintain the territorial integrity of Canada, that Prime Minister would have to receive, to quote the court, a cue, through a referendum, a plebiscite, or an election.
Mr. Howse: Right. As the court says in paragraph 85, the Constitution is the expression of the sovereignty of the people of Canada, so it lies within the power of the people of Canada, acting through their various governments, to effect whatever constitutional arrangements are desired, including secession. This states extremely clearly that it does not lie with the governments to take this mandate. It lies with the people, if they so choose, to give a mandate to governments, and then the governments will act according to the instructions of the people.
Senator Joyal: That instruction, in your opinion, could come through the various avenues of democratic expression that we know, either through a referendum or an election.
Mr. Howse: It would be very hard for it not to come through a referendum in this case, and the reason is that the court keeps referring to the equality of the democratic principle in Quebec and the rest of Canada. Therefore, if the mandate has its popular basis or expression through a referendum in Quebec, it would seem, to preserve that equality or symmetry, to require a similar very direct expression of the will of the Canadian people as a whole.
However, I suppose one could make an argument that you could get the same result by dissolving the government and calling an election on that one issue. You could have an éléction référendaire.
I do not think the court will micromanage the mechanisms, but it has to be a clear expression, where all the Canadian people can express their voice on this issue and decide whether or not the governments have a mandate to move towards a possible outcome of secession.
Senator Joyal: As you understand, my colleagues around the table wrestle with the definition of the obligation to come to a table. It is not clear in the minds of many of us whether that obligation gives Quebec a veto right on the survival of Canada, as we know it, or if it is just an invitation, which is not enforceable in court, as I feel it is, to go to a negotiation table.
Even if the federal government is of bad faith, as my colleague said earlier, the court says then we take a different step which is international public opinion. Therefore, there is no right in any way whatsoever that the obligation to sit in negotiation gives to the province that wants to secede the capacity to put an end to Canada.
Mr. Howse: Absolutely. The court says several times in the judgment that the duty to negotiate does not create a right or an entitlement to secession.
Senator Grafstein: I would like to get back to the bill itself. The minister made a rather interesting statement to rationalize his decision to choose only one house of the two Houses of Parliament to start this really unusual exercise that would lead to the consequences that my other colleagues are discussing. He said that, since the House of Commons is a house of confidence, ergo these decisions, these acts, should be left to just the House of Commons. I did a little work on that and concluded that that might not be appropriate, because, if you look again at the rule of law, federalism, and essentially responsible government, confidence really in the House of Commons has traditionally been a defeat on a money bill. It only becomes a question of confidence when the government decides that this will be a question of confidence.
Is that a fair conclusion of constitutional principles under our long-standing principles of constitutional law?
Mr. Howse: As far as I know, it is, but there is still the remaining puzzle of what the connection would be, even if he was right, between the situation of the House as a house of confidence and a special role on the issue of secession.
Senator Grafstein: We tend to agree on that. Let me get to the role of the Senate. We had a huge debate about this and, quite frankly, our Senate colleagues are divided on this question.
It is my conclusion, after listening to the evidence so far and from what you have said, that a senator has really no power under our bicameral system, following the principles as articulated about the bicameral system from the establishment of Confederation in 1867 to the present day. Even including this case and looking specifically at the 1980 reference which talked about Senate powers, we have no power to delegate or abdicate our responsibility in this type of legislation, if it a triggering of a constitutional process. We cannot, even if we chose to, abdicate or derogate or delegate our legislative powers. Would you agree with me on that?
Mr. Howse: I would agree with you.
Senator Finestone: Mr. Howse, you have managed to confuse me even more. I have been sitting here listening every day. One minute I am 100 per cent for supporting this "political" bill, but then I find myself 100 per cent against supporting this "legal" bill. The role of the Senate will not be decided tonight, but I heard what you had to say.
We are talking about the democratic will of the people and their right to express this democratic will, whether under section 41, the unanimity clause, or the authority of 7 out of 10. Is the authority to take the initiative to dismantle this country done following a clear question with a clear analysis?It must, of course, be a qualitative majority, not just a plain, ordinary majority, and I should ask you what that means in a minute, if I have a chance. With those clear questions and that clear vote, is it prior to or following the negotiations that we ask the people of Canada for their view?
Mr. Howse: My understanding from paragraph 85 is that the people of Canada must trigger the process of negotiation itself.
Senator Finestone: That is exactly my question. When do the people of Canada have to trigger the process? Is it following the vote, or is it following the decisions taken by the executive, the negotiations with the provinces, and the resolution of all these difficult questions which we discussed earlier? They may never resolve all of them.
Mr. Howse: Right. They may never resolve all of them. This refers back to an exchange I had with one of the other senators here some minutes ago. It seems to me that we can assume that our governments will go into these negotiations with a negotiating position that reflects, and must reflect, according to the court, the constitutional principles that the court enunciated.
The question of what position you go in with is a question that needs to be put to the people of Canada, in effect, because, the people of Quebec have basically mandated their government with their basic negotiating position, which is secession.
What happens when the two positions confront one another and then the parties concerned try to work towards an agreement? Would there also be a requirement for referenda to ratify the final outcome?
My sense is that it would be very hard to give democratic legitimacy to the final outcome, especially if it differed in significant measure from either party's negotiating position for which it already had a mandate in a referendum to propose, except through some kind of a further referendum. After the referendum in Quebec, you would be dealing with two more to get the quality of democratic consent really necessary.
You may say that is a lot of rigmarole to go through to break up a country. Well, it is rigmarole, but it is better to do it according to the requirements of democracy and the rule of law than to use tanks and guns. After all, you are basically destroying a country, one of the greatest liberal democracies in the world. It does not seem surprising that to do that, consistent with the rule of law, democracy, federalism and minority rights, you would actually need to go through a certain amount of rigmarole.
Senator Finestone: If I try to follow you down that road, there must be two referenda, in a sense.
Mr. Howse: I do not want to overstate the point.
Let us say that you have an agreement between the various political actors that corresponded very closely to the positions that they had taken at the outset as to what their bottom lines were, the principles that were non-negotiable. Let us say that it was fairly clear, through a variety of mechanisms, that there was widespread consensus in the country that an agreement had been negotiated along the lines of these two democratic mandates, one from the people of Quebec and the other from the people of Canada taken as a whole. In that case, you might question whether there is an adequate democratic legitimacy, even without holding another referendum.
Then again, that is unlikely. It is likely that the positions that reflected the final outcome will be quite different, in which case, for the final outcome to have the necessary degree of democratic consent, you may well have to go back to the people at the end of the day. After all, you are trying to break up a country peacefully, consistent with the principles of liberal democracy, and that requires quite extraordinary democratic procedures.
Senator Kinsella: Professor Howse, is there not a distinction, both in law and in logic, between a conclusion that is arrived at by inference and a conclusion that is arrived at by implication? I ask this because we need to have some specificity of insight given to the relationship between what the court has said in its opinion as to there existing an obligation to negotiate and a conclusion that is drawn by the government that somehow implies -- I do not believe it implies, but they argue that it does -- that there is a right to divide Canada.
By implication, there has to be a direct relationship, does there not, in the process of deducting from this premise to that conclusion?
Senator Murray: Be careful. He was trained in theology.
Senator Kinsella: I want to turn to two paragraphs of the opinion. Paragraph 88 specifies the obligation to negotiate. Paragraph 97 states that there would be no absolute legal entitlement to secession.
If there is any intrinsic evidence in the opinion, where does it lead one? Does it not lead one to draw the inference, which is not as strong a conclusion as an implication and an inference, that the court has told us that there is no entitlement to secession? The argument that the implication leads you to the conclusion that there is this right of divisibility is simply not there in terms of the ordinary rules of logic. What is your comment on that? I know my good friend Senator Kroft raised that further to my earlier question.
Mr. Howse: Unfortunately, my training has not been detailed enough to allow me to confidently analyze this problem in terms of the difference between an inference and an implication. It is not that what you have said is in any way unclear but, in a way, we are not dealing with either here because the court says explicitly that there is no legal entitlement to secession.
Senator Kroft: If there is no legal entitlement, the implication is that the possibility of separation is there. That is all that is involved in the concept of negotiation.
This is an interesting argument, because you and I have now both turned to the same paragraph to support opposite sites of the question. I suppose that is the gift of legal training. I still rely on its plain language to say that the people of Canada, through their duly elected governments, are entitled to negotiate, if necessary, the secession of Quebec. That is what I read before. You have read something different into that paragraph.
Had I not been provoked by Senator Kinsella, I was going to go to another point which is the referendum question. We do need to bring another side to that point.
There is the issue of a super entrenchment, or something rising from Senator Joyal's academic thesis that there is a case in which we must find our legitimacy within the breadth of the Canadian people because that is where the fundamental existence of the country lies. I have been well instructed by that argument.
On the other hand, the court says clearly in paragraph 84 that some commentators have suggested that secession could be a change of such a magnitude that it could not be considered to be merely an amendment to the Constitution. The court was not persuaded by this contention.
Again, I am a victim of clear language, and perhaps implication or inference has lost me. However, is that not a very clear statement by the court? They say that they are not persuaded by the contention that an ordinary amendment would not do.
Mr. Howse: That is right. They are saying that if, at the end of the day, you have this kind of agreement that respects the principles and takes into account all of the legitimate interests of all the actors, then you can use the amending formula to make the legal changes that flow from that agreement.
What it is not saying is that the amending formula itself is the basis for the democratic legitimacy of the actual settlement or agreement.
Senator Kroft: Would you remake your last point please?
Mr. Howse: I am thinking of an analogy that I could use to make the point.
The commentators to whom the court is referring may have been suggesting that the amending formula could never be used to effect changes to the Constitution of Canada that would result in secession.
The court is saying that the amending formula can be used, right?
Senator Kroft: That is right.
Mr. Howse: We both agree on that.
However, in saying that the amending formula can be used, the court is not accepting the proposition that the Government of Canada was arguing in the reference, namely, that all you have to do is use the amending formula. In fact, the court is describing many other conditions that must be present in order to get to a point where you could use the amending formula to legally effect secession. In other words, the amending formula can be used if you jump through all these other hoops first. It is available.
Senator Kroft: In truth, depending on what the other hoops are, I do not think we have a fundamental disagreement.
There is a proper procedure, a full, informed, complete and fair negotiation, which would involve consultation and other things. You may call those hoops; I call that a full negotiating process.
You say that Quebec would come to the table with its mandate already declared to separate. I do not accept that, professor. That is just their end position. Canada would come to the table with its end position to stay together. There is much more behind that.
A few days ago, Professor Lachapelle made that very clear. He said, in fact, the whole process would just start. We cannot tell you what our positions would be. There is an enormous agenda of items to be dealt with. We know where we want to end up. We cannot begin to presuppose all the elements and all the discussions that are needed to get there, and that is a sovereignist point of view. I do not think we have a fundamental disagreement.
We need clarification and understanding as to what the process would be in getting to that point at which the Canadian people have a decision to make. It would not be a whimsical act on a single motion, in other words. That is what it tends to be reduced to, when you talk about jumping immediately to the amendment.
Mr. Howse: I am also not sure where we now disagree. I read paragraph 85 as saying that, if you are to initiate the process of the breakup of a country, as sovereignty rests with the people of Canada, the beginning point for that process would be from the perspective of the Canadian demos as a whole. A clear mandate from the Canadian people is required to get to that result. That is how I read paragraph 85 of the decision.
It is not as if democratic consent comes in at the end of the day. At the end of the day, what you are dealing with is using the mechanics available in the amending formula to do the housekeeping. The democratic consent must be consent to the very project.
Senator Kroft: Paragraph 85 says that the democratic consent is acting through various duly-elected governments. That is where the democratic process is exercised, through the duly elected process.
Mr. Howse: Who is acting? The people are acting through the mechanisms of their governments, which means the people instruct the governments, not vice versa.
Senator Kroft: Let us take a less onerous element, governments could go to their people for democratic basis every day of the week for legislation they pass.
The court is reminding us that governments have legitimacy to act because a constitutionally and conventionally accepted process democratically elects them. That is what paragraph 85 is saying.
Mr. Howse: I think it says absolutely the opposite of that. It says that it is a totally extraordinary situation when you contemplate that a people who have lived together for this length of time, will destroy themselves as a people. That particular act can only be on the collective will of the people as a whole.
If I want to sell my house and I employ the services of a real estate agent, it does not mean that the agent will decide on the offers, it means the agent will speak to potential purchasers, but I am the person giving the agent instructions.
In paragraph 85, the court says that it is the people of Canada who are acting through their governments. It clearly means that it is the people of Canada who are calling the tune and the governments must follow their instructions in this matter.
Senator Kroft: That is the way it always is in a democratic country.
Senator Murray: I have two questions. The first concerns all this talk about obligations. It occurs to me to ask you whether, in your opinion, there was implicit in the Supreme Court advisory opinion an obligation on the Government of Canada to bring forward legislation of some kind, not necessarily Bill C-20, but whether there was some implicit obligation for them to legislate.
Second, I want to come back to this question of the amending formula on which some of us voted in 1981. There are vetoes built into the amending procedure. To keep it very simple, I will refer to the veto that Ottawa has over any and all constitutional amendments. In the extreme case, 10 provinces pass through their legislatures an identical resolution to amend the Constitution. The federal Parliament says, "We do not want to hear of this. We have no interest in it. We will not discuss it. We will not have a debate. We will not vote it. We veto it. Get lost!"
This may be morally reprehensible, and perhaps politically suicidal, but it is the situation in the amending formula that some of us voted on in 1981. As you know, individual provinces have vetoes on various matters, and provinces in various combinations and those who have vetoes, in my opinion, can exercise them in the way that I have described.
Has that situation changed as a result of the advisory opinion of the Supreme Court of Canada?
Mr. Howse: This brings us back to the paragraph that we were discussing earlier, senator, paragraph 69, which I suppose in some respects I find as puzzling as you do. It seems to suggest that there is some kind of duty, always, to engage in negotiations.
So what does this mean? Does it mean that we have to have a continual constitutional conference in Canada? Perhaps, in a way, this goes back to the exchange that we were just having.
The court may not be saying that, at the end of the day, when you have a set of resolutions that the rights under the amending formula will not be exercised the way they are always exercised. It might be saying something about how we get to the point where there could be such resolutions. It might be saying that if any of the participants in Confederation want to bring a constitutional proposal to that point all the other participants have to sit down and listen to them. At the end of the day, the proposal will be voted up or down, according to the amending formula, but that is at the end of the day. Before the end of the day, we have to have a discussion about it, and everyone has to come to the table to talk about it.
Again, I find this puzzling, for the reason I expressed earlier, which is to say that there is already an explicit provision in Part IV of the Constitution that says that, under certain circumstances, the prime minister has to convoke a constitutional conference, which suggests that there is a specific and defined duty in the Constitution to keep talking about the Constitution.
However, paragraph 69 seems to suggest that the Constitution imposes a constant, never-ending duty to really talk about any proposal for constitutional change suggested by any "participant" in Confederation. In other words, there will be endless constitutional talk.
I can imagine some journalists and some people who have made their reputation as national unity experts loving this kind of idea, but it appears to me to be a very odd notion.
Senator Murray: Even in the extreme case of secession, it occurs to me that the amending formula is the amending formula. The federal government that wanted to take the political risk could simply decline to place a resolution before Parliament. Parliament could decline to deal with it. Parliament could veto it. In my observation, that is the way the amending formula is set up.
Mr. Howse: I would agree. I do not think there is anything in the secession reference that says otherwise. In other words, in contemplating the possibility of an impasse, the court is making it explicit that no one is constitutionally obligated to agree to anything.
Senator Murray: What is your response to my first question about whether there was an implicit obligation on the part of the government to legislate as a result of the Supreme Court opinion?
Mr. Howse: No, I do not think there is such an implicit obligation.
Senator Murray: Do you mean that the government could have left it on the shelf and walked away from it?
Mr. Howse: Yes. It might not be politically prudent, but I do not think that doing so would be inconsistent with the requirements set down in the decision.
Senator Beaudoin: In this area, do you not think that paragraph 69 is the answer to this constitutional obligation? It states:
The Constitution Act, 1982 gives expression to this principle, by conferring a right to initiate constitutional change on each participant in Confederation. In our view, the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces. This duty is inherent in the democratic principle which is a fundamental predicate of our system of governance.
They have not invented this, because the Constitution can always be amended. What is the legal obligation? The legal obligation is that if a province or the federal authority wishes to make an amendment the other participants in the Canadian federation have to come to the table.
Senator Murray: No. If we intended that, we would have put it in, in 1982.
Senator Beaudoin: It was not necessary because it is a principle that is implied in the Constitution.
Do not you think that this answers the question?
Mr. Howse: I think it is a conclusionary statement. It says that the duty is inherent in the democratic principle without explaining why. How did the court get to this conclusion? It got to this conclusion from a reasonable place. The reasonable place was the intuition that if you have this extraordinary situation where a clear majority of the population of a province is so dissatisfied with the existing constitutional arrangement that they have voted to allow their government to pursue the option of secession, then because there is a democratic will that must be reckoned with at the province level there is this duty to negotiate.
What the courts seem not prepared to say is that Quebec is different, or that this situation, at the end of the day, is a qualitatively different situation from Prince Edward Island or British Columbia wanting to come to the table to initiate some constitutional discussions. In other words, there seems to be concern here about writing asymmetrical federalism into the democratic principle.
Instead of going through the effort of explaining, it might be reasonable to say that the democratic principle states that you must deal with the Quebec situation on the basis of a clear majority on a clear question, and why that is different from a province wanting to open up fisheries jurisdiction or something like that. It seems to open that complex issue about equality of the provinces and whether Quebec is different.
They took the easy route, which was just making a statement that this is part of some general duty to sit down at the negotiating table whenever any province wants to talk about constitutional change. To my mind, they almost trivialized the deeper insight into the gravity of the secession issue that seemed to be driving the argument earlier in the decision in order to satiate people who believe in the equality of provinces. That is just my reading, however.
Senator Beaudoin: In any event, I agree with my colleague that since the federal authority always has a right of veto the mere fact that they are not interested in a constitutional amendment is the end of the Constitution. In that sense, I would agree. It is a good principle to say that this duty is inherent in the democratic principle.
Senator Murray: It is a moral obligation.
Senator Beaudoin: In addition to paragraph 46. No one is talking about paragraph 46, however; at our next meeting, I will come back to paragraph 46.
Senator Joyal: I would like to come back on the issue of referenda; it is an important issue. I would like to read two paragraphs to which we have been referring most this evening, paragraphs 85 and 88. Paragraph 85 says:
The Constitution is the expression of the sovereignty of the people of Canada. It lies within the power of the people of Canada, acting through their various governments duly elected and recognized under the Constitution, to effect whatever constitutional arrangements are desired within Canadian territory, including, should it be so desired, the secession...
Then, if you go to paragraph 88:
The amendment of the Constitution begins with a political process undertaken pursuant to the Constitution itself. In Canada, the initiative for constitutional amendment is the responsibility of democratically elected representatives of the participants in Confederation.
Then the following sentence:
Those representatives may, of course, take their cue from a referendum, but in legal terms, constitution-making in Canada, as in many countries, is undertaken by the democratically elected representatives of the people.
I agree that there are some constitutional amendments that you might want to initiate as a government, without taking your cue from a referendum, because you feel that they are within your mandate. However, there are other constitutional amendments for which the elected representatives might want to take their cue from a referendum. They are the judges of that.
In your opinion, is this interpretation such, taking into account that the changes in the Constitution are so fundamental -- it is the break-up of the country -- that the legitimacy of the process would call upon the elected representatives in Canada to go to the people of Canada, through a referendum, to get their "cue," as the court has stated?
Mr. Howse: Yes, and I think your qualification is important, that this relates to the very particular kind of constitutional process we are dealing with, which is a process that may lead to Canadians not living together any longer as a single people. Only Canadians, as a people, can initiate a process that leads to that particular result, whereas their elected representatives might initiate, without a referendum, amendments on a range of other matters that do not involve the collective will of Canadians to live together as a people in one country.
The Chairman: Thank you very much, Professor Howse. It has been an extremely interesting, stimulating and challenging session.
The committee adjourned.