Just what the heck is going on here, anyway?
Yesterday, upon returning to the House after an extended Christmas break, the Bloc Quebecois announced that it was introducing a new (and relatively straight-forward) Bill to repeal the Clarity Act (apparently consisting of the operative wording, “The Clarity Act is repealed”, if I understood Bloc Leader Daniel Paille correctly on last night’s Power Play with Don Martin). Of course, it stands to reason, I suppose, that a separatist party would want to remove any all constraints to Quebec’s potential exit from Canada, and the Clarity Act, passed by the Jean Chretien Liberals, has been seen as an impediment to Quebec separation for some time now. Whether it is, or not, remains to be debated – but likely such a debate wouldn’t occur until after Quebecois have voted in a referendum, so I can see why the Bloc wants to get out ahead of this issue.
A potentially compelling argument was highlighted by Paille in a letter to the leaders of all of the parties in the House (except Elizabeth May of the Green Party), which pre-emptively scolded party leaders for voting to support the notion of Quebec as a nation in 2006, but not allowing the Quebec nation to decide on its own whether or not to continue within the political association known as Canada (the Green Party was not represented in the Parliament in 2006).
So, from the Bloc’s point of view, this private member’s Bill (the Bloc does not have the status of an official party in this parliament) makes a lot of sense, given the separatist pre-disposition of the Party. On the other hand, the Bloc is clearly playing a partisan political game in the House, largely at the expense of the NDP. The fact is, the Bloc’s bill isn’t going to go anywhere without the support of the Conservative Party, period, end of story. And whether Conservatives have ever truly embraced the Clarity Act or not, clearly this isn’t a can of worms that Conservatives will want to open. Apparently, they’ll leave that to the Opposition parties.
The Clarity Act
The Liberals, the Party with which the Clarity Act originated, regard this legislation as almost sacrosanct. Given that the legislation itself spells out the acceptable criteria regarding how the Canadian union can be broken apart, and given that the legislation was written with the benefit of Canada’s Supreme Court having reviewed a question about that criteria, there may actually be some merit for looking at the Clarity Act that way. Former Prime Minister Jean Chretien certainly regards it as one of his legacy items which his administration left behind to help build a stronger Canada. I’d argue with Chretien that his election financing reforms were actually a stronger nation-building legacy, but hey, I’ve never been the Prime Minister.
To recap, the Clarity Act establishes that for negotiations to occur between Canada and Quebec on separation, a referendum question put to the people of Quebec must be clear (arguably, the past two questions put to voters in 1980 and 1995 were anything but clear in terms of what the outcome of “Yes” vote might have been), and it must be supported by a “clear majority” of voters.
Of course, no examples of a clear question or what number, exactly, constitutes a “clear majority” were offered by the Supreme Court (and therefore, these items didn’t work their way into the Clarity Act either). Despite this lack of certainty in the Clarity Act, it is pretty clear that the Supreme Court did not consider a margin of voter acceptance of 50% plus 1 as an expression of a “clear majority”.
"Clear" vs. "Simple" Majority
So, what is a “clear majority”? The Supreme Court appeared not to offer much in the way of guidance on this issue, but Liberal legislators such as then-Intergovernmental Affairs Minister Stephane Dion certainly did give it some thought. Dion, apparently, is still thinking about this, as the CBC reports he asked the following question in the House: If 50% plus one is a “clear majority”, what would an “unclear majority” be? (see: "Trudeau knocks Mulcair for 50-plus-1 stance on separation”, CBC, January 28, 2013). Remember, the Supreme Court is comprised of legal experts who use language in a very precise manner. Dion is absolutely correct: through the use of the term “clear majority”, the Court did in fact imply that a “simple majority” of 50% plus 1 isn’t a “clear majority”, else it would have used “simple majority” or “50% plus 1” in its decision.
The Liberal position on the Clarity Act, then, remains consistent. The 4-member Bloc certainly won’t be receiving any support from the Liberals for its Clarity Act-killing Bill.
The NDP and the Sherbrooke Declaration
So what about the NDP? One might think that the NDP’s historic support of the Clarity Act back in 1999 (with only 2 MP’s dissenting – back when NDP MP’s could actually vote against the position of their Party), one might think that the NDP would continue to support the notion of a “clear majority” vote for separation.
But things have changed for the NDP. In 2005, the NDP adopted what has become known as the “Sherbrooke Declaration”, which states that a clear question need only receive 50% plus 1, a simple majority, for separation to take place. At the time of its adoption, pundits and critics believed that the NDP, which had never been strong in Quebec, were simply pandering to sovereigntists voters in an attempt to show that the NDP could be more “reasonable” than the Liberals. Electoral results in Quebec since 2005 seem to suggest that this may have been exactly what happened in Quebec, as the NDP’s success soared to undreamt of heights in the 2011 national election. While I’m sure that this was not simply because of the Sherbrooke Declaration, I certainly believe that the NDP’s “separatism-lite” stance had a lot to do with their electoral success.
So, despite the NDP having moved closer to the Bloc’s position on separation (at least in terms of a simple majority), the NDP has indicated that it won’t support the Bloc Bill to repeal the Act. In an attempt to show that the NDP is a worthy successor to Stephen Harper’s Conservative government, at least as far as the Orwellian naming of Bills goes, NDP MP Craig Scott introduced the “Unity Bill”, which would repeal the Clarity Act, and replace it with new legislation that requires a clear question and a simple majority.
The NDP believes that their Bill will actually provide a clearer framework for the break-up of our country. On paper, it might seem that they’re correct. Establishing a numeric threshold, rather than trying to figure out what, exactly, a “clear majority” is after the fact, seems to be an improvement over the Clarity Act. But keep in mind that the threshold for Quebec’s separation is to be set horribly low – a simple majority. And, importantly, keep in mind that this threshold contradicts the threshold established by the Supreme Court of Canada.
The NDP's "Unity Bill": Crisis in the Making
Is the NDP deliberately inviting a future constitutional crisis by proposing legislation which goes against the expression of Canada’s top court? Remember, the Supreme Court has used the term “clear majority”, which the NDP, erroneously I believe, have interpreted to mean “simple majority”. And it’s not just me who sees it this way.
While the NDP’s “Unity Bill” almost certainly will not be adopted by this Parliament due to the Conservative’s majority (not to mention all of the dissenting Liberal votes), it is very reasonable to conclude that should the NDP ever form government, similar legislation would be offered up, and potentially approved by an NDP majority. From there, it’s not hard to imagine a scenario where a fairly straight-forward question is put to the people of Quebec, and receives a “Yes” vote of less than, say, 55%. Having met the threshold of a simple majority, our government and the Quebec National Assembly begin to negotiate Quebec’s divorce from Canada. But wait a minute! There’s a legal challenge from someone with an interest in keeping Quebec in Canada, and the legal challenge hinges on the notion that 55% isn’t a “clear majority” as articulated by the Supreme Court. What if such a legal argument is made in front of the Supreme Court – and the Court accepts it!
NDP: Intent on Ignoring Reality for Partisan Gain
This isn’t the stuff of fantasy, by the way. This is a very possible road that we all might find ourselves on if the NDP’s reckless Sherbrooke Declaration ever ends up in law. This is an example of how partisan political pandering on the part of the NDP in Quebec can lead to a crisis of unity for the nation.
Tom Mulcair, since taking on the reigns of leadership of the New Democratic Party, has been very clear and unequivocal about his support for the Sherbrooke Declaration. As far as building and maintaining a partisan political base of support in Quebec, Mulcair’s embracing the Sherbrooke Declaration makes sense. But what about other parts of the country in which the NDP ostensibly has an interest? All that Mulcair and the NDP have been saying to the Rest of Canada is that a simple majority was the threshold in 1980 and 1995; it’s what’s being used elsewhere, and it’s good enough for all sorts of votes, why not use it on the issue of separation as well?
Of course this simplistic answer ignores the current reality: in this particular case, the threshold for Quebec separation has already been discussed by our Supreme Court, which determined that a “clear majority” is necessary. It’s no longer 1980 or even 1995 – nor is this Scotland. It’s Canada in 2013, and here the NDP continues to want to pretend it’s otherwise. Mulcair’s arguments might sound persuasive if accepted out of this context – and in ignorance of reality. But our legislators shouldn’t be ignoring reality, especially not on something as important as the future of Canada as a nation.
No Need for New Legislation
The Conservative government has recently found itself embroiled in yet another scandal as a result of accusations that it has knowingly been passing legislation which ignores the laws of the land. Does the NDP really want to be known for proposing legislation which is out of step with legal rulings?
Richard Fidler, in his Life on the Left blog, wrote in May 2011, that former NDP Leader Jack Layton had this to say about the Sherbrooke Declaration and the Clarity Act: “We’ll follow the decision of the Supreme Court judges,” he said. “We think that’s an appropriate framework. We don’t need to be revisiting legislation.” At the same time, he said in French that he stood by the Sherbrooke Declaration (see: "Layton chooses Supreme Court, Clarity Act over NDP's Sherbrooke Declaration", Life on the Left, May 25, 2011). Statements such as this probably led pundits to conclude that Layton had the habit of saying one thing in French to Quebec, and another in English to the rest of Canada, which is certainly one of the most cynical games a national politician can play, especially when the heart of the issue is the nation's unity. Nevertheless, what is clear is that an NDP Leader, as recently as 2011, was signaling that there was no need for new legislation on this matter.
So why is Tom Mulcair wanting to revisit this issue now? Is revisiting the Clarity Act really one of the most important hot-button issues in Canada right now? Sure, Opposition Parties have the capacity to do more than one thing at the same time, but c'mon. Is this even in the top 10? Top 20?
Or does the NDP's sudden interest have more to do with heading the Bloc Quebecois off at the pass in 2015, by getting out in front of this issue in Quebec? And, by extension, getting out in front of a new, vibrant, populist, Quebec-centred Liberal Leader, who will be annointed by the Liberals later this spring? Mulcair wants to show Quebec voters that the NDP remains willing to walk a tight-rope on the issue of self-determination (that would read "separatism" in the Rest of Canada), no matter that one end of the tight-rope is tethered in some alternate reality, sort of like that scene from "Poltergeist" where Craig T. Nelson walks through the closet door to who knows where and later emerges through a portal in the living room ceiling. Seems to me that on this issue, the NDP wants to take all Canadians on a similar excursion.
National Unity - Bigger than Partisan Game-Playing
Judging by the headlines found from newsmedia around the country, the NDP’s position is going over like a lead balloon in the Rest of Canada. Why Mulcair has allowed his party to get sucked into this vacuum of the Bloc’s creation, I just don’t understand. Up until this point, I had thought that Mulcair had been doing a respectable job of showing Canadians – all Canadians – that the NDP is getting ready to govern. But with this latest “Unity Bill” nonsense, it’s clear that the NDP remains, to some very real and troubling respects, the gang that can’t shoot straight. This bungle would be comedic in nature, if it wasn’t for the fact that they’re messing around with something as important as our national unity. Now this partisan ploy is just reprehensible.
Here in Greater Sudbury, we are represented by two NDP MP’s – Glenn Thibeault (Sudbury) and Claude Gravelle (Nickel Belt). Given the NDP’s propensity to use the whip to keep its voting MP’s in line whenever it can, it would seem likely that our MP’s are going to vote for the “Unity Bill”. I hope that’s not the case, as there really is no convincing argument which can be made which supports a threshold of 50% plus 1 for a referendum question which breaks up our nation, especially given that the Supreme Court has suggested that a “clear majority” is necessary, and that this concept has been enshrined in legislation since 1999. I have sometimes been accused of being “out of step” with members of my community on certain issues, but when it comes to national unity, I’m pretty darn sure that most Sudburians would agree that legislation enshrining the “simple majority” concept for the break-up of our nation is quite problematic. Thibeault and Gravelle ought to carefully consider the aspirations and desires of their constituents when voting on the Unity Bill in the near future.
(for a previous blogpost related to this topic, please see "The NDP's Dangerous National Unity Game: the Triumph of Talking Points Over Truth", July 31, 2012)
(opinions expressed in this blog are my own and should not be interpreted as being consistent with the views and/or policies of the Green Party of Canada)