Monday, May 7, 2018

Canada: A paragon of democratic national self-determination?

Madrid’s stubborn refusal to allow Catalans to vote on their independence prompted some commentators, paradoxically, to praise Canada’s support for Quebec self-determination.

“Quebec got off light,” wrote Louis Bernard,[1] a former top official in Parti québécois governments, referring to the Supreme Court of Canada judgment in the Reference re Secession of Quebec. After the almost-victory for the OUI in the 1995 referendum, he recalled, the federal government asked the Court to declare that Quebec had no right in Canadian or international law to choose unilaterally to “become a sovereign country, separated from Canada.”

“If the Supreme Court had accepted Ottawa’s argument, Quebec would now find itself in exactly the same position as Catalonia,” said Bernard. “Fortunately... the Court held that democracy should prevail over strict legalism.” It said, in part, that a clear majority vote for secession, in response to a clear referendum question, would give secession a democratic legitimacy that “all the other participants in Confederation would be obliged to recognize.” And it would then be up to “the political actors to determine the content of the negotiations and the process to follow.” These were essentially political questions, beyond the purview of the courts.

Quebec had “undeniably won its right to self-determination,” said Bernard. René Lévesque and Jacques Parizeau had exercised that right in the referendums of 1980 and 1995, respectively. And now the Supreme Court of Canada had made it official.

But what about the Clarity Act the Liberal government had Parliament adopt in response to the Court’s ruling? Bernard dismissed it as a face-saving gesture to give the “illusion that Ottawa continued to have a right to monitor a future Quebec referendum that it could not prevent.”

However, the Clarity Act provides that the federal House of Commons will determine whether it accepts the legitimacy of a Quebec vote for secession based on its opinion as to the clarity of the question, the size of the majority, and “any other matters or circumstances it considers to be relevant.” In subsection 2(3), it lists a host of documents and views it would consider in making that determination. And section 3 states that “an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces and the Government of Canada.”

What the Supreme Court really held

This was consistent with the Supreme Court judgment, which insisted that a clear popular vote for secession would not only necessitate negotiations involving “all parties to Confederation” (para. 88), but that these negotiations could not be limited to “the logistical details of secession.... We hold that Quebec could not purport to invoke a right to self-determination such as to dictate the terms of a proposed secession to the other parties: that would not be a negotiation at all” (paras. 90-91).

And the Court adverted to the “wide range of issues, many of great import” that would have to be addressed in such negotiations.

“After 131 years of Confederation, there exists, inevitably, a high level of integration in economic, political and social institutions across Canada. The vision of those who brought about Confederation was to create a unified country, not a loose alliance of autonomous provinces. Accordingly, while there are regional economic interests, which sometimes coincide with provincial boundaries, there are also national interests and enterprises (both public and private) that would face potential dismemberment. There is a national economy and a national debt. Arguments were raised before us regarding boundary issues. There are linguistic and cultural minorities, including aboriginal peoples, unevenly distributed across the country who look to the Constitution of Canada for the protection of their rights. Of course, secession would give rise to many issues of great complexity and difficulty. These would have to be resolved within the overall framework of the rule of law, thereby assuring Canadians resident in Quebec and elsewhere a measure of stability in what would likely be a period of considerable upheaval and uncertainty. Nobody seriously suggests that our national existence, seamless in so many aspects, could be effortlessly separated along what are now the provincial boundaries of Quebec.” (para. 96).

Furthermore, the Court stated, “there would be no absolute legal entitlement” to secession and “no assumption that an agreement reconciling all relevant rights and obligations would actually be reached. It is foreseeable that even negotiations carried out in conformity with the underlying constitutional principles could reach an impasse” (para. 97). The Court refused “to speculate here as what would then transpire.”

After a lengthy survey of the international law on self-determination, the Court concluded that “a right to secession only arises... where ‘a people’ is governed as part of a colonial empire” or “subject to alien subjugation” and “possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.” [emphasis added] [2] The Québécois are not a colonial people or an oppressed people, it concluded, and therefore did not have an unfettered right to secession. (para. 154)

“Homage to Canada, from Catalonia”

What Louis Bernard overlooks, others highlight. The pre-eminent voice of Anglo-Canadian journalism, the Toronto Globe and Mail, offered Ottawa’s approach to Quebec secession as a proud antidote to Madrid’s treatment of Catalan independentists. “Somebody needs to enroll the entire Spanish government in a remedial course in Canadian constitutional history – pronto,” wrote the Globe editors.[3]

“The sight of Spanish police storming polling stations in Catalonia, and beating would-be voters to stop what the central government declared an ‘illegal’ independence referendum, has turned an old political dispute into a potentially fatal crisis for Spain. The outrage against Madrid's overreaction has radicalized people on both sides of the issue, polarized society, and given a huge and likely permanent boost to Catalonia's independence movement. Spain may not survive.

“If only Spanish Prime Minister Mariano Rajoy's government had a Canadian in the room. No country has more experience managing independence movements and referendums, legally and peacefully.”

Over the years, said the Globe, Ottawa has “sought to derail the indépendantistes by every means at its disposal – reason, passion, concessions, firmness, money, the law – except one. Ottawa never tried to crush it by force. It beat the sovereignty movement with patience, not truncheons.

“The Spanish government, in contrast, lost patience and turned a political argument into a police action.”

Canada’s alleged “patience” now has legal cover in the form of the Clarity Act, the Globe noted. In future, the federal government “would scrutinize the referendum question; it would not accept it as a given, as in the past.” If, in Ottawa’s view, the referendum was “conducted under unacceptable circumstances, or delivered an unclear result, Ottawa could simply ignore the result. Which is what Madrid should have done.”

And if Quebec, thinking it had won a clear mandate, then issued a declaration of independence — as the Catalan parlement had done — and, moreover, proceeded to implement it (which Catalonia did not do), how would Ottawa react? The Globe editors were silent on this.

The Globe and Mail did, however, draw attention to the key difference between Canada and the Spanish state in their respective approaches to internal national movements. Canada’s federalism, the editors said, incorporates a 150-year-old division of powers between the federal and provincial governments, creating a political culture that has been “bred into the country’s political bones.” Jurisdictional disputes “can go on and on, opening the door to negotiation, compromise, changed minds and cooled passions.”

“Spain's federalism, in contrast, is newer and weaker. The limited autonomy of regions like Catalonia is officially not even a type of federalism, in which sovereignty is divided among levels of government.”

Both the Supreme Court and the Clarity Act imply that Quebec secession would require unanimous consent of the provinces, not just the federal government. Not to mention that Ottawa has a wealth of powers. procedures and institutions at its disposal that could be deployed in any major confrontation over Quebec secession. Not least, its military and police. If Ottawa was prepared to occupy Quebec with the Canadian army in the October ’70 crisis, ignited by a couple of kidnappings by a handful of FLQ militants, we can hardly ignore its possible use in a much graver challenge to the authority of the central state.

The Canadian state is stronger, more resilient, and its ruling class (including the Quebec component) is supremely confident of its ability to counter centrifugal pressures, the main one in the last 50 years being the Quebec independence movement. There is no reason to think that a Quebec vote for secession will be readily accepted by the authorities and institutions of the Canadian state. Its likelihood of success will ultimately depend on the relation of class forces, the mobilizing capacity and determination of the Québécois and the degree of active solidarity they can arouse among the workers and progressive movements in the rest of Canada.

Quebec sovereigntists need to think about how these realities must shape their strategy in the years ahead. The general  approach so far has been to focus on developing a democratic process that can produce a convincing majority for sovereignty that will somehow dissuade Ottawa from preventing its achievement. History and the law indicate that a winning strategy will entail much more.

Quebec’s Law 99: “Completely constitutional”

The federal Clarity Act was countered by Quebec’s PQ government with the adoption of Law 99, the Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the Quebec State.[4] The Act provided that in any referendum under Quebec legislation “the winning option is the option that obtains a majority of the valid votes cast, namely 50% of the valid votes cast plus one.” (Section 4) And it declared that “No other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Québec people to determine its own future.” (Section 13).

A court challenge to the Act by the English-rights Equality Party finally resulted in a 93-page judgment handed down April 18 of this year by Quebec Superior Court Judge Claude Dallaire.[5] Following an exhaustive review of “the context,” including the Supreme Court secession judgment and the Clarity Act, she concluded that “all sections of Law 99 pass the test of judicial review and the Act complies with both the Constitution and the Canadian Charter [of Rights and Freedoms].” (para. 31) adding that “Law 99, including all the articles the applicant challenges, is completely constitutional.” That is, Quebec remains subject to both the Supreme Court judgment and the Clarity Act. In drafting the bill, the PQ government had implicitly acknowledged this.

In support, she cited (inter alia) the words of Joseph Facal, the minister sponsoring the bill in the National Assembly, that all the bill did was to combine the applicable long-held legal and political principles in Quebec within a single legislative text. (para. 548) The Quebec Attorney-General had defended Law 99 on the ground that it was never intended to allow a unilateral declaration of independence.

The Superior Court judgment was greeted by Quebec nationalists as “a victory for the Quebec people,”[6] possibly because the federal government had intervened in the case arguing that Law 99 was unconstitutional. Ottawa now says it will not appeal the judgment.

[1] Louis Bernard, “Comparativement à la Catalogne, le Québec l’a échappé belle,” Le Devoir, October 7, 2017.

[2] In a 2006 judgment, the Quebec Court of Appeal addressed the issue, dodged by the Supreme Court, of whether a breakdown of inter-governmental negotiations following a Quebec vote for secession would justify unilateral secession. “It is only if this negotiation is fruitless could the Quebec parliament choose to make a unilateral declaration of independence, valid under the Constitution and consequently binding on the political institutions of the rest of Canada.” (Alliance Québec v. Directeur général des élections du Québec, 2006 QCCA 651, para. 29.) Could this reasoning justify Catalonia’s unilateral declaration of independence?

[3] Print edition headline: “Homage to Canada, in Catalonia,” The Globe and Mail, October 7, 2017.

[4] S.Q. 2000, ch. 46.

[5] Henderson v. Procureure générale du Québec, 2018 QCCS 1586.

[6]Une victoire pour le peuple québécois,” editorial (signed by Robert Dutrisac), Le Devoir, April 21, 2018.

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