Do you agree that Québec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Québec and of the agreement signed on June 12, 1995?
Okay, seriously: if I say “yes” to this, what have I agreed to? If I say “no”, what have I rejected? One problem is it’s a complex question — akin to “have you stopped beating your dog?” — which embeds a number of assumptions before asking something. Another is that it makes reference to a bill and an agreement, without giving at least the gist of what such things are. Politics nerds might be aware of those matters, but it’s unlikely most voters had a clue. This is a pretty good example of a terrible question to put in a separation referendum.The 1980 question was better. Here it is:
The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad — in other words, sovereignty — and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?
This at least spells out the terms of the “new agreement” referred to. It’s not actually a separation question, though. It holds out separation as a future possibility, but only asks for the authority to try to negotiate a better deal for Quebec within Canada — which, really, any province already has. So, the problem here seems to be one of relevance: what is agreed to, or disagreed to, has very little to do with secession.Thus, it is obvious that the question needs to be unambiguous, precise, and comprehensible. To that extent, the Clarity Act is going right. The other two points it makes, though, are pretty poor.The third point is the worst. There is no good reason that I can see for giving the House of Commons exclusive jurisdiction over the matters it is given jurisdiction over, except simply screwing with the National Assembly. First, why the Commons? We have a bicameral Parliament federally; leaving out the Senate is pretty weird. Furthermore, given that the Governor-General is also part of the Government of Canada, shouldn’t that office get a mention somewhere? Really, I’d feel better about the third point if it said “Government of Canada” instead of “House of Commons”. Not much, but better.Second, and worse, the Clarity Act takes an expression of majority opinion — a positive referendum result regarding a question clearly on secession — and makes its realization conditional on the partisan considerations of the House of Commons. I think it makes more sense to either include the entire Government — Governor-General and Senate — or, better yet, defer it to a non-partisan body, like the Supreme Court, which is good at figuring out things like intentions and wrestling with complex legal documents. Otherwise, it has the effect of making a partisan body superior to the express will of the people, which is about as anti-democratic as it gets. (Okay, fine, that’s hyperbole; but it is anti-democratic in spirit.)The second point is pretty bad too, though, because the so-called Clarity Act doesn’t define what it is for a will to separate to be clearly expressed. The implication seems to be that more than a strict 50%+1 mathematical majority is needed. But how much more? (Fun philosophy note: Rousseau runs into this problem when he tries to explain what he means by “general will” rather than “majority will”. The intuition is probably good, but it’s practically unworkable, without something like Rousseau’s regime of censors and social monitors.)One could try to argue for a simple 2/3 majority, but this is an arbitrary threshold. You may as well argue for a 3/4 majority, or 5/8. It’s pulling a number out of nowhere.A better argument would look to the amending formulae in the Constitution, and try to build something off those. The general formula (the “7/50” formula) requires assent from the Commons and the Senate; and approval of 2/3 of the provincial legislatures (i.e., at least 7 provinces) representing at least 50% of the population. The specific formulae are: (a) for matters relating to the Office of the Queen, the use of either official language, the amending formula, or the composition of the Supreme Court: unanimous consent of all provinces; (b) matters related to provincial boundaries or use of an official language within a single province: pass the amendment by all affected legislatures; (c) matters related solely to the federal government do not require provincial approval, nor do matters affecting a provincial government alone.The specific formula are not going to help for a separation issue. (a) is obviously not relevant; either (b) or (c) could be relevant, but (b) would tell us to consult the Commons, the Senate and the National Assembly (at least), while (c) would tell us to consult either the Commons and the Senate or the National Assembly (again, at least). (The “at leasts” are also problematic; how can we tell if, say, PEI is affected by Quebec separation?) It’d be better, I think, to look to the 7/50 formula: something like at least 2/3 of all ridings in Quebec, representing at least 50% of the population, must vote in favour. Of course, then one would run into the issue of Quebec never endorsing the frigging Constitution, but at least there would be some basis for the supermajority requirement.So, that’s the contrast. Either 50%+1 — mathematical majority — counts as a clear expression. (One could also argue that it has to be 50%+1 in all ridings, so that no region is getting railroaded by the others. I’d be okay with that, but it just amounts to a geographical amendment to the 50%+1 threshold — 50%+1 in each of all 125 ridings is still a notch over 50% support.) Or, a supermajority modelled on the 7/50 formula counts as a clear expression. I know of no other way to determine what a “clear majority” in favour of separation would look like.Of course, no one’s offering anything like the above argument for a supermajority — at least, no one I’ve seen. There simply seems to be this magic faith that 50%+1 is just not enough for a majority to be “clear” — despite the fact that, as Jack Layton correctly pointed out, we routinely let majority governments get elected with way less than that. I suspect this is because there’s not really any objection to 50%+1 — the objection goes to a deeper issue.Here’s my suspects for the issue:
- The unimportance or irrelevance of self-determination by provinces. Provinces just don’t get to determine whether they can stay in Canada or not; that’s up to Canada to decide.
- Canada is a nation, too, at least as important — and maybe more important — than Quebec. That shouldn’t be ignored.
- Hard federalism. Powers already delegated to the federal government should stay there; indeed, more power should probably be delegated to it, and the provinces thus reduced.
- Changing the Constitution is scary and leads to a big mess. An arbitrarily high threshold makes mucking around so difficult that no one is going to try it.
Some of these claims are childish. Some of them are wrong. But more on that tomorrow.
