Clarity Act

From Wikipedia, the free encyclopedia

The Clarity Act (known as Bill C-20 before it became law) is legislation of Canada's federal parliament that established the conditions under which the Government of Canada would enter into negotiations that might lead to secession following such a vote by one of the provinces. It stipulated that in order to lead to separation negotiations, a referendum on independence in a given province would have to have "clearly" (according to the judgment of the Canadian House of Commons) framed its question to voters in terms of independence, and that the result would have to be a "clear majority" in favor, rather than merely, for instance, a 50%+1 majority.

This act was spawned by the 1995 Quebec referendum and ongoing independence movement in that province. In 1996, the initial attempt to pass a similar bill by then Reform MP Stephen Harper did not pass first reading. Known as Bill C-341, or the Quebec Contingency Act, it served as a model for the subsequent Clarity Act passed in 2000.^[1]

The content of the Clarity Act was based on the 1998 secession reference to the Supreme Court of Canada made by the federal government under Jean Chrétien. First introduced in the Canadian House of Commons on December 13, 1999, it was subsequently passed by the Commons on March 15, 2000, and by the Senate on June 29, 2000.

Contents 1 Background 1.1 Ambiguity of Referendum Question 1.2 Stéphane Dion and the Three Letters 1.3 Supreme Court Reference re Secession of Quebec 1.4 Bill Clinton and the First International Conference on Federalism 1.5 Passage and Reactions to Clarity Act 2 Key points 3 References and Notes 4 See also 5 External links

[edit] Background

[edit] Ambiguity of Referendum Question

The motivation behind the Clarity Act was largely based on the near separation vote of the 1995 Quebec referendum, in which the people of Quebec voted against the sovereignty option by a razor-thin margin (50.58% to 49.42%). Many federalists in Ottawa were caught off-guard by the results and believed that the referendum results would have no legal standing under Canadian law.

The strongest complaints were on the presumed ambiguity of the 1995 question and the fact that Quebec had passed a law reserving the right for the National Assembly to declare independence unilaterally if constitutional negotiations with the Government of Canada failed.

See the article on the 1995 Quebec referendum for the wording of the question and the external links at the bottom of this article for the Act Respecting the Future of Québec which contains the details on the Unilateral Declaration of Independence (UDI).

[edit] Stéphane Dion and the Three Letters

Prime Minister Jean Chrétien appointed political scientist Stéphane Dion as Minister of Intergovernmental Affairs. Dion would challenge Quebec sovereignist assertions about the legal validity of the 1995 Quebec referendum question in three open letters to Quebec Premier Lucien Bouchard and Quebec Intergovernmental Affairs Minister Jacques Brassard. ^{[2] [3] [4]}.

In the first open letter, Dion challenged three assertions that Bouchard had made: that a unilateral declaration of independence is supported by international law, that a majority of "50% plus one" was a sufficient threshold for secession, and that international law would protect the territorial integrity of Quebec following a secession. Against the first assertion, Dion argued that the vast majority of international law experts "believe that the right to declare secession unilaterally does not belong to constituent entities of a democratic country such as Canada."^[2] In regard to the simple majority argument, Dion argues that due to the momentous changes to Quebecers' lives that would result from secession, a simple majority that could disappear in the face of difficulties would be insufficient to ensure the political legitimacy of the sovereignist project. In regard to the territorial integrity of Quebec, Dion retorts that "there is neither a paragraph nor a line in international law that protects Quebec's territory but not Canada's. International experience demonstrates that the borders of the entity seeking independence can be called into question, sometimes for reasons based on democracy."^[2]

In Dion's second open letter to Jacques Brassard, Quebec's intergovernmental affairs minister, Dion expands upon his earlier arguments against the territorial integrity of Quebec following secession by highlighting the inconsistency in the argument that Canada is divisible but Quebec is not. Secondly, Dion underscores that without recognition by the Government of Canada and when opposed by a strong minority of citizens, a unilateral declaration of independence faces much difficulty in gaining international recognition.^[3]

In Dion's third open letter to Lucien Bouchard, he criticizes the Quebec premier for accepting some aspects of the Supreme Court ruling on Secession (such as the political obligation for the Government of Canada to negotiate secession following a clear expression of will from the people of Quebec) and not other sections of the ruling (such as the need for a clear majority on a clear question and the unconstitutionality of a unilateral declaration of independence). In regard to the ruling, Dion makes three claims: that the federal government has a role in the selection of the question and the level of support required for it to pass, that secession can only be achieved through negotiation rather than a "unilateral declaration of independence", and that the terms of negotiation could not be decided solely by the Government of Quebec. ^[4]

[edit] Supreme Court Reference re Secession of Quebec

On September 30, 1996, Dion would submit three questions to the Supreme Court of Canada constituting the Supreme Court Reference re Secession of Quebec:

1. Under the Constitution of Canada, can the National Assembly, legislature, or government of Quebec effect the secession of Quebec from Canada unilaterally?
2. Does international law give the National Assembly, legislature, or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature, or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

As soon as these questions were made public, both parties of the National Assembly, the Bloc Quebecois and numerous federalists denounced Ottawa's gesture. An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State was passed in the National Assembly of Quebec by the Parti Quebecois government two days after the Clarity Act had been introduced in the Canadian House of Commons.

On August 20, 1998, the Supreme Court answered, concluding that Quebec does not have the right to secede unilaterally under Canadian or international law. However, the federal government would have to enter into negotiations with the Quebec government if Quebeckers expressed a clear will to secede. It confirmed that the Canadian Parliament had the power to determine whether or not a referendum question was clear enough to trigger such negotiations. The Canadian constitution would remain in effect until terms of secession were agreed to by all parties involved, and these terms would have to respect principles of democracy, minority and individual rights as outlined in the Canadian constitution. ^[5]

Both the government of Quebec and the government of Canada publicly stated that they were very pleased with the opinion of the Supreme Court, which stated both that Quebec could not legally separate unilaterally from Canada and that the Canadian Parliament would have a 'political obligation' to enter into separation negotiations with Quebec in the event that a clear majority of its populace were to vote in favor of independence.

[edit] Bill Clinton and the First International Conference on Federalism

Stephane Dion would go on to organize and host the First International Conference on Federalism in Mont Tremblant in October of 1999 to foster international support for the cause of federalism in Canada. Quebec sovereignist leaders were granted a prominent role in the conference and would use their floor time to denounce Canadian federalism to an international audience to the great annoyance of their federalist host. But the Clarity Act would get a big boost during the closing speech by United States President Bill Clinton. While looking directly at Quebec Premier Lucien Bouchard, who was present in the audience, Clinton appeared to echo the Supreme Court Reference, warning that "when a people thinks it should be independent in order to have a meaningful political existence, serious questions should be asked ... Are minority rights as well as majority rights respected? How are we going to co-operate with our neighbours?". Clinton argued that federalism allows peoples seeking recognition of their identity a way to do so without isolating themselves in a nation-state. The speech would lay to rest any doubts about the U.S. position on the legality and desirability of unilateral secession in Quebec ^[6].

[edit] Passage and Reactions to Clarity Act

The Clarity Act (Bill C-20) was later drafted and presented to the House of Commons on December 13, 1999. This move by the Government of Canada was more bitterly denounced by all parties in the National Assembly, the Bloc Quebecois, and many federalists than the Reference on Secession.^{[citation needed]}

The Progressive Conservative Party, led by Joe Clark, opposed the Clarity Act.

Following its adoption by Parliament, an open letter supporting Quebec's right to self-determination was published and signed by numerous intellectuals from Quebec and other parts of Canada.

Former Prime Minister Jean Chrétien has often stated that the Clarity Act was among his proudest achievements in federal politics.

In an interview with CTV News aired on May 15, 2005, separatist former Premier of Quebec Jacques Parizeau said that the Clarity Act "meant nothing" and would be ignored.

On December 7, 2005, in the midst of a federal election, NDP leader Jack Layton too announced that he backed the Clarity Act. This was in contrast to comments made in the 2004 election where he said that the Act accentuates divisions in Canada. He attributed his new found support to understanding the constitutionality of the act.

[edit] Key points

The key points of the draft included the following elements.

• Giving the House of Commons the power to decide whether a proposed referendum question was considered clear before the public vote;
• Specifically stating that any question not solely referring to secession was to be considered unclear;
• Giving the House of Commons the power to determine whether or not a clear majority has expressed itself in any referendum, implying that some sort of supermajority is required for success;
• Stating that all provinces and the First Nations were to be part of the negotiations;
• Allowing the House of Commons to override a referendum decision if it felt the referendum violated any of the tenets of the Clarity Act;
• The secession of a province of Canada would require an amendment to the Constitution of Canada.

[edit] References and Notes

[edit] See also

• 1995 Quebec referendum
• Quebec sovereignty movement
• Politics of Quebec
• Politics of Canada

[edit] External links

• Text of the Clarity Act
• Full text of the Reference re Secession of Quebec
• 1995 Act Respecting the Future of Quebec
• Open letter in support of the democratic right to self-determination for Quebec