The Clarity Act correctly places a high hurdle in the path of Quebec separatists. Justin Trudeau is right to decry the NDP policy that would allow Quebec to separate with a bare majority in a referendum. Brian Lee Crowley explains why a simple majority is not enough for one province to break up the country. (This is an updated and edited version of a column that first ran in the Ottawa Citizen in 2013.)
By Brian Lee Crowley
Paris was said to be worth a mass, but it is always distressing to discover how many people think Canada isn’t worth more than a handful of votes.
There can be little surprise that both the Bloc Québécois and the Parti Québécois are opposed to federal “interference” in the decisions of Quebeckers over their future within Canada. But in the lead up to the federal election in October, the NDP too is busy advertising how cheap they hold their country’s integrity and future, a policy which Liberal leader Justin Trudeau is rightly decrying.
By adopting at their 2005 Sherbrooke convention, the policy that Quebeckers can vote to separate by a 50 percent plus one margin, the NDP is abandoning a long and proud tradition. This party has frequently stood four square behind Canada in the face of the separatist threat, and its courageous past leaders, such as David Lewis, Ed Broadbent and Alexa McDonough spoke out passionately for Canada. Even the NDP’s own party constitution requires a super-majority for its amendment although the consequences for Canada of such amendments are hardly existential. Yet today the heirs of this proud tradition stand in the Commons and, without blushing, say that a majority of one vote in a referendum should be enough to set Quebec on the path of separation from Canada.
The frail reed on which the argument hangs is always that to set the bar for separation any higher is to betray Canada’s commitment to democracy itself.
But as the Supreme Court wisely remarked when asked to rule on the legality of Quebec separation, democracy is part of a complex web of values. We cannot simply pick and choose the piece that pleases us (simple majority voting) and ignore the parts that are inconvenient (like obeying the law, respecting the Constitution and protecting minority rights).
The Supreme Court found, not a constitutional right to secede, but a right for a province to put its case for secession to its partners in Confederation if that province met certain conditions. First on the list: a clear majority answering yes to a clear question on secession.
As others have pointed out, if the judges meant a “simple majority,” they just had to say so. They didn’t. They said a “clear majority.” It doesn’t require a Jesuitical mind to find that the legal requirement must therefore be something more than just 50 per cent plus one.
Nor is there anything anti-democratic in the court’s rule. People who think otherwise are confusing two very different kinds of rules.
Some democratic decisions are made with a lot less than 50 per cent plus one. Some of them are very important, such as elections. As everybody knows, you can win elections in Canada with a lot less than half the vote.
But there is a reason for that: somebody has to govern, and the least objectionable way to pick who should rule is to choose the party acceptable to the largest number of people. The fact that a majority of people may be opposed to the winner is irrelevant.
But the fact that we accept that outcome, that we might be governed by a party supported by only a minority of the population, is itself dependent on a bunch of other fundamental rules of fairness. For example, that all qualified citizens get a vote, that the decisions governments can make are subject to protections for minority rights, that governments are answerable before independent courts for their behaviour, and that Ottawa can do things that provinces can’t and vice versa.
These things are so fundamental to fairness and legitimacy that we don’t permit mere governments or even electoral majorities to change them on their own. We require big majorities before we allow these “rules of the game” to be altered. In the case of amendments to the Constitution, for example, most of them require the agreement of Parliament plus at least seven of the 10 provinces representing a majority of the population. That is a triple majority: a majority in Parliament and among the population and a two-thirds majority among the provinces. And some changes require all the provinces to agree.
The government of Canada could hold a referendum to get approval to change the Constitution and they could get 90 per cent of the population to vote yes and nothing would happen unless the change was approved by Parliament and two thirds of the legislatures representing a majority of the population. That’s not anti-democratic. It is the essence of democracy that fundamental rules require special procedures and broad consent to be changed.
That is what the Supreme Court meant when it said a clear majority of Quebecers needed to vote yes to a clear question before the rest of the country must sit down and discuss secession. Even after negotiating, both sides would have to ratify a constitutional amendment to effect secession. And those negotiations would have to consider the rights of minorities like aboriginal people, and those who voted not to leave Canada.
The logic behind this is impeccable and, like it or not, it’s impeccably democratic too.
Brian Lee Crowley is managing director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa: www.macdonaldlaurier.ca.