Cold Hard Wonk

No sentiment but politics

Heart and Detail: Politics and Law

Posted by JJ in Strategic Planning, A House Divided (Tuesday November 22, 2005 at 1:20 pm)

With a new leader heading up the Parti Quebecois, it’s time to return, once again, to Canadians’ favorite activity: self-destruction.

With a strong mandate behind him, PQ Leader Andre Boisclair has declared his objective: to hold a referendum after the next PQ election victory.

Faced with the prospect of a third referendum, Prime Minister Martin has rolled out the federal weapon prepared after the last referendum: the Clarity Act. Boisclair’s denial of the applicability of the Act to a future referendum brought the following comments from Martin:

Specifically, Mr. Boisclair has indicated he would not be bound by the provisions of the Clarity Act which were recognized in a Supreme Court of Canada ruling. Mr. Boisclair’s declaration amounts to a rejection of the rule of law in favour of political expediency,

The problems with that line of reasoning are legion, but can be summed up fairly simply. Quebec passed a law within days of the Clarity Act, denying its validity. Though it was not passed unanimously, a motion denouncing it was proposed by the Quebec Liberals, introduced by Jean Charest, and passed unanimously by the Quebec Legislative Assembly that same year.

So what’s all the ruckus about?

The Clarity Act does three things. First, it sets out terms to describe what kinds of questions on a referendum will or will not be considered to result in an expression of the “will” of the people of a province and allows the House of Commons to debate the question. Second, it bars the federal government from negotiating with the government of a province for that province’s ceasing to be part of Canada. Third, it spends a lot of time on political grandstanding.

Grandstanding aside, there are serious problems with the Act. A bar on the federal government’s negotiating will only last until the federal government passes a bill allowing them to negotiate — an easy thing for a majority or a minority with the likely support of the Bloc Quebecois. Moreover, this bar depends on the definition of “ceasing to be part of Canada.” While the House of Commons can likely bind the government on this point over whether the referendum question relates to ceasing to be part of Canada, it doesn’t have the same authority to determine whether that is the purpose of negotiations, and the prohibition refers only to that point. The decision to negotiate, therefore, is largely a political one, based on the parties’ ability to spin their objectives.

So much for clarity.

As to the determination of whether the question is clear or not, the terms of the Act are clear enough. But there is no reason to believe that such terms would be binding on Quebecers, nor that the presence of such a law would be determinative of their will. In the case of a referendum, the courts could be used to resolve the question of whether the referendum question was clear; but the arguments will be political and fact-based, rather than objective.

True, the Supreme Court of Canada did recognize the principles in the Clarity Act, but that isn’t to say that the Supreme Court decided the Act was binding on Quebec, merely that it stated the principles which would apply to the interpretation of a referendum question.

Moreover, the Court’s decision pointed out that no legal finding would bar Quebec from unilaterally declaring and achieving de facto independence. The effectiveness of such a move, they pointed out, would be determined by the behaviour of the parties as understood by the international community.

Which could offer one explanation as to why the Prime Minister is trying to paint the PQ as lawbreakers. Presumably, this portrayal might influence the international community. But if that’s the resaon, doesn’t it amount to an admission that de facto secession will go ahead? Obviously, that’s not the point.

What is, then? Surely the Prime Minister doesn’t think that a law denounced by his federalist allies in Quebec will sway supporters of sovereignty. Will it sway federalists in Quebec? Will it push them to his side? Surely they are already supporting the federal Liberals as against the Bloc Quebecois; and in a referendum, they don’t need anything to sway federalists.

Are so-called “soft” sovereigntists going to be swayed by the weak claim that they risk breaking the law?

Consider the sovereigntist position. A separate Quebec is not a legal matter for Quebecois, it is a dream with calls to freedom, history, spilled blood, and religion.

Do we really believe that we can offer an alternative in threats of legal niceties and semantic analysis?

Are English Canadians glad to see the Prime Minister attack the PQ and its new leader? Certainly. Perhaps that’s the hope: that Ontarians and Westerners will rally behind the Prime Minister’s attack and rush to support him in the next election. Sadly, encouraging him in this won’t help.

We need to appeal to hearts, not pedants; people, not the law. That’s where the appeal of the PQ lies, and it can’t be easily avoided. That’s a political contest — a battle for the imagination, dreams, and the future. We need to understand the difference between a political battle and a legal one. If all we can produce to counter separatism is the threat of legal action, then Canada truly has nothing to offer; and the battle for its heart is already lost.

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