Samantha Chin

Student Led Tutorial #3: Is the Clarity Act good for Canada? YES

Summary

-Clarity Act was created to enhance the Supreme Court ruling

Aug 1998

Supreme Court of Canada ruled:

1. “Quebec could not unilaterally secede from Canada”

2. “rest of Canada” was to be involved in negotiating the “terms of secession” with Quebec if a “clear majority of Quebeckers wished to leave Canada on a clear referendum question”

PRO of ruling:

- Supreme Court resolved: secession under certain conditions (basic legal issue)

CON of ruling:

- Supreme Court created new problems:

1. What is the meaning of a ‘clear majority’?

2. Does it mean Independence supporters had to be just 50%+1 to win?

3. What is the meaning of ‘clear question’?

- Since there were so many uncertainties

- Government believed the Supreme Court decision needed to be enforced by the Legislation

Dec 1999

CLARITY ACT created

1. IN RESPONSE TO CLEAR REFERENDUM QUESTION

- gave the House of Commons the duty to determine whether question was ‘a clear expression of the will of the population’

If question was not targeted to this aim, then no negotiations allowed

If question accomplished this aim, negotiations could commence

2. IN RESPONSE OF A CLEAR MAJORITY

- had to see whether vote represented to a ‘clear expression of the will by clear majority’

- Therefore, consider the percentage of eligible voters who took part in referendum

- Along with size of actual majority

3. – a constitutional amendment must accompany the secession of any province

- negotiation prior to amendment (gov’t of all provinces + gov’t of Canada)

CLARITY ACT consists of 3 main sections

Section 1 – deals with Supreme Court’s requirement of clear question

Section 2 – with the requirement of clear majority

Section 3 – the aspect of secession negotiations

· Preamble of Act states:

- ‘clarify circumstances’ of Canadian gov’t in secession negotiations

- ‘does not restrict right of provincial gov’t to consult its population through referendum on a question’ (province’s choice)

· Act States

- ‘within 30 days of provincial gov’ts official releasing of referendum question on secession’

- ‘House of Commons asked to express opinion through resolution’ (to see if question presented is a clear one)

- House of Commons is required to take view of politicians (including views of opposition parties)

POINTS FOR YES SIDE (US)

- Act is a reasonable attempt to deal with the complications of secession

- Although House of Commons participate in the process, they ‘cannot walk away from its responsibility’ from representing all Canadians on this important process

- Legislation make contributions ‘by setting out a process to be followed for determining whether a clear majority had been obtained’

- Even though some matters have to be addressed in this Act, it does not have to be addressed in the constitutional amendment

- Act does not undermine the rights of the Quebec gov’t

- Act serves as a reflection of the instruction made by Supreme Court

- Without this Act, ‘federal gov’t would be required to enter into secession negotiations whenever requested by Quebec’

- In other words, without this Act, ‘one part (either the gov’t or Quebec) could unilaterally dictate’ the situation

- We respect the Quebeckers, no undermine

- However, Quebec gov’t failed to respect us by introducing BILL 99

1. ‘Quebec people alone has the right to decide the political regime and legal status of Quebec’

2. ‘Quebec National Assembly bound only by Quebec Law’

- ‘these provisions directly contradict the Supreme Court’s declaration that Canadian Law provides no unilateral right to secession’

- Act does not ‘bar or limit the ability of provinces to hold referendums or to pass constitutional resolutions on subjects other than secession’

- Act allows for early intervention, in hopes that the federal gov’t will not find it too late in acting effectively

- Opposition parties to this Act missed the point that separation of Quebec is not just a Quebec issue, it is one that must involve all of Canada

- Act ensured that ‘negotiations would not be commenced until there was reasonable assurance that they would prove successful’

POINTS FOR NO SIDE (OPPOSITION)

- court failed to specify the meaning of ‘clear majority’

- Clarity Act gave federal gov’t ‘the authority to decide Quebec’s fate’

- Because House of Commons (not Quebecois) determined referendum question & how much support required

- Act gives gov’t too much power because gov’t can reject any province from secession

GLOSSARY (teacher)

1. Unilaterally: done by or affecting one person, group, country, etc and not another; one-sided

2. Secession: withdraw (from membership of an organization, state, etc)

3. Referendum: referring of a political issue to a general vote by all the people of a country for a decision

4. Douse: to put out, turn off, extinguish light

5. Stipulate: state clearly and firmly as a requirement

6. Acrimonious: bitterness of manner or words; angry and bitter

7. Veto: constitutional right to reject or forbid a legislative proposal or action

8. Inexorably: continuing unstoppably; relentless

9. Sovereignty: independent sovereign power

10. Envisage: picture (an event, action, etc) in the mind as a future possibility; imagine

11. Unanimous: all agreeing on a decision or an opinion.

12. Superfluous: more than is needed or wanted

DISCUSSION QUESTIONS

1. The War Measures Act was drafted by Prime Minister Robert Borden during the First World War and invoked by Prime Minister Trudeau in 1970. The War Measures Act gave the government emergency powers during a time of crisis. Do you see any similarities between the objectives of the War Measures Act and Clarity Act?

My Answer: Both focuses on maintaining order, allowing for early intervention, so that the federal government will not find it too late in acting effectively in such situations.

2. Do you believe that the Clarity Act gave the federal government the ‘authority to decide Quebec’s fate’?

My Answer: No, this is because although he House of Commons participate in the process, not the Quebeckers, it does not mean that they are unconcerned, that their decisions are careless. The House of Commons ‘cannot walk away from its responsibility’ from representing all Canadians on this important process

3. List the three main sections in the Clarity Act.

My Answer: The three main section include dealing with Supreme Court’s requirement of clear question, dealing with the requirement of clear majority, and the aspect of secession negotiations.

4. Why is it important for the House of Commons to take the view of politicians, including the views of opposition parties when arriving at their choice of whether the question presented is clear?

My Answer: Their decisions affect the progress of the dilemma, it is important for them to analyse the situation from different perspectives.

5. How has the Quebec government disrespected us?

My Answer: An example is their introduction of Bill 99, which stated that Quebec people alone, would have the right to decide the type of political regime and legal status

6. Why was the Clarity Act created?

My Answer: It was to enhance the Supreme Court ruling, attempting to explain the secession under certain conditions.

7. Do you agree that the separatist movements of Quebec is one that must involve all Canada?

My Answer: It depends on the degree of separatist movements. If it gets out of hand, like the October Crisis, 1970; then it is necessary to do any means necessary to maintain order in the society. Quebec has been part of Canada since Confederation; therefore, the rest of Canada should have a say about their views on their separation.

8. Should the Supreme Court consult with the federal government about its major decisions that may affect the government’s role?

My Answer: It would be nice that the governing elite work together, listen to each other’s views, in hopes of improving our society.

9. The Clarity Act states that within how many days does the provincial government release the referendum question?

My Answer: 30 days

10. When was the Clarity Act created?

My Answer: December 1999.

GLOSSARY