Sunday, June 05, 2011

Is the Clarity Act constitutional?

One of the options facing a future Prime Minister Jack Layton is to consider a request to the Supreme Court of Canada regarding the constitutionality of the Clarity Act.

The Clarity Act was passed in 2000, and in 1998 the SCC decision dealing with the right of Quebec to declare independence was handed down. You can find more details on both in my earlier post.

The Clarity Act sets out a process for dealing with a referendum question posed by a legislative body in Quebec.

Its terms are summarized in that earlier post this way (from Wikipedia):
The key points of the legislation included the following:
·         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.
 It gives the right to the House of Commons, by a majority decision of 50% plus 1 vote of the MPs voting (which need not necessarily be a majority of all MPs, if some MPs abstain from voting) to decide whether the referendum question was "clear", requires a no answer if the question does not simply refer to secession, and whether the majority saying Yes was a "clear majority".

The Clarity Act flies in the face of legislation passed in Quebec, and supported by the NDP.

The question is whether the Clarity Act also flies in the face of the Supreme Court's 1988 decision.
That decision required the "majorities" of both Quebec and Canada to negotiate terms of separation. And yet the Clarity Act sets the rules which govern the "majority" of Canadians, as represented by a majority of voting MPs in the House.

PM Layton should consider announcing now that one of his first acts (say, within 100 days of his assuming power) would be to refer the Clarity Act – together, perhaps, with the Quebec legislation – to the Supreme Court for a declaration as to the constitutionality of these laws.

That would clear the decks before any referendum question and give the Prime Minister guidance on the legality of  his party's Sherbrooke Declaration.


  1. The clairty act adopts the SCC ruling almost word for word. The act is not unconstitutional, and your post seems to be twisting words.

  2. The Supreme Court decision did not, for example, allow for the House to override the referendum if it felt the question was unclear. The SCC says the decisions are essentially political ones: does not the Clarity Act cement these decisions into law rather than leave them to the realm of political negotiation?

  3. I thought the NDP supported a vote by 50% plus one which is not consistent with the Supreme Court ruling on a clear majority. If so, wouldn't it seem hypocritical for the NDP to ask the Supreme Court when they don't support their decision?

  4. Is not the creation of law a political decision/negotiation?

  5. The House passing the Clarity Act is not in any way the negotiations envisaged by the Supreme Court. The SCC is very clear that negotiations are political decisions, and that no laws apply that govern those negotiations - apart from its own findings about a "clear" majority and a "clear" question. The SCC bent over backwards to say it is a political matter, but before you trigger the political negotiations, make sure that there is no confusion about the vote for independence. Until now, the separatists have made a virtue of confusing questions, to avoid negative responses. A Yes answer to an unclear and confusing question does not give any moral, legal or political legitimacy to the Yes forces to initiate negotiations to separate Quebec from Canada. Layton's capitulation to the Quebec definitions of the question put the rest of Canada in a negative and potentially dangerous position, even before negotiations begin.

  6. I'm sorry I didn't know you were already right before you asked your question. Clearly you know the SCC better than anyone, and you must be right the clarity act is unconstitutional. Next time just save time by having a blog post title, "Am I Right?" and then having the post just consist of "Yes I am".


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