Saturday, June 04, 2011

Would an NDP Government become an outlaw government? The chances are high

Jack Layton campaigned as a future prime minister, and won a resounding victory over the waffling Liberals and do-nothing Bloc, sweeping into Official Opposition party status.
Jack Layton - the Outlaw PM?

Now he is still running for prime minister, courting Quebec with as much relish as Brown Envelope Brian did, and trying hard to be prime ministerial in his media scrums and other meetings.

The latest polls show the NDP cementing their support in Quebec, firming it up elsewhere, moving up while the Tories stay where they are, and the Liberal Party sinks yet lower.

What does this mean?

It means that Canadians have to seriously entertain the idea that it is possible – perhaps more than possible, given the historic ceiling on Harper support – that Layton's NDP might become the government of Canada, either a minority or a majority government.

The applicable laws:

And this brings us to a succinct summary of the NDP policy regarding a referendum for independence in Quebec, the Supreme Court decision, and the Clarity Act, in the Toronto Star:

Tricky as it might be for Layton to ditch this particular policy, which was enshrined on his watch in the party’s “Sherbrooke Declaration” of 2005, he should find a way to do it because it puts him at odds with the Supreme Court of Canada and the law. That can’t be a good place for an aspiring prime minister to be. The Conservative attack ads won’t be pretty...

The Supreme Court ruled in 1998 — unanimously — that Quebec cannot lawfully secede unilaterally, and that a “clear majority on a clear question” is needed to trigger talks on secession, which might or might not go anywhere. A wafer-thin result wouldn’t pass muster.

Then Parliament passed the Clarity Act in 2000, prohibiting Ottawa from entering into secession talks unless Quebecers vote Yes to a straight-up question such as: Do you want Quebec to become an independent country? That rules out vague promises of “sovereignty-association” (as in the 1980 referendum) or “a new economic and political partnership” (1995). The act also requires the Yes side to carry by more than a thin margin.

Unless Layton is prepared to disregard both the Supreme Court and the Clarity Act, he would not be able to wave Quebec goodbye easily. Nor should he. What he should do is reassure voters that he stands with the high court and the law of the land.

The Star summarizes the position in a very clear way. Layton's NDP is between a rock (its Sherbrooke Declaration) and a hard place (the law of the land).

The Sherbrooke Declaration mimics the position of the Bloc, the PQ, the provincial Liberal Party and many Quebeckers: Independence is an issue that rightfully belongs to the people of Quebec to decide, with the provincial legislature settling the question without discussion with the rest of Canada (ROC) and with success in a referendum being 50% plus 1 vote.

But this position is contrary to the law of the land, as interpreted by the Supreme Court. The independence referendum must be clear and the majority in favour must be clear, the SCC ruled. The history of referenda questions in Quebec has been that they are convoluted, confusing, and anything but clear, so the chances are high that the next one will be equally unclear. And a 50% plus 1 majority is obviously not a "clear" majority as the SCC ruled.

Quebec government as an "outlaw":

If the Quebec legislature took steps in accordance with its own laws, and drafted an unclear question and insisted on a 50% plus 1 test of success, it would become an outlaw in Canada, based on the SCC decision. The SCC recognized this in its decision, and said that the acceptance of any action by Quebec contrary to the law of the land would depend on political recognition of the unlawful act. This is what the SCC said about any action by Quebec against the laws of Canada (my underlining):

Although there is no right, under the Constitution or at international law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out.  The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition.  Even if granted, such recognition would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.

If Layton's NDP becomes a majority Government:

If Jack Layton became Prime Minister of Canada with a majority of seats in the House, and the country was faced with an imminent referendum on Quebec independence, then PM Layton would have to decide whether to allow his NDP Government to become an outlaw government by sticking to the Sherbrooke Declaration and thereby disregarding the law of the land as articulated by the Supreme Court and as set out in the Clarity Act.

In order for any actions by Layton's NDP Government to have any legal validity, he would firstly have to amend the Clarity Act – using his majority – to make it consistent with the Sherbrooke Declaration (majority of 50% plus 1 vote, and all the conditions requiring the House to decide on the clarity of the question to be removed), or he would have to repeal the Clarity Act, once again using his new majority.

What the Clarity Act says:

Just to remind ourselves, the Clarity Act sets out a process to be adopted by the Government of Canada in addressing a purported independence referendum in Quebec. The steps are:

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.

Layton flip-flops on the Clarity Act:

It is interesting to note that Jack Layton has flip-flopped-and-flipped on the Clarity Act in the past:

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.

The Supreme Court decision:

If Layton's NDP Government repealed or gutted the Clarity Act through amendments stripping out its provisions, he would still be faced with the decision of the Supreme Court, which clearly flies in the face of any unilateral action by the Quebec legislature. The SCC said it was clear that the Quebec government did not enjoy any right in international law to unilateral secession:

In the circumstances, the "National Assembly, the legislature or the government of Quebec" do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.

The SCC also set out a process regarding the independence referendum which required negotiations by BOTH sides. It is worth quoting this part of the SCC decision in detail, because it very clearly sets out the obligations of the Government of Canada in the event of a referendum process, which Jack Layton, as Prime Minister of the government of Canada, would have to comply with or risk losing political legitimacy (my underlining):

Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change.  This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order.  A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.

Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation.  The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole.  Democratic rights under the Constitution cannot be divorced from constitutional obligations.  Nor, however, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.  The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others.  The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed.  There would be no conclusions predetermined by law on any issue.  Negotiations would need to address the interests of the other provinces, the federal government and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.

The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole.  A political majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.

Very clear obligations on both sides to talk.

Layton, as Prime Minister, would have a leading role on behalf of the federal government to join in the negotiations between the people of Quebec, represented by their government, and the people of Canada, and the other stakeholders the SCC mentions.

The Legitimacy of a Layton Prime Ministership:

How on earth could PM Layton legitimately negotiate for Canada in such discussions if the question put in the referendum was not clear (as the SCC required) and the majority of success was not clear (as required by the SCC)?

If PM Layton chose to overlook these two requirements, what moral or legal right would he have to be at the table to discuss the issue (never mind begin negotiating with Quebec)?

He would clearly have to resign as Prime Minister if he did not wish to enforce the law of  the land as set out by the Supreme Court. He would in honour have no other choice but to resign, and any leader of the NDP chosen to become his successor as prime minister would likewise have to resign unless he or she clearly stated that he or she supported the law of the land as set  out in the SCC decision, and abided by it.

My conclusion is that the adoption of the Sherbrooke Declaration by the NDP and its continuation as a policy of the NDP would require any future NDP Prime Minister to immediately resign if faced with a possible Quebec referendum on terms which would breach the Supreme Court decision, dissolve Parliament, and fight an election.

Imagine the chaos that would erupt. Quebec holding a referendum on a question that is not in the minds of other Canadians a clear question, and insisting on a majority of 50% plus 1 vote, while the government of Canada quits because it has lost political and probably legal legitimacy (to obey the Sherbrooke Declaration in such circumstances would make the NDO Government an  outlaw government) and plunged the country into a federal election.

If the NDP Government is a Minority Government:

Here things get really sticky. Any attempt by Jack Layton's NDP to become a minority government of Canada would require support by MPs of one of more of the other parties (the Greens, the Tories and/or the Liberals).

How on earth could any such MPs support Jack Layton as Prime Minister if he is advocating policies (consistent with the Sherbrooke Declaration) which are against the laws of the land as set out in the Supreme Court decision and the Clarity Act?

What would give such MPs the right to back such an outlaw government?

Clearly, any support of the NDP with the most seats in the House but not a majority, would only be given if the NDP renounced the Sherbrooke Declaration and agreed publicly to abide by the law of the land as set out in the Clarity Act and the Supreme Court decision.

Unless the NDP agreed to such changes, any MP supporting Layton as possible Prime Minister in a confidence vote would be voting to support a possible outlaw government. Would any MP have such a mandate unless he or she had run for office clearly indicating that he or she would if push came to shove vote for an NDP prime minister who might apply such policies?

Conclusions:

My conclusions on this matter are:
  1. The NDP will become an outlaw government unless it renounces the Sherbrooke Declaration and agrees to abide by the laws of the land as set out in the Supreme Court of Canada decision, and the Clarity Act.
  2. Jack Layton and his NDP party have to publicly state whether they will support the Supreme Court decision on both the majority needed for a successful referendum on Quebec independence, and the need for a clear question. This statement has to be made soon – the NDP cannot avoid it by waffling and hoping nobody notices.
  3. Jack Layton and his NDP party have to publicly state whether they agree with the Clarity Act, or whether they will amend it to make it consistent with the Sherbrooke Declaration (and what such amendments will be), or repeal it, if they become the government of Canada.
  4. The other parties have to announce to Canadians what their position would be if the NDP won the most seats in the House but not a majority, so that voters know in advance of the next election whether voting for a candidate for such a party means the vote could be for a minority NDP government which might take steps contrary to the law of the land.
What a mess!

26 comments :

  1. While it is too early to make the assumption that Quebec has already voted for separation, I think that if Quebeckers do choose to favour separation, the numerical results will not matter so much as the court of international opinion. It will matter if other countries choose to recognize Quebec's sovereignty.

    The problem with Quebec needing a clear majority on a referendum is that the Clarity Law as you have stated gives the House of Commons the sole authority to decide what is clear. Is 50%+1 clear, 55%, 60%, 66.667%, 80%, or 99.9% clear?

    As I have stated earlier, the court of international opinion will matter. The Canadian government and parliament will have influence to state that a specific question on Quebec sovereignty may not be fair. I didn't thing that the 1995 referendum question was fair as included in question was a reference to sovereignty-association. It takes two to have an association. I could imagine Canadians outside Quebec not agreeing to an association with Quebec. The referendum question was loaded. If I were the federal government, I would refuse to participate in any referendum on sovereignty that may have a misleading question. I would also be clear that the government would not recognize any YES vote--51% or 99%.

    If I were Jack Layton and the NDP, I would stop all discussions about clarity of referendums, and start talking about how to make Canada a better place for all Canadians.

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  2. Skinny D - Pandora's Box was opened with the Sherbrooke Declaration, and it won't be shut for the next decade at least.

    What Layton has to do is think whether he should change his policy, and address the questions his policy has raised.

    We have one prime minister running a government found to be in contempt of Parliament by the House.

    Do we need another Prime Minister who will take power determined to ignore those laws of the land he doesn't like?

    What exactly is the difference between Harper and Layton, considering the contempt hearings and the Sherbrooke Declaration? Don't both men clearly favour the right to decide which laws and conventions of our democracy they wish to follow?

    So why should we vote for either man when they give themselves the rights usually only claimed by dictators and ancient kings when the divine rights of kings was accepted?

    Who makes Jack king of Canada?

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  3. In the days before the referendum Parizeau apparently approached several French-Canadian officers in Quebec and asked for their support should the separatists win the referendum. Does this not lead you to think the clarity act won't be worth the paper it's written on? I mean, what exactly do you propose to do if Quebec does unilaterally secede? Will you send in the troops? And just how many ground troops (loyal to Canada in this situation) do you think we have? Frankly, the entire Canadian Army could not keep Quebec in Canada by force if Quebecers decided not to stay. I think maybe you had better think a little more clearly on what revolution and civil war looks like before you start saying Quebec can't leave without your permission. Jack's position just might save a few thousand lives.

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  4. Rat, you are out to lunch. Your misstatement of my position is nuts. Layton as prime minister has to obey the laws of the land - period. The SCC case sets out the laws of the land, as does the Clarity Act, and the case of Quebec deciding to take a hike without negotiating with Canada is also set out in this decision and this act.

    Jack's position? You mean the one where he does not agree to obey the laws of Canada but wants to be Prime Minister?

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  5. Rat, of course if Quebec votes on a clear question of separation, and a clear majority supports leaving Canada, no one can force them to stay. If the vote is close, say 50% plus 1 vote, do you think the people who voted to stay in Canada are going to twiddle their thumbs? And it won't help that if the difference is one vote that this could potentially trigger a recount (legally when the difference is less than 1/1000th of the votes cast). If there are spoiled ballots that change the results....

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  6. "If the vote is close, say 50% plus 1 vote, do you think the people who voted to stay in Canada are going to twiddle their thumbs?"

    But that's the point: all four significant political parties in Quebec accept this standard, so, yes, they would all, unanimously, even those that don't support sovereignty, accept the result.

    (As for recounts, yes, there's a process in place for that. We're talking--as far as I'm concerned--about the final, certified result.)

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  7. The NDP's position on this matter is clearly NOT in violation of any Canadian laws.

    The Supreme Court ruled that the federal government is required to negotiate secession if a province votes to secede in a referendum by a clear majority on a clear question.

    The Supreme Court did not rule on what constitutes a clear majority or a clear question.

    The Clarity Act merely asserts that the House of Commons has to vote on whether a question or a result is clear before the federal goverement can begin such negotiation.

    The Sherbrooke declaration simply makes clear what the NDP standards are for judging whether a question or a majority is clear--namely that provinces have undisputed right to hold referenda on any subjects they choose and NDP will take such questions at face value, and that a clear 50%+1 majority is a clear majority. That makes it clear how the NDP would approach this issue including any votes in the House of Commons on this subject.

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  8. If you read what Jack Layton has actually said about the Clarity Act--rather than how reporters choose to portray what he has said--you'll find his position on the Clarity Act has not changed. Layton has always said that he thought passing the Clarity Act was unproductive and divisive, but that he doesn't support re-fighting old wars by trying to repeal the Clarity Act because what we need to focus on is creating winning conditions for Canada in Quebec.

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  9. What I find fascinating about this debate is that most people don't understand what the Clarity Act actually says and/or haven't thought through the process it suggests would take place in the event of another referendum. Because anyone who seriously studies the Clarity Act will find that it only increases the chances of Quebec secession and boosts the cause of sovereignists--and not JUST because Quebecers hate it.

    The Clarity Act says that the House of Commons will vote on whether a referendum question is "clear"--whether the question provides a legal mandate for separation--after it has been put forward by a provincial government. The House has no power to stop the referendum or change the question--only vote "yes" or "no", in middle of a referendum, on how it will react if the referendum passes.

    Imagine what would happen under those circumstances, if the Government of Quebec actually put forward a question on "sovereign association" or "economic and political union"?

    If the House voted that, yes, this question provides a mandate for secession, then the PQ would continue to campaign on whatever question the Government of Quebec had actually put forward, but if it passed they would indisputably be able to claim it provided a mandate for secession if those negotiations failed.

    Conversely, if the House voted that, no, this question does not provide a mandate for secession, then many people would believe the stakes of voting ”yes” are not that high and support the referendum just to give the Government if Quebec more leverage in any future negotiations. In other words, if the provincial government says they’re campaigning for sovereign association AND the federal government says the question does not provide a mandate for separation, then Quebecers might actually believe it. But the PQ would inevitably still use the resulting victory as a stepping stone to secession--deliberately sabotage negotiations with the feds and then either unilaterally declaring statehood or handily win a subsequent vote on a truly clear question.

    This is why--despite always having had the power to declare that previous referendum questions did not provide a mandate for secession--past federal governments have always found it more useful to pursue a policy of strategic ambiguity--saying that these unclear questions were not technically a vote on whether to secede, but that we all knew that that’s where this is headed if such a vote passed.

    The idea that the House of Commons could retroactively declare that a given majority is not a large enough majority to provide a mandate for separation creates the same problem. Any suggestion that the federal government intends to do this in the event of a clear 50%+1 majority would not only enrage enough Quebecers to ensure we would lose any referendum by an even clearer majority, but--more importantly--lower the stakes of voting “yes” by making many think of the referendum as a great way to give their representatives leverage in negotiations with Ottawa. But rest assured--or unassured--that when we all wake up the next morning after that vote takes place legalistic attempts to quash such a vote will offer absolutely no comfort.

    Frankly, the Supreme Court has said that the federal government is required to negotiate secession in the event of a clearly successful referendum on the subject--regardless of what the Clarity Act says--and if Canada were not seen as taking that seriously Quebec would inevitably gained the needed international support to make separation a reality. We are only kidding ourselves--and endangering our nation--if we think that the democratic will of the people can be overridden by some legalistic fiat.

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  10. "sharonapple88 said...

    Rat, of course if Quebec votes on a clear question of separation, and a clear majority supports leaving Canada, no one can force them to stay. If the vote is close, say 50% plus 1 vote, do you think the people who voted to stay in Canada are going to twiddle their thumbs?
    "

    Just what do you think they WILL do? It doesn't matter one little bit if Quebec asks a clear question or not, if Quebec's legislature declares independence and has a motivated base of support in the streets there is nothing Canada can do, clarity act or not. Once the fighting begins you should know that revolutions are won by small ideological groups, not the majorities. What you are advocating is a bloody civil war in response to a declaration of independence, and I for one, have no interest in fighting it.

    This debate is just angels on a pin, and only Liberal fools think Dion's scrap of paper constitutes a defence. Then again, Liberals also believe that a restraining order is better that a gun when it comes to self-defence so I really shouldn't be surprised...

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  12. What you are advocating is a bloody civil war in response to a declaration of independence, and I for one, have no interest in fighting it.

    No, I'm not. Who would be? I think everyone can agree -- no one can make Quebec stay if a clear majority wants to go, regardless of the Supreme court decision that no province can succeed unilaterally.

    But what do you think people who support staying in Canada will do in Quebec after a close referendum? Will they go? Will they stay and live with the decision? Will they argue a right to stay within Canada?

    What will happen to groups who vote overwhemingly to stay? The Cree and the inuit staged their own referendum in 1995.

    Cree question: Do you consent, as a people, that the Government of Quebec separate the James Bay Crees and Cree traditional territory from Canada in the event of a Yes vote in the Quebec referendum?

    Result: 96.3% voted to stay in Canada.

    Inuit: Do you agree that Quebec should become sovereign?

    Result: 96% voted no.

    Both cases -- clear majorities, clear question.

    During the Quebec referendum, Native groups voted no by 96%.

    The position of the Quebec government at the time was... well, here it is from the article:

    "The Parti Québécois position, as expressed in its sovereignty bill, is that Quebec would retain its current boundaries in the event of secession. In September 1995, Quebec MNA David Cliche, then spokesperson on native affairs, argued before the Cree Commission on sovereignty that the province’s borders could not be altered. He told the Commission that Quebec does not require Cree consent to separate from Canada, and that Cree consent would be necessary only if changes were made to the James Bay Agreement. Otherwise, a separate Quebec would simply assume Canada’s responsibilities in the agreement.
    During the referendum debate, Lucien Bouchard and Jacques Parizeau rejected claims that aboriginal peoples have the same right to self-determination as Quebeckers. They asserted that under international law Quebec has the right to maintain its current borders after secession. Once Quebec was recognized as an independent state, aboriginal peoples would simply be transferred to its jurisdiction.

    "Since the referendum, the Quebec government has maintained its position that, in the event of secession, the province’s territory could not be partitioned."

    No simple solution to this problem.

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  13. The key point it this: Is Jack Layton asking Canadians to appoint him prime minister even though he will not obey the Clarity Act if a referendum question is posed in Quebec? And even though the Supreme Court of Canada decision is contrary to a majority of 50% plus 1 vote being a "clear majority" and so meeting Canadian constitutional laws and conventions?

    In other words, is Layton asking Canadians to vote for him even though he will oppose the law of the land?

    What does this say about Layton's resolution to bargain for the best deal for all (Canadians in the rest of Canada, minorities in Quebec, majority in Quebec) in the ensuing negotiations?

    This would be the first time a politician has asked Canadians to vote for him even though he has publicly said he will disregard the law of the land - that is, be an outlaw with respect to those laws.

    In essence, Layton's position boils down to this: Elect me, I will obey the laws of the land except for this one and that one.

    It would help if he would say this clearly, so that voters would understand his position and not be too surprised if he later on starts cherry picking the laws he wants to obey as our prime minister.

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  14. It doesn't matter one little bit if Quebec asks a clear question or not

    A poll in 1999, showed that 96% of Quebecers agreed that soverignty must be based on a clear question. The public wants a clear question. Here's what they usually get (questions from the last two referendums):

    1980: "The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad — in other words, sovereignty — and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?"

    1995: Do you agree that Québec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Québec and of the agreement signed on June 12, 1995?"

    In 1995, 61% did not find the question clear. This may have been the point since direct questions show a support for remaining in Canada (59%). According to the article, 71% of sovereignists wanted to remain in Canada, and in this group another poll showed that 17% of soverignists thought that voting Oui didn't give Quebec a mandate to separate.

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  15. no one can make Quebec stay if a clear majority wants to go,

    You really do not understand how things like this work. You are assuming it will all be fair campaigning and peaceful negotiation. If not, you are assuming those who vote no will be willing to fight to stay in Canada. Those are horrid assumptions. First, Parizeau approaching French-Canadian Army officers clearly demonstrates that there was no real intention to negotiate if 50%+1 was achieved. Look at the electoral anomalies like all the "spoiled" ballots and you should see they don't even intend the pre-vote to be fair. When the vote hits a bare majority, whether it is on a clear question or not, the government of Quebec will declare unilateral independence and give a big middle finger to the Canadian Supreme Court. Then we'll see if Quebeckers who vote "no" are willing to take the next step and actually fight to stay in Canada. I am certain they will not. It's a big step from "I'd like to stay" to "I'm willing to kill to stay". On the other side we know sovereignists have factions quite willing to kill for independence. It would not even be close in the street fighting, Quebec sovereignists would mop the floor with the few Anglos willing to fight (Fight with what? The FLQ likely has many gun ready to go, but there is no Anglo Defence Force and our gun laws have disarmed most Canadians.)

    As for the Cree, Canadian troops may well be able to partition Northern Quebec and deny them that territory. BUT, but there are a lot of Quebecois officers, senior officers (Since French is more important than competence these days). Do you think it would be easy to send "Canadian" troops to fight Quebecois troops over Northern Quebec? I'd put more faith in the Cree themselves fighting to stay in Canada.

    So both you and CC base all your arguments on some airy-fairy political process and certified counts of votes followed by a long period of negotiation. You are fools if you think that is what Quebec sovereignists have in mind. The clarity act is just pretty toilet paper the Parti Quebecois will be only too willing to demonstrate the proper use thereof.

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  16. "...regardless of the Supreme court decision that no province can succeed unilaterally."

    But the Supreme Court didn't say that. The Supreme Court said that the Quebec National Assembly doesn't have the right/power to unilaterally secede--and that no one province can unilaterally dictate the TERMS of separation--but that provinces do have a right to secede if the government is given a mandate to do so by a referendum with a clear majority on a clear question.

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  17. "...the Supreme Court of Canada decision is contrary to a majority of 50% plus 1 vote being a 'clear majority'..."

    Except that neither the Clarity Act, nor the 1998 Supreme Court actually says anything remotely like that; neither says that the government and/or the House of Commons cannot consider 50%+1 to be a clear majority.

    So, with that, your entire argument falls apart completely.

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  18. sharonapple88:

    The poll numbers you cite only demonstrate the problems with the Clarity Act.

    If--in the middle of a referendum--the House of Commons declared itself on whether a particular question provided a mandate for secession, we would face one of two problems.

    Either Ottawa would be reinforcing the sovereignist idea that voting "yes" won't necessarily or automatically lead to secession--only negotiations--or Ottawa would be endorsing a referendum question that isn't really clear as providing a mandate for secession.

    Even the 1980 referendum question requires a second vote before secession, for heaven's sake. This has always been the PQ's plan: pass a first referendum on any question they can and use it as a stepping stone to sovereignty. Claiming the vote has no stakes attached only increases the likelihood of passage, while endorsing the question only makes the second step easier.

    The best policy is simply to say that while this question is dishonest--and doesn't actually deal with the question of independence--we all know that that's where this is headed and a "yes" vote is a vote to leave Canada. Make the stakes clear--and as high as possible--but without legally endorsing the question.

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  19. Anon 3.04 - I would expect my prime minister to fight to keep Canada together, and would also expect him or her to consider launching a federal referendum on a clear secession question, timed just before the provincial one, and covering all provinces, including Quebec.

    Then everybody can stack the Quebec question and answers against the clear federal question and answers, and negotiations can start.

    The last thing I would want is a PM of the kind Layton seems to be saying he would be: stand aside and do nothing to fight for Canada. The last time that happened we almost lost Canada.

    No, I want fire in the belly of my PM, one who will fight to hold the country together, not just capitulate in advance.

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  20. "I would expect my prime minister to fight to keep Canada together..."

    First of all, that doesn't address the point of your post--which doesn't hold up; nothing in Layton's position conflicts with Canadian law.

    But, obviously Layton would fight tp keep Quebec within in Canada. Your--frankly, silly--rhetoric aside, the question is what strategy has the best chance of suceeding in that goal.

    Screaming "Y'argh, I want to keep Canada together" is a bad plan.

    Holding a federal referendum in the middle of a provincial refrendum is an epically bad idea.

    The one and only way to keep Quebec in Canada is to make that option as popular as possible amongst Quebecers. That's it. Everything you're talking about would do the opposite.

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  21. Anon, Layton's view conflicts with the SCC requirement for a "clear" majority: 50% plus 1 is not a clear majority. And a "clear" question about secession - Layton's NDP Sherbrooke Declaration washes its hands of the clarity of the question and leaves it up to the Quebec government to frame it: despite previous questions that were anything but clear.

    That's two examples of the NDP position conflicting with the law of the land. Never mind the Clarity Act requirement for a clear question, and process for the House to decide if it is a clear question and clear majority.

    Denying that the NDP position conflicts with the SCC decision and the Clarity Act is nonsense.

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  22. You really do not understand how things like this work. You are assuming it will all be fair campaigning and peaceful negotiation.

    No, I don't assume that everything will be fair. The unclear questions in the past, the need to cloud the issue (to the point where 17% thought that voting Oui didn't give the Quebec government the right to succeed) makes it clear that the other side isn't interested in a fair fight.

    So both you and CC base all your arguments on some airy-fairy political process and certified counts of votes followed by a long period of negotiation.

    It would be in an independent Quebec's interests to negotiate with the Federal government. South Ossetia, Abkhazia, and Transnistria have unilaterally separated against the wishes of their federal governments. In all three cases most countries do not recognize them as independent nations. If Quebec wants international recognition --treaties, passports, UN seat, Olympic teams, etc. -- they need international recognition as an independent country.

    On the other side we know sovereignists have factions quite willing to kill for independence.

    FLQ members were willing to kill. There was no bloodbath after 1980 and 1995 referendums failed. No call to arms by the PQ.

    "...regardless of the Supreme court decision that no province can succeed unilaterally."

    But the Supreme Court didn't say that. The Supreme Court said that the Quebec National Assembly doesn't have the right/power to unilaterally secede--and that no one province can unilaterally dictate the TERMS of separation--but that provinces do have a right to secede if the government is given a mandate to do so by a referendum with a clear majority on a clear question.


    Unilateral secession is more like Kosovo's parliament just declaring Kosovo independent one day from Serbia. No negotiations, they just said they were an independent country. (Serbia still doesn't recognize their independence. A few other countries like Russia still don't either.)

    Going deeper into the text of the Supreme Court of Canada decision, "The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole."

    The Federal government would be obliged to negotiate with the Quebec government if "[a] clear majority vote in Quebec on a clear question in favour of secession.... The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue."

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  23. The best policy is simply to say that while this question is dishonest--and doesn't actually deal with the question of independence--we all know that that's where this is headed and a "yes" vote is a vote to leave Canada. Make the stakes clear--and as high as possible--but without legally endorsing the question.

    Something to consider.....

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  24. "Anon, Layton's view conflicts with the SCC requirement for a 'clear' majority: 50% plus 1 is not a clear majority. And a 'clear' question about secession - Layton's NDP Sherbrooke Declaration washes its hands of the clarity of the question and leaves it up to the Quebec government to frame it: despite previous questions that were anything but clear. That's two examples of the NDP position conflicting with the law of the land."

    But the Supreme Court DIDN'T say that a clear 50%+1 majority is not a clear majority, nor does the Clarity Act. The phrase "clear majority"--as opposed to just "majority"--leaves open the possibility of needing a super majority, but it in no way requires. Anyone who claims that by using the phrase "clear majority" the Supreme Court was requiring a super majority just doesn't understand the law.

    And, as for a clear question, the Sherbrooke Declaration merely reaffirms the UNDISPUTED RIGHT of provinces to hold referenda on any subject they choose. It does not speculate on whether any hypothetical referendum questions would provide a mandate for secession and--as the declaration also alludes to--it is irresponsible for political leaders to speculate on such questions. That being said, Layton has said countless times that the NDP the clear question standard set out by the Supreme Court.

    These are the facts. They are not in conflict with any law. You can throw around words like nonsense all you like but that only serves to show that you can't support your argument.

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  25. Dion asked: What did the SCC mean by an "unclear" majority, if 50% plus 1 is a "clear" majority?
    Courts use words carefully - the SCC could have said a "simple" majority, or "a majority" and left at that. The Layton's NDP's 50%+1 would be consistent with the SCC.
    But the SCC said a "clear" majority.
    Layton also has said that the decision as to whether a "clear" question has been drafted is in the hands of the Quebec government and he is happy with it. I have not read anywhere where he says the definition of a "clear" question will be per the SCC - can you refer me to where Layton says that? He has said that AFTER the referendum the SCC decision has guidelines for the PROCESS OF NEGOTIATIONS that have to follow.
    Of course, by then, and unclear majority might have voted for an unclear question ...

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  26. "Dion asked: What did the SCC mean by an 'unclear' majority, if 50% plus 1 is a 'clear' majority?"

    First of all, Dion did not ask "What did the SCC mean by an 'unclear' majority" because the Supreme Court never said anything about an "unclear majority". Dion asked, if 50%+1 is a clear majority then what would be an unclear majority? And--since Dion knows the court never said anything aboout an 'unclear majority'--that's just a clever rhetoric phrase that's legally meaningless.

    This issue could not be clearer: the phrase "clear majority" does not require a majority greater than 50%+1 it merely leaves open the possibility that a mojarity might have to be greater than 50%+1. That's fact. That's just how the English works. There no getting around it.

    As for the clear question issue, Jack Layton has said that the NDP supports the "clear question, clear majority" standard laid out by the Supreme Court too many times to frickin' count. That's what started this whole 50%+1 conversation a couple of weeks ago--Layton used that phrase and the PQ tried to use the same incorrect logic you're using to claim that meant he was backing off the 50%+1 standard. The NDP's Sherbrooke Declaration does not say that the Government of Quebec gets to decide "whether a 'clear' question has been drafted", it reaffirms the right of provinces to hold a referenda on whatever subject or subjects they choose. Whether such a question provides a mandate for secession is a different question.

    The NDP's Sherbrooke Declaration explicitly states that it is not useful to speculate on such details and in this case that's certainly true. It is simply bad strategy to explicitly discuss the mandate provided by a referendum question before a referendum is held--for the reasons I've given above--because the best strategy is say "this question is dishonest--and doesn't actually deal with the question of independence--but we all know that's where the PQ is headed if the sovereignist side wins and a "yes" vote is a vote to leave Canada."

    Make the stakes clear--and as high as possible--but without legally endorsing the question.

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