Bill C-20 and the sovereignty of the people
Aan article from Cité Libre
Serge Joyal, November 2000

"Canada is divisible because Canada is not a real country."

Lucien Bouchard, Premier of Quebec, 27/1/96

 

"It is sad indeed to realise that the best the country could come up with to keep itself together is a way to break it up, albeit with difficulty."

Wayne Wilson, Montreal Gazette, 7/7/00

Cité Libre is suspending publication. One proffered explanation for this is that there is little chance of a referendum being held any time soon and therefore no need to debate the unity question.

The debate on Bill C-20 finished on June 29 in the Senate – the only House of Parliament where a serious debate took place. Although the House of Commons was, for the first time in the 133 years since Confederation, legislating the dismemberment of our country, the Government saw fit to force Bill C-20 through the lower house in less than two weeks - a shorter period than is required to enact even the smallest change to the Transport Act!

In the Senate, Bill C-20 was fully debated for over three months. Many senators opposed the bill, although not because the Prime Minister had finally dared to assert that Canada cannot be disassembled through confusion and duplicity. Most Senators applauded this aspect of the bill but instead contested the apparent conclusion that the country is divisible so long as the "correct procedures" are followed.

Amendments were proposed to recognise the principle that Canada is one and indivisible, that Canadians should have the final say on any initiative to dismantle the country, that questions of secession should be dealt with by Parliament as a whole, and that the rights of aboriginal peoples and minorities to determine their fate ought to be recognised.

 

Although the outcome was in doubt and some of the amendments were only narrowly defeated, in the end intense political pressure succeeded in getting the Senate to adopt Bill C-20 without amendment. The Clarity Act is now the law of the land, at least until the courts should decide otherwise.

This does not mean that the national unity debate has been resolved once and for all. For too long we have timidly accepted sovereigntist interpretations of Canadian nationhood that deny our history, the rule of law, and the Constitution as our founders saw it.

Challenged to explain what we are, we seem to have accepted notions and theories that seek to appease those who would undermine the unity of our country. Joe Clark once described Canada as a community of communities, "a loose collection of independent states barely held together by the skeleton of rickety national institutions", a sentiment now echoed by Stockwell Day’s proclamations that Canada is the creation of the provinces. We are back where we were 30 years ago with the theory of the "pact" and the two nations. According to this interpretation, Canada is simply "a collection of petty states ruled by small-minded statesmen, each defining the nation on their own terms." Anything explanation it seems is preferable to confrontation.

The debate on Bill C-20 presents an opportunity to state categorically what Canada really is and the basic principles that are the foundation of its unity. It is essential that we challenge the pronouncements that, thanks to constant repetition over the past 30 years, have been elevated to the rank of ex cathedra principles.

By seizing this chance, we will be able to refute beyond the shadow of a doubt the allegation made by Premier Bouchard that "Canada is divisible because Canada is not a real country."

There are at least five questions that need to be debated.

1. What is really at stake? The secession of Quebec or the destruction of Canada?

Ever since it was first raised in the mid-‘60s, the terms of the national unity debate have always been defined solely by Quebec. We have accepted unquestioningly Quebec’s viewpoint, as though we did not have interests of our own to define and protect. This has been so since Premier Johnson’s pamphlet "Equality or Independence" and has

continued until recently, with Premier Bourassa’s "knife at the throat" approach to negotiations.

Quebec had discovered the ideal strategy. They effectively said to the federal government and the rest of the country "You give in or I’m out of here."

But how much longer can our country can survive institutionalised extortion and the perpetual expectation that it will cease to exist? Trapped by the electoral timetable, prisoners of the soft vote and the importance of Quebec to the formation of a majority government, we have continued to play this game. We have been condemned to define a policy based on the whims of vacillating voters, noisy nationalists and fatigued federalists because we have failed to define Canada on our own terms.

A whole scaffolding of arguments was constructed, based on ambiguous concepts that have since collapsed, one after another, under the scrutiny of the courts. The first trial balloon to be floated was the right to self-determination: Quebec was a colony, and like all "oppressed" peoples it had the right to liberate itself. We accepted a whole generation of arguments drawn from this interpretation, as false as it was superficial. We acted as though there were two nations, one of them real, the other an artificial construct. Once this "definitive concept" had been well established, an absolute veto over all constitutional change was claimed by Quebec. How many otherwise reasonable proposals for adjustment and progress were abandoned because the veto unnerved politicians vulnerable to the vicissitudes of public opinion?

The day Mr Trudeau decided to patriate the Constitution and entrench within it a charter of rights, in short to make Canada a sovereign country, Quebec applied its supposed-veto and ran to the courts for justification. The Court wasn’t having any of it: the alleged "principle of duality" had no legal force, it was no more than political rhetoric. Despite this setback, Quebec continued to set the terms of the national unity debate.

What has been the impact of this dissembling and appeasement? What benefits have we reaped from our cowardice? The near disaster of the 1995 Referendum. Coming within a hair’s breadth of oblivion should have finally dissuaded us from cobbling together desperate last-minute arrangements. This should have made us stand up boldly for our country, to draw a line in the sand and to say "No More!" Instead, we have continued to adopt policies of accommodation and surrender. Their latest incarnation, Bill C-20 is nothing but a measure that opens the door to Quebec’ s secession, under certain circumstances. Nothing else.

1. Is the Government supposed to preserve the unity of the country or to negotiate its break-up?

This preference for seeking accommodation instead of strictly defining the ineluctable principles on which our country is based has led to all sorts of ambiguities, which have been exploited to the detriment of Canada and its continuing existence.

When President de Gaulle first questioned Canadian sovereignty, on July 24, 1967, we should have asserted, then and there, that Canada was one and indivisible in the same manner as France and entitled to territorial integrity under international law. By failing to affirm clearly its obligation to preserve the country’s territorial integrity (the principle upon which the entire international order is based) the Canadian government left us vulnerable to all the initiatives and schemes designed to threaten Canada’s survival. So it was that on March 23, 2000, the Leader of the government in the Senate could say, incredibly, "It is the prerogative of the executive to negotiate the secession of a province." In the eyes of the Canadian government, there is no constitutional obligation to maintain Canada as one and indivisible. The French and the Americans enjoy this fundamental protection, but we Canadians apparently do not.

Never fear, we are told. This apparent anomaly only means that we are more innovative and advanced. We are "…the first important democratic country to recognise its divisibility in a formal legislation"⁷. In other words, we Canadians are so advanced that we have come up with the recipe for our own extinction. Truly, progress is a wonderful thing!

Where does the rule of law begin and end in Canada?

2. Do we have Rights or merely the right to be consulted?

If the executive enjoys the prerogative to undertake by itself the dismantling of the country, it follows that our rights and freedoms exist only so long as the executive chooses to respect them. The drafters of Bill C-20 refused to concede that anyone --citizens, linguistic minorities, aboriginal peoples, the provinces, even Parliament --has the authority to limit, even to the smallest degree, the Government’s prerogative to dismantle the country.

Bill C-20 consists of nothing less than the hijacking of the fundamental objectives sought by the entrenchment of The Charter of Rights and Freedoms in the Constitution. Those objectives, as set out by their sponsor, were:

...to create a body of values and beliefs that not only united all Canadians in feeling that they were one nation but also, in a sense, set them above the governments of the provinces and the federal government itself. So, they have rights which no legislative body can abridge, therefore establishing the sovereignty of the Canadian people over all our institutions of government.⁸

When it comes to discussing and negotiating the dismemberment of our country however, the ultimate extinction of our rights and freedoms, Bill C-20 gives the Government carte blanche to act as it sees fit- I may consult you, but in the end I am the one who will decide. Citizens, official-language minorities, aboriginal peoples, the provinces --the "Prince" will "consult" you but the Government will decide for you.

Bill C-20 thus makes a liar of Thomas Paine who 200 years ago wrote in The Rights of Man, "The authority of the people is the only authority on which Government has a right to exist in any country." Such a fundamental principle of democracy is apparently no longer applicable to Canada. We must indeed be a very advanced country!

3. Does Parliament serve the Government or the People?

Parliament is quasi-supreme –that’s what university students learn in first-year political science or Constitutional Law 101. The system of parliamentary supremacy was designed to prevent the Executive from flouting the will of the people. As an added safeguard, our founders wisely made Parliament itself bicameral, preventing the tyrannical majority from forming a "People’s Dictatorship." The supremacy of Parliament has been the bedrock principle of our democracy for over a century.

Given the existence of this system you might assume that it would be our bicameral Parliament that would determine the fate of our country. Well, you would be wrong. The Senate, the Upper House of Parliament, has been sidelined, permitted only to express its opinion.

This is supposedly because the Senate is unelected. This line of reasoning is the club used to bludgeon us into silence. The only "legitimate" branch of Parliament is of course, according to this theory, the elected branch.

Surely, it is only a coincidence that the "legitimate" chamber is the one that is most rigorously controlled by the Government! One cannot help but notice that, given the reality of party discipline in the House of Commons, Bill C-20 has effectively left the determination of the clarity of the question and majority up to the Executive. Ultimately, the adoption of Bill C-20 means that the fate of our country will be decided by one individual, the Prime Minister.

4. Who is truly sovereign? The people Quebec or the people of Canada?

If there is one semantic fraud that has been artfully developed, and that Canadians have

out of indifference allowed to continue, it is definitely Quebec’s claim to "sovereignty". There is no such thing as Quebec sovereignty. It is a political slogan repeated for political ends. The only true sovereignty is Canada’s and it resides within the Canadian people.

Canada’s evolution from colony to sovereign nation has been a slow and steady process that culminated in 1982. During this time, Canada gained rights and acquired responsibilities in the eyes of the international community. This is not, and has never been, the case with Quebec.

Present you passport at the counter and answer for yourself the question: Citizenship?

This simple truth seems not to have occurred to the supporters of Bill C-20. They have accepted Quebec’s unfounded assertion of sovereignty and have devised a mechanism by which to implement it. Moreover, they have done so in a manner that would prevent the Canadian population from exercising their sovereign right to decide the future of their country. How unfortunate that clause 1 of Bill C-20 did not say,

Canada is a sovereign country and it enjoys in the eyes of the international community all the attributes of a sovereign country, one and indivisible.

If that had been the wording, the situation would have been clarified, and the true sovereignty, that of the Canadian people, would have regained its status.

CONCLUSION

Bill C-20 has now been passed into law. It could be amended; it could be contested in the courts. Despite its flaws, however, it does have the virtue of having opened the debate on the very nature of our country and the extent to which we will define the conditions for its perpetuation.

The approach taken in the 1960s, with its emphasis on accommodation and its indifference to Canada’s right to sovereignty and continued existence, had by 1995 led us to within a few votes of destruction.

We are in danger of continuing with this disastrous approach, making even more concessions without first examining and confirming the principles that guarantee our unity as a sovereign nation.

There is a vision that does not define us as a federation of mutual consent but rather as a nation, one and indivisible, sovereign, enjoying inalienable democratic rights and participating in true national institutions. We must have the courage to commit ourselves to defining this vision. No more backbends or backtracking can be allowed. We must instead reaffirm our commitment to Canada and state openly what we have feared to say for the past forty years. No more. No less.