Bill C-20 and the sovereignty of the people
Aan article from CitÚ Libre
Serge Joyal, November 2000
"Canada is divisible because Canada is not a real
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
Wayne Wilson, Montreal Gazette, 7/7/00
CitÚ 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
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 Days 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
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
There are at least five questions that need to be debated.
- 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
Quebecs viewpoint, as though we did not have interests of our own to define and
protect. This has been so since Premier Johnsons pamphlet "Equality or
Independence" and has
continued until recently, with Premier Bourassas "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 Im 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 wasnt 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
hairs 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.
- Is the Government supposed to preserve the unity of the country or to negotiate its
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 countrys 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 Canadas
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?
- 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 Governments
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!
- Does Parliament serve the Government or the People?
Parliament is quasi-supreme thats 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 "Peoples 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
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.
- 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
out of indifference allowed to continue, it is definitely Quebecs 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 Canadas and it
resides within the Canadian people.
Canadas 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 Quebecs 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.
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 Canadas 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.