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Bill to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference -Third Reading of Bill C-20

Honourable senators, Canada belongs to Canadians -

Canada belongs to Canadians. The proposals I have the privilege of presenting to you this afternoon represent what I feel is most essential as a Canadian who has his roots in Quebec, and particularly as a Liberal. What I am submitting to you today is a kind of political manifesto that reflects my deepest convictions.

Let me first state unequivocally that I am of the conviction that, when one envisages the termination and dismemberment of Canada, the rule of law and constitutional principles are of paramount importance to prevent social unrest and to protect the rights and freedoms of all Canadians.

Second, I strongly support the general objectives of Bill C-20 that aim to answerthe question that the Supreme Court has left to the initiative of the political actors, including defining what constitutes a "clear question and a clear majority" in any future referendum on secession.

Third, after an extensive debate on second reading and having heard the evidence of 20 witnesses at committee stage, the essential elements of Bill C-20 are quite commanding, as are the omissions and unanswered questions that have been brought to light.

Contrary to what happened in the other place, where hundreds of amendments were proposed for no other purpose than to derail the process, we have in front of us a small number of proposals, each of which addresses the very essence of what Canada is: first, the protection of minority rights at the heart of the compromise that made Confederation possible 133 years ago; second, the recognition of the status of aboriginal peoples in any decision affecting their ancestral and treaty rights; third, the essential principle that as a sovereign country, we are one and indivisible; fourth, the direct involvement of all Canadians in any decision that would change or terminate their constitutional rights as Canadian citizens; and, finally, the status of the Senate as one of the national institutions where the federal principle is embodied.

Honourable senators, the total of these five elements is greater than the mere sum of its parts. They speak as a whole to what we are as a country. They are interwoven and permeate the very fabric of our complex nationhood.

None of the proposed amendments would affect the legality of the bill, jeopardize its effectiveness or undermine its essential goals. On the contrary, they would strengthen the legal authority of the proposed bill by providing greater certainty as to its constitutional foundation.

It is on that broad horizon that I would propose to reflect with honourable senators on Bill C-20. In pith and substance, the three clauses of Bill C-20 are simple. They address essentially the determination of the conditions following which a future Canadian government would have to negotiate the secession of a province or a territory. As such, they deal essentially with the process leading to the dismemberment of the country. However, the bill is, in its substance, silent on the fundamental obligations of the Government of Canada to "maintain, at all times, the rights and freedoms of the citizens, the protection of the values of the body politic, the preservation of the sovereignty, security and territorial integrity" of Canada.

During the debate, the government spokesman and witnesses have sustained that the government possesses an unfettered prerogative to initiate any discussions or negotiations leading to the dissolution of the country without any need to get prior authorization, with the only limit being a vote of confidence in the House of Commons. According to this view, there is no constitutional principle that would prevent the government from initiating its own extinction. In other words, the Canadian executive pretends to be supreme over the Constitution. It can negotiate with any province or territory the repeal of the present constitutional order at will.

In my opinion, this view runs contrary to the basic democratic principle that people are the source of all sovereignty and legitimacy of government. This view is also contrary to the explicit statements made by former prime minister Trudeau in 1980 and current Prime Minister Chrétien in 1995 to the effect that the Prime Minister of Canada has no mandate to dismantle Canada.

With respect, I contend that the people are supreme over the Constitution. It is not accurate to maintain that it is the executive, rather, that is supreme over the Constitution.

Honourable senators, I will outline three principles in support of my contention that the Government of Canada, on its own, has no prerogative to seek the dismemberment of the nation.

The first principle was entrenched in our Constitution at the very outset of its creation in 1867, when the three original colonies "expressed their desire to be federally united into one Dominion under the Crown...with a Constitution similar in Principle to that of the United Kingdom, making Canada a new nation."

To quote Sir Wilfrid Laurier in a speech from 1897:

Colony and nation, these are words that in days gone by were not considered synonymous, that were never used to describe both the sovereign power and the dependence of a people.

Canada is a nation. Canada is free and freedom is its nationality.

In 1890:

Here, we form, or we wish to form, one nation composed of the most heterogeneous elements - Protestants and Catholics, English, French, Germans, Irish, Scots - each with their own traditions and prejudices, let it not be forgotten.

Honourable senators, what was the principle on which Canada was founded?

The Canadian federation was founded on the free consent of Canadians and of their elected and appointed representatives.

Although the vote was close, 26 to 22, francophone representatives in the Legislative Assembly of the Province of Canada voted in favour of the proposal. In the partly elected and partly appointed Legislative Council, the vote was 45 to 15 in favour of union. At the next following election, a plebiscite with confederation as its sole theme, the Conservative Party led by George-Étienne Cartier won 45 seats, while the Liberals led by Antoine Aimé Dorion, who were opposed to the proposal, obtained only 20. In the next election, in 1872, the Conservative Party was again re-elected, with a majority of 38, a testimony to voter approval.

The federal union received the approval of the popular vote in Quebec.

It has already been recalled how authorities at the time refused to entertain the request to withdraw from the union submitted the following year, in 1868, by Nova Scotia, thus confirming the continuity of the new union.

When a resolution was introduced 50 years later, in 1917, in the Legislative Assembly of Quebec by MLA Joseph N. Francoeur, calling for the withdrawal of Quebec from the Canadian federation, Premier Lomer Gouin intervened to have the motion withdrawn. He said:

I wish to make my position on this subject very clear, Your Honour. I believe in the Canadian Confederation. The federal government appears to me to be the only possible one in Canada because of our differences of race and creed, and also because of the variety and multiplicity of local needs in our immense territory....Confederation was not the result of a whim, nor an act lightly performed, but the result of an absolute necessity. This act was freely accepted by Quebec. Had it not been for Cartier, had it not been for the popular wish of Lower Canada, we would not have had Confederation.

The democratic legitimacy of the federal union was thus reconfirmed 50 years later.

Yet the political debate on the nature of the federal union laid the seed for the interpretation of Canada as the result of a compact between two "nations," one francophone and the other anglophone, and that as a result Quebec may decide on its own to withdraw from that compact.

This vision of Confederation as a compact is historically and legally untenable.

This "compact theory", which was to give rise later to the two-nations theory, was debated right up to the Supreme Court, where it served as an argument against the constitutional powers of the federal government.

Each time this claim was made, it was clearly rejected by the Supreme Court, the last time quite recently.

This occurred in 1981 with the reference on patriation, and in particular with the courts of Quebec itself, including its appeal court.

Chief Justice Laskin wrote as follows in the 1981 reference on patriation of the Constitution:

Theories, whether of a full compact theory...or of a modified compact theory, as urged by some of the provinces, operate in the political realm, in political science studies. They do not engage the law...

Justice J. A. Turgeon of the Quebec Court of Appeal wrote the following regarding the same issue:

But none of the decisions turned this theory into a rule of law. A distinction must be made between a "compact" and a "political arrangement". History does not support the "compact" theory... The "compact" theory is a purely political argument that has no legal basis.

In 1982, the Quebec Court of Appeal unanimously rejected the "principle of duality" as an argument in support of Quebec's veto:

However, these distinctions do not confer on Quebec's legislature more extensive powers than those given to the others.

That political interpretation of the constitutional rule to the effect that Quebec joined the federal union on the basis of a compact or a contract it can opt out of unilaterally has always been rejected by the highest courts in the land as being contrary to the legal principles that form the very foundations of the Canadian constitutional order.

If a province cannot opt out at will, it follows that the federal executive branch is not above the law and cannot evade the constitutional order by initiating, on its own, discussions that could lead to the secession of a Canadian province and to the dismantling of the country.

Our second argument against the government's claim that the executive may, on its own initiative, enter into discussions and negotiations leading to the extinction of the unity, integrity and sovereignty of Canada can be found in section 1 of the Canadian Charter of Rights and Freedoms, and in the very purpose of patriating to Canada the amending powers of the Constitution, 1982.

The primary purpose of the Charter is to confer rights, free from and beyond the supremacy of legislative assemblies and federal chambers, thus rendering impossible any breach of these fundamental freedoms.

Second, the Charter confers on Canadians control over the constitutional order of their country.

According to Prime Minister Trudeau in a statement made in this chamber in 1988, the Charter:

...was meant 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.

Prime Minister Chrétien put it succinctly ten years later in 1992:

We've given the Constitution to the people of Canada and that's going to be the test of any change in the future.

In other words, it is my view that the executive of our country cannot put itself above the Charter of Rights and Freedoms by entering into negotiations to extinguish those very rights and freedoms belonging to all Canadians. I believe that the statements of 1988 and 1992 that sovereignty belongs to the Canadian people were right. No government can trade and bargain outside, or against the consent of the Canadian citizens, their rights and freedoms.

The third principle is in the very ruling of the Supreme Court on the secession of Quebec in 1998. What were the questions asked of the court?

The first question was: Under the Constitution of Canada, can the Government of Quebec effect the secession of Quebec from Canada unilaterally? The court answered: No. The court stated:

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 second question was: Is there a right to self-determination under international law that would give the right to effect the secession of Quebec from Canada unilaterally? Again, the court answered: No. It stated:

Quebec does not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.

In my humble opinion, one must draw the following conclusions from those two clear legal answers. First, no law, Canadian or international, can serve as the basis for an alleged right of Quebec to secede from Canada or to sustain that Quebec does have a right to "order" the dismemberment of the Canadian territory.

Honourable senators, what is the legal meaning of the word "right"? According to Black's Law Dictionary, a right is:

A legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act.

The Hon. the Speaker: I regret to interrupt the honourable senator but his 15-minute speaking time has expired.

Senator Hays: Honourable senators, I would propose that we give leave to allow Senator Joyal to continue for an additional 10 minutes.

The Hon. the Speaker: Is leave granted?

Hon. Senators: Agreed.

Senator Joyal: Thank you, honourable senators.

In clear legal terms, the province of Quebec does not have the right of self-determination that would entitle her to secede unilaterally from Canada, neither according to Canadian law nor under international law. That right does not exist in our Constitution. Clearly and simply, this is the law of the land.

The second conclusion is that no one has a right under the Canadian Constitution, as it stands now, to require that Canada be divided. The Supreme Court could not have stated it more clearly when it said:

Quebec could not purport to invoke the right of self determination such as to dictate the terms of a proposed secession to the other parties.

That is the basis of former justice Estey's statement when he said of Canada:

Clearly, it is not divisible by constitutional means until you amend the Constitution...I think offhand I agree with the 1998 judgment or advisory opinion that it is indivisible, because that is in the present tense.

Honourable senators, that is exactly where there is an essential legal distinction to be made. The proposition that Canada is divisible formed no part whatsoever of the decision of the court. Under the Constitution of Canada, as interpreted by the court, there is no principle of divisibility of Canada. That is the law.

Most commentators simply conflate or fail to distinguish between the absence of a legal constitutional basis for an alleged right to secession itself and the legal mechanism for constitutional change provided in the amending formula. In other words, the present Constitution of Canada embodies the principle that Canada is indivisible. That is the law as it stands now.

Let us not confuse a right and a political obligation. The court, in its wisdom, has seen the trap of jumping too rapidly to one conclusion, that Canada is divisible. The court said of divisiion or secession that:

There would be no absolute legal entitlement to it.

A distinction was drawn between the law of the Constitution, which generally speaking, will be enforced by the courts, and other constitutional rules, such as conventions of the Constitution, which carry only political sanctions.

In other words, the court insists that the distinction between the essential legal rules of the Constitution and the political obligations that can exist to a particular set of facts that challenges the political order must be maintained.

Those political obligations are not subject to court review. They are essentially subjected to the judgment of the tribunal of public opinion. There would undoubtedly be repercussions if the federal and provincial governments would refuse the negotiate the dismemberment of the country, but as the court stated:

...the appropriate recourse in some circumstances lies through the working of the political process rather than the courts.

There is a real danger to confuse the status of the rule of law, as provided in the Constitution, with political expediency.

In our debate on third reading, it was stated:

There is a constitutional right of a province and a constitutional duty in Canada to negotiate secession.

These words were recorded by others who sustained that "our government must negotiate" separation.

The court never gave a legal basis to that political obligation and I submit that to not state the rule of law of the land in such an exceptional circumstance would run contrary to the fundamental obligations of the Government of Canada to maintain the constitutional principle that Canada is indivisible as long as the people of Canada, who are the holders of the sovereignty of the country, have not relieved the government of its essential obligation.

We, as senators, must carefully draw the line between what is legal and what is political, always remembering that the rule of law exists to protect the stability, the rights and freedoms of the citizens and the integrity of the country.

Since the dissolution of Canada or the secession of a province or territory are inconsistent with our current constitutional arrangements, because the Constitution as it stands does not embody a right to secession, Canada is indivisible and will remain so until the Constitution is amended to specifically provide for secession or dismemberment.

The government position is that the court has now held that Canada is divisible. This position does leave open the possibility that the government believes that unanimity is required, but it also opens the door for this or any future government to argue that the 7-50 formula, or even some lesser level of consensus, would be sufficient to destroy our country.

To reconcile the point of view that I support, that no rule of law of the Canadian Constitution recognizes the right to require that Canada be divided, and the government position, I would propose an amendment to Bill C-20.

The amendment does not actually say that Canada is indivisible in the way caricatured by some speakers, encompassing the resort to violence at the extreme. It merely requires the government to act at all times in accordance with the principle of indivisibility subject to Bill C-20. In other words, the Government of Canada will act in accordance with the principle that Canada is indivisible until Canadians decide differently. Such a decision by the Canadian people would have to be expressed in a national referendum.

What is the effect of this amendment? The government's position is that it presently has an unfettered power to negotiate secession. If Bill C-20 is passed as is, the prohibitions in it will only apply once a question made public by the provincial government is deemed to be unclear, or if the answer is found to be unclear. Hence, under Bill C-20 the government will retain an unfettered power to negotiate separation with a province, one, prior to the province ever putting the question and, two, if the response to the provincial referendum is a clear yes.

Honourable senators, the amendment I propose would remove the prerogative of the federal government to negotiate secession with a province, or dismemberment of the country, except as permitted under the act. Canadians could rest assured that no Government of Canada was paving the way to secession with preliminary negotiations prior to a question ever being publicly asked.

Under this amendment, no government of Canada could negotiate secession until three things occur. First, the citizens of a province must express a clear will to secede. Second, the citizens of Canada, as a whole, must be consulted about the proposed secession or dismemberment by a national referendum. Third, the Senate and House of Commons must debate the results of the national referendum and give the government a mandate to negotiate based upon their deliberation.

Why is it necessary to hold a national referendum before the Government of Canada could negotiate a secession or dismemberment of Canada? Some have argued that it would add an undue additional obstacle to the resolution of the political deadlock in which Canada would find itself. To me, such an argument does not stand up to the fundamental democratic principle, as stated by the Supreme Court, that the "Constitution is the expression of the Sovereignty of the people of lies within the power of the people of Canada to effect whatever constitutional arrangements are desired within Canadian territory...." The argument that it would be difficult is insufficient reason for abandoning the democratic principle that we have cherished since before we were a country.

Has the Supreme Court ruled out a referendum? The answer is no. The Supreme Court stated that the governments involved in such negotiations "may, of course, take their cue from a referendum."

A national referendum is certainly consistent with the fundamental democratic principle that Canada belongs to Canadians - not to the House of Commons, not to the Senate, nor to the government of the day. Canada belongs to each and every citizen of this country. As Thomas Paine stated 250 years ago:

The authority of the people is the only authority on which Government has a right to exist in any country.

This is the essence of our democracy. No Canadian government has the legal, moral or political authority to dismantle the country, nor ignore or disregard the sovereignty of the people of Canada.

The ultimate power on the process that a country will cease to exist resides in the citizenry and governments cannot do certain things without their consent.

That is the principle that John Locke well understood almost three centuries ago, and it is still a compelling force in a democracy such as ours.

If the Canadian government was to embark on the process of fundamentally altering the present constitutional order, an initiative through which the rights and freedoms of each Canadian would be terminated, be they minorities or aboriginal people, the principle of democracy upon which our entire system of government is built and animated would require it to go back to the very source of its legal existence and legitimacy - the Canadian people.

Those fundamental principles of democracy are part of the political statement for which the Liberal Party of Canada stands. To ascertain them, let me quote the public letter that the then leader of the opposition, Mr. Jean Chrétien, said on August 17, 1992, to then prime minister Brian Mulroney on the eve of the constitutional conference that led to the Charlottetown Agreement.

Canadians want an agreement that focuses on what unites us not on what divides us. Canadians also want to decide for themselves to approve an agreement. And because the Constitution belongs to the people, the Liberal Party wants any agreements to be ratified by the people in a national referendum.

If, according to all democratic norms, the people of Canada would have had to ratify a substantial change that would affect the Constitution as it now stands and that belongs to them, how could they not have to authorize their government to initiate the process that would lead to the extinction and dissolution of Canada as one country?

We have now reached, honourable senators, a crucial moment vis-à-vis the options facing us in our evolution as a united country. The debates that have taken place in this house of Parliament have clearly brought to light two visions on the nature of our country. The first one, defended by some, can be summarized in the four following points.

First, Canada is divisible in legal terms according to the reading of the Supreme Court ruling.

Second, the political culture generally accepted, according to them, is to allow the secession of a province that expresses clearly its will to leave. We are a sort of consensual federation.

Third, the government of this country has an embodied prerogative to initiate discussion of secession or division of the land on its own without any prior consultation or authorization by the Canadian people and would be bound to negotiate secession if so desired by a clear majority on a clear question of secession through a provincial referendum.

The Hon. the Speaker: I regret to inform the Honourable Senator Joyal that his speaking time has expired.

Senator Joyal: Honourable senators, may I have leave to continue?

Senator Hays: May I ask Senator Joyal how much longer he thinks he will be?

Senator Joyal: Five minutes.

Senator Hays: Do we agree to give him a further five minutes, honourable senators?

Hon. Senators: Agreed.

Senator Joyal: Thank you, honourable senators.

Fourth, the result of those assumptions gives effect to the theory of the two nations; the concept that Quebecers form "a nation" or "a people" and that as such they have an unfettered capacity or "right" to leave Canada whenever they so choose.

The other vision can be stated on four counter grounds. First, Canada is one and indivisible. Neither the Constitution acts nor the Supreme Court ruling of August 20, 1998, recognize the right of anyone to divide or legally request the dismantling of the country.

Second, the political stand always defended by successive prime ministers affirms clearly that Canada is one country from sea to sea, with two official languages, equal in rights and status, united under a shared set of values and institutions.

Third, the federal government has the essential role to develop and enhance the rights and freedoms equally benefiting all citizens of the country through national institutions where the federal principle is embodied and valued.

Fourth, Canada belongs to each and every Canadian. Canadians constitute a sovereign people. They are the sole and unique masters of the destiny of their country and the only ones to hold the key to its future as one united country.

If one accepts the first vision, Bill C-20 should remain unamended. If one proposes to bring Canada to a further step of nationhood, Bill C-20 must be amended to confirm our maturity as a united country.

Honourable senators, when the political debate or political culture tends to be divorced from the clear recognition of the constitutional principles embodied in the rule of law, it creates alleged legal positions like the "compact theory," like the theory of the two nations, like the theory of the veto of Quebec, or like the constitutional right to negotiate secession. These unfounded positions serve only to exacerbate tensions, to put unbearable stress on the stability of our country and to hinder the resolution of our profound differences.

Only the full recognition of the fundamental principles of our democratic constitutional order will guarantee that a solution that is commonly acceptable to everyone involved in determining the future of the country is achieved. The Government of Canada has the duty to uphold the rule of law, which guarantees to all Canadian citizens a stable, predictable and ordered society, and the duty to maintain the continuity of the Constitution of Canada, which guarantees the continued existence of the rights and freedoms of all Canadian citizens.

We shall come soon to cast our final vote on the most important piece of legislation since the creation of Canada 133 years ago; a piece of legislation that recognizes that our country, as it now stands, can be dismembered.

Honourable senators, let me remind you what Edmund Burke stated in Bristol in the late 18th century on the very obligation of each member of Parliament, as we are, as senators:

Your representative owes you not his industry only, but his judgment, and he betrays instead of serving you if he sacrifices it to your opinion.

This is essentially why we have been called to this place - to exercise our judgment, in our soul and conscience, over the future of our unique country in which lie those freedoms and the hopes of so many millions of human beings.