Guest Column: Danielle Smith's Question Does Not Trigger The Clarity Act
Stéphane Dion
Stéphane Dion is the Diplomat in Residence at the Université de Montréal as well as a former envoy to the European Union.
The question that Alberta’s Premier, Danielle Smith, will ask Albertans on October 19 is the following:
“Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”
This is therefore a two-part question: either we stay in Canada, or we move towards a referendum on secession. In either case, the government of Alberta is committed to respecting the Canadian constitutional framework; it does not envisage unilateral secession. And in either case, nothing is required of the Government of Canada. The House of Commons will not have to ask itself whether it should authorize the Government of Canada to participate in negotiations aimed at extinguishing its constitutional responsibilities towards Albertans and depriving other Canadians of the right to be in their country in Alberta.
It is only if a second referendum were held, which would be on secession, that the House of Commons would have to rule on the clarity of the question, then, if applicable, on the clarity of the majority, and finally, in the event of a separation agreement between the governments, on the constitutional amendment that would legally confirm this agreement. Parliament would notably have to assess the distribution of assets and liabilities, any changes to the province’s borders, the rights, interests, and territorial claims of the Indigenous peoples of Canada, and the protection of minority rights.
The 1980 Quebec referendum also planned a process involving two referendums: the first on a mandate to negotiate and the second on the result of that negotiation. The difference with the Alberta process is that from the very first referendum in Quebec, a Yes vote would have led to a call on the Government of Canada to negotiate what the Quebec government called sovereignty-association.
Prime Minister Pierre Elliott Trudeau and his federal government of the day had made it clear that there would be no such negotiations and that a Yes would lead to a deadlock. This message would have resonated even more if the Clarity Act had existed at the time, since from the outset, the House of Commons would have declared that there would be no negotiation based on such a question.
A secession is not negotiated to find out if, by chance, it is wanted. It is only negotiated because the population has affirmed it is wanted. The Supreme Court mentions in the decision leading to the Clarity Act the phrases ‘clear expression’ and ‘no longer wish to remain in Canada’. The only way to know if a population no longer wish to remain in Canada is to ask them.
The question proposed by the Albertan separatists repeats word for word the wording contained in the Clarity Act: ‘Do you agree that the province of Alberta should cease to be part of Canada to become an independent State?’ If this question were to be asked in a possible referendum on secession, it can be expected that the House of Commons would accept it without difficulty.
What would pose a serious problem, however, is if this referendum on secession were, as proposed, to be held at the same time as other referendums on other issues. It is essential that the referendum campaign itself deals only with secession. Doing otherwise would be not only contrary to the Clarity Act but also to common sense!
Asking voters a number of questions – on taxation, immigration, etc. – and including one about choosing a country is simply absurd. No country in the world would seriously consider secession amid such confusion. So, if the Alberta government had added a referendum on secession to its series of referendums on October 19, the House of Commons would certainly have refused to involve the Government of Canada in such a process. In any case, that is what I would have recommended to our MPs.
An Alberta judge has decided that before holding a referendum, Indigenous populations must be consulted. It is not known whether this decision applies to any referendum on a province’s secession or is only valid for referendums held under the aegis of Alberta’s law on citizen-initiated consultations. The opinion of the Supreme Court and the Clarity Act only provide for such consultations after a referendum has resulted in a clear majority in response to a clear question on secession. We are therefore in a zone of uncertainty here. One more to add.
In Alberta, the provincial government recognizes that the Canadian constitutional framework must be respected. For secession to occur, it will be necessary, based on clear support for secession, to negotiate a constitutional amendment that removes all reference to the province from the Canadian Constitution. This is the only way in which the secession of a province could be legal and practically feasible. It is highly desirable that Quebec secessionist leaders also agree with this inevitable fact.
A version of this article appeared in La Presse.
What if the requirement to hold a referendum is binding.
Thank you for a very thoughtful article. I think that the proponents of Alberta independence should have the honesty to admit that the long term future of an independent Alberta is eventual union with the United States in some form.