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This seems to be the spirit behind the name chosen for Bill C-20. The Clarity Act, introduced by Intergovernmental Affairs Minister Stephane Dion last December and currently before a Commons committee, would more appropriately have been titled the "Obscurity Act." The proposed law's real function is to make the path from a Yes vote in a secession referendum to actual separation as murky as possible, notwithstanding the Supreme Court's 1998 ruling that if a "clear majority" of Quebecers vote Yes on a "clear question" in a referendum on separation, the federal government would be obliged to enter into secession negotiations. The bill lays the groundwork for any post-referendum negotiations: The strategy seems to have been adopted in order to permit Ottawa to claim it is complying with the Supreme Court's injunction to negotiate in good faith, while ensuring negotiations would be endless, confused, and carry on until the separatists finally give up in exhaustion. If this tactic works, separatists will be presented with a Gordian knot that could be sliced through only by means of a unilateral declaration of independence -- which the court has ruled to be illegal under international law and unconstitutional under Canadian law. In adopting legislation to this effect, the federal government is taking a high-stakes gamble that no future separatist government armed with a post-referendum mandate to secede would dare to declare Quebec's independence unilaterally. Which is fine, if it works. But if Ottawa's gamble fails, the cost to all Canadians will be far greater than would have been the case had clear, reasonable rules been laid out in advance. A review of the issues raised by secession reveals just how little clarity is provided by the Clarity Act. In its 1998 ruling, the court stated that a series of practical issues, which were listed in its decision, would have to be negotiated before a province could be permitted to leave the federation. However, the court added, it is political actors who must clarify exactly how each issue would be dealt with. This clarification is the ostensible purpose of Bill C-20. Instead of clarifying its position on each issue, the Clarity Act simply states, "No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in its negotiations ... division of assets and liabilities, any changes to the borders of the province, the rights, interests, and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights." This is merely a restatement of the Supreme Court's injunction, rather than an attempt to fulfill it. No formula is even hinted at in the bill by which any of these vexed questions could be dealt with in order to lower the costs to all concerned. To take just one of these issues as an example, there is no reason why the government could not have specified in this bill a formula for the division of the federal debt between Quebec and the rest of Canada. A large academic literature has grown up over the past decade, including many fair and equitable proposals as to how this could be done -- as well as outlining the costs to each side if a division is not achieved very quickly following a Yes vote. A lender's strike, which is one likely outcome of a post-referendum dispute between Quebec and the rest of the country over the share to be assumed by each, would have a devastating impact on the value of the dollar, the level of the stock market and Ottawa's ability to repay the capital on Canada Savings Bonds and other federal debt instruments that form the backbone of so many Canadians' retirement savings. Under Bill C-20's Byzantine negotiating procedures, debt, borders and other such issues would be dealt with only after a secession referendum is over and goodwill on all sides at a minimum. At this point, they would be made the subjects of an unwieldy set of multilateral negotiations involving, as Section 3(2) of the bill puts it, "at least the governments of all of the provinces and the Government of Canada." No mention is made in the bill of how negotiations would be structured to avoid bogging down. Are all the participants to be treated as equal players? How will extraneous issues be kept off the table? In the absence of strict parameters, such negotiations could safely be assumed to be unending. The bill also instructs that no amendment to the Constitution permitting secession may be proposed until this round of negotiations is completed. And here emerges a new roadblock. During the Supreme Court's deliberations in the secession Reference case, federal lawyers repeatedly advised the justices that they had not been asked to rule on which of the Constitution's amending formulae (the bilateral formula, the seven provinces comprising at least 50% of the population formula or the unanimity formula) would be needed to effect the secession of a province from Canada. Reference to the mechanism was therefore absent from the ruling, and remains a mystery to this day. Under the Clarity Act, it would remain a mystery even after secession negotiations had been completed. However, the multilateral negotiations and the struggle to find an appropriate amending formula would represent merely the second and third rounds in the federal government's arsenal of delaying tactics. The first round would occur when, following a majority Yes vote, the House of Commons would assemble and debate whether the majority had been "clear." To deliberately leave this blank suggests Ottawa will declare, after the fact, that whatever majority was achieved was insufficient. Or better yet, perhaps the Commons would drag out the discussions of this issue to such a point that the real secession negotiations would never begin at all. The Commons hearings mandated by the Clarity Act certainly appear to have been designed to be as cumbersome as possible. In addition to taking into account the views of all parties in Quebec, the House is obliged to accept submissions from all other provinces and territories on whether the majority was clear or not. The country may have been plunged into a credit crisis by the uncertainty surrounding the practical aspects of secession, like whether or not Quebec will pay its share of the federal debt. Minorities may be desperate for federal help as they try to establish their right to remain Canadian citizens. No matter: The law forbids the federal government to enter into secession negotiations until the hearings on the clarity of the majority are completed. An honourable exception to the obfuscatory tone of this law is found in the manner in which it deals with the Supreme Court's mandate that no referendum will be valid unless voters have been presented with a "clear question." Section 2(4) of the Clarity Act spells out unambiguous conditions as to the kinds of questions that would be considered invalid. No question that focuses purely on a mandate to negotiate shall be treated as representing a clear mandate to secede. Neither will any question that "envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada."
These are simple, practical rules that really do clarify the situation and thereby reduce the likelihood that separatist irresponsibility will cause unnecessary hardship for all Canadians. What a shame the rest of Bill C-20 could not have been drafted in a similar vein.
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