The 1995 Sovereignty-Partnership Referendum and the Clarity Act

Following the Meech Lake debacle of 1990 and the Charlottetown failure of 1992, Quebec nationalist forces for a time enjoyed the upper hand in the unfolding constitutional debates (Gagne and Langlois 2002).

The Liberal victory in Ottawa contributed to mobilizing the Quebec elec­torate. After nearly 10 years in opposition, the Parti quebecois regained power under the leadership of Jacques Parizeau. The elections of Chretien and Parizeau caused further polarization on the constitutional front. On the one side, Ottawa wanted to impose the constitutional order of 1982 on Quebec which remained the only recalcitrant member state in the federation. On the other side, Quebec sought corrective measures to the constitutional arrange­ments that had been reached without its consent in 1982, short of which it was considering leaving the federation.

Another major tug of war developed as each side attempted to advance its political agenda and adopted sharply contrasting positions. Ottawa wanted to firm up the role of the central government as the only legitimate expres­sion of the demos, while Quebec was advancing a position that made clear that Canada had originally been formed by distinct demoi that remain free to choose their political future. Hence the political confrontation between Quebec and Ottawa saw the yes and the no sides advancing their competing visions of Canada as either a mononational or a binational democracy—and, at times, as a multinational polity. In other words, the very nature of the debate concerned autonomy and self-determination; Quebec and Ottawa simply did not agree as to whose autonomy and self-determination were being debated.

On 30 October 1995, with an unprecedented turnout of 94 per cent, Quebeckers were almost evenly split between pro-Canada and pro-Quebec forces. In fact, a mere 1 per cent (roughly 52,000 votes) separated the winners from the losers. Following the defeat of the referendum, Quebec had lost its momentum and Ottawa was able to regain the political initiative and impose its leadership on a demoralized Quebec's social and political elites. Canada was granted another chance to advance a political program that would take seriously Quebec's demands as a distinct society.

However, as in 1980, when Quebeckers turned down the Quebec govern­ment's proposal for an equal Quebec-Canada renegotiated political arrange­ment, the central government—with Ottawa acting on behalf of Canada outside of Quebec—embarked once again on a path to contain rather than satisfy Quebec's political claims (Gagnon 2014, pp. 59-61, 64-5). Ottawa moved quickly to impose its containment strategy known as Plan B (see Gibson 1994). Rather than attempting to assuage political tensions and to imagine scenarios to escape the political impasse, as suggested by most public intellectuals, polit­ical actors in Ottawa responded to Quebec's claims by implementing an aggres­sive nation-building agenda (see Gagnon and lacovino 2007, chs 5 and 6).

With the Liberals in Ottawa under the leadership of Trudeau and, later, Chretien (1993-2003), the central government generally pursued a strategy of containment, exemplified by the unilateral patriation of the Canadian con­stitution from the UK in 1981-2; the imposition of a constitutional amend­ing formula in 1982 that refused to recognize Quebec's historic veto right; the repeated use by central government of its spending power in areas of exclusive provincial jurisdictions; the adoption in 1999 of a social union framework with­out the consent of Quebec; and, among various other actions, the use of public funds to advance Canadian unity and identity, as well as to promote the central government's initiatives in Quebec (Gagnon and lacovino 2005).

Meanwhile, the Liberals consulted the scc as to whether, based on Canadian jurisprudence, Quebec, or any other member state of the federation, has the right to secede from the country. The Court delivered its response on 20 August 1998. As expected, and in summary, the scc declared that Quebec could not simply break up from Canada. It also stipulated that, were Quebec to seek to obtain its independence from Canada, the Canadian government would have the obligation to negotiate the terms of secession in good faith, as long as two conditions were met. First, Quebeckers would need to decide on a clear ques­tion of secession. Second, to be considered, a referendum question needed to obtain a clear majority. It remains uncertain, however, what the scc under­stood to be a clear majority; for most Quebeckers, it means 50 per cent plus 1 vote, while for other partners in the federation it usually refers to a qualified majority, meaning a result significantly higher than that.

So, what mattered was not so much the right of Quebec to secede as the percentage to be obtained in order to be in a position to proceed. This juridical interpretation of Canada's highest tribunal simply confirmed that the Quebec government was free to consult its population in 1980 and 1995 with respect to its political future. In other words, the right of secession was accepted as legiti­mate by the scc. This decision contributed to easing tensions between Quebec and Ottawa and restored some legitimacy to the scc, the credibility of which had been severely diminished in Quebec in 1980 when it agreed that Ottawa could proceed to patriate the constitution because it had secured substantial support from the member states of the federation (McRoberts 1997), implying that the central government could henceforward no longer be blocked by Quebec in constitutional matters.

Both sides were quick to declare victory in the reference case of 1998 regard­ing Quebec's right to secede. Ottawa focused on one aspect: the idea that a unilateral declaration of independence (udi) would be illegal under both Canadian and international law.

At any rate, the see provided important insight into how an equitable process of national self-determination could be undertaken by the Quebec government and warned Quebec's partners of the obligation to engage in an authentic Canadian conversation. It stated:

The continued existence and operation of the Canadian constitu­tional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.... Negotiations would be necessary to address the interests of the federal government, of Quebec and the other provinces, and other participants, as well as the rights of all Canadians both within and outside Quebec. (par. 92)

The reference case points to the possibility of other ways of responding to claims made beyond the containment/contentment dyad. However, rather than taking seriously the see's advice, the central government wanted to settle its score anew with Quebec and embarked on a risky road by adopting what was termed the Clarity Act (C-20) that sought to fix the rules of the game were Quebec (or any other member state for that matter) to decide to go ahead with a new referendum. The Act was passed by the House of Commons on 15 March 2000 and adopted by the Senate on 29 June the same year.

In a nutshell, the Clarity Act advanced six key points:

1. The House of Commons would have the power to determine if a ref­erendum question is clear before people couldvote;

2. Only a question concerning secession would be considered clear;

3. Ottawa will wait until the votes are counted before stating what is a clear result (suggesting that 50 per cent + 1 was unacceptable and that a substantial majority would be necessary);

4. As well as the central government, member states of the federation and Aboriginal nations would be part of the negotiation process;

5.

6. An amendment to the constitution would be required to allow the secession of a province.

This gesture on the part of central government led the Quebec National Assembly to pass its own Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Quebec People and the Quebec State the same year. Political tensions increased significantly, as Quebec was determined to stop any other government that might endeavour to limit its political author­ity. In line with the scc's acknowledgement of the right of Quebec to secede, Article 13 of the Act stipulated that ‘[n]o other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraints on the democratic will of the Quebec people to determine its own future'. The passing of this Act put a stop, at least for a while, to the constitutional saga, as each side felt it had made clear to the other exactly where it stood on the matter of Quebec's right to secede.