CLAR Committee Meeting

LEGISLATIVE COMMITTEE ON BILL C-20, AN ACT 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

COMITÉ LÉGISLATIF CHARGÉ D'ÉTUDIER LE PROJET DE LOI C-20, LOI DONNANT EFFET À L'EXIGENCE DE CLARTÉ FORMULÉE PAR LA COUR SUPRÊME DU CANADA DANS SON AVIS SUR LE RENVOI SUR LA SÉCESSION DU QUÉBEC

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 22, 2000

• 0934

[Translation]

The Chairman (Mr. Peter Milliken (Kingston and the Islands, Lib.)): Order, please. I will call the meeting to order. Welcome to you all.

Our first witness this morning will be Jean-François Lisée, author and former political adviser.

Since we are ready to begin, I will ask that the cameras be taken out of the room.

• 0935

[English]

Cameras, please leave the room. It's all on television, so you can watch it there.

[Translation]

Mr. Lisée, you will have 10 minutes for your presentation, which will be followed by a 35-minute question period.

You have the floor.

Mr. Jean-François Lisée (author and former political adviser; as individual): Thank you, Mr. Chairman. Ladies and gentlemen, my presentation will be in English for the most part, and I will tell you why.

The majority of federal members elected in Quebec belong to the Bloc Québecois or to the Conservative Party. They are all without exception, I think, opposed to the bill before you. Therefore, I do not have to convince them, or at least not on the issue we are discussing this morning.

Liberal federal members from Quebec, at least members of the government, proposed and continue to support this bill. At this time, their willingness to listen seems rather limited, which is why my remarks will not be addressed mainly to them, although they are certainly welcome to listen.

[English]

I have chosen today to speak primarily to the MPs from the other Canadian provinces who have come here in good faith, who are practitioners of democracy on a daily basis. They have been led to believe this bill is democratic in the sense that it will clarify the rules of democracy for one of the most difficult experiences a democratic country can undergo: the decision by one of its parts to seek independence.

Obviously I'm in favour of Quebec independence, and because of that some of you may decide to disregard each and every point I will try to make before you today. I cannot help this. Let me say that whatever you may think of the sovereignist cause and its strategy, arguments, and tactics, the fact remains that they have all revolved around the notion that this objective of ours can only be achieved through democratic means, so it is as a democrat with a small “d” that I want to talk to you today.

Bill C-20 is extremely deceitful to you, members of this Parliament. It purports to recognize Quebeckers' right to secede from Canada and so it appears to be forward-looking. But then it sets a number of traps that render that right simply unachievable. Let me simply walk you through three of the many steps in the process you are asked to approve and defend.

First is the question. If this bill becomes law, you will be legally forbidden to even consider the results of a yes vote from Quebec of any magnitude, be it 51%, 66%, 75%, even 99%, if that yes is given to one of two options that the National Assembly would have decided to put on the ballot. You would also be forbidden to consider such a yes if the question includes a mandate to negotiate what it proposes or even the notion of some new accommodation between a sovereign Quebec and its neighbour, Canada.

This bill tells Quebeckers that if they wish to propose to their neighbours an agreement of the kind that exists between European nations, this House won't even listen. It says that if Quebeckers vote on secession but state clearly that they want to negotiate its terms, which is what we understood the Supreme Court has told us to do, this Parliament will turn its back. If Quebeckers are asked to choose between secession and the current constitutional order, then whatever the vote, whatever the majority, this House will be forbidden to discuss the result or act on it.

Aside from the fact that this attitude is rather closed-minded towards Canada's most important minority, it contradicts recent Canadian history and current Canadian foreign policy. Newfoundland came into Canada 50 years ago, following a referendum that presented two options, and 52% of Newfoundlanders chose the Canadian option. You might say that merging with a country and seceding from a country are two entirely different things. Canada's Supreme Court doesn't think so. It thinks coming in and getting out have the same weight in the people's history.

In paragraph 126 of its ruling, the court quotes approvingly from the UN's Declaration on Friendly Relations, which states:

The establishment of a sovereign and independent State, the free association or integration with an independent State...constitute modes of implementing the right of self-determination....

So for the UN and the Supreme Court, these are two facets of the same right.

Let's leave legal arguments aside and simply ask this question. Do you think a referendum whose aim would be to merge your country, Canada, with the United States would be any less momentous a decision than a referendum to let Quebec go? Should it be any easier or any tougher?

According to Mr. Dion's logic, 50% plus one would suffice to merge Canada into the U.S. It was enough for Newfoundland to merge with Canada on a two-option question, and 52% then was deemed by Prime Minister Mackenzie King to be a clear and unambiguous majority, and so it was.

• 0940

If this great debate of Joey Smallwood's were to take place today with a legislation similar to that which you are being asked to approve, you would be legally bound to turn a deaf ear to Newfoundlanders' wish to become Canadians because the question wouldn't be right.

During the past decade and even as we speak, the United Nations has been organizing referendums on independence in three provinces: Eritrea; East Timor; and this year, Western Sahara. In the two last cases, the UN-organized referendums put two options squarely on the ballot. There is not a shred of evidence that Canada's very able diplomats at the UN, including the Security Council, where these things are debated, voiced any objection to the two-option proposals. If they did, they were rebuffed.

We are now in a situation where members of our armed forces have been put in harm's way in East Timor to defend a democratic decision which, had it been taken on Canadian soil by Canadian citizens, would be deemed illegal under this bill. The situation could be repeated in Western Sahara later this year or the next.

Canada also had no problem recognizing votes taken in Croatia and Macedonia in the 1990s asking for both independence and some form of alliance with neighbouring states. That's close to what the Quebec government is advocating. So it's okay for the Balkans but it's forbidden here.

Second is the answer. The bill is clear on one point: Canadian MPs will be allowed to open their ears and minds if Quebeckers vote on a question that states clearly that a yes would mean that Quebec actually leaves the Canadian federation and becomes an independent state. So that should settle it. If that is the question and if the majority of Quebeckers say yes, then they said yes to leaving Canada and becoming an independent state.

Why is it then that in a later section the bill says that if this occurs, this House should examine whether or not a clear majority of Quebeckers has said it wants Quebec to leave Canada? Why is there room for interpretation? Either this Parliament believes that 50% plus one is the rule or it doesn't. If it doesn't, then it should have the courage to set another bar and live with the consequences in Quebec and in the world.

That's not the factor at play here. What's at play is not the notion of what a clear numerical majority is. The factor at play in this bill is much more troubling. The key word in the bill is “want”, in French veut. After a 50 plus something vote, members of this Parliament will be asked to judge whether or not Quebeckers meant their vote.

You see, some members of the Canadian government believe Quebeckers are very tricky people indeed. Quebec voters could go to the ballot box, vote yes to a crystal clear question on secession and on leaving Canada, but still want this vote to act as a catalyst for making changes inside the federation. They are willing to risk separation in the hope that it will lead to a new deal within Canada. That's what pollsters call strategic voting. A lot of federal tax dollars have been spent examining this phenomenon.

We also know that in Quebec, of those who vote no to independence, one in five hope and want Quebec to become independent one day but not this year, not with this premier, and not with the state of the economy. Very few tax dollars have been spent polling these rather embarrassing no voters. Yet this is the kind of personal rationale that voters have the right to hold, in the privacy of the polling booths, in any important election referendum, on answering to polls.

What is new with Bill C-20 is that a democratic western government tables a bill that will enable it to second-guess the electorate. If there is a majority of yes, you will be asked to get inside the minds of Quebeckers to conclude that they didn't mean it, however clear the question and the majority. This will be the basis of rejecting a yes vote of 50% plus one or 55%, maybe even 60%, if pollsters tell you that 10% of the yes vote is strategic voting.

This is simply the first big brother legislation in the history of democracy. Pierre Trudeau spent a lot of energy getting this Parliament out of Canada's bedrooms, but his successors want you to get into Quebeckers' minds. I say don't do it, don't go there. It is not only anti-democratic and unheard of, it would make this Parliament an object of denunciation and ridicule in democratic circles around the world. Not even the Soviet Union in its own legislation trying to forestall the independence of its provinces tried this ploy. It had set a difficult bar, 66%, and stuck to it. It was disregarded by history.

• 0945

What you are being asked to do is much worse. You, who have a very deep commitment to the unity of this country, are being asked to let the vote take place and then to state whether or not the result seems sufficient to render an arbitrary judgment that would have the effect of approving the very thing you fought all your lives to avoid—the division of Canada. You would be put in an impossible position.

Thinking this through, a hockey metaphor came to mind. It is as though, in a game for the Stanley Cup between Boston and Toronto, the Bruins captain was not only named referee, but was the one who decided, after the fact, whether Toronto's goals were valid. Imagine the conflict of interest, the pressure from teammates and fans. But that comes nowhere near what you would be asked to do.

The democrats among you who would be principled enough to want to respect the decision of a majority of Quebeckers, however much you disapproved of it, would in this devious contraption be exposed to political and constituent pressure to use your arbitrary power to deny that a 52%, 56%, or 62% Quebec vote was sufficient for self-determination.

There would be political opponents in your ridings, editorials in the National Post, and demonstrations by Alliance Quebec urging you on to step on principle and uphold this country's indivisibility, whatever the results of the vote. This bill is thus an enemy of ethics and good government. It is a democrat's nightmare.

Canada's foreign policy has approved the rule of 50% plus one explicitly, and has helped implement it in the last two referendums organized by the UN and in the one about to take place in the Sahara. Why is this rule good enough abroad, but not good enough for Quebeckers?

I see you have a sign from the president.

The Chair: You should wrap it up, please.

Mr. Jean-François Lisée: Okay, I can wrap it up.

Rapidly, my third and last point is on implementing the agreement.

Now, let us say that we have gone through all these hoops unscathed. Let's say there was a clear question and a clear answer. Let's say negotiations took place, and an agreement was reached and signed, in principle, by representatives of the government and this House. What does the bill say at this point?

According to the bill, the agreement cannot be implemented without an amendment to the Constitution. Let's call it the Quebec secession amendment. The bill makes no special provision for such a momentous event, so it legally refers to the current law of the land.

It may have come to your attention that in 1990 this mode enabled Mr. Clyde Wells and Mr. Harper to in effect derail the Meech Lake accord, which was significantly less important than what the Quebec secession amendment would be.

Since 1990, the process has been further complicated by the fact that in Ontario, Albert and British Columbia, legislatures are forbidden to vote on such amendments without having a referendum of their own. That means that in these three provinces, at least, there will be a referendum campaign on the Quebec secession amendment. There will be a yes side and a no side.

How many of you will campaign for the yes side in Kelowna, Edmonton, and Mississauga? Can I have a show of hands? I see none. I don't blame you. That's called self-preservation, a very important attitude in politics.

On the face of it, this proposal is nonsensical. I'm happy to report that sanity does exist in the Canadian government. Justice Minister Anne McLellan, in a famous interview with the Toronto Star, said that in that event, “One would be faced with an extraordinary set of circumstances not comprehended, in our opinion, within the existing constitutional framework. One would probably acknowledge the extraordinary nature of the event and determine what process would be pursued at that point.”

She has never been allowed to repeat that since, and obviously she lost the battle to get her idea into the bill. This bears repeating. The fingerprints of Canada's justice minister are not on this crucial section of the bill for good reason. This is a bill that, under the guise of recognizing a right to secession, essentially hinders that right irreparably. It makes a mockery of one of Canada's greatest assets: its reputation as a beacon of democracy. It tries to fool you, members of Parliament, into putting yourselves in untenable positions.

Thank you.

The Chair: Thank you very much, Mr. Lisée.

Questions? Mr. Hill.

Mr. Grant Hill (Macleod, Ref.): Thank you, Mr. Lisée, for being here.

You have alluded to one of the great shortcomings of this bill, which is the lack of a stated majority. If the majority were stated in this bill, would it improve it enough for you to at least consider that it was democratic?

Mr. Jean-François Lisée: In three recent decisions of the UN in the nineties—Eritrea, Western Sahara, and East Timor, Canada was a member of the UN, and in two instances a member of the Security Council. Documents show that in these three instances, the UN stated that the result would be a majority of votes cast, and in one case, at Eritrea, it went so far as to say that if there were less than 53% vote for one side, there would be an immediate recount to make sure the 50% plus one bar was passed.

• 0950

This rule has now been taken up, upheld and applied by the UN, and at no point did Canadian foreign policy ever object to it. If they did object to it in the corridors of power in the UN, they were rebuffed by other members.

So why are we sending men and women from our armed forces to uphold these decisions outside Canada, but when we get into Canada we say this bar shouldn't be applied? At least the Soviet Union had the courage to set the bar and bear the brunt of ridicule with a 66% bar. You're not even asked to do that.

Mr. Grant Hill: Of course the human rights issues in those countries are significant, but I really want to know whether 50% plus one would be democratic, in your view, if it were included in this latest segment.

Mr. Jean-François Lisée: It would certainly be democratic. If Newfoundlanders could merge with Canada with 52%, and this was considered by Mackenzie King to be a clear and unambiguous majority, clearly it could be the same for Quebeckers.

Obviously, everybody wishes that electoral and referendum majorities will be as huge as possible. It makes things much easier for everyone, when a government has more than 38% of the vote, to propose legislation as momentous as this. But clearly, the rule is the rule in terms of parliamentary democracy and referendums. European countries have entered the Maastricht Treaty devolving a big part of their own sovereignty, with 51% votes. So that's the rule.

Mr. Grant Hill: You mentioned a couple of times in your presentation here today improvements to the federation. Your recent book—I'll advertise your book for you—Sortie de secours* at least talks about putting the current sovereignty debate on hold, to try to bring about improvements to the federation. There are strong allies outside of Quebec for that. There are people who have complaints that are very similar to Quebec's traditional demands.

First, I'd like you to know that there are allies outside of Quebec for that approach. You feel that approach might well fail and bring sovereignty back on the table. If in fact that approach were successful—rebalancing of powers, recognition of Quebec's traditional demands—do you think that would satisfy Quebec for the foreseeable future and improve the federation, in a much broader sense?

Mr. Jean-François Lisée: Dr. Hill, I appreciate the question, and I don't want to pass the occasion to restate one of the things that is in the book about your party's platform on partition. I think it's very wrong-headed what you propose about Quebec partition, and I just want to be on the record saying that.

That being said, I'm not saying we should go back to traditional demands or anything. We should, as a people and a minority in North America, assess what our needs are for the next few decades. Once we know that, the electorate is the boss in a democracy. Clearly the electorate has told us sovereignists that they want another go at trying this within the Canadian framework. So we should abide by our boss's wishes, at least this time, and give a signal to the rest of Canada that if, in the next federal election, Canada re-elects Mr. Chrétien and Mr. Dion, who would have campaigned against these needs in a Quebec referendum, then the answer of Canada would be no. Quebeckers would be left to themselves to either decide to go the sovereignty route, or be patient and see what happens in the next five or ten years in Canada.

As a sovereignist, I'm willing to take the risk that it will work. I'm willing to take the risk that Canada will not re-elect Mr. Chrétien and Mr. Dion, and another combination, which is not for us to decide, will start negotiations and succeed. If this happens, I'll stay a sovereignist, Lucien Bouchard will stay a sovereignist, but clearly we will see that with these gains, with securing Quebec's needs within the federation for the foreseeable future, Quebeckers won't want to make the step toward sovereignty, and maybe ten years hence we or another generation will pick up this fight for this great idea.

I don't think it would be credible for any of us to even pretend we'd stop being sovereignists. We have to put all the cards on the table, tell the truth, and say we'll try this in good faith. If it works it means postponing our dream for maybe a generation, but it will mean having secured Quebec's needs, which is the main point of the whole process.

• 0955

[Translation]

The Chairman: Mr. Turp.

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Mr. Chairman, I would like to welcome Mr. Lisée, a long time observer of the political scene both in Quebec and Canada.

I have two questions for you, Mr. Lisée. I would like you to elaborate on the problems you see with the implementation of the agreement. You mentioned the process considered by Mrs. McLellan, and clause 3 of the bill addresses this issue.

My second question deals with the 50%-plus-one rule. You gave a partial answer, but Mr. Patry, our Liberal colleague, suggested yesterday that the 50%-plus-one rule was not necessarily accepted by the United Nations. I think you have compiled referendum data which suggest that a 50%-plus-one majority was accepted as a rule by the United Nations. Could you elaborate on that as well?

Mr. Jean-François Lisée: Very well. Thank you, Mr. Turp.

Regarding the process, it is obvious that what the government is proposing in this bill is exactly what failed in Meech. It is a process which has been proven not to work, and it is now being proposed for something that would be far more difficult to achieve than Meech and in conditions far more complicated than those that prevailed when Meech failed. Therefore, the government clearly intends to propose, at the end of the race, a process which is bound to fail.

In the discussion on the reference to the Supreme Court, there are obviously well-intentioned people who said, “We are democrats and we want true but sensible rules”. They realized that it was ridiculous to go through the Meech process all over again, especially since we now have referendums. It would be interesting to see Mr. Dion and Mr. Chrétien campaigning in Ontario in favour of the Quebec secession amendment. That is what this means in practical terms. There would be a referendum with a yes side and a no side in Ontario, in British Columbia and in Alberta, unless there was a Canada-wide referendum, which would be another possibility.

Just before the Supreme Court's hearings, Minister McLellan gave an interview to the Toronto Star where she stated the obvious. She said that there would be a special set of circumstances. Indeed, international history shows that, each time a province seceded, special circumstances were created and special ways of making such a move legal were applied. That is what Mrs. McLellan said, which was obviously in contradiction with what the government was arguing in court. In fact, the chief justice questioned the government counsel, Yves Fortier, who himself was in contradiction with certain statements he had made in the past, to ask him what it was about.

In its opinion, the Supreme Court gives options other than the constitutional amendment option, which it says very little about. However, it says that, should there be negotiations in good faith and should these negotiations fail, then Quebec's imperative right to secede would be violated: that is the correct word. There is no legal redress, but there is a political one. In this case, according to the court, Quebec's ability to be recognized internationally would be increased. Therefore, the court gives the failure of negotiations as an option, and this could also apply to the failure to ratify successful negotiations, especially since there would have been negotiations in good faith, there would have been an agreement but the ratification process would have failed.

It is interesting. I see here a reporter from Le Devoir who had the presence of mind to ask the minister responsible, Stéphane Dion, what would happen, under his scenario, should there be an agreement and should some provinces refuse to ratify it. The minister's answer was that ways would be found to get those provinces to listen to reason. She asked which ways, but the answer never came. How can you get a province that would refuse to vote in favour of the Quebec secession amendment to listen to reason?

It is a process which, by its very nature and to the knowledge of the authors of the bill, cannot allow Quebec's right to self-determination to be respected.

On the 50%-plus-one issue, I will be happy to send to the committee all relevant documents from the United Nations. In the three cases I mentioned, the last three cases where the United Nations organized a referendum, the UN made sure that it was specifically and explicitly written that it was the majority of votes in two of those three cases. In the other case, the majority was also 50% plus one, as I was saying, but if the majority was less than 52%, a recount of the votes had to be done automatically to make sure that the 50% threshold was exceeded. This was in Eritrea. In the other two cases, it was specifically and explicitly written that is was the majority of votes. In fact, these documents contain a series of clauses that violate both the spirit and the letter of this bill, including with regard to the imperative nature of the implementation of referendum decisions.

• 1000

The Chairman: Mr. Blaikie.

[English]

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you, Mr. Chairman.

Let me begin by saying that I think the witness makes a good point about the pitfalls in applying the ordinary constitutional amendment process to ratification of any negotiated secession that arises out of a referendum with a clear question, a clear majority, all other tests being met. Is it reasonable, given past and most recent Canadian experience, to assume that this would just happen? I think it's a fair point and something that committee members should give some thought to.

So I say that, and also, in turn, just commenting on some things that were said, it seems to me that in your listing of some other referendums where people actually picked, people had more than one option. That's somewhat different from a referendum in which two options are rolled into one question. You didn't really elaborate on that. If you have, say, joining the U.S., staying as an independent colony—I'm referring now to the Newfoundland referendum—or joining Canada, you have two or three separate options and people pick one over the other.

I think what this bill tries to address is the possibility that more than one option is rolled into one question, so that it therefore creates more uncertainty than if people are doing a multiple choice kind of referendum, if you like. So I'm not sure that the comparison completely holds.

If I thought you were right, I would have been very much against this bill from the outset, that is to say, if I thought that the Canadian Parliament would be forbidden, which is a word that you used over and over again, to negotiate other new arrangements with Quebec, of a partnership nature or even a sovereignty association or whatever.... That this is forbidden by the bill is not my understanding of the bill.

My understanding of the bill is this: that it says only in response to a certain kind of question and a certain kind of majority will there be negotiations about secession. Does this rule out the possibility of the kind of referendum, of other referendums, that Quebec gets support for, therefore creating a political context in which they can go to the rest of the country and say, this is the kind of arrangement we want within Confederation?

Then it either happens or it doesn't, or it happens and some compromise is made or whatever. Or if it doesn't happen, then you have another referendum on an entirely separate question—look, these guys are just as intransigent as they've ever been—and you have a referendum on secession.

But I don't see where the bill forbids the ongoing political task of those Quebeckers who want to, through a referendum or through initiating a constitutional amendment or whatever, make a bid for some new arrangement. I just don't see that in the bill.

Mr. Jean-François Lisée: You're right in saying that if there were a referendum on a constitutional amendment that doesn't involve secession in any way, shape, or form, the bill doesn't apply. That's correct. But the bill applies to both the notions of two options. The way you read the bill, it's either the two options rolled into one—as you say, that's clearly forbidden—or just any other option.

When you read the bill, you see that it says, in the French version,

[Translation]

there are other possibilities besides secession.

[English]

So you can make an amendment to say, well, it means two options rolled into one. It would be clearer. But clearly, I think, reading this, it means that it could apply to both. We know that in the government's thinking they are very afraid of two separate options, like I said, secession or agreeing with the current constitutional order.

As you may know, thanks to your tax dollars, we now know that support for the current federal system as it works now has dipped within Quebec, from 19% in 1995 to 13% in Mr. Dion's last CROP poll last August. Clearly there is less support for the current way that Canada works in Quebec than there is for the sovereignty of Quebec.

So I think the two options are covered by the bill.

• 1005

On your other question on the two options rolled into one, clearly these two options rolled into one were put in referendums in Croatia and Macedonia in the early 1990s: Do you want Croatia to become a sovereign country and then get into some kind of alliance with neighbouring states? It was the same in Macedonia. This was in a single question. Canada recognized the results of both referendums. They had no problem with it. We have no record of Canadian diplomats, either there or in the UN—

Mr. Bill Blaikie: Sovereignty—

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: You become sovereign, then you enter into this relationship, rather than trying to enter into a relationship and then becoming sovereign.

Mr. Jean-Francois Lisée: Mr. Blaikie, it was in the same question: Do you want this to happen? As it was in Quebec: Do you accept Quebec becoming sovereign after having offered a partnership to Canada? That was in the same process—do you want to do both? Sovereignty was certain and the partnership was an offer that could be refused or not. The only certain thing was sovereignty.

[Translation]

The Chairman: Mr. Bachand, you have the floor.

Mr. André Bachand (Richmond—Arthabasca, PC): For the information of my colleague from the NDP, it is clause 1(4)(b) of the bill that says that other possibilities besides secession cannot be included in the question.

Thank you for being here, Mr. Lisée. I read your book. I am in the process of reading it for the second time because there are a lot of numbers and one needs time to digest them all. It gives a good description of the situation. You describe yourself as a sovereignist, but I particularly like the description you give in Chapter 3, where you say you are in love with Quebec. As a Quebecker, I hope all Quebeckers at this table will have the same feeling. That particular chapter makes everyone feel proud, sovereignists and federalists alike. I think everyone should read at least that chapter, stop saying that everything is going wrong and start feeling proud, wherever they are in the political spectrum.

That being said, you talk about renewing the federation. We heard our colleague from the Reform Party. I must tell you that you cannot trust the Reform Party, the first party to introduce a bill based on plan B in the House. Last fall, that party even made the commitment to go ahead of the government. In fact, that is why I took pleasure in teasing the Minister of Intergovernmental Affairs, telling him to hurry because that bill was so popular in the rest of Canada that the Reform Party would pull the rug from under the government's feet. That is when the government decided to introduce its bill earlier.

Between you and me, Mr. Lisée, why did you come to Ottawa? You are a known sovereignist. Yesterday, we had the chairman of the no committee from 1980, Mr. Ryan. Today, we have the holy spirit from the 1995 referendum. So we can hear ideas from both referendums. But why did you come here?

You are telling the rest of Canada that the bill is not good but, in the end, what are you proposing? People have not necessarily read you book, even though it could be a best seller. So what message are you conveying with regard to Bill C-20? Do you think this bill could hurt the new hope of finding a solution in Quebec? What is your message as a sovereignist in love with Quebec?

Mr. Michel Guimond (Beauport—Montmorency—Côte-de-Beaupré—Île-d'Orléans, BQ): You invited him, André. That is why he came.

Mr. André Bachand: Of course, with pleasure.

An hon. member: You invited him. That is why he is here.

Mr. André Bachand: No party is as open as we are. I invited a great Liberal and a great sovereignist, and both are in love with Quebec. There is no problem.

Mr. Michel Guimond: You asked him why he came to Ottawa. He accepted our invitation.

Mr. André Bachand: Do not worry, Michel.

The Chairman: Order.

Mr. André Bachand: Let us have some discipline, Mr. Chairman.

The Chairman: Give him a chance to question the witness.

Mr. Jean-François Lisée: Yesterday, Claude Ryan was here. Today, you will hear sovereignists all day long. Thursday morning, the representative of the Quebec government will be here. I think it is extremely significant that they all convey essentially the same message. Democrats in Quebec, both federalists and sovereignists, find this bill utterly undemocratic. Neither sovereignists, nor Mr. Ryan, nor some other federalists like him will tell you that the House of Commons has the right to discuss referendum rules or even the right to pass legislation dealing with referendum rules.

• 1010

The argument democrats from Quebec are bringing you today is that the rules you are trying to adopt are utterly undemocratic and that, in fact, they will create a process aimed at denying the right of Quebec to self-determination. Moreover, they will put you, members of Parliament, in unbearable situations where you will be both judge and defendant.

Never has the Supreme Court proposed a process as unhealthy as this one. I would be afraid for members if they had to go through a process based on this bill. It would be horrible if one of you decided, in his soul and his conscience, that the question is clear, that the majority is clear and that a debate must be held to decide whether 54.7% is enough or not, and then you would have to say you are sorry to see Quebec go, but you consider that they decided... Imagine the meetings of your executive, the editorials in your riding, the pressure from your colleagues and your family who would tell you that you cannot vote to break up Canada, that the bill gives you the right to prevent the break-up of Canada, that it is your arbitrary right and that it is the opposite of clarity. It is democrat trap.

Mr. André Bachand: I have a last question.

The bill has created a comfort zone in the rest of the country, which was confirmed in the polls taken by the federal government last summer. I must admit, as member of a federalist political party, that it is extremely difficult. The Reform Party supports the government bill because it pays political dividends in western Canada. What do you say to those people who say there must be a clear question and a clear majority without having read the bill? We understand them. As I was saying yesterday, we will never be able to bring our arguments to them because we are stuck here, in Ottawa, and we cannot touch this comfort zone, this security zone for people in the rest of the country. What do you say to them?

Mr. Jean-François Lisée: I tell them that it is a form of bait and switch. I understand that the rest of Canada does not want the rules of the game to be decided by Quebec's sovereignist government. I understand that perfectly well because there are two parties playing this game, one that wants to achieve sovereignty, and the other that wants a united Canada. I understand that desire, but it is a bait and switch because what is offered does not have anything to do with clear rules that would ensure a predictable, fair and well-intentioned process. In this case, obviously, the bill is proposed in such a way that all those who are opposed seem to be against clarity when in fact, in many cases, they are in favour of clarity, but the bill is not clear. I have been an observer of the political scene for 20 years. I have been a correspondent in Washington, in Paris, I am well-read and I have rarely if not never seen a bill as unhealthy as this bill in the way it is constructed, in the effect it has on Parliament and in the effect it has on the English-Canadian population. Of course, the majority of Quebeckers are opposed to the bill, but it is just as unhealthy because they have come to think it is normal for the government of Mr. Chrétien and Mr. Dion to do such things. It is now considered normal; wrong but normal. What is wrong has become normal. People have become used to it. It is a truly unhealthy situation for both sides. Even though, as Quebeckers, we consider that it is not the place of others to tell us what we have the right to do or not to do, I think the Supreme Court's opinion presents a great number of similarities with what is proposed by sovereignists. The repositioning that the Supreme Court's opinion would have allowed political actors to do was a positive step. The purpose of this bill is in fact to do the work the Supreme Court did not want to do for the government, namely prevent Quebec from achieving sovereignty.

The Chairman: Mr. Mills.

[English]

Mr. Dennis J. Mills (Broadview—Greenwood, Lib.): Thank you very much, Mr. Chairman.

Thank you very much, Mr. Lisée. I must say to you that I represent a riding in the centre of downtown Toronto. I try to listen to my constituents, and we had a lot of talk on this bill before Christmas. I can tell you categorically that our view of this bill is the exact opposite of yours.

• 1015

My view is that if there is a clear question, Quebec in or out, the bill doesn't preclude 51% if in fact it's a solid turnout. At the end of the line, that means we start talking about separation. There's no other option. Most people would even believe that the political actors, if that situation were to arrive—and God forbid that it would—would even exclude those members of the national Parliament who were from Quebec.

So I think the notion that you would say that those of us who are elected would see this as a bill where we're forbidding Quebec to secede, or you refer to it as a devious contraption, or we're forbidden to do this and forbidden to do that...my community doesn't see it that way. I think this bill is actually a crafted jewel, and I think the Prime Minister had a lot of guts to put it out here so hard and so aggressively. We've all been debating this issue for the last twenty years, and I think it's time to fish or cut bait.

When you talk about the constitutional amendment, I believe that if the Province of Ontario were by and large to support, if the question again were clear.... I happen to believe that the last two questions were not clear at all. They were fudged questions. I happen to believe that if the Province of Ontario took a very aggressive role in supporting the clear question, then I think most other provinces would come on board. I don't see a situation like Meech Lake, where essentially Newfoundland and Manitoba, or one or two people, held it up.

Because you have such a high level of respect in your community, I think it's very important for you to understand that there are a number of us who were elected outside of Quebec who feel that the time has come to really deal with this head on.

Thank you.

Mr. Jean-François Lisée: I don't doubt the good faith you show, and that's what I tried to convey in my presentation. I don't doubt that your constituents want clarity if this happens again.

You say that the bill doesn't preclude, but first let's restate that this bill forbids the House from discussing any yes vote on a ballot that would have two options, two options into one: secession with the notion that it should negotiate its terms; secession plus a willingness to reach a new European-style agreement. If you have 99% yes on any of those combinations the House is forbidden to even consider or act on these results. This is what the bill says.

You say it doesn't preclude negotiating 50% plus one on a clear question. Why doesn't it say so? Then just go right ahead and say 50% plus one, if that and the other conditions are met, that's it.

Mr. Dennis Mills: My interpretation of the bill is that it is putting a clear signal out there that ultimately Quebec will design its own question, but if they continue as has happened historically then it really is not about separation. It's really about further modification of the relationship, which is not the same as separation.

Mr. Jean-François Lisée: Let's go your route. Let's say the question is “Do you want Quebec to become an independent country and leave Canada?” That's the question. The bill says that's a fine question. Fifty percent plus one. Now it comes back to you. It says do you, a member from Toronto, believe that this is enough to break up Canada, the best country in the world?

Mr. Dennis Mills: I personally would say that if the question were that clear, we would begin to vote.

The Chair: Mr. Hill.

Mr. Jean-François Lisée: Let the bill say so.

The Chair: Mr. Hill.

Mr. Grant Hill: Mr. Lisée, you made reference in your original comments back to me of the official opposition's position on something like the borders of Quebec. We have long held that there were a host of issues that needed to be laid out on the table, one of those being the borders, another one being the debt. They are in fact brought forward in this legislation.

• 1020

We, in the position of being in government, would have a much clearer bill, as you know, a question laid out, a two-pronged question, because we do believe that if Canada is divisible, so is Quebec. That bill, however, with all the issues clear, crystal clear, the majority clear, we would not proclaim; we would set it aside. We would spend all our efforts at improving the federation.

I know you know that this is our approach, to spend enormous effort looking to the issues that bother those in British Columbia that are traditional demands of Quebeckers. We're certain that fixing this country is much better than splitting it up. Your book suggests that this in fact makes sense. I want you to reflect on that as being the realities of secession and 75% trying to fix this country, because that's our message.

Mr. Jean-François Lisée: That's what I read in your bill, but let me take this opportunity to say that the shorter part of your bill that deals with secession of Quebec is wrong-headed on many parts.

I'll tell you one thing. You say that if you were in government and there were a referendum on independence you would automatically presume that parts of let's say the Ottawa region that are close to Ontario's border and which would have voted no.... You would decide that this riding stays within Canada.

Mr. Grant Hill: Give those individuals the opportunity to state that in a two-pronged—

Mr. Jean-François Lisée: No. I just read it. You say that automatically you'd consider them, those who are on the border, to stay within Canada and then if you don't like Quebec's question you will ask another question to ask them all through Quebec whether or not they want to stay in Canada.

Just on this case, you should know that since Monsieur Chrétien and particularly Monsieur Dion have played the partition card as a political ploy within Quebec to try to frighten off Quebeckers on the independence question, it is true that in the Ottawa region, Ottawa ridings, people say that they want to vote no. That's what they do in a referendum. They say that they are in favour of the partition idea, but then when we ask them, if their riding votes no, do they want their riding to stay in Canada and leave an independent Quebec, they say no, no, no. That's just politics. We're trying to frighten our friends and colleagues into voting no, but in no way would we want to stay in Canada—we're Quebeckers—so we'll abide by the majority rule. That's the first thing.

The second thing is, again, partition in the 1990s has been rejected by all leaders of good faith around the world and has been accepted reluctantly only when brutes impose it with blood. The only case in the 1990s when it was reluctantly accepted by the international community was because brutes imposed it by force. In every other instance men and women of leadership quality have done everything to put it aside.

I have to say that Canadian foreign policy, as we speak, has participated in East Timor in an important effort to forestall any partition possibility. It went so far as to make sure that the referendum in East Timor would not be counted riding by riding. They took all the ballots with international observers and brought them to the capital, Dili, and then they made one major count so as to make sure that the tenants of partition for East Timor would not even have the tallies from every single polling station. That's what Canada has been supporting and sending members of the armed forces to defend. So why is it that in this bill, and in your bill, sir, there is the opposite of what Canadian foreign policy is defending?

Mr. Grant Hill: We believe there is one way to make sure that partition never took place, and that is to go down a different road.

Would you very briefly comment on the natives in the northern portion of Quebec who have stated their position? If they, in a referendum, said they did not want to stay with a separate Quebec, would that request be respected, in your view?

Mr. Jean-François Lisée: On legal grounds alone, natives throughout Canada were opposed to Canada becoming technically independent from Britain back in 1982 because they wanted to retain the fiduciary right of the Queen of England, and Canada bypassed this wish so the right was transferred to the Canadian government. And legally in the same way the same kind of process would apply to Quebec. If Canada were to be in favour of a secession right for natives, then it would be in favour of secession rights for all these natives, those of the United States, those of Mexico, and those of four of the permanent members of the Security Council. So it might run into a problem.

• 1025

That being said, I think politically it's a real problem. And I think natives should not be hostages to our political aims and debates—by “our”, I mean Canadians and Quebeckers. That's why I propose a way to make sure that if Quebec becomes sovereign in these negotiations we will arrive at an agreement that for the nations that want it we'll just reproduce the status quo for as long as they wish in the future, so that there would be no change in their status in a sovereign Quebec as long as they wish to remain in the current kind of no-man's-land constitutional life they're in.

The Chair: Mr. Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): You made reference to paragraph 126 of the Supreme Court of Canada judgment in the matter of the right of self-determination. But paragraph 126 of the Supreme Court judgment distinguishes between the right of internal self-determination and external self-determination, as I think you'll appreciate.

In the matter of external self-determination, the court made two principal findings of fact and conclusions of law: one, that there is no unilateral right of self-determination under international law; two, that the international right to external self-determination to their knowledge exists only in cases of former colonies or in cases of oppression, matters that the court stated do not exist with respect to Quebec.

In other words, from the point of view of international law, Quebec is clearly distinguishable from the cases such as the former Soviet Union, East Timor, or any of those that you quoted having regard to the matter of the right to self-determination. Here the court precludes it with respect to Quebec as a matter of finding a fact or conclusion of law.

I might add in the matter of East Timor, where you invoked a 50% plus one standard, if I interpreted you correctly, there was no standard or threshold of any kind. In fact in this instance, in East Timor, it was left to the Secretary General to determine the clarity of the vote, if you will.

Mr. Jean-François Lisée: I have the documents and I'll send them to you. There is specific reference. But you're right in what you're saying, and it's very interesting that the Supreme Court of Canada made a contribution to international law in this regard, in regard to a non-oppressed, non-colonial province wanting to achieve sovereignty. And it introduced a very Canadian notion to international law, in that in answering to the questions the government decided to draft and send to the courts, the courts said of course you want us to say no to the three questions, and of course the way they're drafted it's no, but then we'll spend 140 paragraphs to add to what you've asked us and even make a sly comment about the fairness of the questions along the way.

In any case, what the Supreme Court introduced is negotiation. It says it's true that there is no right of Quebec to have a referendum and then the next day declare independence; that's out of the question. But if they negotiate—and not only if they negotiate, but I say there is an obligation to negotiate on both parties—then this changes everything. So the Supreme Court says that if there is a referendum and negotiation, then there is a right of Quebec to pursue secession within these negotiations. If this right is violated in the negotiation process, it has a right to then seek redress on the international stage.

So basically what the court is saying on very many points is that as long as there's negotiation, then this right is given life; it's giving life to this right.

With other examples, such as that of Newfoundland, while it doesn't refer to Newfoundland in the text, article 126 then makes it the only place in the ruling where there is a comparison of getting out and getting in.

But what of my question? Do you think that 50% plus one will be sufficient for Canada to merge with the United States—

Mr. Irwin Cotler: Let me, if I may, go to—

[Translation]

Mr. Daniel Turp: We are the ones asking the questions.

[English]

Mr. Irwin Cotler: I want to go to a central point in your remarks, because I think it goes to the crux of what we're speaking about.

• 1030

You mentioned that this is anti-democratic, Big Brother legislation. I won't go into the other analogies, which are set forth in your remarks. But in the main, you said it prohibits Quebec from seceding from Canada.

Mr. Jean-François Lisée: In effect.

Mr. Irwin Cotler: In effect. Okay.

Mr. Jean-François Lisée: It would have that effect.

Mr. Irwin Cotler: My own reading of it is very different. The bill, as I see it, is nothing more and nothing less than a moral, juridical code of conduct setting forth a legal road map for secession, inspired by and anchored in the Supreme Court judgment. In a word, it says, in my view, that the secessionist enterprise has democratic legitimacy if there's a clear question and a clear majority. In other words, it in no way prohibits or precludes a secession from ever coming about.

We can respectfully disagree on this interpretation or application, but I must tell you the thing that disturbs me is the suggestion that somehow all those who are against this legislation are the only true democrats and all those who are in favour of this legislation are somehow anti-democratic. There are good democrats on both sides of the equation.

We should assess the arguments on the basis of the merits of the arguments and not go into what are Big Brother, Orwellian approaches: all those against it are somehow the only true democrats, and all those in favour are anti-democratic.

The Chair: We'll have a brief response from Monsieur Lisée, and that will conclude the testimony.

Mr. Jean-François Lisée: That's a fair point, a fair question. That's why I tried to frame my remarks not to members of Parliament who approve and debate this bill, and not to constituents who think there is a need for clarity, but to the framers of the bill, who knew exactly what they were doing. That's why I appeal to democrats in this House to see how devious the bill is and the position it will put you in.

Mr. Cotler, will you go and run in favour of the Quebec secession amendment in an Ontario referendum to ratify this amendment?

The Chair: Order. We're not going to—

Mr. Jean-François Lisée: This is the situation it puts you in. It's an untenable position.

If you say it gives a legal road map, then just put conditions that we can debate and be against. Just say you need 80% participation in the vote on a clear question, and if there's 50% plus one, then you will start negotiations. Just say it.

The Chair: Thank you very much, Monsieur Lisée. The time has long since expired. That's the end of the time for questions of this witness.

Some hon. members: Oh, oh!

The Chair: We've gone well over the 45 minutes, so we'll move to the next witness.

Thank you very much, Mr. Lisée, for your appearance today.

Our next witness is a former member of this House, currently at the School of Policy Studies at Queen's University.

Mr. Broadbent, we welcome you to the committee today and are delighted that you have chosen to come and give testimony before us.

Order, please. Order!

Will the cameras please leave the room? Out at once, please. This is not a recess. We are continuing with the meeting. Will the cameras please leave?

Order. Order, please. We're continuing with the meeting here. I wish members would kindly proceed accordingly.

Mr. Broadbent, under the rules we have, it's a 10-minute presentation followed by 35 minutes of questions and comments, and as you can see, we sometimes run over. We'll hope to stick within the framework provided.

You have the floor, sir. We look forward to hearing from you.

Mr. Ed Broadbent (Individual Presentation): Thank you very much, Mr. Chairman.

• 1035

[Translation]

First of all, I would like to explain why the text is not in both official languages. I received the invitation at the last minute last week and, unfortunately, I had other obligations to fulfil. For these reasons, I finalized the text last night and it is in English only. I apologize.

[English]

When a great democracy is at risk of coming asunder, it should take steps to ensure that the process and outcome of such a possibility cohere with its fundamental principles and values. This inevitably means a mix of law and politics. In Canada's case, it entails more specifically a commingling of rights; concerns; federalism, with its division of powers and territories; the rule of law; and respect for minorities.

As a multinational state, Canada has produced a society mixing political, civil, social, and cultural rights in such a way that it has enabled our diverse regions and peoples to achieve a degree of equity that puts us among the world's most favoured nations.

In recent decades, a political movement within Quebec has sought to persuade the people of that province to secede from Canada. It has claimed that independence would be preferable to self-realization within Canada. Although most Quebeckers and other Canadians disagree, they persist in their goal. Most of us, including those who were critical of past injustices once faced by the majority within Quebec, strongly believe a better future for all Canadians is to be found within the federal union.

Following an historic decision of the Supreme Court, the Government of Canada has introduced a bill in the House of Commons whose purpose is to clarify the circumstances under which secession might legitimately take place. In assessing any major legislative measure, both timing and substance must be taken into account. The clarity bill meets both tests. Of course, in a way they are inseparably related, in the sense that if the substance were unacceptable, there could be no propitious timing.

I would like briefly to deal with the timing and then more fully with the substance, particularly with the question of what constitutes a clear majority.

In terms of its responsibility to all people within the federation, particularly those Canadians living within Quebec, the Government of Canada has been wise to lay out in advance of another referendum the conditions under which it would respond to such a vote. It's much better to establish those conditions in the relative calm before a referendum campaign than it would be during the emotional intensity that characterizes such a process.

To establish during the campaign the federal conditions for negotiating would itself engender simultaneous debate about two things: the question on the referendum and the conditions according to which the results would compel a federal response if initiated by the Government of Quebec. This would be undesirable. During a referendum, it is clearly better to focus the debate on one issue, namely the referendum question itself.

And to bring in such federal legislation after the results of a referendum would almost certainly engender accusations of ex post facto rigging of the rules, which in turn could make it even more difficult to obtain a parliamentary decision seen to be equitable by the large majority of those directly involved. As I have said, the timing of this bill is right.

I will be brief in commenting on the requirement that for Parliament to follow the obligation to negotiate, as established by the Supreme Court, the referendum question must be clear and it must focus on secession of Quebec from Canada or on the idea of Quebec becoming an independent state. Surely the Supreme Court was wise in reaching this conclusion.

Quebec or any other province can pass any resolution they want on any subject, but the only one the Parliament of Canada should be constitutionally obligated to take into account is one clearly and specifically about independence. However desirable it may or may not be to consider any other kind of resolution adopted by Quebec or any other provincial government, the only one Parliament should be constitutionally obliged to consider in this domain is one that is a clear expression of the desire for independence from Canada. It is also important for the people of Quebec to know this before any referendum takes place.

Let me now turn to the vexatious issue of a clear majority requirement, also established by the Supreme Court and brought forward in the clarity bill.

Everyone can agree that a clear majority, determined by what the Supreme Court called, and I quote, a “qualitative evaluation”, must rule out an outcome resulting from obviously incompetent or dishonest voting procedures. Beyond that, there is, as we know, little agreement.

• 1040

Perhaps the most contentious issue is whether 50% plus one should be sufficient to determine the final result once all process questions have been resolved satisfactorily. It is not clear to me that the Supreme Court would disagree. For example, after a qualitative evaluation of the process took place, it is a logical possibility that when the numbers of the acceptable balance have been taken into account, 50% plus one could in fact constitute the clear majority required by the Supreme Court.

When it comes to numbers, had the court wanted more than 50% plus one, would it not have said so? Why would the judges have left the wording of “clear majority” if, in fact, they meant that in addition to clarity, more than 50% plus one should be required? It's plausible, then, to argue that if they wanted more than a clear 50% plus one to be required as the acceptable minimum, they would have said so. They should have said, for example—and these are my words—“More than a simple majority is required.”

The fact is, we will never know precisely what the judges on the Supreme Court had in mind when they used the phrase “clear majority”. However, I believe a majority of 50% plus one, even if clear, is morally insufficient in deciding to break up any established democracy, including Canada.

Most Quebeckers and most other Canadians have indicated that they believe 50% plus one is insufficient to launch an initiative aimed at breaking up the country. I think there is a good, serious reason for them to think this way. In a democracy, most decisions are about practical matters. Cities need new sewers, provinces require additional highways, and the central government must provide a national defence force. Such prudential decisions are reached on the basis of 50% plus one. They are practical matters, and decisions about them are both fallible and reversible. If circumstances change, if new information becomes available, or if a new government on a new mandate is elected, they can be amended or reversed.

But democratic politicians do not make all of their decisions on the basis of numbers alone. Some decisions take into account the depth, duration, and seriousness of their impact. This is why the amending of constitutions invariably requires more than 50% plus one.

Section 41 of the Constitution Act of 1982 requires unanimity among the provinces in order to change certain of its provisions. It is also why most referenda are permissive only. They provide an opinion but they do not require a government to act.

Seriousness of impact and concern for minorities also explains why charters of rights in democracies, including those of Canada and the province of Quebec, put certain matters well beyond the temporary judgment of 50% plus one of the population.

It's now widely understood by ordinary citizens as well as experts that democracy entails much more than accepting 50% plus one, as found in reversible-process decision-making. It also means, in the words of the Universal Declaration of Human Rights, ensuring respect for the “dignity” of every citizen.

I submit that an essential component of that dignity is bound up in the importance of our identity—that is to say, how we see ourselves and how we want to be seen, understood, and respected by others. As humans, we have a number of such identities, all of which are established in the process of growing up.

Thus, many of us describe ourselves as being both a Canadian and a Quebecker, or a Canadian and a westerner. Some say they are more of a Québécois than a Canadian, but they are both. There are, of course, some Québécois who'd identify themselves only as Québécois. Some Canadians feel their most profound identity in their gender or cultural group. Thus, a Canadian woman might say she is a feminist above all else, that being a feminist is what is most important to her, and that is how she wishes us to regard her.

However, Mr. Chairman, members of the committee, what concerns us in this bill is the particular identity of citizenship, an identity that is acquired over a lifetime. For most citizens in the modern world, citizenship entails something critically important to them. To challenge or shatter the components of this identity is therefore a matter of great seriousness. In the largely post-religious age in which we live, to lose or gain a nationality is no small matter.

Most Canadians outside and inside Quebec cherish as a key component of their identity, acquired through a lifetime of experience, in communities large and small, the idea of Quebec being intrinsic to what it means to them to be a Canadian, or the idea of Canada being intrinsic to what it means to be a Quebecker.

• 1045

It is incumbent upon those who would fundamentally and irretrievably challenge or break these citizenship identities to do so only in the most serious of circumstances. To compel fellow human beings to choose in the zero-sum game between crucial components of their personalities I believe should never be done by those living in societies in which they are free to develop their own capacity and talents, in their own language and culture, however unjust those societies may have been in the past.

While respecting the right of those in Quebec who disagree with me on this, I would urge them never to launch a process that imposes a permanent and undesired change in the lives of others unless, as a minimum condition, they are certain that they have significantly more than 50% of the population with them. To do so would transform most of their own province, as well as other provinces, into a condition of uncertain emotional and political turmoil.

The federal government, representing Quebeckers as well as other Canadians, is correct when it says it would not be complicit in launching such a tragedy in such circumstances. It has also been right to emphasize that Canadians outside Quebec, as unhappy as they might be, would never turn their backs on a clear expression by a significant majority of Quebeckers for independence.

Of the 13 new countries to emerge following referenda in the post-World War II, post-colonial era, nine had positive results over 95%; two over 90%; and the remaining two in excess of 75%.

In my view, Premier Bouchard would be a wise man if he waited until he could expect comparable results. He would be even wiser to abandon his secessionist goal and acknowledge the evident truth that the majority of Quebeckers have made great gains in recent decades. By means of the rights and freedoms enjoyed by all Canadians, they have created a wonderful and, dare I say it, distinct society. They are proud Quebeckers and proud Canadians.

Thank you, Mr. Chairman, and members of the committee.

The Chair: Thank you, Mr. Broadbent.

Mr. Hill, questions.

Mr. Grant Hill: Thank you very much, Mr. Broadbent.

You have eloquently stated here that the Supreme Court did not lay out a majority. You've expressed your opinion that the majority should be, in your words, “much more than 50% plus one”, because secession would be an irreversible matter.

You're not on the Supreme Court. You are one of the individuals who might have the luxury to state what the majority should be, in your view. I invite you to do so in order that we would all know what your opinion on the majority would be. Put a number on it, if you would.

Mr. Ed Broadbent: No, I won't put a number on it for the same reason, it seems to me, that neither the Supreme Court nor the bill spelled it out. I think many other factors ought to be considered in reaching a decision.

As I argue here, it's certainly my interpretation of the law that under certain circumstances, 50% plus one could be a legally defensible position. I am arguing, though, that however the law may be on that question, I think it would be a profound error to make a decision based on such a vote.

As I indicated with regard to those 13 countries in the post-colonial period, all of the majorities were successful in excess of 75%. That kind of decision-making seems to be desirable. If you're going to tear people asunder in terms of their profound psyche, which is involved in this, then you should at least minimize the damage and maximize the possibility of ultimate success by having a significant number on your side—morally, ethically, or whatever the law may be.

Mr. Grant Hill: Could I then ask you to comment on what you think the bar was at during the last two referenda?

Mr. Ed Broadbent: As someone who participated to varying degrees in these two referenda, I would say the questions weren't the same. We did not have the Supreme Court decision before us. We really did not know what the consequence would be of, say, a vote in excess of 50%. It's therefore very hypothetical.

• 1050

Those of us who were on the federalist side at that time of course were assuming that if there was more than 50% plus one, this would launch a crisis in the political system, because there had been no rules of the game established. Such a vote would have to have been taken very seriously, and I hope calmness by political leaders at least would have prevailed in looking at that. But I repeat that I think the focus, certainly my focus at the time, was simply, if you'd like to put it in straightforward terms, winning on the federalist side without thinking through at all clearly or systematically what the implications would be if there were a yes vote.

Mr. Grant Hill: As one of the political actors in those days, did you ever take the opportunity to state for the public record that you felt that 50% plus one would not be sufficient?

Mr. Ed Broadbent: I don't think so, but I don't know.

Mr. Grant Hill: You see, that's the difficulty, in my view. We were silent on this in years past. In my opinion, inadequate though it may be, 50% plus one was the bar. I state that, feeling that it is not ideal. The ideal would be something much higher, as you suggested. But do you see a risk in the uncertainty in this law of having no majority stated?

Mr. Ed Broadbent: Certainly I see risks there, and I see risks if you state it too. That's why, as I said earlier, my comments were talking both about politics here and law. Either way you go on this, it entails certain risks. If you really try to spell out unequivocably a certain percentage, I think the risks are there, because you have to consider all kinds of other factors at the same time that the vote is going on.

You of course run some kind of risk if there is a significant vote and there's a clear indication on a clear question by Quebeckers that they want independence. There is a risk that the members of Parliament here, representing Canada, as they're entitled and morally and legally obligated to do, won't recognize this.

Of course I see that as a kind of risk, but I also know the whole tradition of this country is on the other side. On balance, I would put faith in the collective wisdom of all the parties in the House of Commons that if such a vote was a clear indication on a clear question for independence, they would respect that and negotiations for secession would begin the way the Supreme Court intended in its ruling.

The Chair: Mr. Turp.

[Translation]

Mr. Daniel Turp: Let us talk about the risk. You say there is a risk in setting a threshold. There is also a risk in not doing so. Does the idea of not setting a threshold do anything to ensure clarity?

Mr. Ed Broadbent: I am sorry. I did not quite understand the question.

Mr. Daniel Turp: We are studying a bill on clarity and there is no mention of a threshold. Does that not create a problem with regard to clarity?

[English]

Mr. Ed Broadbent: Oh, yes. The answer to that is yes, but even in a clarity bill, everything can't be perfectly clear.

I know, Mr. Turp, you've had political experience, and I think anyone with political experience knows that.

[Translation]

Mr. Daniel Turp: I am asking you the question because this bill is supposed to be clear, but I see that you find that, on the majority issue, it is not clear. There is a clause that says that certain factors will be taken into consideration. However, I do not see clarity in an important clause of this clarity bill.

As for the 50%-plus-one issue, it is always very strange to hear people like yourself say that it is possible, it is the rule and it probably is acceptable. And then people try to find arguments suggesting that it is not necessarily desirable. Is there not a difference between the majority that would be required from a legal or democratic standpoint and the majority that would be sufficient or desirable for a government to decide to set a sovereignty project in motion?

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[English]

Mr. Ed Broadbent: I explained that in democracies 50% plus one is a normal rule for process decision-making, decisions that can be reversed. But in most of the referendums that have taken place since the Second World War, in the information I've been able to find out, of the 13 I referred to, 11 of them had more than 50% plus one as the requirements in the referendums.

In terms of Canada as a democracy, as you know, both in the Quebec Charter of Rights and the Canadian Charter of Rights we have all kinds of provisions to protect individual and group rights against temporary majorities. So in my view it would be misleading to describe democracy as simply a system in which all decisions are reached on a 50%-plus-one basis. In fact, I would argue that in the more serious decisions the balance of evidence is on the other side. More serious decisions require much more than 50% plus one, and some require unanimity.

[Translation]

Mr. Daniel Turp: To use the words of the witness who appeared before you, would it be a serious decision, for example, for a province to leave Canada and join another country, whether it is Newfoundland joining Canada or whether it is Canada joining the United States? Would it be serious enough that the 50%-plus-one rule would not be acceptable?

[English]

Mr. Ed Broadbent: In the case of Newfoundland, they were already cut loose by the British Empire, the old mother country. They had to go somewhere, so to speak.

[Translation]

Mr. Daniel Turp: What would happen in the case where Canada would join the United States?

[English]

Mr. Ed Broadbent: Every country in every kind of situation has a certain degree of particularity about it, as indeed would Canada joining the United States.

[Translation]

Mr. Daniel Turp: Would it be more than 50% plus one in that case?

[English]

Mr. Ed Broadbent: I would want to discuss that and look at all the kinds of complex issues that I think are embedded in this bill and that I've thought about in dealing with this question of a secession within a democratic union. Breaking up a union and joining another entity seems to me, sort of on a priori grounds anyway, quite different entities.

It seems to me that the case of secession within a country in which you openly break the identity of fellow citizens is quite different from whether collectively Canada decides positively to join another entity.

[Translation]

Mr. Daniel Turp: All these distinctions seem quite arbitrary to me. They seem to be created for the express purpose of ensuring that 50% plus one would not be applicable in the case of Quebec. You have cited several cases where 90%, 80% and 70% majorities were reached, but, as you know, in advanced pluralistic democracies, when there is a referendum on the political status or on the delegation of sovereignty within the European Union and so forth, the majorities are always small: 51% in France; 52% in Denmark; 57% on the Charlottetown accord. You know that the precedents you mentioned do not apply to advanced pluralistic democracies.

[English]

Mr. Ed Broadbent: Again, with all due respect, I can cite them. The cases to which I referred are explicit cases of referenda that led to splitting up of countries. Of the 13 countries in the post-colonial, post-war period where this took place, where there was a division of a country based on a referendum, which is what we're talking about now, in the large majority of them, substantially more than 50% plus one was required. Indeed, the average vote obtained was well in excess of 75%.

[Translation]

Mr. Daniel Turp: But...

The Chairman: Oh, no. Mr. Blaikie, you have the floor. Order. Mr. Blaikie has the floor.

Mr. Daniel Turp: No, these are not democracies...

The Chairman: Mr. Blaikie has the floor.

[English]

Mr. Bill Blaikie: Thank you, Mr. Chairman. This is my first opportunity to question Mr. Broadbent outside the confidentiality of caucus.

The Chair: So you'll want to take full advantage.

Mr. Bill Blaikie: But just by way of continuing the discussion, Mr. Broadbent mentioned in response to a question by Mr. Turp that talked about the particularities.... It seems to me that one of the things that's going on here is that either we have a lot of particularities in all the different precedents that people cite, or we have a whole lot of double standards.

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I would say to Mr. Turp that even the Government of Quebec is very firm in its position, for instance, that territories cannot become provinces. Even if there's 99% agreement in the Yukon, Nunavut, or the Northwest Territories to become provinces, that can't happen without a substantial consensus among the other provinces and particularly Quebec. In fact, Quebec argues for the right to veto the entrance of new provinces into Confederation regardless of what the popular support is in those territories for becoming provinces.

We can acknowledge amongst ourselves either that different situations require different responses—and we can argue about what those different responses are—or it seems to me that many of us, including my colleague from the Bloc, have different standards that they apply selectively.

You talked about the risk of a Quebec government proceeding with only 50% plus one. It seems to me that there are two risks there. There's also the risk of a federal government that would refuse to negotiate in the context of a 50%-plus-one response. So on both sides of the federal-provincial divide, if you like, there would be a requirement for wisdom in the event of a very close vote.

It seems to me that this goes to the heart of your presentation, which is that there's a difference between the legal political requirement and the moral political requirement and that in the end we can't legislate good judgment. There's a judgment to be made after the fact by both a province that's seeking secession and the federal government. That's a point that's not often made, and we're grateful to you for making it. Nevertheless, it leaves open the possibility that we could still hold to a 50%-plus-one criterion with the understanding that this is not binding in the sense that it leaves open the requirement for judgment.

Mr. Ed Broadbent: I'm not sure, I say to my former colleague, if that removes the element of bad faith or good faith any more. You may say that as a minimum to launch discussions, you may have this kind of floor. I agree with you that there's a dependence here on good judgment and faith.

I'm trying to combine a number of things here. I had to think this through, just as members of the committee did. As a Canadian I'm deeply interested in this issue of the 50%-plus-one rule. I've tried to make it clear that democracies don't have just 50% plus one. In fact, a large majority of the examples on referenda that have led to the breakup of states in the post-war period required more than 50% plus one. So I'm dealing with that part of the debate.

But to come to your question about whether after a clear indication from the province of Quebec there would be bad faith on the federal side, on balance I'm prepared to support this legislation, because if you look at everyone that has to be considered, they have to consider not only the Government of Quebec but also what the opposition parties in Quebec have said and other people throughout Canada, including other governments. Based on empirical experience, I believe that if there were a clear vote for secession, for example, as sure as I'm sitting here you would have Claude Ryan and the official opposition in the province of Quebec indicating that the clear wishes of the people of Quebec would have to be respected as well as the federal sense of decency that has characterized Canada in recent times on this kind of issue of wanting to respect that decision.

So on balance I accept the flexibility that's in the bill, which I think is necessary, but I would have faith in the decision-making process of Parliament, especially because of the impact all others would have in feeding into that parliamentary decision after such a vote.

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[Translation]

The Chairman: Mr. Drouin.

Mr. Claude Drouin (Beauce, Lib.): Mr. Broadbent, on behalf of the Liberal parliamentary group, I would like to welcome you and to thank you for your presentation.

As a person who has been a champion of human rights and minority rights, both in Canada and elsewhere, do you agree that the guarantee contained in Bill C-20 with regard to the fact that the rights of aboriginal people and those of minorities would be taken into consideration in any negotiations on secession is an important aspect of the bill?

[English]

Mr. Ed Broadbent: It's deeply important. One of the amendments the committee might want to consider is to indicate clearly that aboriginal peoples in Canada ought to play a more significant role in this process than is even indicated in the bill.

I don't know, Mr. Chairman, if this is what you were leading up to, but if there were a clear vote for secession, in terms of international law and an international declaration of the rights of indigenous peoples—which is near the completion stage, I understand—certainly my reading of the law and of what the Supreme Court has said is that the aboriginal peoples in Quebec would have a clear option to decide to remain part of Canada, including the territory that would go with that, or part of Quebec. They would have the clear right to decide that.

The Chair: Ms. Redman.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chairman.

I have two questions, Mr. Broadbent. You participated in the last two referendums. Notwithstanding the lack of clarity in some of the questions and the fact that some Quebeckers who voted yes, which I think was some 30%, said after the fact that they assumed that meant some kind of association and still being part of Canada.... This bill deals with not just the quantitative aspects of the question but also the qualitative. If you were a member of Parliament, would you support Bill C-20?

Mr. Ed Broadbent: Yes.

The Chair: Mr. Cotler.

Mr. Irwin Cotler: Mr. Broadbent, a basic theme of the indépendantistes witnesses, if I can use the term, who have come before this committee is that the bill is fundamentally anti-democratic, that the bill denies Quebec's right to self-determination, and that in effect it erodes the prerogative and power of the national assembly to set the terms and conditions of the referendum process. How would somebody like yourself, who I regard as one of Canada's great democrats and the first president of the International Centre for Human Rights and Democratic Development, react to these allegations that the bill is fundamentally anti-democratic? The allegation is serious, and I think it would be important to hear from a democrat such as yourself your response to this allegation.

Mr. Ed Broadbent: Without at all being condescending, obviously the question is a very serious one. As I read the bill, I was looking for this. The people on my left, that is to say government supporters, won't be surprised to hear this coming from me, but I spent many years dealing with governments, and opposition parties are almost instinctively suspicious of governments, which is part of the democratic process. Given the sensitivity to the people of Quebec on this issue, I read it with a lot of care to see if there was any possibility this would be intimidating and deny democracy to the people of Quebec. I flatly say that in my judgment it does not at all.

I have worked in the international rights area in many countries where self-determination questions have been underway. I have taken part, as has been indicated, in debates in Quebec. In my first federalist political convention, and this was in 1961, I made a speech saying that the people of the province of Quebec have the right to decide whether or not they want to be independent. So I take it very seriously that a bill coming from Parliament does not in any way curtail or restrict the democratic rights of the people of Quebec. Quite to the contrary, it makes it very clear and spells out that under certain circumstances in fact they would have the right to achieve independence.

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[Translation]

The Chairman: Mr. Guimond.

Mr. Michel Guimond: Mr. Broadbent, as a young parliamentarian elected in 1993, it is indeed an honour and a privilege for me to ask questions to a great Canadian democrat.

[English]

Mr. Bill Blaikie: 1989.

Mr. Michel Guimond: He was elected in—

Mr. Bill Blaikie: He was elected in 1989.

Mr. Michel Guimond: Yes, but I was elected in 1993.

Mr. Bill Blaikie: Oh, sorry, sorry.

Mr. Michel Guimond: Maybe, Bill, you'd better follow in French. I think you will have a better understanding of what I say.

Voices: Oh, oh!

[Translation]

Mr. Michel Guimond: So I was saying that it is a privilege for me, as a young parliamentarian elected in 1993, to ask questions to a great democrat, especially since you played an active role with regard to human rights as president of a centre in Montreal for several years. I remember that your party, under your leadership, always recognized the right of Quebec to self-determination.

I would like to know if you share the opinion of Mr. Claude Ryan, who, yesterday, was very critical of Bill C-20. I will read you the comments he made on clause 1(1) of Bill C-20, which says:

The House of Commons shall [...] consider the question and, by resolution, set out its determination on whether the question is clear.

Yesterday, Mr. Ryan said:

By enshrining such criteria in an act, Parliament and the federal government would interfere, at least indirectly, with the wording of the question. This is no longer true federalism, but a trusteeship system.

Mr. Broadbent, you have always recognized that the Quebec National Assembly was sovereign, that it was free to make its own decisions. Do you agree with the opinion expressed by Mr. Claude Ryan yesterday before this committee?

[English]

Mr. Ed Broadbent: What can I say, as a man who has worked closely with Mr. Ryan in the past and deeply admires him? He has the same right I have from time to time to be wrong. I think he is not correct in this instance.

I respect Quebeckers a great deal. They are not intimidated. They have a great sense of determination. I spent a lot of time particularly in the Jonquière and Chicoutimi region of Quebec, and I have no illusion that they would be intimidated, in terms of their basic democratic rights, by something coming out of this Parliament. If you read the detail, I don't think it does that.

We do use these terms sometimes differently in terms of the sovereign right, for example, of the National Assembly of Quebec. For example, I did read the resolution that was drafted in the National Assembly of Quebec, and certain clauses there are flatly different from the Supreme Court decision and would not be accepted by the Supreme Court in terms of unilateral powers. If by sovereignty you mean unilateral powers of Quebec to secede or determine its own future in that sense, I don't think that is the case, and it's not the way I would use the phrase.

[Translation]

Mr. Michel Guimond: But do you not see in that, Mr. Broadbent, some sort of dependency, some sort of legal subordination of the Quebec National Assembly to the House of Commons?

Do you agree that, yesterday, Mr. Ryan was perhaps merely highlighting the growing consensus in Quebec? That consensus is not only found among sovereignists, since Mr. Ryan started his presentation by introducing himself as a federalist from Quebec. He can certainly not be accused of being very close to the Parti Québecois—if that can be considered a fault.

From the contacts you have had in Quebec and that you have now, do you feel, Mr. Broadbent, that there is a consensus among Quebeckers to reject Bill C-20?

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[English]

Mr. Ed Broadbent: There could well be that. I respect...but I differ. That's why I said we'd come back to the question about reading the bill. I don't see it as even implying that the Parliament of Canada has a kind of sovereignty over the National Assembly in Quebec. I don't think that's in the bill. I don't think it's implied in the bill. And constitutionally, it would be false if they sought that.

What the bill does is spell out the conditions, as I read it, under which the Government of Canada would be obligated, in fact, to respond to a National Assembly resolution following a referendum. So I as a person who's tried to be very sensitive to clear separations of powers in our federal system see it as respecting that separation. Neither in the letter of the law, as I see it, nor in the spirit, as I've heard it, do I think it should be seen to be intimidating in any way or denying the rights of the people or the National Assembly in Quebec.

I'm quite prepared to agree with what you're saying, that there seems to be perhaps a broad-ranging disagreement with me on this by people in the province of Quebec, including people I have been very close to in the past on constitutional matters. Sometimes good friends and good democrats differ.

The Chair: Mr. Hill.

Mr. Grant Hill: Mr. Broadbent, one of the things that previous actors have said over and over again during the referendum processes was that if Quebec really had a clear question, they were certain they would never leave. I heard that over and over again. I believe you said something in fact very similar to that. Would that be accurate?

Mr. Ed Broadbent: I think I could have. It certainly was my sentiment in the past about the nature of the question.

Perhaps I can be entirely personal. I appreciate the comments made by the member who just spoke. When I was the president of the

[Translation]

International Centre for Human Rights and Democratic Development in the province of Quebec, most members of my team were francophones and they did not quite understand the question. We discussed the question during the referendum and there were people on that team who thought they could be both Canadians and Quebeckers after a yes vote.

[English]

So it was not clear for a number of people in Quebec, it seems to me. It was clear certainly for a lot what they were voting for, but a number of Quebeckers who weren't political experts, who weren't part of the class that examines all these things, did not clearly understand all that was in the question. So I do not think it was desirable to have that kind of question myself. Frankly, I do not think it was clear.

Mr. Grant Hill: Perhaps I could come back then to your previous comment, that if a clear question were asked you were certain that Quebeckers would not want to leave. We're fairly certain we're going to get a clear question now. I believe this law would make it very difficult for a foggy question to be asked. If that's the case, I come back to your previous position where you said you were certain that Quebeckers would not depart with a clear question. Why not then lay out the majority that was previously placed before Quebeckers and stay with the 50% plus one of valid votes? If we want to raise the bar ever so slightly, wouldn't that make sense?

Mr. Ed Broadbent: I'm repeating the answer I gave earlier, as in a way you're repeating, if I may suggest, an earlier question you were asking about the 50% plus one. I think it's complicated, as I said. My reading of the Supreme Court decision is that one possible legal meaning could be that the Supreme Court itself would accept, under certain circumstances, 50% plus one. My reading of this bill is that under certain circumstances 50% plus one could be accepted. It would have been a serious mistake to rule it out as a possibility. I would rule it out entirely as a desirable course of action for the Quebec government, and I expect Mr. Bouchard would not do this—I would hope he wouldn't do it—based on a 50% plus one vote. But I think that for the reasons Supreme Court wanted some ambiguity or the lack of finality—

Mr. Grant Hill: Lack of clarity?

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Mr. Ed Broadbent: Well, the lack of finality. You're clear about some uncertainty, and that had to play a role in the judgment.

As I said in an earlier answer, when the votes come in and all the circumstances of that vote are taken into account, if there is a will clearly expressed by Quebeckers to leave, I do not believe the Parliament of Canada would stop that. I believe that a serious process of negotiation would be launched. But I'm not unhappy with the wording as it is now.

The Chair: Mr. Blaikie, do you have another question?

That concludes your testimony, Mr. Broadbent. Thank you very much for attending this morning. We appreciate your assistance very much.

Everybody wants to cast their vote. Splendid.

I sense this is a thirty-minute bell from the rings we've had. So we'll hear the first ten minutes at least of the presentation of our next group, and it's agreed we'll suspend for the vote.

[Translation]

Our next witnesses are from the Mouvement national des Québécois. We have with us today two representatives from that group, namely Mr. Gilles Grondin, executive director, and Mr. Henri Laberge, adviser.

We will suspend proceedings for two minutes.

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The Chairman: Order. The two witnesses have already been introduced to the committee.

Gentlemen, you are welcome here today. You know the rules: you have 10 minutes to make your presentation, ant then there will be a 35-minute question period. We will pause after your presentation so we can proceed to the House to vote.

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Mr. Grondin, you have the floor.

Mr. Gilles Grondin (Executive Director, Mouvement national des Québécois): Thank you, Mr. Speaker.

[English]

The Chair: The committee is meeting. We have a presentation. Would there be quiet in the room, please.

[Translation]

Mr. Gilles Grondin: On behalf of the Mouvement national des Québécois, I am pleased to come before you to present our position in this debate on Bill C-20. We thank you for listening to us. First of all, I will say a few words about the Mouvement national des Québécois. Then, Mr. Henri Laberge will present the position of our movement in this debate on Bill C-20.

The Mouvement national des Québécois is a federation made up of 18 sovereignist Sociétés nationales and Sociétés Saint-Jean- Baptiste in Quebec. We are present in every region of Quebec. Founded in 1947, our movement was formerly known as the Fédération québécoise des Sociétés Saint-Jean-Baptiste and changed its name to its current name in the early 1970s. We have nearly 200,000 members.

Our movement is not a special-interest organization. It is involved in everything that affects the interests, aspirations and future of the nation of Quebec. Its audience is no one social category, no one occupational group, and one specific ethnic group. It is the people of Quebec as a whole, including all individuals who have settled in Quebec regardless of origin, mother tongue or religious belief. As a matter of fact, the philosophy of our movement has evolved over time from French-Canadian nationalism to Quebec nationalism based on Quebec citizenship.

Our movement's unique viewpoint, around which all our activities are structured, is that of the individual citizen of Quebec, which means any individual who is an active participant in the democratic life of Quebec.

Our movement is not a political party either. It is an actor within Quebec's civil society that takes a particular interest in Quebec pride, in the promotion of the French language and in the sovereignty of Quebec.

For more than 15 years, we have been co-ordinating the Fête nationale de la Saint-Jean, which is celebrated on June 24. For example, the annual themes for the Fête nationale, which have been developed by the movement since 1984, will always be unifying and warm. They are focussed on celebration and on a democratic Quebec that is open to the world.

All Quebeckers, regardless of their ethnic origin, are invited every year to this friendly celebration, which is a mirror of who we are as a people. Our movement is also a network of sovereignists. We work in co-operation with trade unions, national student federations and a multitude of cultural, social and community groups to build a stronger Quebec, a Quebec more determined than ever to take its rightful place in the world community.

In every region, Quebec's sovereignty is being debated and built. Sovereignty is not the goal of only the Quebec government or the Bloc Québecois, but of millions of Quebeckers, more precisely of the 2,308,360 who voted yes in the last referendum, in 1995, where there was a 94% turnout.

As mentioned previously, the MNQ is not a political party, but we respectfully salute all the Quebec MPs who, day in and day, are defending our uniqueness.

The Chairman: Order, please.

Mr. Gilles Grondin: Quebec elected representatives of all political stripes, either in Quebec City or in Ottawa, must keep in mind this goal and act accordingly. Therefore, we thank the Bloc Québecois members of Parliament, who are against this undemocratic bill. We convey our fraternal greetings to Bloc Québecois members with whom we share several projects, including Quebec sovereignty.

We also want to thank members from across Canada who are taking the time to listen to us. Our internal discussions in Quebec might surprise you at times, but rest assured that our debate is peaceful, democratic, and respectful of linguistic and aboriginal minorities.

Even though we believe this debate concerns Quebec essentially, we are appearing before you to show we respect your Parliament and your institutions. This being said, I will ask Mr. Henri Laberge to present our movement's views on Bill C-20.

Mr. Henri Laberge (Advisor, Mouvement national des Québécois): Good morning. In our opinion, the federal government's Bill C-20 will not have the legal effects anticipated by its authors because the Supreme Court showed there is a constitutional obligation for all partners in the federation to negotiate, in good faith, the constitutional amendments that are needed in order to give effects to the wishes of the Quebec people as clearly expressed in a referendum.

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A mere Act of Parliament does not amend the Constitution. It therefore cannot have the legal effect of diminishing or limiting a constitutional obligation, or of unilaterally subjecting it to new requirements.

The second thing we want to tell you is that, since it will have virtually no legal effect, this bill must be regarded as an attempt at manipulation and intimidation. It is essentially this dual aspect that we have a duty to denounce and combat.

We must take this opportunity to remind the Quebec people that under the Constitution of Canada itself, the Quebec people may legitimately express its wishes regarding its political future, and the expression of its wishes must be taken into account by all governments of Canada.

The third thing we want to say is that the federal government is bound, morally and politically, by the principal conclusions in the opinion that the government itself sought from the Supreme Court, just as it is legally bound by the provisions in the 1982 Constitution London approved at its request, and the unwritten provisions in the Constitution. If it decides to deviate from the Constitution or not to abide by the opinion the Supreme Court gave it, the Court itself says that it is the international community that will ultimately have to sanction its bad faith. Bill C-20 is part of the entire body of actions that will be open to examination in that context.

I will now elaborate further on every one of these three points. First, with regard to the constitutional obligation to negotiate, if one reads carefully the Supreme Court opinion, one realizes that, to answer the first question submitted to it by the federal government, it initially pointed out that “it lies within the power of the people of Canada... to effect whatever constitutional arrangements are desired..., including... the secession of Quebec from Canada”. Theoretically, that power may be exercised even when no referendum has been held. The Supreme Court does not at all set up a referendum as a prerequisite to consider a request to change the constitutional order of Canada, not even regarding the sovereignty of a province.

As stated by the Supreme Court, the National Assembly has the right to initiate any constitutional change, including sovereignty. The other partners in the federation have full authority to respond favourably to such an initiative. This is the first point.

Second, the Supreme Court says that the other partners have not only the authority, but also the duty, even without a referendum, to negotiate based on a simple request made by one of the participant in the federation. It says:

... the constitutional right of each participant in the federation to initiate constitutional changes [...] implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order.

The context of the paragraph in which the Court said this makes it plain that for Quebec to achieve independence or special status within Canada, the Court would regard this as a constitutional amendment that fell within the scope of those comments. Any proposal to that effect that was based on democratic legitimacy—and by the way the National Assembly is a legitimate democratic institution—would therefore place a constitutional duty on the partners to consider and discuss it.

The Supreme Court does not set up a referendum as a necessary prerequisite to the initiative of the National Assembly. However, it does say that the clear expression of the will of the people by way of a referendum makes the obligation to negotiate, taking that will into consideration, more imperative, and also makes the obligation to recognize the democratic legitimacy of the proposed constitutional amendment involved more imperative as well. This is how we must read the following statement in paragraph 150:

While it is true that some attempts at constitutional amendment in recent years have faltered...

—that is a reference to the Meech Lake Accord and the Charlottetown Accord.

... a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all the other participants in confederation would have to recognize.

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The Supreme Court thus suggests that because of the stronger obligation to negotiate and to recognize the democratic legitimacy of the proposal, there is something that makes achieving the goal stated in a referendum more pressing: something stronger than the Meech Lake claims.

It is not the scope of the claim which makes the obligation of the other partners to negotiate greater, but the referendum result which gives it greater legitimacy. Thus, the failure to ratify the Meech Lake Accord or the refusal to transfer full jurisdiction to Quebec over marriage and divorce, as was the case in 1981, for example, do not mean that ratification of a proposal for a constitutional amendment leading to sovereignty can be similarly refused, if the proposal is clearly supported by the people in a referendum.

A referendum is not necessary in order for there to be an obligation to negotiate any constitutional amendment, but a winning referendum has the consequence that not only refusal to negotiate, but also negotiation in bad faith and systematic obstruction of the orderly implementation of the proposal must be regarded as illegitimate, anti-democratic and unconstitutional. Conduct such as this could justify Quebec in proceeding on its own, relying on the undeniably democratic principle of the sovereignty of the people.

At paragraph 92 of the opinion, the Court in fact said “The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others”. At paragraph 93, after pointing out that the reconciliation of various rights and obligations by the representatives of two legitimate majorities, of Quebec and of Canada, must be sought, the Court added that there can be no suggestion that either of these majorities trumps the other. A political majority that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of the exercise of its rights.

The ultimate sanction, if Canada were to negotiate in bad faith, or if the will of the people as expressed in a referendum were to be obstructed, is clearly stated in paragraph 155.

The Court said that, although there is no right to unilateral secession, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition.

The Chairman: Mr. Laberge, I am sorry, but the time to make your presentation has nearly expired. Everybody must leave in a few seconds. You still have 30 seconds before the end.

Mr. Henri Laberge: The second thing I mentioned is that this bill, which will not have the legal effects its authors anticipate or seem to anticipate, is more of an attempt at manipulation and intimidation. I would even go as far as saying that it will put the government in an impossible situation the day after a referendum where it would have found the question unclear. The day after a referendum where a majority of Quebeckers voted yes to a question crafted by the National Assembly, the federal government having been told by the House of Commons that the question was not clear, would find itself in an impossible situation, because under the Constitution of Canada, which is not amended by the bill, it would still have the obligation to negotiate the secession of Quebec.

The Chairman: We have to temporarily suspend sitting.

[English]

The sitting is suspended until after the vote.

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[Translation]

The Chairman: We have quorum to hear testimonies. We are five.

Mr. Turp, I believe it is your turn to ask the first question.

Mr. Daniel Turp: Than you, Mr. Chairman. I would like to welcome the representatives of the Mouvement national des Québécois and ask them to pass on our greetings to its president, Mrs. Paquet, its individual members and associated societies.

My first question is one we asked Mr. Broadbent earlier. You might have been here then. Mr. Broadbent knows Quebec. He worked there for several years. Given the present situation, and at this stage of the debate on Bill C-20, could you tell us what, in your opinion, is the view of the public, including the civil society in Quebec, on Bill C-20?

Mr. Henri Laberge: The organizations of the Quebec civil society which spoke out on this are quasi-unanimous. Trade unions, the Mouvement national and various organizations of all kinds all spoke out against Bill C-20.

Both federalists and separatists basically share the same feeling on this. All three parties in the National Assembly are unanimously opposed to Bill C-20. Therefore, we presume public opinion is strongly opposed to the bill.

Mr. Gilles Grondin: Moreover, last December, in a very short period of time, we managed to gather fifty personalities of the civil society plus one: artists, intellectuals, and representatives of social and community groups, to speak out against Bill C-20. Since then, the protest has been gaining momentum.

Mr. Daniel Turp: You have had the opportunity to come here today, at our request, because your group is one of the ten the Liberal majority so generously offered us to invite before the committee. Do you believe that the hearings of this committee should have been extended, that we should have been allowed to travel in order to hear other groups and individuals in Quebec?

Mr. Henri Laberge: Yes, it would have been preferable because to have all the groups interested in testifying come to Ottawa is rather expensive. Moreover, not every body can afford to travel. I believe that, if we had visited the regions, we would have found that every group, every region is opposed to Bill C-20.

Mr. Gilles Grondin: We have representatives in every region of Quebec. Clearly, we could have had hearings, meetings, where members of the public in general and representatives of various groups would have certainly voiced their opposition to the bill.

Mr. Daniel Turp: One of the most fundamental question, the question of the 50%-plus-one majority, which is so dear to Mr. Mills—

[English]

Mr. Dennis Mills: I have a point of order, Mr. Chairman.

[Translation]

Mr. Daniel Turp: He is going to say it here. He just said it during the scrum, but he wants to say it again here, now. We are listening. We want to know what he said during the scrum.

[English]

The Chair: What is the point of order, Mr. Mills?

Mr. Dennis Mills: The point of order is that the member has stated something here that I did not say, and I just want to clear it up.

The Chair: Oh, I see.

[Translation]

Mr. Daniel Turp: We will read it later in the minutes.

Why is the 50%-plus-one rule a democratic rule?

Mr. Henri Laberge: Because it would not be reasonable for the minority to impose its point of view on the majority. As a matter of fact, the Court said a clear answer. It never mentioned it could be anything else that 50% plus one. If it had wanted it to be otherwise, it would have said so.

• 1210

When it says “clear”, it means as opposed to an answer that would not be clear. For instance, in the case of Newfoundland, there were three options; the people of Newfoundland were presented with three options: to remain a British colony; to become an independent dominion; or to join Canada.

If none of them obtains an absolute majority, the answer is not clear, but if there is a second ballot and one of the three options then obtains an absolute majority, the answer becomes clear. This is the reading we must give, I believe, to the clarity of the answer.

As far as the clarity of the question is concerned, the question must say what it means. Clarity does not mean it must be one option rather than another. If one decides that the only clear question is the one approved by the House of Commons, I believe one distorts the meaning of the word “clear”. Clear means something someone with a normal intelligence can understand.

Mr. Daniel Turp: Would you say, as Mr. Ryan did, that it is somehow putting Quebec under trusteeship?

Mr. Henri Laberge: Yes, I would go even further than that: it is putting the federal government in a situation of trusteeship because it is denied the common sense to assess the situation the day after a referendum. By being told it could not negotiate the day after a winning referendum, for example, it is forced to follow a course of action poured in concrete.

Mr. Daniel Turp: Thank you, Mr. Laberge.

The Chairman: Mr. Blaikie.

[English]

Mr. Bill Blaikie: Thank you, Mr. Chairman.

A point made by Monsieur Laberge earlier, or a point he was trying to make, was about there not being a requirement for a referendum in order to initiate a constitutional amendment—that at any point, at any time, a province could put forward a constitutional amendment, then other provinces and the Parliament of Canada could pass a similar resolution, and if they met the test of the amending formula, then that amendment would become part of the Constitution.

I'm just not exactly sure what point you were trying to make by making that point. It seems to me one of the points you could have been making, but which you didn't make explicit, and perhaps didn't want to make, is with respect to the charge against Bill C-20 that it prohibits things other than secession, such as proposals for various kinds of partnership or other changes to the Confederation—that this is somehow not possible because of Bill C-20. It would seem to me your argument indicates just how possible it is. In fact at any point the National Assembly of Quebec would be able to bring forward a constitutional amendment that proposed various changes in the federation, which would then have to be considered by other provinces and by the Parliament of Canada. So the ordinary process of constitutional amendment is not affected by this at all.

But beyond that, I guess what you were suggesting is that actually a constitutional amendment that involves secession could be brought forward. At one point people wouldn't have thought this was possible, but after the Supreme Court decision, which puts secession in the context of constitutional amendment, it therefore becomes possible for Quebec to bring forward a constitutional amendment—though I'm not sure exactly what it would look like—that would amount to secession and have it considered by the rest of Canada, with or without a referendum. Is that the point you're trying to make?

[Translation]

Mr. Henri Laberge: Yes, and I am quite adamant about it. The National Assembly has a right of initiative to propose any constitutional amendment, including Quebec secession, which makes this I find claim by the Parliament of Canada that it can tell the National Assembly the question it will put to the people is inappropriate totally bizarre.

• 1215

Since the National Assembly has a power of initiative—I am speaking from the point of view of the Supreme Court, which said the National Assembly has a power of initiative—it can, of its own initiative, consult its population to strengthen its position. The federal government cannot refuse to negotiate a proposal by the National Assembly, regardless of the consultation process. Even without any consultation, the federal government would have the obligation to negotiate, and even more so after a consultation. It is not up to the federal government to decide how the consultation should be carried out. It must accept things the way they are. In other words, if the National Assembly, after consulting its population, proposes a constitutional amendment, the federal government has the duty to negotiate, regardless of the question. Whether the question is only on secession or on secession plus a partnership, the federal government has the duty, according to the Supreme Court, to negotiate a proposal coming from the National Assembly.

How could the federal government refuse to negotiate with the Quebec government, having received the mandate to do so from the National Assembly, just because it had the bad idea to seek a mandate from the population? This does not make sense. If a mandate from the population is supposed to strengthen the position of the National Assembly, it is up to it to decide how to conduct the consultation.

The Chairman: Mr. Bachand, please.

[English]

Mr. Bill Blaikie: Mr. Chairman, I mean, this happens all the time. Other people get two or three questions, and I get one shot and then I get cut off.

The Chair: Mr. Blaikie, if the questions and the answers are long, I can't help it. Some of the questions were shorter. I think you've had your five minutes.

Mr. Bill Blaikie: Well, I'm going to start timing it, because it's getting ridiculous.

The Chair: I welcome it.

Monsieur Bachand.

[Translation]

Mr. André Bachand: Thank you very much, Mr. Chairman. To continue along the same line as my NDP colleague, I agree with you on the whole issue of initiative. The federal government has no business interfering with an initiative by a provincial legislative assembly, in this case Quebec, even though, you will admit, the word “Quebec” does not appear in the body of the bill. The federal government did not want to offend certain groups. Quebec is mentioned in the title and in the preamble of the bill, but it is nowhere to be found in the body of the bill.

What we are saying—which is essentially what the Supreme Court said—is that the federal government cannot interfere with a provincial initiative. It is the same as interfering in an area of provincial jurisdiction. We agree with the Supreme Court.

However, I disagree with you when you say the federal government has the obligation to negotiate anything, in any kind of forum. I disagree with you on that. The Supreme Court said that everything must be done in good faith, and it rightly recognized that at the end of the process, there is an obligation. As Mr. Blaikie said, various changes in the federation could be proposed. The Supreme Court mentioned, for the first time, that this process could be applied to constitutional amendments other than secession. Currently, there is no obligation on the part of the other political players to negotiate a request for change. This is new.

What we are seeking with the bill is to introduce a positive element by stating that, if after holding a referendum, a province, Quebec, proposes constitutional amendments supported by the public, there is be an obligation to negotiate. Political players will have to sit down and improve the federation. This is what we, as a political party, are hoping for.

As I told Mr. Grondin, I have had the pleasure of knowing your president for several years. Would you be open to discuss ways to improve how the federation works?

Secondly, several people mentioned the 50%-plus-one rule. While recognizing it—as Mr. Ryan did yesterday—we might hold a debate among Quebeckers. We might be able to refine the 50%-plus- one absolute majority of the ballots cast, and consider a 50%-plus- one majority of the number of registered voters, or even go further than that. Would you be open to such a debate within Quebec society?

• 1220

Mr. Henri Laberge: There are several questions in there. I did not take note of everything because at the beginning I thought there would be only one question, but I will start with the last one.

Mr. André Bachand: I am sorry.

Mr. Henri Laberge: On the 50%-plus-one rule, if we were to say, for example, that it should be 52%, and that we got just one vote over 52%, somebody would come along and say that this is a flimsy majority, that it is barely above the limit. No matter what the limit would be, there would always be a doubt as to the legitimacy since the limit would be barely reached. I believe the democratic rule of 50% plus one means that, when there are two options, the winning one is the one with the majority, the one which is the expression of the will of the people.

If there were three options, the simple plurality of votes would not be enough. I explained this earlier. In such a case the National Assembly would have to make a political judgement and decide what is the real political will coming out of the whole exercise. But if there is a clear majority, which is 50% plus one, it is an absolute majority if there are only two options. It could not be more clear. In such a case, the National Assembly would somehow be morally bound by the opinion expressed.

As far as constitutional amendments as concerned, we are indeed quite open to them. Constitutional amendments can be achieved at the request of the National Assembly or by referendum. We have never been opposed to that, but we believe that the best solution, both for Quebec and Canada, is the sovereignty of Quebec. Canada would benefit from it. We are convinced of that.

In the meantime, if a Quebec federalist government wants to use the Supreme Court opinion to bring forward constitutional amendments, we will see nothing wrong with that, and we might even support it. But we are still adamant that the only long term solution is the sovereignty of Quebec.

There was another part to your question, I believe.

The Chairman: Mr. Drouin.

Mr. Claude Drouin: I thank Mr. Grondin and Mr. Laberge for their presentation.

Mr. Laberge, you said Bill C-20 will have no significant effects since the Court recognizes the obligation to negotiate secession with the Quebec government. It seems to me you are oversimplifying the opinion of the Court as well as its ramifications. I would like to know whether you recognize that the Court linked the obligation to negotiate to a clear majority and a clear question.

Mr. Henri Laberge: Regarding a clear question, I would suggest you look up the term in a dictionary. It will tell you that “clear” means easy to understand and explicit. That is it. Clarity cannot be limited to only one option. If the wording of the question was: “Do you want Quebec to become a sovereign state while integrally respecting the rights of the aboriginal peoples?”, under Bill C-20, it should be rejected because it does not focus on secession only. If it said. “Do you want Quebec to become a sovereign state after negotiating the terms of its secession with the federal government?”, would it be acceptable under Bill C-20? It is very clear, though. In both cases, the wording is very clear. Both questions are very clear, and yet they would not pass the test of Bill C-20. This does not make any sense. Words are being distorted. We must get back to the dictionary and look up what “clear” means. It does not mean at all what is in this bill.

Mr. Claude Drouin: Yesterday Mrs. Lajoie, Mr. Lachapelle or Mr. Ryan indicated that there were four possible options in the 1995 question. But let us move on from that.

You referred to the aboriginal people. What is your vision in connection with them? Yesterday Mrs. Couture told us that they constituted a people, with the right to choose whether they wanted to remain within Quebec or not. Yet they do not have the right to remain within Canada if they decide, as they did in the last referendum, to vote 95% in favour of so doing. I would like to hear your position on the aboriginal people.

• 1225

Mr. Henri Laberge: Our position is that, in a sovereign Quebec, aboriginal people would have at least the same rights as aboriginal peoples in Canada. Does Canada recognize the right of the aboriginal peoples of Canada to secede? Would it, for instance, recognize that a part of the aboriginal peoples, for each aboriginal people is unique, is entitled to withdraw from Canada and join with the United States?

Mr. Claude Drouin: I find that interesting, Mr. Laberge. Does it mean that Quebec anglophones would have the same rights as anglophones in the rest of Canada?

Mr. Henri Laberge: No, the anglophones of Quebec would have the same rights as all other citizens. There has never been any question of it being otherwise, in any sovereignist project. No government of Quebec, no nationalist movement of any significance, has ever claimed that a sovereignist Quebec would discriminate against anglophones, or italophones, or allophones. All citizens of Quebec will enjoy equal rights. That is guaranteed.

Mr. Claude Drouin: This means then, Mr. Laberge, that aboriginal peoples would have the right to retain all of their lands, since they too constitute a people. Do you agree with that?

Mr. Henri Laberge: You are jumping from one question to the other in a rather pernicious way.

Mr. Claude Drouin: Not in the least. I am asking for a clarification.

Mr. Henri Laberge: You were asking me whether anglophones would have equal rights. My response is that aboriginal people and all citizens of Quebec would have equal rights.

Mr. Claude Drouin: You answered that very well.

Mr. Henri Laberge: Now, would they be entitled to opt out, to have land? Yes, there is provision for that. The National Assembly has passed a resolution on this matter. It has said that it would recognize the right of the aboriginal peoples to have control over certain territories, that it would recognize their right to pass legislation to protect their language, that it would recognize a right to self-government.

Mr. Claude Drouin: Is this... [Editor's note: Inaudible]

Mr. Henri Laberge: A sovereign Quebec will be prepared to go as far as the Canadian government or the governments of other provinces in recognizing the rights of aboriginal peoples. A sovereign Quebec or even a Quebec within the federation will have to recognize those same rights.

Mr. Claude Drouin: Is there recognition of the right of aboriginal peoples to remain in Canada, since they are a people.

Mr. Henri Laberge: Allow me to remind you of what happened at the time Canada became independent of Great Britain. At that time, could the aboriginal people have chosen to be a colony of Great Britain separate from Canada? I believe even Great Britain would not have accepted that. I predict that, if Quebec becomes independent, it will be the federal government itself that will not want to retain jurisdiction over the aboriginal peoples of Quebec. There is a contradiction here. What is to be negotiated between the aboriginal peoples and Quebec is the status that aboriginal peoples will have within Quebec. In this connection, Quebec is ahead of the other provinces. It is very much open to recognition of their right to fairly extensive self-government and the right to retain their language. Moreover, in Canada, the place where aboriginal language has been best retained is Quebec. That would continue. Quebec's traditional policy with respect to aboriginal people will be maintained, of course.

The Chairman: We are now having another vote in the House. I assume the committee members will again wish the session to be suspended so that they may go to vote.

Mr. Daniel Turp: Another vote on a gag order, if I recall correctly. Another one?

The Chairman: I do not know.

Mr. Daniel Turp: The third this week.

The Chairman: The session is suspended until we get back from voting. I am sorry we have to impose this delay on our witnesses.

• 1229

• 1302

The Chairman: Mr. Guimond, would you like five minutes?

[English]

Okay, perhaps we could get underway again.

[Translation]

We are already a long way behind in hearing our witnesses today. We could perhaps finish hearing this group, whom we have had to interrupt twice during the presentation and the question period.

Mr. Guimond, five minutes.

Mr. Michel Guimond: Messrs. Laberge and Grondin, thank you for coming here. Since the committee did not want to travel to the regions, you had to travel instead in order to come before us in Ottawa. I want you to know we appreciate that.

I have a question to ask on the 50% plus 1 rule. I want to know whether you agree with Mr. Mills, who clearly explained to us that he was in agreement with the 50% plus 1 rule. My colleague Mr. Turp has asked that question, however, so I will withdraw mine. Since then, Mr. Mills has been busy on the phone, and operation spin-doctor with the journalists is well under way.

Mr. Chairman, returning to my question.

[English]

Mr. Dennis Mills: I have a point of order, Mr. Chair. This of course over the last twenty years has been a favourite tactic of the separatists, but my response this morning in committee, Mr. Chair, when Mr. Lisée made a statement that the bill precludes 50% plus one—

The Chair: What's the point of order?

Mr. Dennis Mills: —I corrected him and said that this is not the case.

Mr. Chair, the point is that the Bloc members are making assertions that are not factually correct.

The Chair: That's not a point of order. We do have debate, and we'll have that later, I'm sure.

Mr. Guimond, to avoid wasting time, perhaps you could

[Translation]

ask your questions of the witnesses.

[English]

Mr. Dennis Mills: Excuse me, I have a point of order, Mr. Chair.

[Translation]

Mr. Michel Guimond: I do not remember whether it was Mr. Grondin or Mr. Laberge who used some pretty strong language to describe Bill C-20 as an attempt at manipulation and intimidation. I would like the witness to clarify his idea.

Mr. Henri Laberge: The bill will not modify Canadian constitutional order and thus will not have the legal effects anticipated by its authors. A mere act of Parliament does not amend the Constitution. The interpreter of the Constitution is the Supreme Court, and it has indicated a duty to negotiate. That obligation is going to remain and is not lessened by the bill.

• 1305

One may well wonder, then, what purpose the bill serves. It serves to intimidate Quebeckers and to make them believe that there has been a kind of prohibition passed by the House of Commons on the people of Quebec's ability to determine its political future with an absolute majority, in a referendum.

Another instance of intimidation is the wording of clause 3 concerning the contents of the negotiation. There is reference to the negotiation of territory. It is very possible that negotiation of territory may indeed take place, because Quebec will require expansion of its borders, for example as far as its territorial waters are concerned.

An independent Quebec will need to be more extensive than Quebec the province. That is not, however, the intention of the authors of this bill. They included these provisions in order to hold the threat of partition over our heads. What must be stated is that, constitutionally, as long as the negotiation has not led to recognition of Quebec as an independent state, Quebec will have a right to veto any territorial change. Once Quebec has become independent, its territory can be negotiated only with independent countries. Negotiations would be held between independent countries.

Mr. Michel Guimond: This morning's La Presse reported what Mr. Ryan said yesterday before our committee. He told us that, in his opinion, Ottawa's conception of Quebec democracy was that it was rather medieval. Mr. Ryan has a reputation as being a man with great knowledge of word usage, and during his days as editor-in-chief at Le Devoir he always used words with their exact meaning.

I would like to hear your views on this comment by Mr. Ryan about Ottawa, that Ottawa considers Quebec democracy to be medieval.

Mr. Henri Laberge: I cannot read the minds of those who think Quebec is not democratic. I therefore have a bit of trouble clarifying the meaning of this concept. I can, however, state that Quebec democracy is as advanced a democracy as that of Canada, if not more so.

Mr. Michel Guimond: In what ways? Could you give examples?

Mr. Henri Laberge: We might mention the rules for the financing of political parties and the use of the referendum, which has now become part of the political mores of Quebec. There are lots of other examples, including the changes to the electoral map. In order to have one that is more appropriate and fairer, with fairer distribution of voters among the ridings, we had to abolish the ridings that were protected by the Canadian Constitution.

Quebec democracy has developed in a number of ways. Not only are there the collective decisions affecting democracy, there is also the recognition of citizens' basic rights. The Quebec Charter of Human Rights and Freedoms is one of the most advanced charters of rights in Canada in this connection. It sets out all cases in which discrimination against minorities, various groups and so on is forbidden.

The Quebec Charter of the French Language is another example of the recognition of the rights of all citizens on an equal footing, without distinction. This is not a piece of legislation that favours one linguistic group over another, but rather one which is intended to allow the entire population of Quebec to benefit from the advantage of having a common language which permits political deliberation and dialogue between all groups which compose Quebec society.

The society of Quebec is a fundamentally democratic society.

The Chairman: Mr. Charbonneau.

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): Mr. Chairman, it is a great pleasure for me to dialogue with Messrs. Grondin and Laberge, in particular Mr. Laberge, whom I had the pleasure of having as an advisor on issues of this kind for 10 or 12 years within an organization called the CEQ.

On Friday afternoon, we heard a witness who was here on behalf of Pro-Démocracie, Mr. Larose. He told us that, as far as he was concerned, moreover, Quebec had never been part of Canada. He wanted to make it clear that there had never been an expressed desire by Quebec to be part of Canada, and that things therefore had to be started from scratch again, with a 50% plus one vote for rejoining Canada.

• 1310

I would like to hear you tell us whether you share this point of view that Quebec has never been part of Canada, in order to clarify the basis of our discussion.

Mr. Henri Laberge: Distinctions must, of course, be made. From the point of view of the legal reality imposed upon us by history, Quebec is indeed one of the provinces making up Canadian federation. If this is addressed from the democratic point of view, however, one may wonder whether the Quebec people has ever had the opportunity to speak out on belonging to the Canadian federation. In this I am totally in agreement with Mr. Larose in stating that the Quebec people has never had that opportunity.

Mr. Yvon Charbonneau: But what other people in Canada has had the opportunity to do so? You speak of the Quebec people, but what about the aboriginal people?

Mr. Henri Laberge: No, none other. None other.

Mr. Yvon Charbonneau: So, where is the problem?

Mr. Henri Laberge: The problem is the same for everyone and perhaps it is not restricted to Quebec. We are speaking here, however, on behalf of Quebec. It is not much consolation to us that other peoples share that misfortune with us.

On the contrary, we believe that the sovereignty of Quebec to which we aspire is the best solution for both Quebec and Canada. Canada would have a great deal to gain from the democratic point of view. It could equip itself with democratic institutions which would be based on popular sovereignty rather than the imposition of constitution coming to it from a foreign country. It must not be lost sight of that the Canadian Constitution is, overall, with the exception of a few minor changes made since 1982, a set of laws that were passed by the Parliament in London, without any popular consultation whatsoever, of either the people of Canada or the people of Quebec.

Mr. Yvon Charbonneau: But—

Mr. Henri Laberge: That is a historical reality of which we must be well aware. It must be realized that one of the infamies of the so-called repatriation of the Constitution of 1982 is that the Parliament in London was addressed in order to enable the federal government to legislate, indirectly, through the British Parliament, in an area of exclusive provincial jurisdiction. The federal government has therefore made use of the Parliament of London in order to accomplish indirectly what it had no right to do directly, i.e. legislate in the area of education. Since 1982, we are in a doubly awkward situation as far as the Canadian Constitution is concerned.

Mr. Yvon Charbonneau: Mr. Chairman, we can certainly resume—

Mr. Henri Laberge: Moreover, the thesis I am defending, Mr. Charbonneau, is the one you yourself defended as president of the CEQ.

Mr. Yvon Charbonneau: With some shades of difference you are avoiding mention of here. In 1972, the organization to which we belonged did indeed recognize Quebec's right to self- determination. This did not, however, in any way, in the mind of anyone at all in my opinion, represent a totally unilateral undertaking. Self-determination can take a number of different paths. The status of Quebec within Canada can be renewed, there can be a desire to leave Canada, or there can be a desire for a new form of partnership. Self-determination can evolve in a number of different directions.

Today, it might be said that self-determination is seen as sovereignty alone. Self-determination can take a number of different paths. What I would like to hear some comments from you on is the interests of other Canadians in this debate. How will those interests be expressed at a given point? The present government has chosen to express those interests through a bill. It could have been via a resolution or a declaration, but it has chosen to use a bill.

Do you not realize that, at some point, it is better to be clear instead of trying to clarify things afterward? From the point of view of democracy, is it not preferable to know in advance the conditions of the opposing side, when one enters into negotiations, whether these be union negotiations, constitutional ones, or any other kind? Is it not better for both sides to have a clear idea of the rules of the game, and to try to exchange views on them at the start, instead of trying to do so afterward, saying “you ought to have understood that—”? No, no, it is clarified at the start. It seems to me that, democratically, there is nothing negative about doing so.

Mr. Henri Laberge: I must say that Mr. Charbonneau's question would not pass the test of Bill C-20. There are at least three components to it: the various forms of self-determination, the clarity before hand, and the clarity afterward, as well as the interests of other Canadians. I shall try to address these three elements separately.

• 1315

As for self-determination, I am very pleased to hear from Mr. Charbonneau that he acknowledges that self-determination does not address only sovereignty pure and simple, but can address numerous other things. Bill C-20 does not recognize this. It says that the federal government would not agree to negotiate if the question dealt solely with secession and nothing else.

Self-determination is far broader than merely saying that one is leaving, or not leaving. It can also include the conditions of the departure, and the arrangements that are desired.

I am very pleased to hear from Mr. Charbonneau that self- determination is not a purely unilateral right to secession. I agree with him. Moreover, the question of 1980, which would be illegal under Bill C-20, stipulated precisely that there would be negotiation. The mandate to negotiate was being sought. According to Bill C-20, if the Quebec people ask its government to negotiate, that will not be recognized. We are going to recognize it only if it indicates no intention to negotiate or if the question of negotiation is not even in the picture. There is a contradiction here.

I will also deal with clarity, before and after. I am very pleased to hear that things must be made clear before hand, including the comments on the conditions the Parliament of Canada would examine after the referendum in order to decide whether the majority is sufficient or not. It is better for it to be stated before hand. What needs to be stated before hand can be nothing else but a clear majority as the Supreme Court understands that term, or in other words a majority in which one option clearly wins out over another. As I explained a while ago when Mr. Charbonneau was not here, when there are three options and one of the three has a plurality of votes but not a majority, that is not a clear response. When there are two options, however, and one wins out over the other, that is a clear response.

As far as Canadian interests are concerned, it goes without saying that these must be taken into consideration, but never by denying the right to self-determination. This reminder of the interests of other Canadians must not deny a fundamental right of the Quebec people. There are Canada interests at stake, for instance division of the debt. No Government of Quebec has ever claimed that there would not be any negotiation on dividing the debt. I know that there are some countries, some former colonies, for instance, that have left, justifiably, and become independent without assuming any portion of the debt whatsoever.

When Canada became independent of Great Britain, it assumed no portion of Great Britain's debt, except what concerned Canada specifically. In the case of Quebec, however, Quebec has never claimed that it did not have to pay part of the debt. What the Government of Quebec has always said is that it was going to assume that portion of the debt which was equivalent to the portion of the assets it was going to assume. If the percentage of the assets is 22%, then it will assume 22% of the debt. That is what it has always said. There can be negotiation on the percentage, and that is part of the interests of other Canadians.

The interests of other Canadians are also the interest of minorities within Quebec. In the bill, one of the whereas clauses in the preamble implies that, if Quebec becomes independent, all Quebeckers will of necessity lose the advantages of Canadian citizenship. I personally do not insist on retaining Canadian citizenship, nor do any of my colleagues. If Quebec becomes independent, we will be very pleased to have Quebec citizenship, and it will be enough for us. It may happen, however, that certain Quebeckers want to retain Canadian citizenship. The Canadian government will be the one to make that decision, no one else, not even the Government of Quebec. Even without negotiation, the Canadian government might decide to recognize the retention of Canadian citizenship by certain Quebeckers. That decision belongs to Canada. If, in the negotiations, Canada wants to take the interests of those it claims to defend to heart, then it is up to Canada to propose double citizenship for some Quebeckers who ask for it.

• 1320

The Chairman: Mr. Laberge and Mr. Grondin, thank you for your help. I would ask you to pardon us for the many delays we had during your presentation. You were a great help to the committee. Thank you.

The next witnesses, for the Société Saint-Jean-Baptiste de Montréal, are Mr. Guy Bouthillier, President, and Mr. Robin Philpot, Director of Communications.

Welcome, gentlemen. We are delighted to have you with us this afternoon. As you know, you have 10 minutes for your presentation, and there will then be 35 minutes for questions from the hon. members.

No doubt it is you who are starting, Mr. Bouthillier.

Mr. Guy Bouthillier (President, Société Saint-Jean-Baptiste de Montréal): Thank you, Mr. Chairman.

Ladies and Gentlemen, I would like to start with a brief introduction of the people who are with me today: René Asselin, Vice-President of the Société Saint-Jean-Baptiste; Robin Philpot, Director of Communications; Mr. David Jacobs, a Toronto lawyer and past president of the constitutional and human rights law section of the Canadian Bar Association, Ontario branch.

I would also like to say a few words about the Société Saint-Jean-Baptiste. It dates back to 1834, well back in the British imperial regime. You will note that it predates the House of Commons, before which we are appearing today, by some thirty years.

Consequently, the Société Saint-Jean-Baptiste has a long history of battling for national sovereignty. It has presented a brief, which I believe has been distributed.

I will present it rapidly, beginning by telling you that it is part of a long and difficulty history, one that has not always been to Canada's credit. That history goes back to 1840. It is the history of a process by which one people has placed another, the people of Quebec, in a position of demographic and political minority. It is a process of minorization which continues year after year within a political system which is becoming less and less federal.

Under such circumstances, the relationship between Canadians and Quebeckers cease to be one between two peoples and become no more than a majority—minority relationship. You will understand that such a relationship, such an organization, such a status for Quebec, no doubt suits Canada and the majority of Canadians perfectly well, but not Quebeckers. Quebeckers, depending on their tendencies, either do not accept it, or no longer accept it. Quebec is seeking to modify it, and even to get out of it, while on the contrary the Canadian government is systematically involved in opposition to this.

There are three major approaches to this opposition, to trying to block the path of the Quebec people. The first is, of course, money, which is too familiar a subject to require much attention here. The Canada-Quebec marriage-broker Ms. Copps and the unfortunate Ms. Stewart can tell you a lot more about that.

The second, which is less known, more hidden and more disquieting or more surprising, in the country of Lester B. Pearson, is the recourse to intimidation. There were, of course, examples of this in April 1918 and in August 1940. More recently, Quebeckers have not forgotten, nor are they prepared to forget, the systematic intimidation of October 1970. What must not be forgotten is that this intimidation continues and that bellicose comments on Quebec and Quebeckers are still heard too frequently, and often from very high places. I will give a few examples:

• 1325

In 1994, former British Columbia premier Mike Harcourt said:

[English]

that the people of Quebec will suffer, not just economically, but in every which way.

[Translation]

Harcourt was the premier of a province.

Mr. Crosbie, John Crosbie, a former member of this House, and a former minister, said the following in 1995:

[English]

that the government should be getting the armed forces into good shape, because there would be a need for internal order if Quebec voted to leave.

[Translation]

That was in 1995.

In 1997, an article in a major Vancouver newspaper, in an apparent attempt at philosophizing on the history of Quebec- Canada relations, said

[English]

that one must ask the detached historical question of whether Canadians would have created a better union if there had been a bloodletting.

[Translation]

These were the words of Mr. Lautens in 1997.

I will not even touch on the totally unacceptable words, which would make the likes of Jean-Marie Le Pen wildly jealous, used by Doug Young in virtually threatening Osvaldo Nunez with expulsion from the country for his independentist views. There we have intimidation.

The third, of course, is the recourse to texts. There was the fairly recent one of 1982, with which we are familiar, and now the one of the year 2000. The two are tarred with the same brush, and both intended to teach a lesson. In 1982 it was done in the name of rights and freedoms, and today it is being done in the name of clarity.

“Clarity is us”. Earlier this century, there was a rallying cry of “Gott mit uns”. Now it is “clarity is us”. We are here to say that the Canada government is not credible when it talks of clarity. It is not credible when it talks of referendums. Examine its history: no referendum in 1867; no referendum in 1931; no referendum during the major constitutional upheaval of 1982.

Nor is the Canadian government credible when it speaks of constitutional clarity. There was no clarity in 1867, when the label of “confederation” was given to a system which everyone knew perfectly well was no such thing.

There was not much clarity in Mr. Trudeau's words of 1980 about a no vote meaning yes.

There was not much clarity in referring in 1982 to repatriation when, basically, what was involved was a total constitutional upheaval.

Nor was there much clarity in 1992, with Charlottetown, in inviting voters to decide on a text that had not yet been completed.

The Canadian government is not being very credible, either, when it starts drafting referendum questions. I am not of course referring to the one it has put to the Montagnais of Quebec, or is about to. I am referring to the one it put to Quebec and Canadian voters in 1942, at the time of what is commonly called the plebiscite. I will read it:

[English]

Are you in favour of releasing the government from any obligation arising out of any past commitments restricting the methods of raising men for military service?

[Translation]

This was of course a commitment toward the people of Quebec. There is no mention of the people of Quebec nor is there any clarification of what commitment is involved.

The Canadian government is not very credible either in its concerns around the right to vote. There is a whole debate centred on the question of 50% plus one: is it quality or quantity? This is unclear.

At any rate, this is not in the least playing fair, nor is it very straightforward. It is not a very noble thing for a player to reject the rules of the game, which he totally accepted when he was sure to win but now rejects because he knows he is losing. The Canadian government is, in this matter, at odds with the most generally accepted rule of democratic countries. Canada, which claims to be a democratic country, and must be to a certain extent, but it is also at odds with its own Charter of Rights and Freedoms of 1982, of which it is apparently so proud, and more specifically at odds with the principle of equality, which is the focal point, the high point, of that charter.

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There is not much clarity and credibility when the Canadian government relies on the Supreme Court, all justices of which are appointed by the Canadian government, by the Prime Minister. This is the only country in the world where such a situation exists.

There is not much clarity either in relying on the Supreme Court when its justices themselves inform us more or less how decisions are reached there. Justice Lamer said this in 1996:

[English]

There are issues where we just do our damned best and hope to God we did the right thing. [...] There are political choices you have to make and you make them. [...] Mind you, they may not be the right ones to make, but you only discover that some years later.

[Translation]

Those are the words of Justice Lamer when he was still on the Supreme Court. What did he say last January, when he was no longer in that position? He informed us that, anyway, no one is obliged to comply with the court's decision of August 1998. There is not much clarity in that either.

In all of that, only one thing is clear: the desire of the Government of Canada to dispossess, and I mean dispossess, the Government of Quebec of the right to decide of and for itself and to transfer this right to all of Canada. This is what some are calling guardianship and others are calling the return of the right of disallowance, but the process is exactly the same as it was in April 1942: take something out of the Quebec forum to spread it out in the Canadian forum.

You know what our conclusions are. We must reject the bill and encourage the people of Canada as a whole to give up the vision behind this text, the unitarian, one-nation view of Canada, and return to the view of the relationship between Canadians and Quebeckers as one of people to people. Most importantly, right now we must ask the Canadian government, all elected representatives in Canada and all men and women of goodwill in Canada to denounce all fighting words directed at Quebec, Quebeckers or francophones outside Quebec. This is vital in light of the climate some are trying to create around this issue in Canada.

Thank you, Mr. Chairman.

The Chairman: Thank you very much, Mr. Bouthillier.

Mr. Hill, you may begin.

Mr. Grant Hill: Thank you for your remarks.

The Supreme Court has stated clearly that a unilateral declaration of independence would be illegal. Do you agree with that?

Mr. Guy Bouthillier: There was never any question in the Quebec sovereignty movement of proceeding unilaterally. The intention was always to propose negotiation to Canada and the Government of Canada of the results of a vote by Quebeckers for independence and sovereignty. This is exactly what we want, and this is exactly what the Supreme Court set out as the obligation of the Government of Canada if the people of Quebec express their desire. I do not want to make a case of it, but it seems to me that the efforts here are intended to intimidate and circumvent negotiations. Quebeckers want to negotiate, and the Government of Quebec will want to negotiate. I am not sure that the originators of this text have the same intention and the same desire.

Mr. Grant Hill: Do you agree that a unilateral declaration of independence would be illegal, yes or no?

One voice: To the Supreme Court it is not illegal.

Mr. Guy Bouthillier: When negotiations in good faith are held there will be no need for a unilateral declaration. However, if we face a party negotiating in bad faith, not wishing to recognize us and coming up with ways to refuse to recognize us, the only way for us to act with dignity would be for us to declare independence and ask the international community to recognize us.

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As things are going here it looks like a dispute between the parishes of Quebec and Canada. No. This matter will go before the world, and it would be up to the international community to intervene if it were discovered that the Canadian government was refusing to negotiate in good faith.

Mr. Grant Hill: Do you believe that the 1995 referendum question was clear?

Mr. Guy Bouthillier: It was, at least for those who voted no. What were those voting no voting for? For all the Canadians in Ontario, Manitoba and British Columbia who came to Montreal on October 26 it was very clear. Everyone knew that a yes vote meant a move toward independence for Quebec. Everyone knew it, those who voted yes as well as those who voted no.

Mr. Grant Hill: Was the question unambiguous, not confusing?

Mr. Guy Bouthillier: It was clear to those who wanted to establish a country. It was clear to those determined to make a country, and if I have understood, it was clear to those who opposed Quebec's becoming a country.

Mr. Grant Hill: Quebeckers such as Claude Castonguay have said clearly that the question was confusing and ambiguous.

Mr. Guy Bouthillier: You know that there is confusion in political life. I said so earlier. Is it being clear to call the system we have had since 1867 “confederation”, when everyone knows perfectly well« A person does not have to be a lawyer to know that it has never been a confederation. Was the Trudeau government clear in 1980 when it said: “You know, if you vote no, it will be a yes vote.” Was it clear in 1992 to have the Canadian and Quebec people vote on a text that was not even finished? It was not clear at all, and we did not lose any sleep over it. No one here lost any sleep over it. The same is true for 1995, sir.

Mr. Grant Hill: Thank you very much.

The Chairman: Mr. Turp.

Mr. Daniel Turp: Thank you, Mr. Chairman. I have a small comment to make on the unilateral declaration. My friend from the Reform Party put the question to our great strategist behind Mr. Alcock. He seemed to be saying that we sovereignists wanted to make a unilateral declaration. How many times will he have to repeat that, since René Lévesque, under Lucien Bouchard and all the other sovereignist leaders, we never wanted to achieve sovereignty by making a unilateral declaration? It has always been our intention—and this is part of the programs of the Parti Québecois—to achieve sovereignty following negotiations.

The bill our friend put before us and has shown me said effectively that, failing negotiation in good faith, a unilateral declaration of sovereignty could be expected, which the Supreme Court in its August 20, 1998 opinion has confirmed. It said that this would be a legitimate and legal route, even for those who can and wish to read the opinion of the Supreme Court. They can go on saying that the sovereignists want to achieve sovereignty unilaterally, but it is not true. It is wrong, and I hope you will understand this is how the sovereignists wish to proceed.

Here is my question for the people in the Saint-Jean-Baptiste society. Is the rule of majority this bill wishes to apply not in fact the rule of minority? Are they not trying to give a minority the power to decide the future of Quebec?

Mr. Guy Bouthillier: Yes. Indeed this is what came out earlier. It opposes one of the fundamental principles at the heart of the 1982 charter of rights and freedoms: the principle of equality. The effect is that those voting for Canada would carry greater weight than those voting for Quebec. This is what they are attempting to validate with this Bill C-20, and this is unacceptable. This is what we do not comprehend and what international opinion will not comprehend. To my knowledge, the only interest outside Quebec and Canada in this idea comes from the magazine *ucThe Economist*uf, as of two weeks ago. I am sure you read it.

• 1340

They too have changed. They agreed in 1980 and in 1995, and I do not know what is happening now. All of a sudden, they changed their mind. However, they are really in the minority. The practice of democratic countries and of the UN in its entirety tells us this is the route we should take. This is the way we will succeed, I am sure, in having Quebec and Canada living side by side and understanding each other, since the aim is to create a country and to ensure that it understands its immediate and most important neighbour. We are not going to succeed in this by manipulating the basic principles of democracy and international practice.

Mr. Daniel Turp: Mr. Chairman, this is the first time I am going to make this remark, and I would like our friends to comment on it. This bill is essentially negative. It provides that a question may be rejected if it includes certain things and that a majority may be rejected if it fails to meet given criteria. And it states twice that the Government of Canada “shall not enter into negotiations on the terms” and so on. This concerns the obligation to negotiate.

Is this bill not in fact a bill intended to circumvent, to avoid, the obligation to negotiate that the Supreme Court imposed on Canada in its 1998 decision?

Mr. Guy Bouthillier: Yes, I am convinced of that, but I would like Mr. Jacobs to intervene at this point, if you will permit, Mr. Chairman.

[English]

The Chair: Go ahead.

Mr. David Jacobs (Lawyer, Société Saint-Jean-Baptiste de Montréal): Thank you, Monsieur Bouthillier and Monsieur Turp.

I think that is correct. The Supreme Court didn't set out in its opinion that negotiations couldn't follow, but for certain questions that had to be asked and certain processes that had to be undertaken by the Government of Quebec.

I think it's a good time to add something to what Mr. Hill said. Mr. Hill asked, twice I think, whether a unilateral declaration of independence was illegal and whether the Supreme Court had said that. Now, I appreciate that no Government of Quebec has ever suggested—or would ever suggest, I think—a unilateral declaration of independence without negotiations with Canada. However, the Supreme Court was very careful, as far as I read the opinion, in that it did not say it would be illegal for there to be a unilateral declaration of independence without negotiations.

What the Supreme Court said was that it would not be constitutional—a different question—and it said that the legality of such a unilateral declaration would be determined by the international community, having regard to, among other things, the conduct of Canada and the conduct of Quebec.

I take that to mean that if Quebec, by a majority, votes in a question on the accession to sovereignty or sovereignty association or some other formula, understanding that other formulae are not permitted by the clarity bill.... The clarity bill only considers one formula; that is, a question on sovereignty, yes or no.

If the rest of Canada refused to negotiate, put obstacles in the way of negotiating, and said we won't talk to you unless we're going to talk about borders, we won't talk to you unless we're going to talk about native communities or something like that, these are things the international community would take into account in deciding whether or not there was legitimacy to the unilateral declaration of independence. That paragraph is at paragraph 155 of the opinion of the Supreme Court of Canada, which, as I say, is very careful on this point.

It seems to me that the efforts of the clarity bill to discuss clarity in these terms and to put a veto in the hands of the federal government over the democratic rights of the people of Quebec is, in my view, unlawful at international law.

• 1345

Let me go back again to something more from the Supreme Court judgment. The Supreme Court may have said that a unilateral declaration of independence was unconstitutional, but if you cast your minds back to 1981, the Supreme Court said in 1981 in the constitutional reference, to my recollection, that the amendment of the Constitution without the approval of the provinces—and particularly at that time one was thinking of the approval of the Province of Quebec—would also be unconstitutional. Since 1867 the Constitution had never been amended without the approval of Quebec.

So in the early 1980s, at the behest of Pierre Trudeau, the Government of Canada was prepared, for the first time since 1867, to break the compact of Confederation between Canada and Quebec and to say it was going to amend the Constitution without the assent of Quebec. The Supreme Court said that the conventions were such that the approval of Quebec was necessary and it was otherwise unconstitutional. The Supreme Court did not say it was illegal.

The Supreme Court did not say it was illegal at that time, and that was the excuse for the first ministers conference, which happened afterwards, and the patriation of the Constitution, which happened in 1982, in my interpretation of that history. What happened in 1982 is fundamental to our understanding of what's happening in the clarity bill.

The Chair: Mr. Jacobs—

Mr. David Jacobs: You give me a timeline: do I have a few seconds?

The Chair: Yes, you've gone well over, but I recognize that it's a lengthy answer.

Mr. David Jacobs: In 1867, Quebec joined together with Canada, the two founding peoples, on certain bases. One of the bases was that Quebec have control over language, culture, and education. That was the basis for the compact. In 1982, English Canada said to Quebec, that compact is over, it is dead, it's finished, we are now going to amend the Constitution, we are going to amend your fundamental law of Quebec without your approval, and because we're amending your fundamental law without your approval, you have no further choice in the matter, you are trapped within a Constitution, a fundamental law not of your own making.

It is obviously legitimate for Quebec to say to Canada right now, we're sorry, we're sorry you have broken the compact with us, and we claim our rights, as a result of the broken compact, to self-determination if necessary, to secession in order to regain our rights because we're obviously excluded from Canadian policy.

As the Supreme Court of Canada said in one of the important paragraphs of its decision, one of the conditions for a right to secession is that a people's democratic rights—I'm paraphrasing here—are blocked within the overall structure. I think that condition is met. I think Quebec has a right to secession. I think Quebec, as a people with a right to self-determination and a right to secession, has a right to determine how it leaves Canada and how it makes negotiating proposals to Canada. That includes whether or not it undertakes a referendum and how it undertakes a referendum.

I have spoken too long, but thank you.

The Chair: Yes.

[Translation]

Mr. Drouin.

Mr. Claude Drouin: Mr. Bouthillier, gentlemen from the Saint-Jean-Baptiste society, thank you for your presentation. I would first like to mention that Bill C-20 is considered to be giving more power to the minorities, as Mr. Turp pointed out. That is quite similar to the case of the two latest referendums Quebec has held, when the majority of the people of Quebec said no, and it was noted that many said yes. So, that was that. So, the minorities lead.

I think we have nothing to learn from the separatists in that regard. Those who say that the Supreme Court does not say that unilateral secession is illegal forget that paragraph 104 of the Court's opinion provides:

104. Accordingly, the secession of Quebec from Canada cannot be accomplished by the National Assembly, the legislature or Government of Quebec unilaterally...

That seems pretty clear to me.

I would like to get back to Mr. Bouthillier, who has spoken a lot about history, who has mentioned a lot of things. He spoke of 1982. I would like you to see a program prepared by Télé- Québec. I do not think Télé-Québec is particularly federalist. Mr. Claude Morin and Mr. Claude Charron indicate clearly that, for them, before negotiating, no agreement was possible on the patriation of the Constitution of 1982. I would like to see where the wicked wolves of Canada stand on this side. The government negotiators got there without wanting any sort of an agreement. At that time, the charter of rights and freedoms had been established, proof that democracy existed in Canada.

• 1350

Mr. Bouthillier talks of history. First, referendums were, to all intents and purposes, non existent at the time. Second, there were fewer representatives in the legislative assembly than there are today, for the simple reason that the population was smaller in 1865. This situation did not, however, prevent the members from debating the matter for nearly two months. Finally, the solutions drafted at the Quebec Conference were debated within the Legislature of the Province of Canada in February and March 1865. On March 11 of that year, the resolutions were passed by a vote of 91 to 33. The legislature of Canada East, which represented Quebec, passed the resolutions by a vote of 37 to 25. The majority supporting the resolutions therefore numbered 12, which represents 59.67 per cent of the votes cast. I would like to see where there was a lack of fair play in that.

The United States and France say they are indivisible, whereas we draw on the opinion of the Supreme Court, which Mr. Bouchard described as a good one. Lawyers told us yesterday that Bill C-20 was just about a carbon copy of the opinion of the Supreme Court. Pardon?

Mr. Daniel Turp: [Editor's note: Inaudible]... like Mr. Ryan, for example.

Mr. Claude Drouin: You are contradicting the leader of the separatists, Mr. Bouchard, because he said it is a good opinion. Perhaps you will explain to me how the United States and France are more democratic than Canada. And what is your view with respect to the Native Peoples, who are a people and 95 per cent of whom want to remain in Canada, Mr. Bouthillier?

Mr. Guy Bouthillier: There are a lot of things, thank you, but there is one point I will retain. It seems to me that the requirement for clarity...

Mr. Claude Drouin: Not for the conservatives. Excuse me.

Mr. Guy Bouthillier: Naught at all. The requirement for clarity must first find expression in the words one uses oneself to describe oneself and to designate one's adversaries. Canada's adversaries, the partisans of Quebec, are not separatists as you have just put it. Labelling them as such creates confusion. Your adversaries, the people you want to impede in their historic progress, are not separatists as you put it. They are sovereignists, advocates of independence. It is in such terms that the requirement for clarity should first be expressed. Let us call a spade a spade. Let us call a sovereignist a sovereignist and stop trying to debase him by using a word that is totally wrong, that has nothing to do with the reality. That is the first idea.

Second, we spoke of the 1982 referendum, or rather the Constitution of 1982. Pardon my lapse, a significant lapse. We were in the middle of the 20th century in 1982. We were told that forward thinkers were in power at the time. They brought home a very important Constitution. Appearing to patriate it, they introduced considerable upheaval. To this day, I have not understood and will never understand why Canada, a country that considers itself democratic and must be somewhat so, did not want to base the new Constitution on popular support by holding a referendum.

• 1355

There was no referendum in 1867, but perhaps it was not common practice at the time. No referendum was held in 1931 either. I am surprised that Canadian federalists such as you do not recall the importance of 1931 in the perfectly normal, logical and peaceful development of relations between Canada and the United Kingdom. I do not understand why national pride combined with democratic obligation did not lead Canada of the day to confirm this new political reality of relations between peoples so close, related peoples. The United Kingdom and English Canada are very close. Why did Canada not want to enshrine this absolutely formidable change, which transformed this country from being a sort of vague province, vaguely appended to the British Empire, into a sovereign country among sovereign countries? Why did you not do that? Why did you not do it when, now all of a sudden you are interested in our referendum, now you want to fancy up our referendum and show off your expertise in referendums? Really, that surprises me a lot, and I still do not understand it.

Mr. Claude Drouin: Mr. Bouthillier, you refer to 1982. I would remind you that, in 1982, Mr. Lévesque did not want a referendum because he knew very well that Quebeckers supported patriation. Why did Mr. Lévesque not want one in 1982?

Mr. Guy Bouthillier: All of a sudden, Mr. Lévesque had a sort of right of veto on Canada's decisions? That was quite new.

Mr. Claude Drouin: Well yes. That is what democracy is about.

[English]

The Chair: Mr. Jacobs.

Mr. David Jacobs: What I find reprehensible about this clarity bill process is that the process whereby Quebec may accede to sovereignty is being looked at in much finer detail than the process of the 1982 constitutional patriation, in a sense, and in a very important sense. The patriation of the 1982 Constitution was mostly about Quebec, the one part of Canada that did not agree to the patriation of the Constitution.

It has been well argued, I think, by Professor Mandel of Osgoode Hall Law School, in his book on the Constitution, that the heart of the Constitution, which was wrapped around with grand, vague charter rights to freedom of expression and freedom of association and so on, was an attack on Quebec's language laws, which up until 1982 had been perfectly constitutional as within the division of powers set out in the Constitution Act of 1967. So 1982 took away those laws from Quebec.

The charter in 1982 was directed at Quebec. Those sections dealing with language and those sections dealing with education were directed at Quebec, and Quebec did not agree. From the point of view of English Canada, that was of no consequence. That is a terrible insult to our partner in Confederation—and I speak as somebody from Toronto. It is a terrible insult.

You cannot have a partnership with another people and consider yourself to be two founding peoples equally controlling a country when one says to the other, we do not care for your right to self-determination—and frankly, there can be no doubt at law that Quebec is a people with a right to self-determination, which means that they have an input into our democracy—and we are going to impose upon you a fundamental law that you do not agree with. The clarity bill is the final conclusion of this. Since 1982 there have been attempts at Meech Lake and at Charlottetown to repair the damage. English Canada has said it has no interest in repairing the damage.

The clarity bill is the final nail in the coffin. The clarity bill has two audiences. For the audience in English Canada, it says that you have to understand that the federal government thinks the people of Quebec are not capable adults, not capable of understanding whether a question is clear or not, and not capable of trusting in their democratically elected representatives.

The whole issue of clarity is a political issue that is being raised to garner support in English Canada for the proposition that the people of Quebec are stupid, that they're unworthy of democracy. In this respect, I think the bill has profoundly racist implications and for that reason should be rejected.

Secondarily, as to the audience in Quebec, this isn't really about negotiating with Quebec. This is about preventing negotiations. This is about preventing a referendum. This is about intimidating the people of Quebec.

• 1400

It says that first there has to be a clear question; secondly, the only question Ottawa is going to talk about is a question on sovereignty; and thirdly, as a precondition to questions, Quebec must be prepared to talk about its borders, must be prepared to talk about native peoples, and so on.

If there's anything we learned from the 20th century, it is that messing around with the borders of a sovereign country means war. It meant that in Ireland. It meant that in the Middle East. It has meant that all over the world in the 20th century. The quotations that have been given to you by Monsieur Bouthillier show you that there is a will to use violence in English Canada in order to maintain Quebec against its will within Confederation.

At the end of the day, when one talks about changing borders, when one talks about the lawfulness of secession and so on, and when one talks about illegality, the way one enforces a law is with force. This is a very dangerous premise that is being raised by this bill, in my submission.

[Translation]

The Chairman: Mr. Guimond.

Mr. Michel Guimond: Thank you, gentlemen, for coming from the other capital. You know that the position of the Bloc Québecois was clear. This committee was asked to travel to the various regions of Quebec and of Canada, but unfortunately the Liberal majority refused, which meant that you had to be the ones to travel. Thank you for doing so.

My first question, Mr. Bouthillier, ought to be on the 50% plus one rule, but Mr. Turp has asked it, so I shall not go over that again. I am sure you were in agreement with Mr. Mills, who acknowledges that 50% plus one is valid, and answered him very well.

In your opinion, Mr. Bouthillier, is the main thrust of this bill to make the National Assembly legally subjected to the House of Commons? In your opinion, is this a subordination, legal and otherwise, of representatives democratically elected in Quebec to those democratically elected in the rest of Canada? Might it be said that Bill C-20 is one more illustration of what Lord Durham described in his report? According to Lord Durham:

I have no doubt whatsoever of the national character that must be conferred upon Lower Canada: that of British America, that of the superior race which must in future times dominate the entire North American continent.

Is Bill S-20 merely the year 2000 version of the Durham report?

Mr. Guy Bouthillier: Yes, and to ensure that there is not too much clarity present, no mention is made of Durham. That is a pretty strange way to address clarity.

The history of Canada's constitutional that is of interest here dates back to 1840. This is an important milestone. Some feel that 1867 is, but 1867 is just an extension, confirmation, if not aggravation, of the principle established back in 1840. I would point out in passing, moreover, that I am not the only one to consider 1840 the important date. Recently the consort of our Governor General, John Saul, gave 1840 as the major date, in an article in Le Devoir.

What is it about 1840? This was the date of the merger of two territories, and thus of two populations, with the idea of placing one in a minority position to the other. The entire Canadian system is rooted in this. In 1867 the situation was aggravated with the addition of other territories and consequently other populations, Ann again in 1870, 1905 and 1949. Each time another territory was added, the demographic minorization was aggravated, and consequently the political one as well.

Nonetheless, this being a regime that still retains some elements of federalism, there is still one legal territory in which Quebec behaves, or can behave, in a majority position and have the last word.

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As far back as 1867, there was concern about allowing Quebec the last word. The right of disallowance was introduced, for example, and that is what the right of disallowance is. Quebec is told that, even in areas in which it has jurisdiction, even in areas in which it is supposedly sovereign—the Privy Council having acknowledged that the provinces were sovereign in their own domains—in 1882, even in those domains, the right of disallowance can be used to nullify their majority. I am not referring to the War Measures Act; no one is. If there is any weight to the right of disallowance over Quebec, it is characterized by the potential recourse to the War Measures Act. This is a right that applies not just to a given piece of legislation, not to a national assembly, but to an entire people.

The same thing happened in 1980 and 1995. Canada itself was in agreement for our own results to be used in its 1992 referendum. At that time, and still now, the approach was to for us to have the last word. Then certain circles suddenly began to panic, simply because victory was close at hand and there was a desire to take that right to have the last word away from us about repatriating Quebec, merging what Quebec has become with Canada, plunging it back into its minority status, exactly as was done in 1942.

Let us think about 1942. What happened in 1942? Mackenzie King, who agreed with Quebec, wanted in the end to change his promise. He did not ask Quebeckers. He did not give them the last word. He said: “We are going to melt little Quebec into the whole of Canada and put the question.” Obviously, he got the answer he was after.

Perhaps English Canada was happy at the time, but look at the course of relations between Canada and Quebec since this nasty blow, since the shift of our right to speak into a broader forum where we lost our voice. Let us look at what happened. I am quite convinced that Quebec's thoughts of independence were born in April 1942. You are getting ready to do the same.

Mr. Michel Guimond: Mr. Bouthillier...

The Chairman: No.

[English]

Mr. Hill.

Mr. Grant Hill: Mr. Jacobs, you brought up the issue of violence as the only way to settle an issue like the changing of borders.

Mr. David Jacobs: No, I actually didn't say that.

Mr. Grant Hill: You may correct the record if you will, but you said violence would be necessary to modify borders.

What do you say to the natives in the north of Quebec who have expressed plainly their desire to stay with Canada? Would you say violence would be necessary to see that undertaken?

Mr. David Jacobs: I don't believe I said violence was necessary. I said the difficulty is with raising the issue of changing the borders of Quebec as part of the Clarity Act. When one talks about changing borders, one does that in a climate in which there are people who call themselves partitionists in the west of Montreal and in northern Quebec. The history of the 20th century would tell you that this is a very dangerous proposition. The history of the 20th century would tell you that the main way in which borders have been altered throughout the 20th century is by force of arms. If Canada were to say to Quebec, “Well, if you're going to leave, we're going to take away the west of Montreal and northern Quebec”, I'm not sure how Canada is proposing that it would be accomplished. I'm not saying it's a necessity.

One of the reasons I'm opposed to this bill is that it raises a spectre of violence in the relations between Canada and Quebec, meaning violence coming from the Canadian side. I am thoroughly opposed to violence. I would like to see this bill not pass so that democratic discussions could take place between Canada and Quebec, with negotiations over what happens. But raising the borders as a prerequisite raises the spectre of violence, in my view.

As for the natives in northern Quebec, I'm not sure what the position of the natives in northern Quebec is really. There are roughly 75,000 native people in northern Quebec, comprising eleven nations. I always find it very interesting that when the issue of Quebec is on the table, the people in English Canada all of a sudden become very excited about the rights of natives in northern Quebec. One wonders if they would be quite as excited about the rights of natives in Quebec if the natives in Quebec said they wanted their right to secede, that they wanted their right to self-determination, and that they wanted to express that right by joining the United States, Mexico, or Great Britain.

• 1410

I think this question was answered quite well a little earlier by somebody who said that had the native people said in 1982 that they were opposed to the patriation of the Constitution, and had they in fact said they wanted to maintain their ties with England, that would have been ignored, and frankly not improperly probably. But the native peoples in Canada did oppose the patriation in large numbers, and their views were ignored at that time.

I think the status of the native peoples in Quebec will be determined by, if it happens, a sovereign, independent Quebec government. There's no reason to suspect that a sovereign, independent government would treat the native population within Quebec or deal with them in any less a democratic fashion than English Canada. In fact, the evidence is that the native peoples of Quebec generally fare better than native peoples in English Canada on various indices.

So I think the question, frankly and with respect, is a question that is a disingenuous question. If the native peoples of British Columbia want to secede from Canada and they're given such vigorous support from let us say the Reform Party, I'd be interested to see it.

Mr. Grant Hill: Do you then say Canada is divisible but Quebec is not?

Mr. David Jacobs: As a matter of law, from my point of view the short answer to that is yes.

Mr. Grant Hill: Thank you.

The Chair: We'll have a question from Mr. Bonin.

Mr. Raymond Bonin (Nickel Belt, Lib.): I need to clarify something for the record, because Mr. Jacobs was introduced as an official of the Canadian Bar Association. I need to know if he's here as an official of the Canadian Bar Association, as a member of the Société Saint-Jean-Baptiste, as an individual who is a lobbyist, or as a lawyer in private practice who is billing for services here. I want to know if the lawyers back home are paying for a representative of the Bar Association or if he's a member of Saint-Jean-Baptiste, for the record.

[Translation]

Mr. Guy Bouthillier: I have...

[English]

Mr. Raymond Bonin: I'm asking Mr. Jacobs.

[Translation]

Mr. Guy Bouthillier: I introduced him.

[English]

Mr. Raymond Bonin: Yes, but I'm asking Mr. Jacobs.

[Translation]

Mr. Guy Bouthillier: I introduced him. You are twisting my words.

[English]

Mr. Raymond Bonin: Mr. Chair, my question is about the role Mr. Jacobs is playing.

The Chair: The group is appearing as a group, so we'll have to hear the answer as it comes.

Mr. Bouthillier, if you're going to answer, that's fine.

[Translation]

Mr. Guy Bouthillier: I did say he was the former president of the constitutional law and civil liberties section of the Ontario section of the Canadian Bar Association.

Mr. Raymond Bonin: So he is not here representing...

Mr. Guy Bouthillier: He is a former president, sir.

Mr. Raymond Bonin: He may be a vice-president today. So he is not here representing...

Mr. Guy Bouthillier: Had he been, I would have said so.

Mr. Raymond Bonin: Fine. I am satisfied.

One voice: Why did you ask that?

Mr. Raymond Bonin: None of your business.

One voice: [Editor's Note: Inaudible]

Mr. Raymond Bonin: Well yes. If our lawyers pay that, I am interested.

[English]

The Chair: That concludes the time for the witnesses from the Société Saint-Jean-Baptiste.

[Translation]

I thank you for appearing this afternoon. I am sure you have been a great help to the committee. Thank you.

• 1413

• 1414

The Chairman: We will now hear Mr. Gil Rémillard.

Mr. Rémillard, welcome and thank you for your considerable patience. You have been waiting at least two hours to appear, and we are very grateful to you for doing so.

As you know, you have 10 minutes for your presentation, and then 35 minutes for questions. You have the floor.

• 1415

[English]

Order, please. We're sitting again. For conversations, please go out the door.

[Translation]

Mr. Gil Rémillard (lawyer, École nationale d'administration publique): Mr. Chairman, I thank you for the invitation to testify before you on Bill C-20. It is a great privilege, may I say, to be among you and to share my comments on this bill. I do so with all modesty. If it helps this committee to debate this draft bill, then I am very pleased.

Mr. Chairman, I am accompanied by Nicholas Rémillard and Sébastien Grammond. Mr. Grammond is a lawyer with Byers Casgrain, and Nicholas Rémillard is a third year law student. They helped me prepare this presentation, and I thank them, Mr. Chairman.

I supported the referral to the Supreme Court of Canada, Mr. Chairman, to have it establish how Quebec could secede from Canada and I must say that I consider this bill before us meets our expectations on the political application of the opinion the Court gave us.

Mr. Chairman, I believe the Supreme Court did a remarkable job. It was remarkable because the challenge was a significant one, and the Supreme Court succeeded in meeting the challenge most judiciously, by limiting itself to the legal aspects. In other words, Mr. Chairman, there were also the political aspects to be dealt with; and there are obviously many of them around the issue of Quebec's secession. This is what the Parliament of Canada is doing by examining Bill C-20 and this is what Quebec is doing with its bill on the same subject. I am not here to comment on the Quebec bill.

As regards Bill C-20, I believe and am in fact convinced it captures in legal terms the opinion of the Supreme Court and sets the political terms in order to give effect to the opinion of the Supreme Court of Canada.

The Supreme Court of Canada said that a clear expression of the will of Quebeckers expressed in a clear question by a clear majority would create a legitimacy that would have to be taken into account and an obligation would ensue to negotiate with Canada in order to establish the terms of the secession.

Not all of the elements found in the opinion of the Supreme Court, which is a very thorough opinion, were considered, necessarily. However, there was familiarity with many aspects considered by the Supreme Court: the aspects of legality, legitimacy and respect for democratic principle.

It is in this context that I consider the federal bill not only does not affect Quebec jurisdiction, but in fact confirms it in a way. And this is what I mean by that, Mr. Chairman.

• 1420

The Supreme Court's opinion confirmed for us that Quebec had the right to separate from Canada. There is a legal way to proceed using the amendment formula, and the Supreme Court confirmed this for the first time. This bill also confirms Quebec's right to separate from the Canadian federation. It seems to me that, in the opinion of the Supreme Court as in the bill, there is this agreement, which results in respect for Quebec's jurisdiction to determine the question and the federal government's jurisdiction in terms of its responsibility for the country as a whole and to determine that a clear question, in its opinion, was put to Quebeckers.

The same is true in the case of the majority. The federal bill we are examining contains objective criteria, which lead us to say that the federal government may decide whether it considers this question clear according to subclause 1(4), which sets the two basic parameters for determining whether a question is clear. The House of Commons will be able to decide whether the majority is significant or qualitative, as the Court put it, to the extent these parameters exist, which may be found as well in subclause 2(2). I will comment later on on a criterion chosen to determine whether the majority is clear or not.

In this context, I am having some difficulty understanding how people can reject a process that establishes a democracy that respects the jurisdictions of Quebec, the federal government and the Parliament of Canada all at the same time. This jurisdiction must in my opinion be respected. Quebec must have the authority to decide the question it will put, and the federal government and the Parliament of Canada, the House of Commons more specifically, must also have the authority to decide, according to the opinion by the Supreme Court and this bill, whether the question is clear. In my opinion, Mr. Chairman, there are two governments directly involved in a process, and each, in the context of its responsibilities, will have to make very important decisions that will be true to the spirit of democracy that has always formed the basis of our political system.

Mr. Chairman, I would like to say in closing that the 1980 and 1995 questions were not the clearest. The first, in 1980, referred to a mandate to negotiate sovereignty-association and to a definition of sovereignty that could also be understood in the context of independence within a renewed federalism. The 1995 question in the last referendum, on the other hand, was more in terms of a partnership than of sovereignty.

It seems to me that, from both standpoints, for the sovereignists—whom I respect, but whose view I do not share, as I have always said—and for the federalists, it is a good thing to have matters clear. It seems to me it is a good thing to know what process is to be followed so Quebec may become independent if Quebeckers decide to go that route. I do not know what objections could cause us to say this is an intrusion in Quebec's jurisdiction.

• 1425

I for my part, Mr. Chairman, on the contrary see this as a process that will clarify things even further, that confirms rights and that permits both levels of government to act within their jurisdictions.

Thank you, Mr. Chairman, I have concluded my remarks.

The Chairman: Thank you very much, Mr. Rémillard, for keeping to the ten minute limit, among other things. That is appreciated.

Mr. Hill, have you any questions?

Mr. Grant Hill: Mr. Rémillard, thank you for your testimony.

Defining the clarity of a question seems to be straightforward. There are parameters for determining if a question is clear. However, the matter of the clear majority seems less straightforward. Do you think the parameters that apply to a clear majority are adequate?

Mr. Gil Rémillard: I must first point out that this is the issue discussed the most. This is probably what everyone who has testified here has told you.

Strictly, in law, 50 per cent plus one means the majority. What the Supreme Court has said is that a qualitative majority is required as well.

This means understanding the concept of majority in its fullest sense. In fact, 50 per cent plus one person means that 50 per cent less one person voted against. Do you follow me? That means that the margin is slim. There is good reason why, in our parliamentary system and under the Quebec referendum act, referendums are consultative; that is that the result of a referendum does not oblige a government to act on the voters' response.

Referendums are probably the most democratic way to find out public opinion on a given issue, to the extent that the question is clear, of course. However it is up to the government receiving the result of the referendum to decide whether the majority of 50 per cent plus one is sufficient, regardless of the issue under debate. The government has to decide at that point.

It is easy to imagine the context in which independence would take place following a very close vote. The Government of Quebec would have to decide whether it would proceed nevertheless and how it would proceed.

The government must ensure legality. However, as the Supreme Court put it so articulately in its opinion, there is legality, but there is also legitimacy. The government's action must be legitimate. Legitimacy also involves ensuring that a government honours its duty to keep peace and look out for the common good of society. So there will be a set of factors that will oblige a government facing a majority to evaluate it.

Now, as to the criteria in subclause 2(2)(c) of the bill, I have perhaps a question on the meaning of (c). I think the paragraphs in this clause set out good parameters for determining a clear majority.

• 1430

The first two parameters appear quite acceptable in a democracy. The third could be clearer, since it says:

(c) any other matters or circumstances it considers to be relevant.

The “it considers to be relevant” could be clarified in the meaning of the opinion of the Supreme Court. This is a comment I have to make: subclause 2(2)(c) could be more specific to permit a better understanding of the criteria that must guide us in order to get a better sense of what a clear majority is.

The Chairman: Mr. Guimond.

Mr. Michel Guimond: I am delighted to meet my former professor of constitutional law again.

You probably do not remember. However, I had the opportunity to have you as professor in the fall of 1985, as you gave your last course at Laval University as professor of constitutional law. You had in fact just been elected Liberal member of the National Assembly on December 2, 1985.

I remember that the course was held Monday evenings, between 7:30 p.m. and 10:30 p.m. You began them with a review of the media. You shared your feelings with us. You told us that when you canvassed you had eaten homemade cretons on soda crackers. An election campaign introduced you to the delights of homemade cretons.

I would also ask you to excuse Mr. Turp's absence, Mr. Rémillard. He has been detained in question period. In Quebec, however, we have a fine motto: Je me souviens. I remember it because I followed the debates of the parliamentary commission on the Meech Lake accords very closely. I recall that Mr. Turp, a young University of Montreal professor, testified along with Jacques-Yvan Morin. You, from your position as Quebec minister of intergovernmental affairs, described them as master and student, although Mr. Turp had been a professor for four years. We have a long memory in Quebec, and Mr. Turp is right not to do you the honour of questioning you.

My question is on the same subclause, 2(2)(c):

(c) any other matters or circumstances it considers to be relevant.

I remember that in your classes, Professor Rémillard, you regularly returned to the subject of objective criteria. You said that, in order to apply, a law had to include readily measurable criteria, objective criteria, as opposed to subjective ones.

Since you have been called by the government as a witness, we would like to draw on your knowledge, your experience and your humility. Could you expand on these “other matters or circumstances it considers to be relevant” to enlighten the government and Minister Dion's hatchet men, who are in the back here? Could you tell us what other matters might be considered relevant?

Mr. Gil Rémillard: First, it is good to see you again. I remember you very well.

Some voices: Ah, ah.

One voice: You are hard to miss.

Mr. Gil Rémillard: I remember you very well. I am pleased to see you and I thank you for your question.

What “it considers to be relevant” refers to, I think, are all the elements that are usually connected with the result of a referendum. We are not talking about a referendum to determine rules of the road or just any matter. This is a referendum on Quebec's secession. You get the results, and these results have to be analyzed by the Government of Quebec and then by the federal government.

I see nothing in this bill that rules out the notion of 50 per cent plus one. I see nothing. I saw nothing in the bill to the effect that 50 per cent plus one is not a majority. I saw nothing like that.

• 1435

What I do see are objective criteria. They are also criteria referring to circumstances, to situations that might exist and would warrant consideration. I think we have to talk in terms of common good. We have to talk in terms of legitimacy. And it is the responsibility of a government, of the House of Commons or of the Government of Quebec in its jurisdiction to make sure that this majority is really significant.

Mr. Michel Guimond: Mr. Rémillard, yesterday the former leader of the Liberal Party of Quebec, Mr. Ryan, appeared before the Committee. I hope you won't just say that Mr. Ryan spoke for himself—that's self-evident. What I would like to hear are your comments on what he said about the Bill. To start with, Mr. Ryan asserted that he is a federalist Quebecker. He does not have the reputation of being particularly close to the members of the Parti Québécois or the Bloc Québécois. He used some quite forceful language, including the term “trusteeship”, which I believe is quoted in today's La Presse. He also said that in his opinion, Ottawa considered democracy in Quebec a medieval type of democracy. Everyone knows that Mr. Ryan is a master of language, and so we know that these were words he had weighed carefully.

Mr. Rémillard, you were a major actor on the Quebec stage. You were an important advisor to Premier Robert Bourassa from 1985 to 1989. You could have signed the famous Constitution of May 9, 1986, when you set out the five minimum conditions for Quebec's adherence.

I would like to hear what you have to say about Mr. Ryan's remarks.

Mr. Gil Rémillard: First of all, I want to say that I had the good fortune to serve in a government, the government of Robert Bourassa, of which Mr. Ryan was of course a very important member. He was always in my eyes an exceptional source of wisdom. I have the highest respect for anything he says.

In this case, I don't know exactly what he said. I don't know exactly what he said because I did not receive the transcripts and I didn't have time this morning to read the newspapers you are showing me.

Mr. Michel Guimond: I'll read them. May I read them?

Mr. Gil Rémillard: May I comment first?

Mr. Ryan's position does not surprise me, in that he was, I believe, against the request for an opinion from the Supreme Court of Canada.

I was in favour of requesting such an opinion. My view was essentially based on a belief in the fundamental right of Quebeckers to be fully informed. I'm aware that the jurisdiction of institutions such as the National Assembly and the Parliament of Canada must be protected, but the institutions are there to serve the people, not the people to serve the institutions. In my opinion, it is essential that sovereignty reside in the people and that the people have all the information they need to make decisions. That's why I was in favour of the reference to the Supreme Court.

Besides, I saw supporters of independence, even Mr. Bouchard, and federalists both applauding the Supreme Court opinion.

So if you take that as your starting point, and then go on to say that the Bill is unacceptable... it has to be placed in context. This is someone who did not agree with consulting the Supreme Court. I respect that opinion. But for my own part, I believe that the maximum amount of information possible should be given to the people before they vote, especially on such a crucial question. The more information there is available, the better equipped the people will be to take action, to vote, to make a decision as fully and freely as possible.

So for me, the context means that we can inform the people as much as possible.

• 1440

[English]

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: Thank you, Mr. Chairman.

I'd just like to follow up with Mr. Rémillard on a point I heard him making. It was not dissimilar to the point Mr. Broadbent was trying to make earlier on the difference between a legal perspective and a moral perspective, or to use Monsieur Rémillard's words, the whole quest for legitimacy as opposed to just pure legality.

You can imagine a situation in which 50% plus one might provide both legality and legitimacy, but you can also imagine a situation in which it would only provide legality and not legitimacy. Am I hearing you right? Is that the qualitative judgment the court asks the political actors to make after the fact? So you could have a qualitative judgment on a 50% plus one result that said yes, it is legitimate, or, depending on the circumstances, you could have a qualitative evaluation after the fact on a 50% plus one result that was deemed not sufficient. Is that a fair summary of your view, as far as 50% plus one is concerned?

Mr. Gil Rémillard: You have asked me a very important question, but a very difficult one too. When we refer to legitimacy, it's not easy to answer those questions. For the first time in 1981, the Supreme Court of Canada made that distinction between legality and legitimacy. In its opinion, concerning the secession of Quebec, we have these two very important concepts in any democratic society.

When you have a legal system in a country, and if that legal system is not in conformity with legitimacy, that means you have a major problem regarding the respect of your democratic principle.

A question should respect the Constitution and the ruling, the opinion of the Supreme Court, but the question should be also a source of legitimacy. After the result of a referendum, it will be up to a government to analyse the result and make its decision regarding the legitimacy as well as the legality of the question.

Legitimacy means you have the common good of a society. You have a lot of aspects surrounding those kinds of decisions you have to make as a government.

Mr. Bill Blaikie: In other words, it's not just the Canadian government or the federal government that would have to make a qualitative judgment after the fact about what a particular result meant and what action should follow from it; the Quebec government would also have to make a qualitative judgment after the fact. It's only consultative, ultimately, and therefore they would have to make some judgment after the fact as to what should be done and what it meant.

Mr. Gil Rémillard: Of course the Quebec government will have to analyse the result and make sure the majority it got in the referendum was significant enough to preserve social peace, respect common good, and respect the object of democracy in the society.

[Translation]

Personally, I don't know whether the Quebec government would have gone ahead with independence for Quebec after the results of the last referendum if they had been reversed. Would Mr. Parizeau's government at the time have moved on independence with so small a margin? Would Mr. Bouchard's government do it? Personally, I doubt it. I doubt it because I know Mr. Bouchard well enough to know that he is a great democrat. I know that he would analyse all the implications, and the same is true for any head of government.

• 1445

There is legality and there is legitimacy, and both must be present, according to the principle of democracy, in every action a government takes. Imagine what it would mean for the people as a whole to change a political system so categorically. A government must thus ensure that the necessary elements are well in place and that it has both the legitimacy and the legality to proceed. And that is the primary responsibility of the Quebec government.

The Chairman: Mr. Bachand.

Mr. André Bachand: Mr. Rémillard, thank you very much for being here. It is a great honour for the Committee to welcome you.

We have a number of problems with the Bill, both in terms of its conformity with the Supreme Court opinion and in relation to the two great principles of federalism and democracy.

Unfortunately, we do not have the time, given the straitjacket that has been forced on us, to consider the Bill in depth. However, I would like to describe one of our problems to you, and perhaps two if we have time.

Let's look first at the question of amending the Constitution. The principles of federalism and democracy allow the participants in Confederation the initiative to amend the Constitution. The Supreme Court, while recognizing that secession would be a tragedy, recognizes nonetheless that it would involve a constitutional amendment. That's in paragraph 88, Professor. So we're talking about an initiative by a participant in Confederation, within its own jurisdiction...

One of the troublesome considerations is that the federal government would be meddling in the analysis of the question right in the middle of the referendum process. Setting aside the fact that the secession of a province would be a catastrophe for any country, the fact remains, between you and me, that this is a provincial initiative that deserves to be respected by the federal government. I would like to have your comments on that, Professor Rémillard.

In recent years, the Constitution has been amended a number of times. The amendments were bilateral and not multilateral. Among others, there was the referendum on denominational schools in Newfoundland. Can you imagine the reaction of the people of Newfoundland, the stakeholders there, if Ottawa had decided in the middle of the democratic process not to respect the jurisdiction of this participant in Confederation, but to meddle with the democratic process already underway there?

Lastly, do you not think that what the Court was saying, fortunately or unfortunately depending on your point of view, was that the qualitative analysis of the majority, to be accurate, must be carried out at the end of the referendum process for an analysis of the whole process, and an evaluation of what the people have said, to be possible?

I will stop there. That was very long. I beg your pardon, Professor Rémillard, if I'm not leaving you much time. If the House of Commons announced 45 days from a vote on a referendum that the question was not clear, it would be depriving Quebeckers of the chance to judge the clarity of question for themselves. It would be introducing an outside element into the democratic process. I would like your opinion on that.

Mr. Gil Rémillard: That's a very interesting question. Let's go through it step by step to see what the answer should be. First of all, I think we have to start with the principle that we now know, thanks to the Supreme Court opinion, that to accede to independence, the amending formula would have to be used. Everyone agrees on that.

The amending formula entails the agreement of all 10 provinces and the federal government. Eleven governments are involved. That's what was said, because unanimity is required in a case like this. So far so good? So the second principle is that obviously the federal government has a role to play.

Mr. André Bachand: I use the example of Newfoundland because there was a referendum. The federal government had a major role because the other provinces were not involved. It was simply a bilateral agreement. So the federal government had its full role to play. It didn't interfere with the Newfoundland referendum process.

• 1450

Mr. Gil Rémillard: May I just remind you that in 1949, 1950, 1951, take any year you like, and right up to 1982, there was no amending formula in Canada? We had no amending formula. Ultimately it was Westminster that acted on the instructions of the Canadian government, but there was no amending formula. Now we have an amending formula. So as far as legality is concerned, we must follow this legal process, which means that the federal government is involved.

Now, Bill C-20 that we have before us is designed to define how the federal government is going to be involved. It wants to be able to determine whether a question is clear.

Mr. André Bachand: Beforehand?

Mr. Gil Rémillard: It wants to be able to determine whether the majority is large enough. Should it do so beforehand? Should it do so afterwards? Is that your question?

Mr. André Bachand: The Supreme Court says—

Mr. Gil Rémillard: But what the Supreme Court says is that legality and legitimacy must both be respected. But think of the voters as well. Why shouldn't the voters of Quebec have the right to know, before they go to vote and drop their ballot in the box, what the House of Commons of Canada thinks of the question? Why couldn't they know that?

Mr. André Bachand: Because in paragraph 88, the Supreme Court—

The Chairman: No, no.

Mr. André Bachand: I have a comment that will take 15 seconds.

The Chairman: No, no.

Mr. André Bachand: The Supreme Court recognized the right in principle—

The Chairman: No, no. Order! Mr. Patry, you have the floor. We have rules here. You had five minutes and you have taken much more than that. Mr. Patry.

Mr. Bernard Patry (Pierrefonds—Dollard, Lib.): Thank you very much, Mr. Chairman. Thank you for coming, Mr. Rémillard.

I have a comment on your remarks in response to the question by my colleague Mr. Blaikie, and also two short questions.

As a former Minister of Justice of Quebec, you are very familiar with Quebec's Referendum Act. When it was tabled in the National Assembly, the Minister responsible at the time, Mr. Robert Burns, said that what would have to be decided was the moral weight of a referendum won on basis of a popular determination expressed clearly and broadly.

Just now, you explained that a Quebec referendum was not binding and that it was the responsibility of the National Assembly to evaluate the results.

Mr. Burns of the Parti Québécois spoke of the moral weight of a referendum, and your replied to Mr. Blaikie that there was a great difference between legality and legitimacy. I want to thank you, because I think it is very important to have this clarification.

I have two short questions. First, could you tell us whether in the Referendum Act, it says that 50 per cent plus one of the validly cast votes would mandate the Quebec government to follow through on its proposal?

Secondly, the Quebec government now says that our Bill C-20 encroaches on the powers of the National Assembly. As a former Member and Minister in the National Assembly, well known for defending Quebec's interests, do you believe that Bill C-20 encroaches in any way whatsoever on the powers of the National Assembly?

Mr. Gil Rémillard: As far as I can remember, the Referendum Act speaks of a majority. In legal terms, a majority is 50 per cent plus one. Now, given that it is advisory in nature, as I mentioned just now in the response to which you alluded, it is clear that a government, whenever its stripe, that held a referendum would have to analyse the results and decide if it wished to act on the basis of them.

There's a moral obligation, but there's no legal obligation. It is a government's prerogative to analyse all the circumstances and then make its decision in all conscience, if I may put it like that.

With respect to your second question, I personally consider that Bill C-20 does not in any way affect Quebec's jurisdiction. Quebec still retains its full jurisdiction over the question it wishes to put. In my opinion, that is fundamental. I would not be here today defending this Bill and giving you the explanations I have just given you if I were not convinced that the Bill respects Quebec's jurisdiction.

• 1455

In a way, the Bill defines what Parliament can do. It could even be argued that it limits the possibilities for action by Parliament, by the House of Commons, in that we have before us legislation that will determine in what circumstances and under what criteria the Parliament of Canada can act.

In the beginning, we wondered about this. No one was very sure how it would work. But let's look carefully at what is put in place and how Quebec's exclusive jurisdiction to draft the question, and the federal government's jurisdiction over its role in the whole referendum process, would apply. For my part, I don't see any jurisdictional problem. I see a complement that could only be useful in giving even more information to Quebeckers, so that they make a decision that is as well informed as possible.

The Chairman: Thank you, Mr. Rémillard.

Mr. Gil Rémillard: You're welcome.

The Chairman: Mr. Patry.

Mr. Bernard Patry: I yield the floor to Mr. Scott.

The Chairman: Mr. Scott.

[English]

Mr. Andy Scott (Fredericton, Lib.): Thank you very much, Mr. Chair.

Monsieur Rémillard, at a very general level, it strikes me that this bill is an effort to find some kind of balance between anticipating a possible, although in our minds unfortunate, outcome, and at the same time not affecting the outcome in a negative way by virtue of being seen as intruding, and so on and so forth. We've heard the political debate that has followed the Supreme Court reference and the introduction of the bill. At the same time, we feel a significant responsibility to bring whatever stability we can to a possibly very confusing time.

I'd like you to respond with your sense of how well we've found that balance. That's the large, general question surrounding this entire debate. Others who've appeared before you and some who will appear the rest of this week have been speaking to the topic of us responding to our responsibilities, and then others have been pushing us off that position. So clearly we have to find a balance. I know, with your background, you've dealt with these kinds of balancing questions before. How have we done?

Mr. Gil Rémillard: The process for the access to secession for Quebec is not an easy one, obviously, because to amend the Constitution of Canada is not easy, and I can testify about that. It's not easy, and it's a step-by-step legal process, in the sense that first of all you need a resolution voted by a government, a federal or provincial legislative assembly, or Parliament, and following that resolution, you have three years to get a consensus to have your amendment in the Constitution. So we can imagine that following a clear majority answering a clear question, the process will be on, with negotiation with the federal Parliament and also with the nine other provinces.

So it's not an easy process, but it's a legal one. The Supreme Court said very clearly that we have to respect that process to be legal, and that means all parties involved must be of good faith.

• 1500

That's a very important point. All parties must be of good faith. All parties will negotiate with an open mind regarding the legal consequences of what they are speaking about, with the legitimacy, the democratic principle, in their heads. So the process will be a step-by-step one, respecting the Constitution, respecting our legal process, but fundamentally respecting the legitimacy and the democratic principle of this country. That's the important point on which we have to be really precise and that we have to respect.

[Translation]

The Chairman: Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): I want to thank you for your presentation, Mr. Rémillard. Two major points emerged from it. First, you consider that the political arm has done a good job of translating what the judicial arm, i.e., the Supreme Court, said. Second, you say that the Bill in no way affects Quebec's jurisdiction, but that on the contrary it confirms it. It is on this latter point that I would like to linger for a moment.

Yesterday we had a visit from Mr. Ryan, your former leader. I believe you were his colleague in 1985, in the same Cabinet. Mr. Ryan used some very clear language: he spoke of a system of trusteeship. But he went further than that. He went so far as to say, when he was asked what the LPQ would have done, in his opinion, if he had been the leader, that half the caucus would probably have followed Ottawa and the other half would have defended Quebec. He said that for his part he would vote against this Bill and defend Quebec.

If I have understood you correctly, you would not follow Mr. Ryan in defending Quebec, because you just said that the Bill confirms Quebec's jurisdiction. What the Bill really does is confirm the subordination of the National Assembly to the House of Commons. That's what the Bill means, because that's what it reflects. The Bill says that once the question has been drafted and the referendum held, we, the 301 MPs in Ottawa, of whom three-quarters are from outside Quebec, are going to judge whether the question was clear.

In addition, we're going to judge whether 50 per cent plus one is enough. And even a bigger percentage might not be enough for them. Not only does the House of Commons have a role to play, but also the Senate, every single provincial legislature, and certain other groups.

So you are simply telling us that you would not follow Mr. Ryan and that there would probably be a split in the LPQ. In my opinion, you are confirming that the National Assembly must be subordinate to the House of Commons.

Mr. Gil Rémillard: First of all, let me repeat that I have not read Mr. Ryan's remarks. I haven't had the chance. It's true, as you say, that I had the good fortune for eight years to serve in the same Cabinet as Mr. Ryan and thus to benefit from the vast intellectual resource that he represents and from all his experience.

As for the possibility that we are seeing interference by the Parliament of Canada in the jurisdiction of the National Assembly, I personally see nothing of the kind. As I said just now, I see this in fact as a confirmation of Quebec's jurisdiction. The first confirmation I see is of Quebec's right to secede.

You know that before the Supreme Court of Canada opinion was handed down, we weren't absolutely sure about the legal reality and legitimacy of secession, or about the process that would have to be followed. We had no idea. But with this Bill for putting into practice the political principles of the Supreme Court opinion, we least have the confirmation to start with that Quebeckers have the right to decide to withdraw from the Canadian federation. That's already a point gained.

Second, starting from there, Quebec makes its own laws and applies them. It has its Referendum Act, which guides it through the referendum procedure; Quebec will draft the question on the basis of its own Act. The question will come from the National Assembly. It will have been debated and endorsed by the National Assembly.

Now, there is another party involved, and this other party is saying that it also wants to say how it sees the question. It wants this say because if a referendum resulted in a vote in favour of secession, it would at some point have to negotiate the terms of secession with the Quebec government.

• 1505

Look at the two parameters in clause 1(4) on the question. Can you be against those two parameters? It seems to me they are self-evident. They tell us that the question must deal with sovereignty. How could anyone be against that?

Why wouldn't there be this analysis by Parliament, the House of Commons, that could be communicated to Quebeckers so they could make their decision in the most informed way possible?

For my part, Mr. Chairman, I start from the principal that we have to give the decision-makers, in other words the people, all the information they need to make their decision.

I have to say, Mr. Chairman, that I don't understand how anyone could have reservations about this. For my part, I just see a process that can be even more transparent, that can give the people even more information, and I can assert very sincerely that I see no problem with this.

The Chairman: Mr. Rémillard, thank you very much for your presentation this afternoon. We have now used up the whole 45 minutes allocated for your appearance. I'm sure you've done a great deal to help the Committee in its deliberations. Thank you.

[English]

Ladies and gentlemen, our next witness is due to speak at 3:15 p.m. He's here now, and I wonder if we might not usefully proceed with his testimony. He has a flight to catch. Originally he wasn't to start until 3:30, but he's here and ready to go. We have 10 minutes. We could have part of Mr. Guimond's speech for 10 minutes, or we could save that until the conclusion of Mr. Rae's testimony, if everyone is agreed.

Is it agreed that we start with Mr. Rae?

Monsieur Guimond, would that be agreeable to you?

[Translation]

Mr. Michel Guimond: No.

The Chairman: No?

Mr. Michel Guimond: No.

The Chairman: All right. Mr. Guimond, you have the floor.

Mr. Michel Guimond: Thank you, Mr. Chairman.

I am happy to be speaking on the—

[English]

Mr. Reg Alcock (Winnipeg South, Lib.): On a point of order, Mr. Chairman. I'm sorry; I'm not certain. Did I understand Mr. Guimond to say he is not prepared to accommodate the next witness, who has a plane to catch—that he is not prepared to relinquish?

Mr. Michel Guimond: It's the same as you about yesterday's quorum.

The Chair: I don't think that's a point of order. We are scheduled for 3:15; we'll start at 3:15.

[Translation]

Mr. Guimond, you have the floor.

Mr. Michel Guimond: Thank you, Mr. Chairman.

It is a pleasure for me to speak once again on the government's adjournment motion, which I consider anti- democratic, especially as my former professor of constitutional law at Laval University is here with us today. As he well knows, following a change of government in Ottawa in 1984, the Quebec government in 1985 introduced proposals to end the political and constitutional situation created by the unilateral adoption of the Constitution Act, 1982.

The new Prime Minister, Brian Mulroney, promised during the election campaign that brought him to power that he would convince the National Assembly of Quebec to endorse a new Canadian Constitution with “honour and enthusiasm”. The words “honour" and "enthusiasm”, Mr. Chairman, are very significant, especially when you recall, and everyone will recall, the famous speech made in Sept-Îles on August 6, 1984.

One of the main elements of the draft constitutional accord proposed by Quebec was explicit recognition of the existence of the Quebec people, a recognition that was to be embodied in a package of other constitutional amendments including a reform of the division of powers between the orders of government. The federal government made no response to these proposals.

New constitutional negotiations were started following the election of a new government in Quebec City, led by Robert Bourassa, on—as everyone will recall and as Professor Rémillard noted just now—December 2, 1985.

• 1510

This government's aim was to restore the legitimacy of the Canadian constitutional framework by assuring Quebec's adherence to the Constitution Act, 1982. To this end, it set out five minimum conditions: explicit recognition of Quebec as a distinct society, a guarantee of increased powers over immigration, limits on the federal spending power, a veto for Quebec on constitutional amendments affecting it, and, fifth, Quebec involvement in appointing Quebec judges to the Supreme Court of Canada.

The minimum conditions submitted by Mr. Bourassa's government led to the 1987 Constitutional Accord, which embodied the terms of an agreement concluded at Meech Lake among Quebec, the federal government and the nine other Canadian provinces. Despite this unanimous agreement, ratified three times by the eleven governments, the Accord did not receive, by the three-year deadline set out in the constitutional amending procedure, the consent from the requisite number of provincial legislatures that would have made possible its proclamation and coming into force.

The population of the rest of Canada was not prepared to recognize the distinct society concept in the Constitution. The rejection of what constituted for the people of Quebec an historic compromise with five minimum conditions was seen by them as marginalization of their uniqueness within the Canadian federation. It was one more proof of the extreme difficulty for Quebec of obtaining within the federal framework control of the levers it deems indispensable for maintaining and developing its uniqueness.

In the eyes of Premier Robert Bourassa, doubt had been cast on the whole constitutional process. When he addressed the people of Quebec following the failure of the Meech Lake Accord, in Quebec City on June 23, 1990, he made the following statement:

If there is one thing that can be concluded from these negotiations, it is that the existing process of constitutional revision in Canada is discredited. The Quebec government will not agree to return to the constitutional negotiating table. [...] Among other things, my government's position from now on is to negotiate one-on-one, and not one-on-eleven, with the Canadian government, which represents the people of Canada as a whole: bilateral negotiations between the government of Quebec and the federal government.

Mr. Chairman, it was the federalist Premier Robert Bourassa, leader of the Liberal Party of Quebec, who said those words on June 23, 1990.

As for the rejection of Quebec's uniqueness with the failure of the Accord, Premier Bourassa told the rest of Canada from his place in the National Assembly,

It must be clearly understood by English Canada that whatever is said and done, Quebec is, today and always, a distinct society, free and able to control its own destiny and its own development.

Created on September 4, 1990, by the authority of the National Assembly of Quebec and under an act adopted unanimously by all parties in the Assembly, the Commission on the Political and Constitutional Future of Quebec was given a mandate to study and analyse Quebec's political and constitutional status.

This mandate derived from the observation of Premier Robert Bourassa, confirmed by the members of the National Assembly, that the rejection of the Meech Lake Accord had cast doubt on this status and created a need to redefine it. The Commission's extraordinary character was evident from its membership, because among the 36 commissioners appointed by the National Assembly, 18 were not Members of the Assembly. They consisted of two municipal elected representatives, three Quebec MPs, and 13 individuals from the civil society, two of whom acted as the Co-Chairs. The Commission gave priority to public involvement in its proceedings. Its work resulted in important observations on the evolution of relations between Quebec and Canada in light of the failure of the Meech Lake Accord.

• 1515

The clash of visions, identities and political objectives revealed by the reactions to the 1987 Accord was significant—and problematic—for the future. It was not the doing of the political elite. Opposition to the 1987 Accord was widespread among the general population everywhere in Canada except Quebec. The impasse thus raised questions about national identities, the identities by which and through which many people define themselves and understand their participation and that of others in Canadian life.

Given these facts, the Commission (which was generally known as the Bélanger-Campeau Commission) generated a reconsideration process that was fraught with significance and consequences. After—

The Chairman: Order.

Mr. Guimond, it is now 3:15, and we must hear the next witnesses. I'm sorry to interrupt you, but what can we do about it?

Our next witness is Mr. Bob Rae, who is here as an individual.

[English]

Mr. Rae, thank you very much for taking the time to join us today. It's a pleasure to have you before the committee. We look forward to your testimony. As you may have gathered, the rules are that you have 10 minutes for a presentation, maximum, and then you'll have questions for 35 minutes from the various members of the committee. You have the floor, sir.

Mr. Bob Rae (Individual Presentation): Thank you very much, Mr. Milliken. I appreciate the chance to speak to the committee.

[Translation]

I am most grateful for your invitation to appear before you.

[English]

My submission is fairly brief and I hope fairly straightforward. It is to say that in order to understand the logic of the clarity bill, which I support, it's essential that people immerse themselves in the decision of the Supreme Court of Canada on the secession reference. It's that decision that has led the government to bring forward the clarity bill.

In my view the federal government has wisely decided that some lessons need to be drawn from the experience of two referendums and the Supreme Court judgment on the secession reference. In doing so, I don't believe the federal government is being either whimsical or vindictive. I think it is simply being prudent. Meech and Charlottetown showed us all that wholesale constitutional change is enormously difficult, and I have several scars to reflect the difficulty. So I think governments have concluded across the country, not just the Government of Canada, that steady, smaller steps are required.

The matter of how the issue of secession should be handled constitutionally was referred to the Supreme Court. This made sense, because the Premier of Quebec of the day clearly indicated that secession was indeed his objective. His explicit tactic was to use a yes vote as a pretext to destabilize the country and ultimately declare an independent Quebec.

[Translation]

The Court's response was measured. Taking careful account of Canada's federal character, its respect for minorities, its commitment to democracy, and our common attachment to the principle of constitutionalism itself, the Court concluded that under both international and Canadian law, there is no right to unilateral secession.

It said that Quebec is not an oppressed, besieged community deprived of its democratic voice. It is an integral partner of a federal state in which it has been intimately involved since its foundation in 1867.

However, the Court went on to say that if Quebeckers voted in favour of independence, on a clear question with a clear majority, the rest of the country would have no choice but to negotiate Quebec's relationship with the rest of Canada.

• 1520

I was here for Mr. Rémillard's remarks, and I agree entirely with his view that we must not underestimate the importance of this aspect of the Court's decision, or the possibilities it opens for the people of Quebec.

It must also be noted that the Court clearly said that the negotiations would not be easy. They would involve difficult issues which the Court discussed in some detail—currency, citizenship, debt, borders, and the rights of minorities including aboriginal Canadians living in Quebec. There would be no assurance that these discussions would be successful or lead to an agreed outcome.

While the government of Quebec chose to ignore the Supreme Court proceedings, its first reaction to the opinion was to accept what the Court said about negotiation and to pretend that nothing else was decided. It appeared that a typical Canadian understanding had been reached: like Confederation itself, everyone read into it what they wanted.

[English]

This fragile equilibrium, if I may call it that, really broke down from a political standpoint at the Mont-Tremblant conference in October. I would say parenthetically I was the co-chair of the conference. There, in front of an international audience of experts and practitioners, both Minister Facal and Premier Bouchard made it clear that the federal experience had been an unmitigated disaster for Quebec; that the Quebec government would decide the question; that the referenda of 1980 and 1995 had both been very clear; and that, in the words of Mr. Facal, if Quebec wanted to, it could ignore the decision of the Supreme Court.

The federal government has now put forward legislation to set up a framework for a possible future referendum. It's important to stress that the law actually follows the Supreme Court decision very closely. It's important to emphasize that the Quebec National Assembly's powers have not been diminished in any way, shape, or form. The assembly is free to choose whatever question it wants. To that extent, the powers of the assembly are absolutely undiminished. The law makes it clear that the rest of us are free to decide whether it is clear; indeed it poses an obligation on Parliament to make that decision. To understand the bill, it is essential to follow the careful logic of the unanimous decision of the Supreme Court.

There have been many suggestions that the legislation's insisting on a clear majority being more than 50% plus one is somehow undemocratic. I couldn't disagree more. I know of few unions that would allow their membership to go on strike with a mere majority. Some do. I don't know of any union constitutions that allow for a change in the constitution on the basis of a 50% plus one vote. Union constitutions often require more than 55% or 60%, because they know perfectly well that taking members out on strike requires sustained support.

Does anyone seriously suggest that the majority required to destroy one country and to build another one should not be clear and sustainable? We must all be reminded that Canada will not be held together by force. If a clear majority of Quebeckers decide at a solemn moment to leave the federation that has been their home for 130 years, that will happen. But everyone has to understand the depth of commitment in the country to the rule of law, and everyone has to appreciate that any negotiation would be difficult and enormously complex. All the issues mentioned by the Supreme Court are clearly on the table and clearly anticipated in the clarity bill itself.

My experience in politics is that few issues arouse stronger emotions than the issue of the Constitution, not only in Quebec but across the country. Emotions run high and extreme things are said. I have in my political career voted for the patriation of the Constitution, as a member of Parliament—and I'd add, looking at the member for Broadview—Greenwood, as his predecessor. I supported Meech, and I supported—indeed I think it's fair to say, without being immodest, I had something to do with helping to draft—Charlottetown. I campaigned against both referenda in the province of Quebec in 1980 and 1995.

• 1525

I supported the reference to the Supreme Court and I accept its unanimous judgment. Were I in Parliament today, I would vote for the legislation proposed by Mr. Dion and Mr. Chrétien.

These are my prepared remarks. I'm happy to answer any questions, Mr. Chairman.

The Chair: Thank you very much, Mr. Rae.

Mr. Hill.

Mr. Grant Hill: Thank you, Mr. Rae, for coming.

I'd like to draw on your experience as a premier. You wore that hat, and I'm interested in your comments on how well this bill does in relationship to the provinces in consulting them on the issues of both the clarity and the majority. Finally, in the awful event that secession were in fact positive, could you comment on the mechanism with which the provinces would be consulted in those negotiations?

Mr. Bob Rae: I'm certainly satisfied, sir, with what this bill does with respect to the obligations of the Parliament of Canada. That is to say, as I interpret the legislation, the Parliament of Canada has an obligation to look at any question and to state its view within 30 days after consultation.

There's nothing in the legislation that restricts the right of any province to reflect on its own position, to reflect on its own view, and to state that view publicly. I would hazard a guess that in the event of another referendum, all provinces would be expressing a view and would be reflecting a view with respect to the clarity of the question.

I think it's fair to say it's very hard to predict what exactly would be the course of events in the event a referendum on a clear question produced a result clearly in favour of the secession of Quebec. At that stage we have to admit we're treading into unknown territory. We've never been there before. I think most sensible people hope we will never be there.

It's fair to say that in the event that would happen, all provinces, reflecting their own sovereignty within their own jurisdictions and their own membership in the federation, would have some very strong views about how negotiations should be conducted and what those negotiations should be about.

But in answer to your question, I'm perfectly satisfied that the level of consultation provided for in the clarity bill is certainly adequate, and nothing in the clarity bill takes away from the jurisdiction of any province.

The Chair: Mr. Jaffer.

Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): My question is pertaining to the issue of the majority you spoke about. I know in your view 50% plus one may not be adequate to change the makeup of the country. My concern is if there isn't within this bill, before the referendum, some sort of idea of what that level is going to be, it could be very irresponsible. It could lead to chaos if we don't set out prior to a referendum what we would say would be an appropriate threshold.

I'm curious about what you would say. What should be a minimum or how should we as parliamentarians attack that question of creating clarity on the majority? What would your opinion be leading into the referendum, before just leaving it to...?

Mr. Bob Rae: You have to follow the logic of the court decision. The court in its decision is trying to walk a line that is not easy, but it's a wise one. You're always trying to decide in this situation how much we should anticipate and how much we should leave to political judgment as time unfolds.

As I read the clarity bill, there's nothing that would prevent Parliament from doing just as you've suggested, if that's something Parliament decides, in the circumstances, would be a wise act of statesmanship. It would be a mistake at this point to tie Parliament's hands. It would be a serious mistake to restrict Parliament and to create a set of rules that in a sense makes things too explicit. I don't think that's wise. The clarity bill goes far enough in my view in making explicit the seriousness and the consequences of a vote.

• 1530

For reasons that perhaps it will take some time for us to fully understand, I don't think we as Canadians spent enough time prior to the referendum in 1980 and prior to the referendum in 1995 really walking ourselves through “what happens if”. We didn't do so because we preferred not to think of that alternative, and we all believed it wasn't going to happen.

I don't see how we cannot reflect on the events of the last five years and say to ourselves we have to reflect on that possibility. That's the reason for the referral to the court, which some people were opposed to. I was very much in favour of it.

When the court made its decision, it struck a very fine balance. The court could have said, “There's nothing in the BNA Act that says you can leave, so you can't leave.” The court could have come to that conclusion. I'm glad they didn't, because what the court did was take us down a very fine, careful line of argument, which is really very thoughtful.

A constitution is not just what's written down. A constitution is based on a series of premises and postulates that are deep in our history, our common understanding, and our heritage.

The court pointed out the four critical elements of federalism, constitutionalism, democracy, and a respect for minorities. And it pointed out very carefully that there are some things a court can set rules for and there are other things that depend on the emerging politics of the situation.

I think that's what's going to unfold in the event that there is another referendum. It may be that there won't be. I hope there won't be. I think everyone knows that's my position. But it's possible that there will be. If there is, should the legislation at this point set out that particular detail? No, I don't think so, because it's very hard to judge.

There are a number of things on which the court is silent. The court is silent, for example, on what the exact degree of participation by the aboriginal population of Quebec should be. It's silent with respect to exactly how one deals with the question of the rights of minorities. It's silent on the question of whether it requires a concurrent majority from all the elements of the population of Quebec. It's silent on all of those questions.

The legislation is quite wise, not be silent on those questions, but to not get into details, because I don't think we know what they are.

[Translation]

The Chairman: Mr. Turp.

Mr. Daniel Turp: I would like to start by saying what a pleasure it is for us to have you here today, Mr. Rae. Our last meeting goes back several months, to Mont-Tremblant. That was a somewhat less enjoyable occasion, because we were blamed for criticizing federalism at a conference on federalism in Quebec, held in a riding represented by a Bloc Québécois MP. Some people claimed, and this is in fact one of Mr. Lisée's theses, that this frustration led to the tabling of Bill C-20 and that's why we're here today, because we put federalism on trial at Mont-Tremblant.

Just a few moments ago I had the time to look back at your book, which I had the pleasure of—

Mr. Bob Rae: Did you buy it?

Mr. Daniel Turp: No, I didn't; I borrowed it from the Library of Parliament.

Mr. Bob Rae: Oh, that's too bad. I was hoping...

Mr. Daniel Turp: I'm sure you've sold plenty of copies of your book, The Three Questions: Prosperity and The Public Good.

I would just like to quote an extract from your book, because I find it interesting that it was written by a New Democrat and a democrat:

[English]

Whatever the results of the next referendum in Quebec, if there is one, certain common realities must be confronted. Political relations can always be improved, but a common currency and shared values will clearly imply co-ordination and reciprocity, as they are so clearly doing in Europe.

[Translation]

I hope that when we have opted for sovereignty in Quebec, you will strive to ensure that these principles prevail in the negotiations.

I would also like to quote another extract from your book, a questions posed by Rabbi Hillel:

[English]

“But if I am only for myself,” to return to the Rabbi's second question, “what am I?”

[Translation]

And at that point you say:

[English]

Here again, Canada's discovery of the federal principle, something in a sense we have had to work our ways towards, was born of the simple fact that none of us is completely sovereign.

[Translation]

This passage is interesting, because in my opinion it reflects the federal principle very well. In the context, I would very much like to repeat to you some words spoken yesterday by Mr. Ryan, with whom you have worked, who has a—

Mr. Bob Rae: He is a man for whom I have a great deal of respect and a great deal of affection.

Mr. Daniel Turp: Well, the man for whom you have a great deal of respect and affection came here yesterday to talk about Bill C-20, and he said this:

With respect to the requirement for a clear referendum question, clause 1 of the Bill seems to me to be contrary to the principle of federalism.

I repeat: “contrary to the principle of federalism”. So what do you say about the opinion of Mr. Ryan, who argues that the first clause is contrary to the principle of federalism?

• 1535

[English]

Mr. Bob Rae: I would say, with great respect to Mr. Ryan, as I said to you in French—he's somebody I've known in my political life for over 20 years, and I have a lot of admiration and affection for him; he remains a good friend—I disagree with Mr. Ryan on this question. I disagree with him quite profoundly.

The court itself on page 401 of its judgment said, and I'm quoting:

The legal framework having been clarified, it will be for the population of Quebec, acting through the political process, to decide whether or not to pursue secession.

The court goes on to say:

As will be seen, the legal framework involves the rights and obligations of Canadians who live outside the province of Quebec, as well as those who live within Quebec.

I think the court is quite rightly saying, as I said—and I'm glad you quoted from my book—that “sovereignty” is not an absolute word. That's the birth of the federal principle, historically. Federalism was born because people understood that sovereignty had its natural limits. People chose the federal model in different countries because the notion of a nation-state being related only to ethnicity, religion, or language was an inadequate way of dealing with those realities in different countries.

As I've said in my remarks, in my opinion, the Supreme Court judgment and the law both express fully the federal principle, because they say to the Quebec National Assembly that its jurisdiction has not been limited in any way; it hasn't been touched.

Mr. Rémillard said the same thing, and I agree with him 100%. You can't show me anywhere that the power of the National Assembly to do whatever it wants with respect to these questions is being limited. Nothing is being disallowed. Nothing is being ruled out. All it's saying is, fine, you do that, and then we, the rest of Canada.... As the court says, the legal framework involves the rights and obligations of Canadians who live outside the province of Quebec.

[Translation]

Mr. Daniel Turp: If I may bring you back—no, no, let me finish. The five minutes aren't up yet.

The Chairman: Yes, the five minutes are already up.

[English]

Mr. Blaikie.

[Translation]

Mr. Daniel Turp: I'll come back to it presently.

[English]

Mr. Bill Blaikie: Thank you, Mr. Chairman.

First of all, I might say, Mr. Chair, it's a special day, having first of all my former leader and then my former seatmate testifying before the committee. I'm glad to have him here and to hear him out on this.

You referred to Charlottetown. I don't know if that's what you meant when you talked about scars. Certainly one of the achievements of Charlottetown was the fact that the aboriginal leadership was at the table. Ovide Mercredi was at the table. It seems to me this bill is a retreat in that respect from what was accomplished at Charlottetown, because you don't even have the aboriginal people listed in the clauses of the bill that list the political actors the federal government would have to take into account in soliciting views.

So one of the things I hope we will be able to change in this bill before it goes back to the House is, if you like, to at least get back to Charlottetown in terms of putting aboriginal people back at the table. They were at that time.

One of the things you say about the bill that's interesting to me is about the legislation insisting on a clear majority being more than 50% plus one. I'm not really sure the bill actually does that, because we've had a number of people here who have said clearly the bill could be interpreted in a way that the qualitative judgment after the fact could be that a particular 50% plus one is not good enough, doesn't confer enough legitimacy in the circumstances, but also that there might be circumstances, judged after the fact, in which 50% plus one might be enough. So I'm just not sure—

Mr. Bob Rae: That's a fair point of argument. The point I was making, and the point I was trying to make in response to Mr. Jaffer's questions, is that “circumstance” is a great Burkean word, and it's important for us to be Burkean in our judgments with respect to what could unfold, rather than setting down rigid mathematical formulas that don't really reflect the circumstances of the situation.

It's important for Parliament and for Canadians to retain a degree of flexibility as we understand what this is all about. It's important for us not to get into formulas. The court didn't. Maybe the court could have.

• 1540

The other problem, of course—and I think it's an aspect of the clarity bill itself—is that the clarity bill follows the Supreme Court very closely. You referred to the aboriginal question. Certainly that's something the committee and Parliament should reflect on. One of the difficulties of course is that the court did not venture very far into the particular submissions made to it by the representatives of the aboriginal people who made submissions in the reference.

One of the rules is that the court, generally speaking, does not make decisions on things it doesn't have to make decisions on. It was asked three questions. It answered two and said the third didn't have to be answered, because they'd answered the first two in the negative.

Mr. Bill Blaikie: That would only make for a book called Two Questions.

Mr. Bob Rae: Yes, it would make for a book called Two Questions.

Voices: Oh, oh!

Mr. Bob Rae: Well, the answers come in the next book.

It's important to reflect on the fact that the court did not go to the extent of saying any one group of people has a veto or has to be formally represented. Again, that would be a political decision for a government to make.

The fact of the matter is, that's a decision any government or parliament would be free to make. I would be astonished if the parliament of the day did not understand that to listen carefully to the arguments being submitted by the native population in the event of a referendum, in the event of a majority vote, whatever it would be, would be absolutely fundamental. I certainly would be interested in seeing what particular amendments were proposed.

It is important to reflect on the fact that in the last clause of the bill, there is a specific reference to the issue of the interests of the aboriginal people having to be taken into account with respect to the position of the minister of the day presenting any such legislation to Parliament.

The Chair: A very brief question, Mr. Blaikie.

Mr. Bill Blaikie: One of the things mentioned earlier in the day by Mr. Lisée was the problem of imposing—although the court has clearly done this—the amending formula on any secession by Quebec. Given the difficulty you've experienced and we've all experienced in trying to get unanimity, assuming it would be the unanimity amending formula that would apply, I wonder how you answer the accusation made on a couple of occasions that somehow this is really the bar that can't be overcome, the amending formula itself—that is, the fact that all provinces would have to agree in order for secession to take place.

Mr. Bob Rae: The Constitution Act is a fundamental part of the Constitution of Canada. The court went on to say, and I think they're absolutely right, that the secession of a province is a very significant amendment of the Constitution. I don't know how else you could describe it. I mean, that's the least of what it is.

The Constitution has the amending formula it has, and we all have to live with it. I think that's one of the realities we have to live with.

Breaking up a federation such as Canada is not an easy thing. It is a very, very difficult thing to do. It should be a difficult thing to do. What the court says is it's not impossible. The court has said, because we live in a country that respects democracy, that respects the rule of law, the reality of a positive vote in Quebec would require a serious negotiation among the parties in an effort to arrive at a conclusion.

I think we all know there is a point at which politics.... It's not that you either have politics or the law; when you're dealing with the Constitution, dealing with the future of the country, these things are constantly working in balance. In part, the Constitution reflects those political values.

I don't think any of us, as Canadians, are taking the position Abraham Lincoln took with respect to a very different set of issues 140 years ago, when he was speaking for a large group of people and saying there were no circumstances under which his country would be allowed to break up. I don't know of any political party that's taken that position. I think we all recognize that if there is a clear majority on a clear question, there will have to be a respect for that. But we also have to recognize that breaking up a country such as Canada would be an enormously emotional, painful exercise, very expensive and very hard to achieve.

I don't know how you would embark on a project such as that without recognizing its difficulty.

The Chair: Monsieur Bachand.

• 1545

[Translation]

Mr. André Bachand: Good afternoon, Mr. Rae. I realize just how very important it is. It's so important that some people are criticizing the Bill because they say it doesn't go far enough. You make the point that there would be so many questions after a vote in favour of independence for Quebec that it is illusory to try to predict clearly what would result.

You said that the Court had been careful not to go too far. I was reminded just at lunch time about the content of the notes on the testimony and pleadings before the Supreme Court. When the Court started to go to far, oops!—counsel for the federal government would warn it and remind it that it had been asked three questions and it should stick to them. Despite all this, the Court still went a little further. It said that it had been asked three questions, two of which were justified. I was thinking at lunch time of how Antonio Lamer asked the federal counsel for a definition of the Canadian people. Counsel replied that he had to go to lunch and that he would come back later. The Chief Justice told him not to bother going to the Library of Parliament or anywhere else because there was no answer to the question. That's one of the things that sticks in your mind.

One important element is the formula for amending the Constitution after a positive referendum result. You discussed this, and that's why I would like to ask the following question. Although the concept does not appear in the Bill, you talked about provincial unanimity. This concept could have been included in the Bill and perhaps it should have been. You say it should have. What is the role of the Quebeckers in the House of Commons? What would Quebec's role be in this constitutional amending process after a positive vote?

Mr. Bob Rae: I would like to start by clarifying the remarks I made and my thinking on this. I think that in the Court's opinion, given a positive vote on a clear question, supported by a clear majority of the population of Quebec, the rest of Canada, including Parliament and other partners such as the provinces, would be under an obligation to take part in negotiations in which would be discussed the possible future and fate of Quebec and the rest of Canada.

As the Court indicated, these negotiations would not be easy. It goes without saying that the Quebec government and the people of Quebec would be directly involved in the negotiations and discussions.

Is it possible to guarantee the results of these negotiations? I don't believe so, as the Court indicated. The Court clearly said that the outcome could not be predicted. It's impossible.

Mr. André Bachand: What I was getting at more precisely was the role of the various stakeholders. A number of people have raised the point that we have a Prime Minister from Quebec, an Intergovernmental Affairs Minister from Quebec, a Finance Minister from Quebec. When the time comes for negotiations, what power will lie in the hands of the 75 Quebec MPs here in Ottawa?

[English]

Mr. Bob Rae: That's only what the court said, Mr. Bachand. Paragraphs 90, 91, and 92 of the court decision made it very clear that the court does not accept the view that a province, the Province of Quebec, could simply invoke the right of self-determination to dictate to the other parties the terms of a proposed secession. That would not be a negotiation.

The court also says there are two absolutist positions you have to reject. One position is that there's an absolute right to secession that is simply covered by the democratic principle, and there are no limits to that right. The court rejects that proposition. That is not the law of Canada.

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The court also says there is an obligation on the part of other provinces and others to engage in good-faith negotiations. What would flow from that then takes us into the realm of politics and frankly the realm of somewhat of the unknown. We don't know precisely what would flow from that.

What we do know is the court says everything would be on the table, and that's what is in the clarity bill. That's clearly stated in the clarity bill: everything would be on the table. But from a technical point of view, for a province to leave the federation amounts to a very significant amendment of the Canadian Constitution, and we must conduct ourselves in a constitutional fashion. That's the obligation we have as Canadians.

[Translation]

Mr. André Bachand: Mr. Chairman, do I still have a little time left?

The Chairman: I have to recognize Mr. Scott now.

Mr. André Bachand: The witness does not seem to have understood my question very well.

[English]

The Chair: Mr. Scott.

Mr. Andy Scott: Thank you very much, Mr. Chair.

Welcome, Mr. Rae.

I welcome the reference to the 1995 referendum, because I do think we have to place it on the table. The closeness of that referendum has a lot to do with everything that has transpired since. I think the reference you made was to the fact that we didn't want to believe it. I would also suggest that perhaps we didn't want to do anything that might affect the outcome prior to 1995. That speaks to the timing of this legislation, and I'd like a comment on that.

I also welcome the reference to the fact that the change the Supreme Court's opinion has made in the country is profound. In fact I think it's testimony to the stability of the country when you think about the magnitude of the decisions it is speaking to. You spoke of its need to find balance and you thought they did a good job. I think you'd also appreciate that at the political level we had a huge challenge to find balance. and I would welcome your opinion as to how well we did on that front.

On substance, though, one of the factors in the qualitative decision a government would have to make has to do with sustainability. No one else has mentioned it much. I've referred to it a few times here in terms of the shelf life of the expression of political will. You've mentioned it in two or three things you've written around sustainability. I'd like you to speak to that as well.

Mr. Bob Rae: A referendum is one way of assessing the opinion of a people on a subject. It's not the only method. There are elections. There are other ways of assessing what people's sustained view is.

Let's not forget, Mr. Scott—and you will know your history, and the court makes reference to this in its judgment—that in 1868 an anti-confederate majority was elected in the Legislative Assembly of Nova Scotia, and they immediately petitioned London, because that's where they thought things should go. They asked that they be allowed to leave the federation, because from their perspective, a bad deal had been struck by the Conservative government of Mr. Tupper. The colonial office wrote back a letter saying, “Nothing doing. This is a done deal. Too many accommodations have been made and there's too much at stake here. You can't leave.” The next year or very soon after, Mr. Howe found himself a leading member of Sir John A. Macdonald's cabinet.

From my political experience, I would observe that the anti-confederate feeling has not entirely disappeared in the province of Nova Scotia. Nevertheless, it was not sustainable enough to lead the province out of the federation.

This is a very tough question. This is one of the things the clarity bill refers to, and this is one of the reasons one has to be very certain here. You don't destroy a country on a whim. You don't destroy a country on the basis of putting a particularly clever question and then perhaps putting another clever question in three or four months. This is not a game here. This is not a trick here. This is not a trap here.

What the court is saying is if there is a profound expression of sustained political will that can be determined on the part of a province to say, “We want to form our own country. We don't want to be part of Canada any more. We want to have our own country, and we want to be independent of Canada”, that's something the rest of the country would have to take very seriously and would have to respect sufficiently to enter into serious negotiations and discussions about how that would take place.

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I just want to emphasize this point. Is it two out of three or three out of five or four out of seven? At what point do you say to yourselves this is not a game; this is not a party trick? This is about trying to get a handle on what is the serious, sustained opinion about the views of a population on where they want to have their citizenship, to which country they want to belong, and how they want to live as a civil society.

I don't think this is a matter of mathematical formulas or tricks saying it's here and it's there. I don't think that's how it's done. It's done on a step-by-step basis, by saying if it happens and there is a clear majority and a clear question, that will have to be taken into account. Obviously the sustainability of that majority will have a lot to say and a lot to do about whether or not the negotiations can in fact produce a result.

I use this example, and I don't think it's being too simplistic. If a union gets 50% plus one on a strike vote and they take people out, how many people are going to go out? How many people are going to stay out? How long are they going to stay out for? There's a reason this doesn't happen: it's not sustainable. You need a sustainable majority to do things on a permanent basis.

To break up a country is a fairly permanent decision as these things go, but not in the great millennia of history. We're all very temporary. Our time on earth is very temporary. But in so far as one is talking about something as important as the civil society we call Canada, it's not something you break up at the snap of your fingers.

The Chair: Monsieur Turp.

[Translation]

Mr. Daniel Turp: It may interest you to know, Mr. Rae, that representatives of the FTQ told us yesterday that they had obtained strike mandates on the basis of 50 per cent plus one, that they had struck for four months and that their claims had been met. So I think such things do happen. They told us that they would prefer to have a bigger mandate, of course, and that's true of sovereigntists as well.

I would like to revert to the federal principle simply to make clear to our friends, the people who are listening to us, that two federalists as committed as you and Mr. Ryan, Quebec federalists like Mr. Charest, and other Quebeckers, like the Premier, Mr. Facal, Mario Dumont and members of the civil society, agree on interpreting this Bill as a violation of the federal principle.

Mr. Ryan added on the subject of the clause dealing with the criteria, the mandate to negotiate and partnership:

The bill also lists a number of criteria that Parliament is to rely on to come to a decision concerning the clarity of the question. By making these criteria into law, Parliament and the federal government would be interfering, at least indirectly, in the process of drafting the question. This is not true federalism but a trusteeship system.

Those are the comments of a federalist, a federalist with whom you don't agree. This shows us once again that the federalists themselves have a wide range of irreconcilable views on the way in which the federal principle applies in Canada.

That being said, my question is the following. Don't you see, Mr. Rae, that Bill C-20 is not the subject of any consensus in Quebec, that there is in fact very broad opposition to it in Quebec, and that you are here to support a Bill that is widely opposed in Quebec, that is the subject of the same sort of opposition in Quebec as the Social Union and the 1982 Constitution, which has still not been endorsed by any Quebec government? Isn't there a fundamental problem here? Is Bill C-20 going to be added to those measures that are not accepted by Quebec but that are imposed on it?

Mr. Bob Rae: I disagree. First of all, as I have said—and I have often written on this issue as well—, there are various ways of being a federalist. Federalism is not an ideology but a way of conducting oneself, a way of perceiving the world. Mr. Ryan is a good Canadian, a good federalist and a good Quebecker, which are fundamental characteristics in my view. I believe he is mistaken about what the clarity bill represents, because he underestimates the fact that the National Assembly is free, absolutely free, to ask the population of Quebec any question at all.

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In light of the Supreme Court's opinion, from a legal point of view what we want to establish with this bill are the conditions under which the Parliament of Canada will be obliged to negotiate the constitutional future of Canada and Quebec, in response to a secession question. We are not talking here about constitutional reform, about the reforms to the Canadian federation that have long been discussed and will continue to be discussed with governments that want to discuss genuine, positive reform of Canada's Constitution. The Quebec government is not interested in discussing genuine reform of Canada's Constitution. That is the problem here.

It must be emphasized, however, that this bill does not take aim at the jurisdiction of the National Assembly. We hear, and we read in the newspapers, propaganda that this bill is an invasion of the jurisdiction of the province of Quebec, an invasion of the jurisdiction of the National Assembly. That is untrue, completely untrue. All this bill is doing is clearly giving the Parliament of Canada the right—and indeed the obligation—to respond to a decision by the National Assembly, which is something else altogether. It is clear—and I repeat—it is clear that what this means, as the Supreme Court has indicated, is that the legal framework of our Constitution affects the rights and obligations of Canadians living outside the province of Quebec as much as it does those who live inside the province of Quebec.

The issue of Quebec secession does not affect Quebeckers alone. It affects the lives, the economic and political situation, and the citizenship of all Canadians. We cannot continue to entertain the bizarre notion that the rest of Canada and the Parliament of Canada have no right whatsoever to an opinion on what the National Assembly or the Quebec government is proposing. That is the notion that is being rejected in my view.

The Chairman: No, no, Mr. Turp. It is Mr. Alcock's turn now.

Mr. Alcock, you have the floor.

[English]

Mr. Reg Alcock: Thank you very much, Mr. Chairman.

I'm actually fascinated by that last response.

Mr. Rae, you were the co-chair of the Forum of Federations, which I believe was one of the largest gatherings of practitioners of federalism in the world. We often get caught up in our own country, trying to sort out how to deal with some of these very difficult problems. Can you give us some idea of what lessons Canada should draw from the experience of other federations?

Mr. Bob Rae: What for me was the most profound outcome of that conference and of the two years' work that went into building the conference was a growing sense around the world—and President Clinton reflected this in his really brilliant speech at the end of the conference—that as we head into the 21st century, the federal idea is making a major comeback. Brazil and Mexico, countries that were for years either military dictatorships or one-party regimes, are now opening up. You have opposition parties leading governments in states. You have a renewed concern about fiscal federalism.

This process of decentralization, of regionalization, is taking place around the world. Local and regional governments are becoming more important. At the same time, people are understanding the importance of coordination, the limits of sovereignty, the limits of the nation-state, and the limits of one ethnic group or one particular part of a country seeing itself as the most important.

Since Mr. Turp has referred to my book, I'll say I talk a lot about this in my book. The relationship between self-interest and the common interest is a constant dialogue. And federalism really responds to this need—the need to have a unit of government that responds to your own particular needs and your own particular expression, which we have. We discovered this principle. The court refers to this very eloquently in its remarks.

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We're seeing around the world a significant degree of interest in the federal idea, not only as it relates to the nation-state as that nation-state begins to change, but also as we look to relations between and among nation-states, as we see in Europe, for example. We see taking place in every region of the world a greater degree of regional coordination and regional discussion.

So federalism as an idea is very much on the upswing, and that's, for me, what makes this such a tragedy. The comment I heard more than any other from foreign delegates to the conference was that they had great difficulty understanding why Canada, whose federalism is far more typical of the problems facing countries, in terms of bringing regions and language groups and cultural differences clearly to the fore, where we have recognized the importance of duality, the importance of multiple identities, and all these questions we wrestle with as Canadians every day.... These are questions that people are looking to Canada to help them deal with, whether it's Cyprus or Ireland or India and Pakistan or what's taking place in Russia today.

The question of federalism is very alive. This is why, from an international perspective, the notion that Canada would somehow turn away from the tremendous richness and depth and strength of the federal experience is frankly incomprehensible.

But what the clarity bill says and what the Supreme Court judgment says is, if this is what is now being proposed, we have to say, okay, we're going to take this seriously. If this is seriously what's being suggested, here are some of the things we have to think through carefully as a country in how we would manage this, not from a narrow legal standpoint, but from the broadest constitutional standpoint as a people. How are we going to manage this very, very difficult issue?

I dare say, in this room—and I'm looking up at the picture of our ancestors who had to make these decisions—they had to reflect on these questions as well, and they came upon the federal model.

[Translation]

The Chairman: Thank you very much, Mr. Rae.

[English]

We appreciate very much your taking the time to appear before us today. We thank you for your assistance with our work. I know you have a plane to catch, so thank you again for coming.

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• 1616

[Translation]

The Chairman: Order, please. We are ready to get back to work.

[English]

Our next witness this afternoon is Professor Peter Hogg, a professor at the faculty of law at Osgoode Hall Law School.

Welcome to the committee, Mr. Hogg. We appreciate your taking the time to appear before us and look forward to your testimony. As you may have gathered from the proceedings you have witnessed already, you have 10 minutes for your presentation, followed by 35 minutes of questions from the members. You have the floor, sir. Thank you very much.

Mr. Peter Hogg (Individual Presentation): Thank you, Mr. Chair. My name is Peter Hogg, and I am the dean of the Osgoode Hall Law School of York University. I've been a professor there for 30 years, and my specialty is constitutional law.

I do have a text, although it is in English, and it would occupy about 50 minutes to deliver. But anyway, for anybody who is interested, I do have a text here.

My purpose today is to argue that the clarity bill is consistent with Canadian constitutional law, and in particular with the ruling of the Supreme Court of Canada in the secession reference. I will also argue that it is wise for the Parliament of Canada, with its representation from all across Canada, to lay down some rules in advance of a future sovereignty referendum in Quebec.

As everybody in the room knows, in the secession reference, the Supreme Court of Canada held that a referendum in Quebec on a clear question that yielded a clear majority in favour of secession would give rise to a reciprocal obligation on the part of the other parties to Confederation, including the federal government, to negotiate constitutional changes to respond to the referendum.

The court said in two places, first in paragraph 100 and then in paragraph 153, that it would not play any supervisory role over the political aspects of the constitutional negotiations. And it said even the question of whether there was a clear majority on a clear question would be subject to political evaluation and not to judicial evaluation. That was said twice. So the court clearly left to what it described as the political actors the question of whether the conditions for negotiation—namely, a clear question and a clear majority—had been satisfied.

Obviously those political actors include the Government and Parliament of Canada, which would have to decide whether to enter into negotiations for secession. In my view, and as previous witnesses have said to you, the Government of Canada would be in breach of the Constitution if it were to embark on negotiations to break up the country without first being satisfied that there had been a clear expression on the part of the voters of Quebec of a desire to secede from Canada.

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So I take Bill C-20 as trying to provide some rules in advance as to what kind of question and what kind of majority would be deemed clear enough to provide the basis for negotiations. In my view, that is a wise approach.

With respect to the clear question, the need for advance rules is established by the example of the referendum of 1995. It seems to me the referendum of 1995 was not clear for at least two reasons.

One was that it specifically contemplated the possibility of a new economic and political partnership between a sovereign Quebec and Canada. When you look at the way in which that partnership was to be structured in accordance with Bill 1, it would have involved a layer of government above the federal Parliament, and it would have given the Quebec members a veto over many important Canadian policies. You could see I think that Canada would never agree to such an arrangement. But what the leaders of the yes side said during the referendum was that Canada was just bluffing, and the voters were urged to assume that something of that kind could indeed be negotiated.

The second way in which the question in 1995 seemed to me unclear was that Bill 1, which laid down the terms of the sovereign state that would be created on an affirmative vote, specifically said that Quebec would retain its existing boundaries; that Quebec citizenship could be held concurrently with Canadian citizenship—in other words, that Canada would tolerate 7 million citizens outside its boundaries, each with the constitutional rights conferred on citizens by the Constitution; and that Quebec's currency would continue to be the Canadian dollar. It seems to me none of those matters were within the sole power of a sovereign Quebec, and obviously some of them were quite unlikely to be achieved.

So the position I take from that is that many people who voted yes in the 1995 referendum may not have been voting for the creation of a separate state with the normal trappings of a separate state—that is to say, a state with its own citizenship, its own currency, and normal relations with its neighbours—but were instead voting for something that was very unlikely to be achieved.

If, for example, negotiations had yielded quite different results from those that were contemplated by Bill 1, there was no plan to have a second referendum. On the contrary, the plan was for secession to proceed. Surely in that situation secession would be proceeding without the wish of a majority of the population.

Bill C-20 would prevent that situation from arising in the future and would in effect protect the people of Quebec from a secession that did not truly accord with their desires.

With respect to a clear majority, the second issue, the view I took before the secession reference and wrote in an article was that although it would be a good idea to insist upon a special majority for such an irreversible and important decision as one to secede, I could think of no principle of law that could be invoked to insist upon a special majority, so I took the view that one had to live with 50% plus one as the constitutional rule.

• 1625

What has changed since I wrote those words in 1997 is the decision of the Supreme Court of Canada, in which the court said there must be a, quote, “clear majority”. Unfortunately, I looked, as no doubt everybody in this room looked, for a definition of a “clear majority”, and all the court said was this: “In this context, we refer to a `clear' majority as a qualitative evaluation.” That's at paragraph 87—a qualitative evaluation. That is far from clear, in my view.

However, what I think the court was saying was it did not believe a definite special majority of, say, 66% was required, but rather there should be some evaluation of the vote to determine whether it would provide a stable basis for the establishment of a new country. I must say I fully agree with the comments both Mr. Rémillard and Mr. Rae made as I listened in the back there. It seems to me what the Supreme Court of Canada was concerned about was that a very narrow vote, 50% literally plus one, is a vote that might be different in a couple of weeks' time, and would therefore be a precarious basis upon which to build a new country.

Another possibility is a vote that achieved a narrow majority but was accompanied by evidence of voting irregularities. That too would be a precarious basis upon which to found a new country. Indeed, as Mr. Rémillard said, I imagine the Government of Quebec would not want to proceed in either of those situations.

So I think that is what the Supreme Court of Canada contemplated, and I think it is appropriate, as Bill C-20 does, to allow those issues to be examined by the House of Commons after an affirmative vote on a clear question. So I end up supporting that view. In fact I don't see much alternative to that view in light of what the Supreme Court of Canada said.

Finally, on the issues for negotiation, I fully agree with Bill C-20 in listing as issues for negotiation the 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. They were all issues mentioned by the Supreme Court of Canada in the secession reference. Of course many other issues would have to be negotiated, in particular citizenship and currency. As I said earlier, I do not believe a question is clear if it assumes that the outcomes of these negotiations would leave Quebeckers in the exact same territory, enjoying all the advantages of Canadian citizenship and Canadian currency.

Mr. Chair, that concludes my submission to the committee.

The Chair: Thank you very much, sir.

We'll start with Mr. Blaikie.

Mr. Grant Hill: As a courtesy to Mr. Blaikie.

Mr. Bill Blaikie: I thank my Reform colleagues. I have to rush off to a Board of Internal Economy meeting, and I wanted to ask Professor Hogg just a question or two.

You referred to an article you had written. I'm not sure whether you were referring to something you wrote called “Principles governing the secession of Québec”, or whether it's the same article or not, but I have in front of me a quote from it that says, “That fiduciary duty”—talking about the fiduciary duty to the aboriginal people—“is constitutionally protected by section 35 of the Constitution Act, 1982. In my opinion, that duty cannot be severed or transferred to a new state without the consent of the aboriginal people to whom the duty is owed.”

It seems to me this bears on the Clarity Act and on the inadequacies I see in the act as it's presently constructed, on two counts.

One, at the end, the final subclause in the bill talks about a constitutional amendment to effect secession, and it talks only about addressing “the rights, interests and territorial claims of the Aboriginal peoples of Canada”. It doesn't talk about including aboriginal people at the table in those negotiations, and it certainly doesn't make any reference to the fact that they couldn't be transferred to a new state without their consent.

• 1630

So it seems to me there's a problem there, and I wonder if you have any suggestions on how that could be amended.

The other clause lists presumably the political actors, which the court talks about, that the government would have to consult in determining whether there was a clear question, first of all, and then later on a clear majority. They list the Parliament of Canada, the provincial legislatures, all the parties in the legislature of the province seeking secession, and the territories, but they don't list the leadership of the aboriginal community either in the country or in the province seeking secession.

One of the things I have suggested to the committee and something I'm hoping we can achieve is an amendment that would at least add the aboriginal community to the list of political actors who need to be consulted in evaluating a clear question and clear majority, and then do something in that final subclause that would recognize they have to be part of the negotiations.

I would even be happy with something that went so far as to reflect your view, that they can't be transferred to a new state without consent, but at the very least to recognize they have to be at the table.

Mr. Peter Hogg: Mr. Blaikie, I fully agree with you. I was disappointed that the questions put to the Supreme Court of Canada did not include a question on the position of aboriginal people in Quebec.

Then I was disappointed that the court did not take up the invitation of some of the interveners to talk about the position of aboriginal people in Quebec, although there are those references in the judgment to taking account of aboriginal interests.

Then I was disappointed that the bill itself did not say anything explicitly about aboriginal people as actors, although subclause 3(1) does refer to negotiations “involving at least the governments of all of the provinces and the Government of Canada”, which leaves open the possibility of other participants. Of course, as you point out, subclause 3(2) refers to the “rights, interests and territorial claims of the Aboriginal peoples of Canada”.

So I would commend your suggestion of an amendment to the bill. If it could be appropriately drafted, it would at least make sure aboriginal people are at the table when these negotiations take place. I think that would be an improvement to the bill.

The Chair: Thank you very much, Mr. Blaikie.

Mr. Hill.

Mr. Grant Hill: I think because I gave my time up, we'll switch.

The Chair: Oh, you're going to do a switch. Very good.

Mr. Turp.

[Translation]

Mr. Daniel Turp: I want to thank professor Hogg, who is an esteemed colleague and a highly respected constitutional authority and whose works are referred to when issues of constitutional law are raised here on Parliament Hill.

I would like to address with you the issue of the process of constitutional amendment. I believe you were a supporter of applying the general amending formula to secession. We know that legal authorities are divided on this issue. Some claim that the unanimity formula would apply; others, like yourself and our colleague professor Woehrling, say that the general amending formula—the seven-50 formula—would apply.

In your view, for which amending formula does subclause 3(1) of Bill C-20 opt?

[English]

Mr. Peter Hogg: Mr. Turp, excuse me for responding in English. My French is deplorable, I'm ashamed to say.

It seems to me subclause 3(1) does not make a judgment as to which amending formula, because even if the general amending formula were the correct one, as Professor Woehrling and I both believe—that is to say, the 7-50 formula as opposed to the unanimity formula—negotiations would still have to involve the governments of all the provinces, even though in the end it wouldn't be necessary for all ten of them to agree. But you could hardly decide in advance that some provinces weren't even going to show up at the negotiations.

• 1635

I took subclause 3(1) to be agnostic on the question of which was the correct amending formula. It is open, I suppose, to the interpretation that it is suggesting the unanimity formula because it refers to all the provinces. But it only refers to negotiations, so I think it leaves open the possibility that the 7-50 formula may be the appropriate one.

[Translation]

Mr. Daniel Turp: Professor Hogg, that would open the door to an amending formula that is not in the present Constitution Act, 1982, an amending formula to which the Supreme Court alluded in its opinion.

[English]

Mr. Peter Hogg: I don't understand that question.

[Translation]

Mr. Daniel Turp: There is the general amending formula, and there is the unanimity amending formula. In the reference, the Supreme Court suggests that formulas other than the ones contained in the Constitution Act might be applied. Can clause 3 refer to new formulas?

[English]

Mr. Peter Hogg: I didn't read the court as saying there might be other formulas that could apply. I don't think clause 3 could be interpreted in that way, because it seems to me part V of the Constitution Act, 1982 is an exhaustive code of amending procedures. I don't see how one could design a procedure that was other than one of the ones listed in part V.

[Translation]

Mr. Daniel Turp: Is subclause 3(1) of Bill C-20 not the equivalent of a constitutional amendment?

[English]

Mr. Peter Hogg: I don't think clause 3 constitutes a constitutional amendment. In the first place, it simply articulates the ruling of the Supreme Court of Canada, to the effect that there is no right of unilateral secession. So that is declaratory of the existing law, according to the Supreme Court of Canada.

Then it goes on to say an amendment would require negotiations involving the governments of all the provinces, but I take it that means the negotiations would be preliminary to the operation of the actual amending procedures in part V, which would involve the action of the various legislatures—perhaps seven, perhaps ten.

[Translation]

Mr. Daniel Turp: One last question, Mr. Chairman. We are considering constitutional law. We have the benefit of Professor Hogg's presence.

Is clause 3 not making a unilateral interpretation of the Supreme Court's opinion on a piece of federal legislation? Does the Parliament of Canada have the right to make unilateral interpretations of the Constitution, or to legislate on those unilateral interpretations?

[English]

Mr. Peter Hogg: No, the Parliament of Canada does not have the power to unilaterally give interpretations of the Constitution or legislate any changes to the Constitution. But I don't think clause 3 is doing that. Of course if it were wrong that the Constitution of Canada does not permit the secession of a province unilaterally, then that wrong statement would be ineffective. But that statement is clearly correct under the secession reference.

As I say, the references to negotiations are not references that do anything other than state the obvious, and state the obvious about preliminaries to the operation of the amending formula.

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The Chair: Mr. Hill.

Mr. Grant Hill: Thank you, and thanks to Mr. Hogg for being here.

The one thing I've been impressed with, as I've listened to the witnesses, is that many people are coming forth with views suggesting that laying out the issues of secession makes sense. But I heard very little of this when I first came to Parliament in 1993.

In your own writings, did you express this view publicly prior to the bill we have before us?

Mr. Peter Hogg: My book on constitutional law was first published in 1977, before the 1982 Constitution Act, which established the amending procedure. New editions came out after that. From the beginning, including in the 1977 edition, I have had a section on secession. In that section I argued that a unilateral secession was not possible under the Constitution and that a secession would require a constitutional amendment.

I certainly didn't predict the refinements to that, those bald propositions that came from the Supreme Court of Canada's opinion. I didn't predict the idea that if there were a clear vote on a clear question, the Government of Canada would be under a constitutional duty to negotiate secession. I didn't predict that, although it seems to make a lot of sense to me now that I've read the decision of the Supreme Court of Canada.

Mr. Grant Hill: Since you did put those propositions forward, and it was a long time ago, I'm interested in why so little attention was paid to that. I repeat, this position was not well articulated, either in the press or in political circles. In fact when politicians spoke of the realities of secession, they were condemned as inciting this issue.

There's been a sea change now. Do you have any comment as to why you think that sea change has taken place?

Mr. Peter Hogg: That is really, at bottom, a political question, and the answer is probably the one you hinted at. There was a concern among politicians outside Quebec that even talk about the possibility of secession might make it more likely to happen. So perhaps that was an issue.

There was always a bit of academic literature on it, and it was fairly consistent, including in the province of Quebec, that a secession would require some form of constitutional amendment.

Mr. Grant Hill: All right. On the issue of the majority, you feel leaving the majority undefined is still the wisest course?

Mr. Peter Hogg: I think it's the wisest course in light of the Supreme Court of Canada's opinion. It kind of surprised me that they would be so loosey-goosey on the question of a majority. They have left us in the position that we really have to stay loose on the question of a majority, but at least it settles the question that any assertion that a fixed special majority would have to be achieved, such as 66%, is not justified under the Constitution. That at least can be taken from the Supreme Court of Canada's decision.

Mr. Grant Hill: You don't take too much from the assertion that it would be left up to the political actors? You feel that really means after the referendum, rather than my belief that it is safer to set the minimum before the referendum?

Mr. Peter Hogg: It is safer to set the minimum before the referendum. I just don't think there is a constitutional basis for doing that. That's why I think fidelity to the court's judgment requires us now to wait until after the referendum.

I fully agree that is not a particularly satisfactory situation, although I take some comfort from the point Mr. Rémillard made, which was that in a sense both the Government of Quebec and the Government of Canada are writing on the same book here, in that they both have an interest in desiring a stable basis for a new state. Perhaps it might not prove to be so difficult as we think it might be.

• 1645

Mr. Grant Hill: Thank you. That's very helpful.

[Translation]

The Chairman: Mr. Bachand.

Mr. André Bachand: Yesterday, before a vote, I happened to run into the Minster of Intergovernmental Affairs, and . . .

Mr. Daniel Turp: The Quebec Minster or the federal Minister?

Mr. André Bachand: The federal Minister, Daniel.

A voice: You didn't just happen to run into him.

Mr. André Bachand: The Minister asked me whether my thinking was changing; perhaps all questions are fair in love and war. But he did say that there were good witnesses appearing before this Committee, two of whom I should listen closely to: Professor Morissette and yourself, Professor Hogg. After hearing your presentation, I must say that for once I completely agree with the Minister of Intergovernmental Affairs: you certainly are a quality witness.

I also realize that, like Professor Morissette, you do not reject 50% plus one as a basis for a referendum on secession. On the contrary, you say it is one basis; but you wonder whether that basis could be maintained over time if the majority were only one vote.

I am pleased that both professors to whom the Minister recommended that I pay close attention agree on points like these.

You mentioned Professor Rémillard. I asked Professor Rémillard a question that, unfortunately, in my view at least, was not answered. I would like to hear what you have to say in response to this question.

Paragraph 88 of the Supreme Court's opinion refers to federalism—the federalism principle—and to the democratic principle. It also states that one party to Confederation may initiate a constitutional amendment. In summary, according to the Supreme Court, secession is a constitutional amendment—an extremely important and even a tragic one—but a constitutional amendment nonetheless.

I asked Professor Rémillard two questions. Where, in the Supreme Court's opinion, do we find authorization or justification for one political player—the federal government, in the case of Bill C-20—to use legal or political means to intervene in an initiative by a party to Confederation? Where do we find that justification? At the end of the day, by means of a bill, a political decision is being made. Where is the justification for that?

I also asked Professor Rémillard, although Bill C-20 refers only to secession, whether it was not a rather dangerous precedent for the federal government to give itself the power to intervene and pass judgement on a question, right in the midst of a process, when the provincial population that will have to express an opinion has not had time to assess the question to be shortly officially presented to it.

I would like your opinions on these points, please.

[English]

Mr. Peter Hogg: Thank you very much, Mr. Bachand.

A colleague of mine, Professor Monahan, and two other researchers reviewed the constitutions of 89 states. I'm not sure if they were all federal states. Many of them prohibited secession entirely. Some were silent, as the Canadian Constitution is. About a dozen of them explicitly permitted secession.

In every single case, the formulation of the question and the administration of the vote were not left to the seceding unit. They were either given to the central government to do or given to some kind of commission at arm's length from both governments. That illustrates that in a federal country, the principle of federalism requires that there be some contribution from the parts of the country that are not seceding to the issue of secession.

• 1650

It seems to me it is appropriate for the federal Parliament to say what it is saying in Bill C-20. It's not going so far as to say, “We will design the question.” It's not even going so far as to say, “The question must be approved by us.” It's saying, “You can ask any question you like, but we will only negotiate the breakup of a country if we are satisfied it is a clear question.” I do not think that's an inadmissible intervention in a federal country.

[Translation]

Mr. André Bachand: Professor Hogg, the Minister is this bill's sponsor, but the Supreme Court's opinion may be its father.

I would like you to clarify something for me. Where is this right set out? As you say, secession is not an explicit part of our legal rules. That said, however, the Supreme Court—and I agree that some interpretation is necessary—seems to give the political players the right to pass judgement on the question and on the majority, after the process, in order to be sure—and this is my opinion; it is not stated in the Supreme Court's opinion—that those players' intervention does not cloud the referendum debate. Maybe it is also to be sure that the political players—the parliamentarians—have the time and all the other resources they need to pass that judgement; otherwise their judgement might stand in the way of the democratic will of the jurisdiction or the party to Confederation that is exercising its right to initiate a constitutional amendment, as recognized by the Supreme Court.

I am trying to locate, within the Supreme Court's opinion, some justification for clause 1 of bill C-20, which, by the way, is very lengthy. There are only three clauses, and clause 1 is probably the most important one.

[English]

Mr. Peter Hogg: It seems to me if there is, as the court says, a legal requirement that there be a clear question, then there are three different ways of interpreting that.

One would be to say it is for the court to decide whether a question is clear. That would be one approach. The Supreme Court of Canada explicitly ruled out that approach by saying the court would not supervise even the issue of whether there is a clear question.

A second possibility—and I take it this is the one you think is the best one—would be to leave it to the National Assembly of Quebec to determine whether a particular question is or is not clear and then to hold a referendum on that question. The court has ruled that out as well, because it keeps talking about the political actors in contexts that make clear there is a role for the other governments within Canada on this issue.

The House of Commons would be derelict in its duty if it were not to make its own judgment as to whether a question were sufficiently clear to form the basis of negotiations. Remember that the Parliament of Canada cannot lightly cause the dismemberment of the country from which its members have been elected. Therefore it is implicit in the court's judgment that the Parliament of Canada play a role in determining whether or not the question is a clear one.

[Translation]

Mr. André Bachand: Mr. Chairman, five seconds, please.

The Chairman: No, no, sir; you have already had nine minutes.

[English]

Mr. André Bachand: I appreciate that.

[Translation]

The Chairman: Mr. Cotler.

[English]

Mr. Irwin Cotler: I just want to add to the words of Mr. Bachand in referring to Professor Hogg as a quality witness. As a colleague and a person who taught with him at Osgoode Hall Law School, I would say his scholarship and advocacy have characterized him as the pre-eminent constitutional authority in this country. That's a judgment I'm happy to associate myself with.

• 1655

I have two questions. The questions will be brief, although it may be that the answers cannot be brief.

First, the organizing theme of the testimony of indépendantistes who have come before this committee is that this bill is a negation of democracy, a denial of Quebec's right to self-determination. I'm just wondering what your reaction is to this allegation.

[Translation]

An MP: Good question.

[English]

Mr. Peter Hogg: It seems to me, Mr. Cotler, that any measure as profound as the secession of a province should only be based on a clearly established vote by the people of the seceding province. It seems to me both the Government of Quebec and the Government of Canada have an equal interest in being sure a vote does represent the true expression of the people of Quebec and provides a stable basis for a new country. I believe the Clarity Act does that. I do not believe the way in which the 1995 referendum was structured did that.

I believe the principle of federalism is advanced by the Clarity Act. I was very interested to hear Mr. Rémillard's testimony earlier this afternoon. I fully agree with it, and I fully agree with what Mr. Rae said as well. I do not agree with the view that was attributed to Mr. Ryan—whom I did not hear, of course—to the effect that this is in some way inconsistent with federalism or democracy.

Mr. Irwin Cotler: I have a second question that is not unrelated. Again, much of the indépendantistes' testimony often supports or expresses agreement with the Supreme Court judgment. On the other hand, they reject Bill C-20 as being inconsistent or at variance with the court's opinion. Do you feel that position is consistent? Can you both support the Supreme Court judgment and yet reject Bill C-20?

Mr. Peter Hogg: No, I think Bill C-20 is completely consistent with the Supreme Court's judgment, and I think it would be difficult to both support the decision of the court and reject the bill.

Mr. Irwin Cotler: I have one final question, if I may, and it's a quick one. You didn't refer to this in your testimony—at least, I didn't hear it—but you have written that the consent of Canada would be necessary for the secession of a province, and that recognition by other states would not follow if Canada did not recognize a new state. Does this not suggest the involvement of the federal government is a precondition for the legitimacy of the secessionist enterprise, as ironic as that statement might appear, and indeed that it is what might cause indépendantistes to be concerned?

Mr. Peter Hogg: Of course if secession requires a constitutional amendment, as the Supreme Court of Canada says it does, then the federal government will play a necessary role in that, whether the amending formula is the 7-50 formula or the unanimity formula. In that sense the Government of Canada plays an essential role.

But I have gone further than that in my writing and have suggested that if Quebec were to unilaterally secede in defiance of the rules of the Constitution, as the 13 American colonies did in 1776, for example, and that became the foundation of a state.... No British legislation allowed the 13 colonies to form the United States of America, yet a stable and democratic state obviously grew from that secession.

• 1700

But if Quebec were to leave illegally, as it were, by a unilateral secession, then it's very unlikely that the conditions for the creation of a new de facto state could be satisfied without the consent of Canada, because the courts would not decide that the secession was effective as long as Canada was continuing to assert legal authority over the province of Quebec. I also believe very few international states would recognize a state if Canada regarded the creation of the state as illegal and would therefore cut off diplomatic relations with any state that recognized it.

So even in that deeper sense, which looks to a most unlikely event, the consent of Canada is a necessary part of an effective secession.

[Translation]

The Chairman: Mr. Lebel.

Mr. Ghislain Lebel (Chambly, BQ): Professor Hogg, I am delighted that you are here. Earlier, you made quite a fuss about the 1995 referendum question, which you found unclear. You must have been seriously affected by the 1992 referendum question, which had not been written when that referendum was proposed to the population and indeed was not written a week and a half before that referendum, but was nevertheless an important question, on which the population was being asked to express an opinion. I assume you were outraged at that situation, but you have made no mention of it here. That is the first part of my question.

I am not a legal expert like yourself. I read in clause 1 of bill C-20:

The House of Commons shall . . . consider the question and, by resolution, set out its determination on whether the question is clear.

Is this power that the House of Commons is proposing to give itself, to pass quasi-legal judgement on the clarity of a question, not a power usually given to a court? I am not sure if I am expressing myself very well, but it seems to me that such legal action by the House of Commons would be more suitable to a court.

I have sat in Parliament for a number of years. I have seen how some friends opposite react when partisan politics takes over, and I would be apprehensive if they were to be entrusted with a legal reassessment. I can tell you what a ruckus would be raised if the House were to make a legal decision on this kind of resolution.

The third part of my question has to do with the international agreements to which Canada is a party, for example NAFTA with the United States. Someone was telling me that the Supreme Court of Canada was the greatest court in the world and that all Canadians should be proud of its rulings. When there is a dispute between Canada and the United States, on applying NAFTA, for example, I wonder why we do not submit the dispute to the Supreme Court for a ruling, if it is such a great and high court in the hierarchy of all courts. The answer, of course, is that it would be both judge and judged. Do you not feel that, in being asked for this opinion, in spite of itself and probably against its will, the Supreme Court was being forced to address an issue on which its absolute neutrality was unfortunately lacking? The present government has developed its entire theory, and tabled Bill C-20, on the basis of that Supreme Court opinion. I would like you to respond to these three questions: on the 1992 referendum question, on the constitutional principle; and on the Supreme Court's neutrality in this opinion.

• 1705

[English]

Mr. Peter Hogg: On the first question, I agree with you that the Charlottetown Accord was unclear in many respects, yet it was put to a referendum. But the Charlottetown Accord would not have led to the separation and the division of the country. That is the difference between the requirement of the Supreme Court of Canada in the secession reference and other forms of constitutional amendments. It is desirable for all constitutional amendments to be clear, but it is absolutely essential that, before the Parliament of Canada should enter into the splitting up of the country, it be based on a clear question.

An hon. member: What about the 1992 question?

The Chair: À l'ordre. Mr. Hogg has the floor, answering lengthy questions.

[Translation]

He is already answering three questions. Let him answer.

[English]

Mr. Hogg, you have the floor.

Mr. Peter Hogg: Did I misunderstand what was meant by the 1992 referendum?

[Translation]

Mr. Ghislain Lebel: Could the 1992 question, which was unwritten, be clear? You answer that it was clear because secession was not at issue. Does that mean—excuse the expression—that when people are being had, the question may be unclear? That is what I am asking you.

Was the 1992 question clear?

[English]

Mr. Peter Hogg: The 1992 question being the Charlottetown Accord? No, it was not clear in all respects. I agree. But it did not contemplate a change as radical as the separation of a province.

Secondly, can Parliament judge the clarity of the question, which is a decision you would expect the court to make? I agree that when the Supreme Court of Canada said it must be based on a clear question, I immediately thought, that is an issue we will have to take back to the court for a determination. That is a judicial question. I then read on, and what did the court say? It said the court has no supervisory role over the political aspects of constitutional negotiation, including the question of whether there is a clear majority on a clear question. It says that in two places.

So the court has washed its hands of the issue and has said it must be remitted to the political actors. Even if we were to conclude that was an inappropriate decision by the court, that is the decision the court has made, and since they're the only court we have, we have to live by that.

On the third question, I quite agree with you that the dispute resolution mechanism in NAFTA is not given to the Supreme Court of Canada, but is given to a bilateral body that is representative of both the United States and Canada. Or perhaps it's trilateral now that Mexico is in. I don't know how it works exactly. But certainly it is not remitted to the Supreme Court of Canada, and it is not assumed that the Supreme Court of Canada would be neutral on the question between Canada, the United States, and Mexico.

But on constitutional issues between the provinces and the federal government, the Supreme Court of Canada makes decisions every day. Allegations have been made by distinguished academics in Quebec that the court has been biased in favour of the federal side and against the Quebec side. My own view is that is not founded. In fact I wrote an article on this some years ago, trying to track the results of cases in which there was a conflict between the provinces and the federal government, and I did not find evidence of a bias one way or the other.

• 1710

The court has traditionally played the role of the neutral arbitrator on those issues, and I think we are safe to assume the court is neutral.

The Chair: Mr. Hogg, thank you very much for your presentation today. We've gone over our time by a bit here, but I think everyone had a lot of questions and appreciated your testimony. Thank you very much for your time.

We'll now recess very briefly while the next witnesses come and take their places.

• 1711

• 1713

The Chair: Our next witnesses are from the Assembly of First Nations. We welcome to the table Chief Phil Fontaine, the national chief of the assembly, and Mr. Jack London, legal counsel for the assembly.

Welcome, gentlemen. We appreciate the fact that you have taken the time to appear before the committee. Under the rules, as you have probably seen, you have 10 minutes to make a presentation, followed by a maximum of 35 minutes for questions from the members.

Mr. Fontaine, the floor is yours.

Chief Phil Fontaine (National Chief, Assembly of First Nations): Thank you. We'll try to stay within the time limit.

Committee members, thank you for the invitation to appear before this committee.

It is a cliché that those who ignore the lessons of history are bound to repeat it. I'm here today both to support the positive perspectives of Bill C-20, but also and equally to say the bill unjustifiably and unwisely omits references to and protections of first nations' interests and rights and those of the aboriginal peoples within Canada.

In our submission, this committee must recommend amendments to the bill that recognize and protect the first nations and aboriginal peoples of Quebec and Canada. It is my duty to remind this committee and the Government of Canada that constitutional reform, by convention and necessity, has required the full, complete, and equal participation of the first nations of this land at least since 1982, at each and every stage of the process and at all resulting negotiating tables.

• 1715

I ask you to recall that the Meech Lake accord failed at the hands of Elijah Harper and the Assembly of Manitoba Chiefs for two and only two reasons. First, first nations were not consulted on its content, did not participate in its formulation or proposals, and were not fairly dealt with by the government of the day in the course of the ratification process. Second, the accord referenced but two founding nations, omitting recognition of not only the first presence of first nations in this land but also the status of first nations peoples in Canada as sovereign, self-determining, and self-governing authorities.

The accord was insulting to first nations as first peoples' governments and demeaning in failing to recognize the need for the active and equal participation of their governments in determining the constitutional future of Canada. So Elijah Harper, with the support of the Assembly of Manitoba Chiefs and others, said no.

In 1992 the Charlottetown Accord process recognized the right of first nations to participate in the process, along with other aboriginal participation, and we sat together as equals at the table that produced the accord. That accord, as we all know, did not survive the referendum process in either non-aboriginal or aboriginal Canada. But the failure of the accord in no way diminishes the constitutional precedent there confirmed, which requires the full, equal, and meaningful participation of first nations in the constitutional reform and any future design of this land. Indeed the Constitution of Canada itself recognizes and protects the unique relationship of the first nations of this country with the Government of Canada and the provinces.

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing treaty rights of the aboriginal peoples of Canada. It is now generally accepted that section 35 includes the first nation right of self-government. That certainly is a cornerstone of the policy of the federal government. The historic treaties, entered into nation to nation, would have borne no other interpretation in any event.

Thus first nations, like the provinces and federal Government of Canada, are uniquely described, recognized, and affirmed constitutionally as the principal governments having self-governing rights in this land. Under Canada's own Constitution, no procedure or institution can affect those rights, positively or negatively, without the full, equal, and meaningful participation of the first nations.

The secession reference included consideration of international law as well as Canadian law. In the eyes of international law, first nations are peoples with a right to self-determination in Canada. Therefore the legal, political, and territorial status of first nations in Quebec and in Canada cannot be affected without the full, equal, and meaningful participation of the first nations of Quebec and Canada.

Moreover, section 35.1 of the Constitution Act, 1982 is of similar effect. Because it is referenced less commonly than section 35, I set it out here in full, as follows:

Commitment to participation in constitutional conference

35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

Section 25 of the Constitution Act, 1982 guarantees that the Charter of Rights and Freedoms “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”.

Subsection 91(24) of the Constitution Act, 1867 gives constitutional authority and concurrent fiduciary obligation in legislative matters concerning Indians and lands reserved to Indians to the federal government.

The reference to “this Part” in section 35.1 includes section 35 itself. Section 35.1 therefore clearly requires and mandates first nation participation in any and all matters that have impact on the constitutional presence and rights of first nations in this land. In fact the nation-to-nation treaties between our peoples for the sharing of jurisdiction in this land, our first presence in this land, and our aboriginal title all converge in the same result.

• 1720

In the context of these opening remarks and with the caveats I will momentarily suggest, I therefore say to this committee on behalf of the Assembly of First Nations that we endorse the spirit and intent of Bill C-20. Legislation that protects Canada and assists first nations in resisting any attempt to affect the constitutional, governmental, or territorial integrity of Canada without the full participation and consent of all Canadians and of first nations is welcome.

The first nations of Canada favour legislation that protects Canada and first nation citizens from a unilateral declaration of independence by Quebec or any other province, ensures clarity in the question that may be asked of the people of Canada in a referendum on secession, and establishes the requirement of a clear majority prior to the beginning of negotiations between the appropriate parties.

We share the view of the Supreme Court of Canada in the Reference re Quebec Secession that a unilateral declaration of independence by Quebec would be illegal, and we commend Prime Minister Chrétien, Minister Dion, and their colleagues for the boldness of their actions.

We also reiterate that no group or government in Canada has greater cause for, right to, or means of secession than do the first nations of this land. While we may often be seen as convenient allies or pawns of one or other of the two levels of government in this country, please make no mistake; we are supportive and collegial out of our belief in the value of this land, this Canada, our rights and presence as self-determining peoples within it, and our right to choose independently whether or not and under what circumstances we continue to be a part of and respectful of the constitutional and territorial integrity of Canada or any province.

No other order of government has the right to take our people with it if they leave. No other order of government has the right to renege on or minimize its fiduciary obligations to our people. No other order of government and no non-aboriginal referendum process can have any impact on our people without our full, complete, equal, and meaningful participation and consent.

We would also remind this committee and the Government of Canada that although the Supreme Court of Canada in the Reference re Secession of Quebec did not directly address the nature of first nations participation, it said:

...a clear democratic expression of support for secession would lead under the Constitution to negotiations in which aboriginal interests would be taken into account....

That's in paragraph 139.

We take that reference to distinguish aboriginal interests, notably those of the first nations, from those of other minority groups. Our interests are to be represented and determined by our full, equal, and meaningful participation at each stage and level of any process designed to alter our place within this government and in our lands.

Therefore, if one asks the question, “With whom must decisions be made about the clarity or appropriateness of referenda, what might be the terms and conditions of negotiations, and what might be the outcome from those negotiations?”, it is our view that the answers are straightforward and ought to be reflected in the terms of Bill C-20.

One of those parties must be the first nations of this land. Whether one starts from the technical perspective of the provisions of section 35.1 of the Constitution, which requires first nation participation; the political and historic rights of first nation self-government, recognized in the historic treaties and section 35 of the Constitution; or the principles of international law referenced by the Supreme Court of Canada in the Reference re Secession of Quebec, there can be and will be no legitimacy to any process, action, negotiation, or recognition, either domestically or internationally, without the prior full and meaningful participation and consent of the first peoples of this land.

That participation and consent requires both that first nations be consulted by the House of Commons in its initial determinations on clarity or clear expression and that negotiations on any amendment required for any province to secede from Canada would include and involve at least the governments of the provinces, the Government of Canada, and first nations.

• 1725

Lastly, we suggest it is insufficient simply to reference, as Bill C-20 does in subclause 3(2), “the rights, interests and territorial claims of the Aboriginal peoples of Canada” as one of the issues to be addressed by the Government of Canada in the negotiations leading to the proposal of a constitutional amendment. That would relegate first nations to a role of silent witnesses or spectators, not principal governments. That role is not acceptable.

First nations themselves must be present, fully participatory, and consensual, and both the federal government and we ourselves must ensure there is no abrogation of or derogation from aboriginal and treaty rights, aboriginal title, and the self-governing and self-determining rights of the first nations of Canada and their territorial integrity.

I was going so well here, but I take it I have to take a break.

The Chair: We've run out.

Chief Phil Fontaine: I only have ten more pages.

Voices: Oh, oh!

The Chair: I'm sure we'll hear some of it in the answers to the questions. Is it fair to move to the questions?

Chief Phil Fontaine: You're in control, sir.

The Chair: Mr. Hill.

Mr. Grant Hill: If the committee wants—

[Technical Difficulty—Editor]

The Chair: All right, we'll give you one more minute. Fire away for a minute.

Chief Phil Fontaine: Thank you.

For the purpose of ensuring these outcomes and so as to be as helpful as we can to this committee in its deliberations and recommendations to the House of Commons, we have drafted a series of amendments we believe should be made to Bill C-20. The amendments have been filed with the clerk concurrent with the text of my remarks. I will not take time from our opportunity for discussion to read those to you orally now. I commend them to your deliberations and would say only they are consistent with and implementing of my remarks here today.

I also have had the privilege of reading the brief of the Grand Council of the Crees of Quebec and their proposed text of amendments, to be presented to you tomorrow. We are totally supportive of their position and the text of their proposals.

In conclusion, let me reiterate again our support for Bill C-20 as a legislative code designed not only to prevent unilateral secession of a province but to ensure there is reason and clarity in the processes of consultation, the questions that are asked, and the expression of political opinion required to effect so serious an event. We do not and will not accept, however, any process, referendum, negotiation, outcome, or amendment that is disrespectful of the rights of the first nations of Quebec and of Canada to full, meaningful, and equal participation, consultation, negotiation, and consent at each and every stage of proceedings.

That is our perspective. Those are our rights, which we will defend and advocate both domestically and internationally, as proud peoples within Canada and within the community of all nations.

Meegwetch.

The Chair: Thank you.

Ms. Meredith.

Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.): Thank you, Mr. Chair.

Thank you, Chief Fontaine, for attending the committee.

I got the clear message that the big issue with the first nations is consultation. My question to you is multi-fold. Are you satisfied with the consultation process leading to this legislation? Are you satisfied with the consultation process with the first nations in addressing this legislation? And then with the amendments, would you be satisfied with this legislation if your amendments did not carry the day with the committee?

Chief Phil Fontaine: Well, I think I've made myself very clear, or at least I hope I have, that the only way we can be satisfied is if we are fully involved and fully engaged in all of the processes that lead to this bill being endorsed by Parliament.

It is clear, given the bill as it has been presented, that we haven't been consulted to our full satisfaction. We need to be involved. Participating as we are now in appearing before this committee is just one step in a long, involved process, as far as we understand the process.

• 1730

So we say to the committee again: we will be satisfied only if we can be fully engaged.

Ms. Val Meredith: In the event of a clear question and a clear majority that determines Quebec will secede, do you feel the clear majority used to determine the secession of Quebec should also be used if the first nations people decide to remain in Canada?

Chief Phil Fontaine: The point we have to keep in mind here is that there are very specific interests pertaining to the first nations, and those clearly have not been addressed in any meaningful way in how the bill has been drafted. We must find a way to fully engage the first nations, including, if it comes to that, the preparation and drafting of the clear question that may be presented.

I may be somewhat repetitive here this afternoon, but that's the way it must be. We've been outside the process, even though we made our position very clear right from the start that we needed to be consulted, fully consulted, and we needed to be engaged every step of the way.

Ms. Val Meredith: Thank you.

The Chair: Mr. Turp. No?

[Translation]

Mr. Bachand.

Mr. Claude Bachand: I want to salute Chief Phil Fontaine, whom I have not seem for quite some time; the last time was at the Assembly of First Nations celebration, where we very much enjoyed eating turkey together. I do not know whether turkey is a traditional French or aboriginal meal but, whatever the case, it was excellent. I think the turkeys were prepared in the French style the last time I was there.

Now, I would like to make it clear from the outset, Chief, that for us as sovereigntists it is not a matter of Quebec unilaterally declaring sovereignty. It is a matter of the people of Quebec making a decision on the basis of a very democratic mechanism, a referendum. I need not belabour this point; you are very well aware of how referendums operate, because a number of referendums on first nations issues are current in Canada.

I am going to ask three short questions, but I would like first to give you some background to them.

I have always considered—and I have told you so on a number of occasions—that the Quebec people and the first nations are both seeking greater autonomy. I think we should be bound by that common cause. I agree that your search for autonomy is different from ours, but I think you will agree that the first nations of Canada need greater autonomy. I shall therefore try always to be on the same side of the fence as you are, across from an opponent that does not want to give as much autonomy as Quebec and the first nations are requesting.

I have been interested to follow your comments and those of Chief Ghislain Picard in this debate. You have expressed opinions on a number of points, and I would like to hear more of what you have to say on those points.

First of all, on December 15, you said that only first nations people can protect first nations interests. I agree with you there. But do you agree, reciprocally, that only the Quebec people can protect Quebec's interests? That is my first question.

Here is the second. Again on December 15, you said:

For the moment, however, the credibility of our federation and of our democracy is fragile. Over the past 10 years, the federation has lurched from one constitutional disaster to another, each one raising questions about the legitimacy of the constitutional structure itself and about democratic federalism.

I think you have repeatedly been the victims of a democratic deficit. Can you agree with me that Quebec, too, has been the victim of a democratic deficit, particularly in Bill C-20, now before us, which we have described as antidemocratic from the moment it was tabled? That is my second question.

• 1735

Here is my last question. It has to do with Chief Picard, who, after reading both federal Bill C-20 and Quebec Bill 99, stated:

The Quebec bill at least refers to first nations issues although, if we read it clause by clause, we can see that it may have an impact on first nations' rights and their right to autonomy.

Without saying that Chief Picard is 100% in favour of Quebec Bill 99, then, it seems at least that he recognizes that Quebec Bill 99 pays a little more attention to him than does federal Bill C-20, before us today.

I do not know whether I have made myself clear in these three questions. I would like to hear your reactions to them, please.

[English]

Chief Phil Fontaine: Let me first of all respond to your comment about the Christmas party. You're right: we had a wonderful time. We had turkey. It might not have been presented in the traditional way, but it was good nonetheless.

Mr. Claude Bachand: It was French tradition.

Chief Phil Fontaine: Sometimes we'd like to cook up other kinds of turkeys, right?

Some hon. members: Oh, oh!

Chief Phil Fontaine: But because I want to be kind and generous here, I won't list any names.

It is true that our struggle for a long while has been to acquire greater autonomy and independence for our community. People around the room here will attest to the fact that it has been a mighty struggle. We haven't failed. I think there has been a growing recognition in most parts of the country that the answer to a lot of what challenges our community is very much dependent on how effectively we can govern ourselves, enjoying the same rights and freedoms as all peoples of this land.

Too often we've been forgotten. We've been ignored or opposed because people didn't approach a lot of the important issues that face Canada in trying to figure out its future, and it has cost us a great deal. We would hope the spirit that prevailed when we entered into treaties, the sacred treaties I referred to in my written presentation, would also guide people engaged in the important decisions, as you are around this table and in the House. Too often we forget that.

We would never, ever try to secure our position at the expense of someone else. We've never believed in that. But we've always been firm in our position that first nations have to position themselves in a way that is clear. The only people who can protect our interests are first nations people, because governments, up until now, at both the federal and the provincial level, have been unwilling or unable to protect the interests of first nations people clearly, fairly, and justly. I would include Quebec in that equation.

The Chair: Mr. Nystrom.

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): Thank you, Mr. Chair.

I want to first of all welcome Mr. Fontaine and Mr. London to the committee today.

Some of these things are like old movies. I remember very well the patriation debate in 1980, when I was a member of the special joint committee of the House. There was an oversight of the government of the day in regard to putting anything about aboriginal first nations people in the original draft, and of course it came in through the amendment process after your predecessors appeared before the committee and did the proper lobbying of those of us who were on the committee in those days.

Of course you're right when you talk about Meech Lake again forgetting to consult with the aboriginal people and first nations people. For Charlottetown of course that happened. I think Charlottetown does set a precedent that the first nations people, aboriginal people, should be fully involved.

• 1740

When I look at this country, it seems to me all Canadians are very special, but if there are any Canadians who are really special, those Canadians are the first peoples of this country, the real founding peoples, who are the first nations people of this country. It seems to me they should be consulted immediately, and we should do everything we can as a committee to put some amendments in here to strengthen the consultative process, to make sure they are full partners in whatever may happen sometime down the road.

That's more of a general statement, Mr. Chairman. Maybe Mr. Fontaine would like to respond to that and elaborate a bit more on why it is so important to have aboriginal peoples as full participating partners in all aspects of constitutional change in this country.

Chief Phil Fontaine: If I may, Mr. Chair, first of all I'll apologize to Mr. Bachand. I didn't answer all of the questions. There are two questions I didn't respond directly to.

We can talk about that afterwards, Mr. Bachand. I think the questions deserve an answer.

So far as Mr. Nystrom's statement is concerned, I appreciate the very clear statement of support for our position. I take that as recognition, acceptance, and support of the proposition we've advanced here today: that the only way we can achieve success in this process is to involve all of the important and integral parts of the country in determining Canada's future.

Our position is very clearly spelled out. The draft amendment we submitted is consistent with my written presentation. I would urge the committee members here to take a very close and careful look at this amendment, because I think it would be very helpful in making the kinds of recommendations that need to be made in this regard.

Mr. Lorne Nystrom: We have two good precedents here. One was in 1980. I forget who was the president of what was then the national first nations organization, under a different name. When he came before the committee suggesting amendments, the amendments weren't there, that position wasn't there, but he and others were able to persuade the committee to put them in. So there's a very good precedent for that, and of course Charlottetown was improved from a first nations point of view too, because of the participation of first nations people.

There's another question I wanted to ask you, Mr. Fontaine. I assume that when we talk about consultation, we're talking about first nations people not just within the province that may secede but right across the country, because that would affect the constitutional arrangements; i.e., if Quebec were to secede, it would affect the first nations position in Saskatchewan or Manitoba or anywhere else in the country. I assume that's the case. Perhaps you can elaborate a bit on that, Mr. Fontaine.

Chief Phil Fontaine: Yes, that's correct, although the position we've taken as an organization is that this particular issue more directly affects the interests of first nations in Quebec, so Quebec first nations internally take the lead role in this issue. Although in terms of articulating the national position, then it's rightfully the responsibility of my office to do so.

The other thing I wanted to say is in response to your first question. We are talking about two elements that are important in this process. One is consultation, full and meaningful consultation, but we are also talking about consent. We have to be engaged in the final determination of any outcomes in this process.

Mr. Lorne Nystrom: Thank you, Mr. Chair.

[Translation]

The Chairman: You have only five minutes. Mr. Bachand (Richmond—Arthabaska).

Mr. André Bachand: I would like to inform the Committee that Claude is my father.

Some voices: Oh, oh!

Mr. André Bachand: Sorry; actually, he's my brother.

I would like to salute Chief Fontaine. You have proposed some amendments. We oppose Bill C-20 for a number of reasons. Some of your amendments would ensure that the federal government takes your opinion, too, into account.

• 1745

One reason we do not support Bill C-29 is that, in our view, the federal government has once again given itself the right to interpret, to express an opinion on, and indeed to pass judgement on, a question and a majority on which a province might decide.

The Supreme Court always refers to political players as the other provinces and the federal government. I shall speak about the first nations in a moment. In our view, the provinces have a role equivalent to that of the federal government; I emphasize the word equivalent. The federal government is therefore not simply obliged to listen to the opinions of the provinces; the provinces are to have an equivalent role.

I was listening to your remarks earlier, and I must say that although, overall, I share many of your views, I find that you do not go far enough. Even if the Supreme Court did not define you as a political player, you are nonetheless a very important and indeed irreplaceable legal player.

So, if the provinces have power, responsibility, and negotiating clout equivalent to that of the federal government in deciding whether Quebec may separate on the basis of a clear question and a clear majority, why are you content with giving advice, even on much of Bill C-20? According to what I have heard, should you not consider yourselves a full-fledged player?

Even though you are not mentioned in the definition of political players contained in the Supreme Court's opinion, which, in our view, at the very least places the provinces and the federal government on an equal footing since it does not distinguish between them, why are you content to give advice that will be taken into consideration but will not have legal or legitimate effect in either the pre-referendum or the post- referendum process? Why are you limiting yourselves to third place, after all?

[English]

Chief Phil Fontaine: I want to answer that question in two parts. I'll answer one part, and I'm going to call on our legal counsel, Jack, to answer the other part.

First of all, I didn't want to leave anyone here with the wrong impression. The Assembly of First Nations is mandated by all first nations in the country to represent the interests of first nations. We're the negotiating body on a whole number of issues. For this kind of undertaking, as important as it is, clearly it's the Assembly of First Nations that speaks for all first nations, and we do so including those of Quebec, in consultation with the appropriate elected people in Quebec.

Mr. Jack London (Legal Counsel, Assembly of First Nations): The answer to the question on why the draft amendments simply reflect the giving of advice to the House of Commons in making the determination on clarity and on numbers is simply a question of efficiency. The first nations don't presume to tell the House of Commons how or when it ought to come to a decision. That is within the sovereign right and the constitutional jurisdiction of the House of Commons.

The first nations have asked, within the amendments to both subclause 1(5) and subclause 3(2) of the legislation, to be consulted in the same way as the provinces would be consulted in the House of Commons coming to that decision, and obviously that's a very important part of the process. However, when we come to the question of consent and negotiations, which is in clause 3 of the legislation, the amendment suggests there must be at least three governments at the table, each acting within its own constitutional, legislative, and political jurisdiction, and that would include the first nations—the aboriginal peoples of Canada—the provinces, and the federal government.

The Chair: Mr. Alcock.

Mr. Reg Alcock: Thank you very much, Mr. Chair.

Chief Fontaine, I'm afraid I can't help but notice how much Jack London looks like Yoda, sitting there beside you.

Mr. Jack London: I could switch chairs.

Voices: Oh, oh!

• 1750

Mr. Reg Alcock: I should say for the benefit of members too that I have known both of these two gentlemen for some time, certainly going back to the debates around Meech Lake.

Chief Fontaine, I really appreciate your comments about not wanting to force anything, and that your personal style and the style of the communities you represent has been to negotiate.

We've had a debate around this table since we started this process, with the Bloc indicating repeatedly that their proposals are not to unilaterally take people out of Canada. Yet there's been a strong feeling that certainly in 1995, that's exactly what would have happened—that had they had 50% plus one, they simply would have gone and left Canada, without the consideration you feel you should have and that I believe the court has said you should have.

I'm noting a comment you made shortly after the court opinion:

Furthermore, the court states that even if there was secession, it cannot be done without the rights and interests of first nations being completely protected, with their complete and equal participation at all stages of the process. Finally, the court indicates to the international community that no nation must recognize the secession that would be pursued without the consent of the first nations.

Can you help us explain to the Bloc why that is the case?

Chief Phil Fontaine: I'd much prefer to leave it to your better judgment as to how you're going to do that.

This is an important issue. I would suggest it would be wrong for anyone to minimize the importance of this. It's really critically important that first nations be in a position to effect, to the best of their ability, the kinds of changes that are needed, including determining our future in Canada.

We've made it very clear over and over again over time that our preferred option is to remain within Canada. When we talk about sovereignty, it's really about defining one's place within Canada. We've been very consistent with that. Our position is not about secession or separation; the issue and the challenge is really, how do we secure our position within Canada?

Mr. Reg Alcock: I have one more quick question. I know my colleague, Mr. Cotler, also wishes to ask a question.

In the amendments you've suggested here in your remarks, you talk about not just involvement and participation, but also consent. With the consent, you're really talking about the amendment to subclause 2(3), in the sense that the first one in particular does speak to involvement in the process. I wonder if you can differentiate between those.

Mr. Jack London: In the first preambular clause we propose, there is the notion of the requirement that the consent of the aboriginal peoples of Quebec, or of the particular province, would come into play. That's in determining the referendum process within a particular province.

Within the House of Commons, the House of Commons will make its decision, and we're suggesting that the views of the aboriginal peoples of Canada would have to be taken into account by the House of Commons at that point. In fact there would be a fiduciary obligation at that point to do that in any event, particularly on the federal government.

The third part of it is, in the event that negotiations were to take place and constitutional amendments were introduced, at that point the consent of the aboriginal peoples of Canada would be required, both by their full, equal, and meaningful participation in the course of the negotiations and therefore in their agreement to the terms of any resulting negotiation.

Mr. Reg Alcock: Thank you.

Mr. Cotler.

The Chair: I think the five minutes are gone. We're going to pass to Mr. Hill.

• 1755

Mr. Grant Hill: Thank you, Mr. Chair.

My question relates to the last referendum, in 1995, when the natives in the north of Quebec held their own referendum. That referendum was powerfully for staying in Canada. My big concern with that is they then chose to stay uninvolved in the referendum in Quebec. There are a significant number of votes there, and it seems to me that although the idea was maybe to not give legitimacy to the process, not participating put a large number of federalist votes on the sidelines. Could you comment about that, please?

Chief Phil Fontaine: Those communities that established their own referendum process were demonstrating to all those concerned about and interested in the position of the first nations that these peoples were acting within their own right to determine for themselves their future. It was their view that this was the clearest expression they could put forward at that point to the rest of the country that they were acting within their own authority and right. The position they took didn't, in the end, undermine the federalist position.

Mr. Grant Hill: You can understand the closeness of the vote, and how that closeness would have been affected by the number of votes we're talking about.

Chief Phil Fontaine: I must admit I don't have the precise numbers.

You must keep in mind when you're thinking about this particular issue that there are distinct groups representing a substantial population that choose not to consider themselves part of the Canadian federation. They are here as sovereign nations, and they will determine for themselves whether they will participate in something they view as a domestic matter and a domestic process.

Mr. Grant Hill: It would be fair to say a substantial majority of the natives in the north expressed their will to stay in Canada, would it not?

Chief Phil Fontaine: True.

Mr. Grant Hill: Do you see that as being expressed by a question that would take them out of Canada arbitrarily? If the secession question were successful, if Quebec were able to secede, could those natives be taken out of Canada against their will, in your view?

Chief Phil Fontaine: Absolutely not.

Mr. Grant Hill: That would then mean some form of change to the boundaries of Quebec.

Chief Phil Fontaine: On that particular issue, our position has been that if it were ever to happen.... In my own personal view, not necessarily representative of the rest of the first nation communities, it will not happen. But if it were ever to occur, then Quebec would be expected on our part to leave with what they had before all of the various reconfigurations of that particular province took place.

Mr. Grant Hill: Wouldn't that be a nightmare scenario?

Chief Phil Fontaine: As it is now, it's a pretty difficult proposition, and we would much prefer to deal with.... When we talk about our situation, improving the lot of first nations people within Canada, that's a huge challenge we all face, and in order to effect the kinds of positive changes that are needed, we need the support of all parties in the House: Liberals, Conservatives, NDP, BQ, and yes, the Reform Party.

Mr. Grant Hill: Thank you.

• 1800

The Chair: Mr. Cotler.

Mr. Irwin Cotler: Mr. Fontaine, Bill C-20 seeks to give effect to the judgment of the Supreme Court of Canada, and in that context it addresses prospective secessionist claims of Quebec or any other province. Correct me if I'm wrong, but it appears what you've been saying today, among other things, is first nations can have secessionist claims as well, and therefore, for this and other reasons as set forth in your presentation, they deserve to be fully engaged in any referendum process.

Chief Phil Fontaine: That's absolutely correct.

Mr. Irwin Cotler: I think you went on to say towards the conclusion of your statement that for that reason, you urge the committee to take a close and careful look at this amendment. I hope I'm quoting you correctly. I can tell you as a member of the committee I am prepared to do so.

Chief Phil Fontaine: I appreciate your support.

[Translation]

The Chairman: Mr. Turp.

Mr. Daniel Turp: Mr. Chairman, I would just like to make one comment and then let Mr. Bachand speak.

[English]

I just want to restate something, Mr. Alcock, to the members and to the people of the Privy Council who are back there, always very concerned about unilateral declarations of sovereignty. I want to tell our aboriginal friends as well that it has never been the intention of the Government of Quebec to unilaterally declare sovereignty. It has always had the intention to negotiate in good faith after a yes referendum. That has always been clear. People who suggest the contrary are just doing that because they want to do that, to be convinced that we don't want to do things democratically.

Unfortunately the Supreme Court of Canada has suggested—Mr. Cotler knows very well what the Supreme Court has said—that there were negotiations in bad faith on the part of the Government of Canada while unilateral secession could be envisaged by Quebec. The arbitrator of that would be the international community.

Let it be on the record that it's not the intention of sovereigntists to declare unilaterally the sovereignty of Quebec.

Monsieur Bachand.

[Translation]

Mr. Claude Bachand: If I may, Mr. Chairman,...

[English]

The Chair: It's very nice to have comments like this, but the purpose of our meeting is to question the witness, and I thought that's what we were going to do. We've used the 45 minutes for these witnesses now, so I'd suggest we call it quits and thank Mr. Fontaine and Mr. London for their attendance today.

Some hon. members: Oh, oh!

The Chair: We appreciate very much the fact that you have chosen to be here, and we appreciate all the help you've been to the committee. Thank you very much for your time.

[Translation]

Order.

[English]

Mr. Michel Guimond: Mr. Chair, I have a point of order.

The Chair: Order. Perhaps we can continue with the meeting.

[Translation]

Mr. Guimond, do you want to have the floor now, or do you want to raise a point of order?

Mr. Michel Guimond: I simply wanted to continue the discussion I began on Monday at 2:30 p.m.

The Chairman: Fine. You have the floor.

Mr. Michel Guimond: I was speaking about the antidemocratic motion the government wants to impose on us, a gag on the work of this Committee.

• 1805

If we are to understand the present clearly, we must know what has happened in the past. I had reached a discussion of the Bélanger-Campeau Commission, which was developing a weighty and meaningful questioning process.

Members will recall that the Commission's report noted:

After 25 years of constitutional discussions, two federal Commissions of Inquiry, major constitutional amendments in 1982 without Quebec's consent and, most recently, the failure of a constitutional initiative [the Meech Lake Accord] that, for the first time from Quebec's point of view, addressed the political aspect of the Quebec issue, we may well at least wonder about the ability of the rest of Canada to make choices that genuinely respond to Quebec's particular needs, aspirations and visions. Thus far these needs, aspirations and visions have been perceived or dealt with as irreconcilable with others in Canada, or incompatible with the smooth operation of the Canadian federation.

[English]

The Acting Chair (Mrs. Karen Redman): Could you please take the other meetings you're having outside the room?

Please continue.

[Translation]

Mr. Michel Guimond: Thank you, Madam Chair. I shall continue.

In its conclusions, the Bélanger-Campeau Commission considered that two possible solutions were open to Quebec:

Only two solutions are open to Quebec in redefining its status: firstly, making a new, last, attempt to redefine its status within the federal system; and, secondly, achieving sovereignty.

The Commission recommended the passage of legislation providing for a referendum on sovereignty and two parliamentary committees: one responsible for analysing issues related to Quebec achieving sovereignty; and the other responsible for assessing any new constitutional partnership offers made in the meantime by the federal government and formally binding it and the other provinces.

Following the Commission's report, the Quebec National Assembly passed the Act respecting the process for determining the political and constitutional future of Québec, commonly referred to as Bill 150, providing for a referendum on sovereignty to be held and for the two recommended parliamentary committees to be struck.

A few months later, constitutional discussions were revived, and Premier Robert Bourassa eventually agreed to participate in them.

The revived discussions began in 1992, on the Charlottetown Accord, which was submitted to a public vote in two parallel, simultaneous referendums in Quebec and the rest of Canada.

In Quebec, Bill 150 was amended in order to substitute the referendum on the Charlottetown Accord for the referendum on sovereignty, and the referendum was conducted under Quebec's Referendum Act, thus applied for the second time.

I note that in 1991, given emerging federal debate on using a Canada-wide referendum as part of the process of constitutional reform, the Quebec National Assembly had passed a resolution asking that Quebec's own process of self-determination be respected.

That resolution by the National Assembly read as follows:

THAT the National Assembly, while recognizing the federal Parliament's right to adopt referendum legislation, asks the federal government to respect the process established under Bill 150 and, as a result, not to initiate a Canada-wide referendum affecting the political and constitutional future of Quebec, thus reaffirming the right of Quebeckers freely to assume their own destiny and alone to determine their political and constitutional status.

The results of these two referendums showed that the Charlottetown Accord had been rejected in Quebec and five of the nine other provinces of Canada; the Accord could therefore not be implemented.

According to constitutional authorities Henri Brun and Guy Tremblay, this rejection of the Charlottetown Accord was attributable to clashing visions of what Canada should be, and was an eloquent illustration of the Bélanger-Campeau Commission's findings of a few months earlier.

Professors Brun and Tremblay stated, and I quote:

The causes of the rejection of the Charlottetown Accord are certainly many and varied in the different provinces. The Accord's complexity and the fact that it diluted various constitutional claims made it highly unpalatable. More fundamentally, however, its rejection by the public reflected the difficulty of reconciling different visions of the country: is it to be more centralized or less; and is Quebec to be a province like any other?

• 1810

We now reach the 1995 referendum and the changes that have ensued. In 1994, a new government came to power in Quebec with an agenda of submitting to a public vote the question of Quebec's achieving sovereignty. The proposed approach was that sovereignty would be preceded by a formal offer to Canada of a new economic and political partnership with Quebec. This referendum was held on October 30, 1995 and the results were close: 49.42% for the YES side; and 50.58% for the NO side.

As was the case in 1980, the federal government participated actively in the campaign leading up to that third referendum on Quebec's political future held under Quebec's Referendum Act.

Developments concerning Quebec' status resulted from the October 30, 1995 referendum. For example, the federal Parliament passed legislation on regional vetoes to constitutional amendments that, according to some experts, might make multilateral constitutional amendments even more difficult.

A resolution on the distinct society was also passed: on December 11, 1995, the House of Commons passed a resolution recognizing that Quebec is a distinct society within Canada, with a French-speaking majority, a unique culture, and a civil law tradition, but making no reference to Quebec's institutions. There, Mr. Chairman, is the rub, as I hope you can see.

In that resolution, then, the federal government reiterated the definition of Quebec as a distinct society that had been contained in the Charlottetown Accord, rejected by Quebeckers in the 1992 referendum and sharply criticized at that time.

The resolution also encouraged all components of the legislative and executive branches of the federal government to take note of this recognition and to govern themselves accordingly. That encouragement did not prevent the federal government from trying to impose a millennium scholarship program, thus intervening in the field of education, which is a area of exclusive Quebec jurisdiction, and in the field of student financial assistance, in which Quebec in fact distinguished itself from the rest of Canada in the 1960s by opting out with compensation from a Canada-wide student financial assistance program and implementing its own program. Nor did that resolution prevent the federal government from signing the February 1999 Framework Agreement on Social Union without Quebec's consent.

The federal government has also clarified the expression ”people of Quebec” contained in the preamble to the distinct society resolution. I quote an address by Senator Graham expressing the federal government's position on this point. At the time, Senator Graham . . . I do not recall whether he was Leader of the Liberal majority in the Senate on November 5, 1996, and I would not want to make an unfounded statement. You will note, by the way, that nothing I have said since the beginning of my remarks has been challenged, except perhaps the detail I neglected yesterday about Kingston having been the capital of Canada. Senator Graham, then, stated:

The sense in which the expression ”people of Quebec” is used in the context of the resolution is that of vox populi—the people directly or through elected representatives having expressed a desire for Quebec's recognition as a distinct society within Canada. The term ”people of Quebec” in this context is not used in the sense of an identifiable collectivity that may assert rights such as the right to self-determination.

That is the federal government's position; let that be clear.

In the rest of Canada, revival of the concept of the distinct society was not greeted with enthusiasm. Recognition of the distinct society had certainly been the most controversial aspect of the failed attempt to bring Quebec back into the Constitution: the concept of equality among the provinces, and the concomitant rejection of any special status for Quebec, loomed large in the rest of Canada's opposition to recognition of the distinct society. As a result, some observers attempted to find alternatives to the distinct society.

• 1815

Against this background, on September 14, 1997, the Premiers of the provinces in the rest of Canada, as well as the territorial leaders, adopted the Calgary Declaration on the ”unique character” of Quebec society.

Mr. Chairman, you can see the evolution: starting from a distinct society, we have reached a unique character. I highlight this point now, because shortly we will reach the concept of principal home; it is enough to make you give up studying languages. For now, then, I point out that the Calgary Declaration referred to the unique character of Quebec society.

The Calgary Declaration proposed a seven-point framework for discussion; one point was that the unique character of Quebec society with its French-speaking majority, its culture, and its civil law tradition was fundamental to Canada's wellbeing. The Calgary Declaration, which was political and not constitutional, need I point out, was approved by the various provincial legislatures with the exception of the Quebec National Assembly. The National Assembly nevertheless held hearings at which experts were called upon to testify on the Declaration. At the hearings, a number of these experts expressed the opinion that the Calgary Declaration did not meet, or ran counter to, Quebec's traditional demands.

These experts noted, in addition to the new dilution of recognition of the Quebec fact proposed in the Calgary Declaration, insistence by its drafters on the principle of equality among the provinces. That principle, considered by the Bélanger-Campeau Commission as a source of the clashing political visions that had caused the failure of the Meech Lake Accord, is still a major barrier to achieving a special relationship between Quebec and the rest of Canada within the federal system. A number of these experts saw that insistence on equality among the provinces as a desire to circumscribe recognition of Quebec's unique character and strictly limit its expression. That desire was accompanied by silence on a definition of Quebec's unique character, making the concept of a unique character comparable to the Charlottetown Accord, which Quebeckers rejected . . .

[English]

Mr. Reg Alcock: I have a point of order, Mr. Chair.

[Translation]

Mr. Michel Guimond: . . . the institutional aspect of the Quebec fact.

The Chairman: A point of order.

[English]

Mr. Reg Alcock: Is there a quorum here?

[Translation]

The Chairman: No, we do not have a quorum.

Mr. Michel Guimond: Mr. Chairman, I would like to know what happens in a case like that.

The Chairman: I must suspend the meeting. At 7:30 p.m., if there is a quorum, we shall reconvene the meeting and hear the other witnesses who will be here. Otherwise, the Committee will be adjourned until tomorrow at 3:30 p.m.; I believe that is the time the first witness is to appear.

Mr. Michel Guimond: Mr. Chairman, I was reading; can you tell me which member asked if there was a quorum?

The Chairman: It was Mr. Alcock.

Mr. André Bachand: Mr. Alcock, the Parliamentary Secretary to the Minister?

The Chairman: Yes.

Mr. André Bachand: I see.

The Chairman: The meeting is suspended until 7:30 p.m.