FAMOUS CASES | Provinces Leaving Canada Part II: The Clarity Act.

• Author: Bowal, Peter
• Position: Column

The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. --Reference Re Secession of Quebec, [1998] 2 SCR 217 at para 153 Introduction

In the last issue of this column, we looked at the 1998 Secession Reference decision of the Supreme Court of Canada as a result of Quebec's razor thin "no" vote in late 1995. This decision laid down a few broad principles. Afterwards, the federal government stepped up and legislated a framework for provincial secession.

This article describes the Clarity Act, which must be considered in any legal understanding of provincial secession from Canada.

The Morning After: the Clarity Act

Both the Quebec and federal governments were pleased with the Secession Reference decision, and both claimed victory. Quebec's referendum strategy was validated, and the issue was judged political, not legal.

Quebec was comforted to know the rest of Canada would have to negotiate after a winning 'leave' referendum. The federal government was happy that Quebec could never declare independence unilaterally and that succession referenda needed to pose a clear question.

Within a year of the Quebec Succession Reference decision, Parliament enacted the sprawling-titled 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. It is known by the over-simplistic name, "Clarity Act". In it, the federal government seeks to take control of the referendum and secession process. The Clarity Act is regular federal legislation and can be amended or repealed anytime in the future.

The Clarity Act sets pre-conditions for the federal government before it will recognize the referendum and before negotiating. The House of Commons will decide the clarity of the question by whether it "would result in a clear expression of the will of the population of the province" (section 1(3)). A question will not be acceptable that:

* "merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population" or

* "envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population" (see...