P. The Clarity Act

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 232-238

Contenidos

• 1) The Terms of the Legislation.
• 2) The Constitutional Validity of the Clarity Act.

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1) The Terms of the Legislation

Although the Supreme Court decision provided these important clarifications regarding the domestic and international legal framework governing secession, it also made plain that political leaders, and not the courts, have the responsibility to define the concepts of a clear majority and a clear question. In December 1999, the federal government responded to this invitation by introducing the Clarity Act into the House of Commons.¹¹⁰The legislation, which was enacted into law in June 2000, consists of three sections. Section 1 of the bill deals with the Supreme Court’s requirement of a clear question, section 2 with the requirement of a clear majority, and section 3 with certain aspects of the secession negotiations.

With respect to the meaning of a clear question, within thirty days of a provincial government officially releasing a referendum question on secession, the House of Commons would be asked to express its opinion through a resolution as to whether the question is clear. In making that assessment, the House of Commons is instructed to consider "whether the question would result in a clear expression of the will of the population of a province on whether the province should cease to be a part of Canada and become an independent state."¹¹¹This formulation is almost a direct quotation from the Supreme Court passages on this issue. The federal government is prohibited from entering into negotiations on secession if the House of Commons determines that a referendum question is not clear. The legislation also restricts

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the exercise of discretion by the House of Commons, by deeming certain questions to be unclear, such as a question that "merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that province on whether the province should cease to be part of Canada" or a question that "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 of that province on whether the province should cease to be part of Canada."¹¹²With respect to the requirement of a clear majority, section 2 of the Clarity Act requires the House of Commons to express its view, by resolution, on whether there has been a "clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada." The House is instructed to take a number of factors into account in forming that assessment, including the size of the majority of valid votes cast in favour of the secessionist option and the percentage of eligible voters voting in the referendum. The House is also required to take into account the views of other political actors, in a fashion similar to that outlined in relation to the determination of the clarity of the question. The federal government is prohibited from entering into negotiations on secession unless the House of Commons determines that there has been "a clear expression of a will by a clear majority of the population of that province that the province cease to be a part of Canada" (section 2(4)).

While section 2 of the Clarity Act is not inconsistent with the Supreme Court’s decision on the notion of a clear majority, it does it does not clarify the analysis offered by the Court. Section 2 simply refers to certain factors that must be considered by the House of Commons in determining whether the majority is clear. However, it does not specify the nature of the consideration that must be given to these various

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factors if the need ever arises to make such a determination. Arguably, a preferable approach would have been for the government to enact a threshold that must be achieved in order to trigger secession negotiations. This would promote accountability and transparency, since it would allow citizens and political actors to know in advance the basis on which the government of Canada will exercise its discretion. It would also reduce the possible confusion and disorder that could result in the aftermath of a very close vote on secession.

Finally, section 3 of the Act specifies that secession would require a constitutional amendment, and that the negotiations for such an amendment would involve "at least the governments of all the provinces and the Government of Canada."¹...