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]

Monday, February 21, 2000

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[Translation]

The Chair (Mr. Peter Milliken (Kingston and the Islands, Lib.)): Our first witness this morning will speak for the Confédération des syndicats nationaux represented by three people here: Ms. Lise Poulin, Mr. Marc Laviolette and Mr. Normand Brouillet.

Following our procedure, we will give each witness ten minutes for their presentations after which there will be a 35-minute period for questions and comments during which time the members from the different parties will have the floor.

I welcome you to the committee, ladies and gentlemen, and you may begin your presentation.

Mr. Laviolette.

Mr. Marc Laviolette (President, Confédération des syndicats nationaux): Thank you, Mr. Chairman.

On behalf of the CSN, I'd like to thank your legislative committee for allowing us to share the CSN's thoughts, its concerns as well as its clear opposition to Bill C-20. For the CSN, this is a matter of respect for the fundamental democratic rights of the Quebec people and their democratic institutions as well as the fundamental rights of the Aboriginal peoples.

The CSN disagrees with the expeditious approach of the Canadian government in passing Bill C-20. Among other things, we have heard that your committee will hear 28 groups during a five-day period. It seems to me that a debate on a secession process should be extended and that a greater number of groups should be allowed to make their views known. That is why the CSN is asking that the bill be withdrawn.

We hope our arguments will be heard by Canada's democrats. Moreover, contrary to our habit, we have tabled an English version of our brief just to make sure the CSN's arguments will be accessible to those citizens who don't speak French.

I will briefly tell you that the CSN is a union organization based in Quebec with 235,000 francophone members from all regions of Quebec. The CSN also has members from the anglophone community as well as the cultural communities, especially in Montreal. Many of our members also belong to the 11 First Nations living within Quebec's borders.

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The CSN itself is the product of the struggle of the Qu.bec people against national oppression. It was founded in 1921. It was then made up of French Canadian and Catholic workers with a will to develop their own union organization independent of the American unions which, in those days, were dominated by anglophones. These workers also wanted to belong to a union organization independent of political parties.

Throughout its history, the CSN has always fought for more solidarity, more democracy, more justice, more respect and more equality in society. That's why the CSN repeats that it's up to the population of Quebec to decide on its future, that this choice must be exercised within the constraints of the National Assembly's legislation and regulations, that this choice can be forced by no political institution and that the government must respect the legitimacy of the elected representatives and the National Assembly in defending the territory and the historic rights of the people of Quebec.

It is not up to the House of Commons, nor the Canadian government, nor the Senate, nor the provincial or territorial legislative assemblies to interfere in the process of formulating the referendum question that Quebeckers will have to decide on. On the contrary, they must accept the referendum majority. They must also recognize the peoples who live in Canada, whether it be the Canadian people, the Aboriginal peoples or the Quebec people.

In the CSN's opinion, Bill C-20 sows confusion about the issue and foster fear and intimidation in the Quebec population. In fact, it tries to achieve two rights of veto: a first one ex ante and another one ex post, in other words, after the event. The first veto would stem from the clarity of the question. However, Quebec has no lessons to learn from the Canadian government and even more so since 1982, which saw during the patriation of the Constitution which is still this country's fundamental law, the paper on which the Constitution was written was not the only thing repatriated; it was accompanied by a thorough revision of this fundamental law. The Canadian Charter of Rights and Freedoms was introduced and this reduced Quebec's powers in linguistic matters and also included an amending formula which, in fact, took away Quebec's historical veto.

This patriation was done without referendum and without Quebec's agreement. The fact that no Quebec government has signed this country's fundamental law means something.

As for the ex post veto after the fact, this has to do with the question of the majority. It is clear for the CSN that for a decision concerning the future of the people of Quebec, the acceptable majority is 50% plus one. The intent of the bill is only to circumvent the obligation to negotiate that is contained in the Supreme Court opinion.

Still, once again, after the fact, Canada has no lesson to teach Quebec about the democracy of its referenda. Three have been held so far, and the participation rates varied from 85% in 1980 to 93% during the last referendum in 1995.

Those who did not respect the Quebec legislation governing the referendum exercise are mostly those who come from elsewhere in Canada. Amongst other things, in organizing the “love-in” demonstration during the last referendum campaign, the rules on referendum financing were circumvented as the expenses paid for by people from outside Quebec were not recorded in the expenditures either of the Yes or No organizations. In this case, the No side footed the bill.

During the 1980 referendum, the No was given a meaning contrary to what it meant. Prime Minister Trudeau promised that after 1980, if the No were to win, Quebec's historical demands would be recognized by Canada. Despite that, in 1982, the Constitution was patriated unilaterally and Quebec's rights went to the bottom of the list.

In 1995, we heard the same promise and in the Calgary statement the existence of the Quebec nation was denied and Quebec was reduced to: a francophone minority governed by its civil code.

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This is fundamental contempt for the people of Quebec. All that Quebec has endured to date, is the reinforcement of the centralizing nature of the federal government whether through a $2-billion decrease in federal transfers, or through the highway robbery of employment insurance premiums which allowed the federal government to artificially generate a surplus; through the social union agreement that Quebec didn't sign either, or again through the dragging out of the negotiations on turning parental insurance over to Quebec.

To say and to state as Minister Dion did that Bill C-20 is pro-democratic and pro-Québecois, in our opinion, is a misrepresentation. This bill denies the existence of the nation of Quebec and the Quebec people as it addresses the secession of provinces. One of the reasons for the strength of the sovereignty movement in Quebec is due to the fact that Canada has always considered that Quebec was a province like all the others while Quebec is a nation. Nations have the right to self-determination and they alone may exercise that right.

When a bill like C-20 is introduced, trying to foresee all possible situations once the decision has been made, you can expect that this will lead to a unilateral declaration of sovereignty on the part of Quebec which will increase tensions between the people of Quebec and the people of Canada.

The best way to solve those questions is to negotiate to solve our differences once the decision has been made. That is not what is being suggested in Bill C-20 which, in passing, is something of a farce.

The wish is to deal with this bill on secession in one week and to hear very few witnesses. To me, this appears to be a caricature of democracy rather than the real thing.

We recommend that the members of your legislative committee tour Quebec to discuss Bill C-20 and hear Quebeckers tell them about their right to self-determination. One thing is sure: whatever the result of the debate being held here and the fate of Bill C-20 in Canada, Quebec's right to determine its own future belongs to Quebec. Whether the government in Ottawa likes it or not, that right will be exercised. It's in our interest that it be exercised with the greatest possible respect for democracy and we hope it will be followed by negotiations.

A bill like the one you are examining here is not conducive to harmonious negotiations.

I'm done with my presentation, Mr. Chairman.

The Chair: Fine. Thank you very much. Do you have any questions?

Mr. Hill.

Mr. Grant Hill (Macleod, Ref.): Thank you, Mr. Laviolette, for your presentation.

In your opinion, was the 1995 referendum question clear?

Mr. Marc Laviolette: Yes, it was quite clear.

Mr. Grant Hill: Crystal clear?

Mr. Marc Laviolette: It was so crystal clear that the No side said that in voting yes, we would be taking an irreversible step in favour of Quebec's sovereignty. Those opposed to sovereignty and exercising their most fundamental democratic right thought it was so clear that it would automatically trigger an irreversible process. I believe they were quite right and that following a yes it would have triggered a negotiation process with Canada on Quebec's sovereignty.

Mr. Grant Hill: In your opinion, it is possible for the Quebec National Assembly to put a question without any restrictions.

Mr. Marc Laviolette: By virtue of the fundamental principle of the equal rights of peoples and their right to self-determination, it is up to the peoples themselves to answer such a question. In Quebec, there is legislation setting out the parameters of that process, a National Assembly that debates the question, public opinion that is made aware of the question as well as a camp for the Yes and one for the No that lead the debate. Of course, if the question were not clear, people in Quebec would denounce it and demand it be clarified.

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If it had not been clear, we would not have had the high participation rates that we had in Quebec: 85% in 1980, 82% in 1992 and 93% in 1995. If people came out to vote in such large numbers, it's because something must have been clear somewhere. It would be difficult to obtain a higher participation rate than what was attained during the referenda in Quebec. We have lessons to receive from no one on this point.

Mr. Grant Hill: Mr. Claude Castonguay, when appearing before this committee, told us the question was unclear. What would you say to Mr. Castonguay?

Mr. Marc Laviolette: I can understand that those who are against the Yes have an interest in shuffling all the questions and confusing the issues. Within the context of the public debate in Quebec, I heard something else altogether. The spokespersons and leaders of the No camp seemed to believe that the question was so clear that its result would be irreversible. When one talks about an irreversible result, it is then difficult to say that the question could have been clarified further. Don't take Quebeckers for imbeciles. They know full well what stakes are involved in this question and the debate has been going on for a long time. Besides, the debate on Quebec's sovereignty goes back to the very day it entered confederation. You could even say that it goes back to the conquest. These matters have been discussed for many years now and the debate has intensified during the last 40 years.

We can look at how the answers have progressed. Whether the percentage is around 40% or 49%, I believe more and more Quebeckers know what they want in this country. Besides, I think it's quite normal for Canada to prepare for the possibility of a Yes. If we're here today, maybe it's because a Yes is possible.

The problem is that the bill is based on the secession of provinces. Quebec isn't a province, it's a nation, a people. That is the basis of why we're misunderstood in Canada.

Mr. Grant Hill: Could you be more specific about your opinion of the majority?

Mr. Marc Laviolette: The majority is what is recognized by the international community and what has been applied to all referenda overseas supervised by the United Nations and that is the 50%-plus-one rule. That is what a clear majority is in a democracy. Besides, we should point out the high rates of participation we had. We should adopt the same notion of the majority as when the No won during the first two referenda. If the No camp accepted the 50%-plus-one rule—even if there was a difference of less than 1%—then that rule should certainly apply to the Yes side.

Mr. Grant Hill: In your opinion, were there any irregularities in the vote during the last referendum?

Mr. Marc Laviolette: During the last referendum?

Mr. Grant Hill: Yes.

Mr. Marc Laviolette: A few minutes ago, I pointed out some irregularities like the ones that stemmed from the great demonstration held before the last referendum when people from all over Canada came to tell us they loved us. We appreciated being told we were loved, but the fact remains that money was spent when those people came and it should have, as is normally done in Quebec, been entered as expenses for the No camp, but that was not the case.

Mr. Grant Hill: Thank you very much.

The Chair: Mr. Turp.

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Thank you, Mr. Milliken. I'd like to welcome the representatives of the CSN and tell them how important it is for civil society to be heard. We would also prefer that more Quebeckers, individual citizens as well as groups, like yours and other Canadian groups also be heard, but it seems the government is of a different mind-set.

I have two questions on the idea of irreversibility. You know that it's an argument that Minister Dion is constantly raising to explain why 50% plus one isn't enough. According to the argument, as the decision to accede to sovereignty is so serious and irreversible, 50% plus one just isn't enough. I'd like to know what you think of this argument and also tell me if it's valid to justify the application of any rule other than 50% plus one.

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My second question raises a more difficult issue. I've already put it to several witnesses and I'd like to have your opinion on it.

Bill 99 is being debated in the National Assembly. It states clearly that the National Assembly is the supreme authority or Quebec's future, such as the referendum, the majority and the question. We have here a bill which, quite clearly, says that the House of Commons has something to say about that and that finally it's the one who will determine whether the question is clear and the majority is clear.

In the event of a conflict between one assembly and the other, in your opinion, which one should speak in Quebec's name on matters of clarity and the majority?

Mr. Marc Laviolette: Well, democracy is this: democracy is when a decision is made, the majority is 50% plus one. Besides, society's major debates are always decided in this way. There were referenda on the European Union, for example, which isn't a minor thing, and the majorities were expressed in that manner and the results were sometimes very close. As these are major decisions, it's normal for any given society to polarize. In a democracy, it's 50% plus one. That is how it works. All referenda on the independence of a country supervised by the United Nations are based on that rule. So that is the rule that applies.

As I was saying before, if this was the No, 50% plus one would be enough. Why isn't that the case for the Yes? That's the question. It was accepted last time for the No. Everyone accepted it: first, the No side and then the Yes side. What's sauce for the goose must be sauce for the gander. Those are the rules of the game.

In the case of a conflict, which assembly prevails? It's the National Assembly which is the Assembly of Quebeckers. It's up to the Quebec people to decide its fate and its future. It's the prerogative of that assembly historically and duly democratically elected by Quebeckers. That's the same assembly that decided not to sign the Constitution after its patriation in 1982 and it has always been thus, no matter which political parties are involved. So the National Assembly has the capacity and the legitimacy to make the decisions that must be made in case of a conflict.

However, I would like to remind the committee that the best way to settle differences and conflicts is through negotiation. It seems to me that in a democratic country like Canada that should be clearly understood. Now, with this Bill C-20 we have before us, even before another referendum is held the questions are being gelled.

That reminds me of an employer who would tell his employees who want to unionize that if they make that decision it will be irreversible and the great conditions they already have will disappear. With that kind of employer's attitude, during negotiations, you have bad faith that leads to conflict which degenerates in all kinds of ways that no one ever wanted.

It seems to me that Canada was built by consensus. Even though there was never any referendum on Quebec's accession to Confederation, it seems to me there should have been one. That's how the youngest of our provinces, Newfoundland, gained accession to Canada and everyone accepted it. There was a democratic debate. There were two referenda in Newfoundland. I don't see why Bill C-20 is being put to us, a bill which, by its very nature, denies the existence of the Quebec people. I understand that if you deny the existence of the Quebec people, if the Quebec people does not exist, then you can surely say that it's up to the Canadian people to decide the matter. They can't just be left on their own.

That's why we have reached this juncture in Quebec. From the very beginning, the Quebec nation was never recognized. It seems to me the best way to make Canada work would be to recognize it rather than having Quebec stand for the kind of attack it is now under from a centralizing Canada that thinks like a big brother for everybody else and very paternalistically at that.

So, in the event of a conflict, the National Assembly would have the last word. Besides, it seems to me the only way of solving this conflict would be to negotiate.

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The Chair: Mr. Blaikie, do you have any questions for our witnesses?

[English]

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

First of all, I want to say I agree with the witnesses with respect to the process and the objectionable way in which it was conceived and brought forth. It continues to be an offence to the way business is normally done in this place. I also want to agree with that part of the brief that talks about the need to recognize the Quebec people and the aboriginal peoples. I just have a few questions I'd like to ask.

Obviously one of the main contentions of the brief is that it's up to Quebec, and Quebec alone. It seems to me this position, the “Quebec alone” position, can only be maintained if you feel there's no need.... Quebec could have its self-determination, which I believe in, but it's a self-determination I nevertheless hope would be exercised within Confederation, but not necessarily.

Do you not believe that if Quebec were to exercise that self-determination by leaving Canada, it would have to be negotiated? There would have to be some talking about many things. In any negotiation, there are at least two parties, and I would suggest that in the event of the separation of Quebec, there would have to be at least three parties: Canada, Quebec, and the aboriginal people.

Parties to a negotiation have to have some sense of what would cause them to come to the table. One party to that possible future negotiation, the Government of Canada, is saying these are the conditions that would bring them to the table: a clear question and a clear majority.

Do you not feel that as a party to that potential future negotiation, each party, in this case the Government of Canada, has some obligation to set out what would bring it to the table? Because surely it can't be only up to one negotiating partner to say, “All right, now we're going to negotiate, whether or not you feel there's anything to negotiate about.” And the reverse holds true. I'm just saying, do you not see any legitimacy in that point of view at all?

[Translation]

Mr. Marc Laviolette: That's a good question. First, if the Quebec people were to take its own future in hand and choose self-determination, there would have to be negotiations with the Canadian people and the Native peoples, of course.

As to whether the Canadian people want to negotiate or not and as to whether it can wonder about the clarity of the question that was put and so on, here's what I think. There have been three referenda during which the pro-Canada political representatives had their say and had a part in. Of course, the head of the No camp so far has been the Quebec Liberal Party, which is federalist. Mr. Chrétien and others before him played a very active role in the three referenda held in Quebec. That's because they all recognized that the rules of the game there were sufficiently democratic for them to play the game. I think that Canada would not have been a participant in the referenda or that the federalists would not have been participants in those referenda, had they decided the Quebec Referendum Act was a con game.

So as I see it, in the case of another referendum and a positive response, it would first of all be up to the people of Quebec to make a decision. Do they wish to leave Canada? Are they in favour of self-determination or not? The process must take place according to democratic rules set by the National Assembly. Once that has been decided, negotiations will be undertaken.

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Mr. Normand Brouillet (Assistant to the Executive, Confédération des syndicats nationaux): I think a distinction must be made between an attempt to establish a negotiating position and what is contained in Bill C-20, which for all practical purposes sets out to substitute the judgment of the federal government for that of the Quebec people, both on the question and on the results.

That is why we write in our brief that Bill C-20 does not indicate any willingness to negotiate on the part of the federal government, but rather a desire to subjugate the people of Quebec who are not seen as having the necessary maturity to judge for themselves on the clarity of the question and the value of the results obtained.

Mr. Marc Laviolette: If the Quebec people is not made up of second-class democracy citizens, then its concept of democracy is inferior to that of the people of Canada.

The Chair: It is now Mr. Bachand's turn. Almost six minutes have already passed.

Mr. André Bachand (Richmond—Athabaska, PC): Two very quick questions because I know that time is flying. First of all, I'd like to thank you for coming here because as you emphasized, we are shut up here. We don't have the right to leave the city of Ottawa to go meet people. We've been put in a straitjacket, prisoners of Parliament and the government.

You referred to three peoples: the Canadian people, the Native people and the Quebec people. You say that everyone recognizes that these peoples are entitled to self-determination. Does that mean that you recognize the right of the Native peoples to self-determination? And what would be the consequence as far as the divisibility of Quebec territory is concerned?

Mr. Marc Laviolette: No Native people on the territory of Quebec is now claiming this right. We go a bit farther than the principles set out by the National Assembly in 1985, I believe.

An hon. member: That is correct.

Mr. Marc Laviolette: Yes, in 1985. That allowed for negotiations with the 11 Aboriginal nations present on Quebec territory, and these negotiations resulted in agreements.

Mr. André Bachand: Do you very clearly recognize the Native people's right to self-determination?

Mr. Marc Laviolette: Yes, absolutely.

Mr. André Bachand: Would you go so far as to say—this brings us back to the whole subject of partition—that after a winning referendum in Quebec, if the Aboriginal people decided—

Mr. Marc Laviolette: —they were in favour of self-determination.

Mr. André Bachand: —they were in favour of self-determination, that would not be a problem for you?

Mr. Marc Laviolette: That would result in a negotiation just as the decision of the people of Quebec to choose self-determination. The Aboriginals will want to know what will become of their rights. So negotiations would be undertaken to recognize their historic rights. The position I am describing is that of the CSN.

Mr. André Bachand: It is a position that is extremely open, I must say.

Mr. Marc Laviolette: It is our view that a free nation cannot oppress another nation, as is the case with Bill C-20.

Mr. André Bachand: You are militants of the union movement for the defence of Quebec workers. It could be pointed out to you that it is easier to become an affiliate, to become unionized than to obtain disaffiliation. If we compare the two processes, we see that the procedure for joining the union is quite clear. To leave the union it is very complicated. Would you agree that with a clear majority to join the union, things go smoothly enough but to leave the union, it's like separating from Canada, it's more difficult?

Ms. Lise Poulin (General Secretary, Confédération des syndicats nationaux): First of all, I appreciate that you are familiar with our CSN statutes and bylaws. However, if you take a close look at them, you will see that a majority of 50% plus one is necessary for a union or a group of workers to be affiliated with the CSN. Leaving the CSN also requires a majority of 50 plus one.

In the case of a sectoral or regional grouping, to obtain affiliation with the confederation, the federation or a central council or to leave such a group, the same percentage is required, namely 50% plus one.

Mr. André Bachand: About leaving the union. A group of workers who decide to unionize... We've seen some amazing stories in Quebec where people decided, once they received their accreditation, that they would change their minds and disaffiliate.

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Ms. Lise Poulin: For disaffiliation it is 50% plus one. What you are talking about is the removal of union accreditation, something that comes under the local union. We do not provide union accreditation. We affiliate groups. It is up to the group to have its accreditation revoked with the department of labour. Once again, the necessary majority is 50% plus one.

Mr. André Bachand: What is your definition of the Canadian people?

Mr. Normand Brouillet: The Canadian people is made up of all Canadians inhabiting the territory and who do not belong to the Quebec people or the Native peoples. They are entities.

Mr. André Bachand: Exactly.

The Chair: Mr. Drouin.

Mr. Claude Drouin (Beauce, Lib.): I'd like to thank the people from the CSN for their presentation this morning.

In your presentation, Mr. Laviolette, you refer to 50% plus one. The Supreme Court ruling clearly states and repeats the fact that a clear question with a clear majority will require the government of Canada to negotiate secession.

The premier of Quebec said that it was a very good decision. Bill C-20 is properly linked to the Supreme Court judgment. To begin, can you explain to me what a simple majority is if 50% plus one is a clear majority?

Mr. Marc Laviolette: A simple majority is 50% plus one.

Mr. Claude Drouin: And a clear majority?

Mr. Marc Laviolette: It's the same thing.

Mr. Claude Drouin: It's the same thing for you?

Mr. Marc Laviolette: Yes. It is not a judgement but an opinion of the Supreme Court.

Mr. Claude Drouin: Excuse me. It is an opinion.

Mr. Marc Laviolette: It's different.

Mr. Claude Drouin: Yes, very different.

You said in your presentation that it was up to the nations to decide whether or not they wish to become a people, which does not at all appear to be the position of the Quebec government at the present time.

You say that the Aboriginal peoples have not asked to become a country. In the last referendum, they voted 96% in favour of remaining in Canada. We're not talking about 50% plus one or 52%, but 96%. In view of what you said this morning, would you accept the partition, the removal of a large part of Quebec if the Aboriginal peoples decided to remain in Canada? Would they be able to stay in Canada?

Mr. Marc Laviolette: No. In the case of a yes to the referendum, the negotiation will have to take place with the Canadian people and the Aboriginal peoples, dealing among others with the historic or ancestral rights of the latter. These rights would be guaranteed to them in an independent Quebec. Such negotiations would have to take place. As far as I know, the English Canadian minority in Quebec is in favour of the No side. Nonetheless, their rights will be respected in an independent Quebec. That is why all these matters must be negotiated. That is why discussions will be undertaken with the Aboriginal people.

Mr. Claude Drouin: You say, Mr. Laviolette, that you respect the result of the vote when the No wins with 50% plus one. I have a bit of trouble following you because in 1980, the No won with a 57.59%. Yet they kept on. They said: "Till the next one!" In 1995, the winning side won with 50,000 votes.

Then the Parti Québécois government was elected but with a minority vote because the Liberal Party obtained more votes than the Parti québécois. Since its election, it has done nothing but talk about separation. When a majority of Quebeckers have decided that they want to stay within Canada, do you consider it to be democratic for the Government of Quebec to continue, day after day, to talk about separation?

Mr. Marc Laviolette: That rule applies to Jean Chrétien. It's the same thing. It's because of the system we have.

I can tell you why the question of the sovereignty of Quebec keeps coming back. It's because of bills like C-20, because of the centralizing attacks and the cutbacks to transfer payments such as Quebec is now undergoing. This provides additional arguments to bring about the necessary change whereby we will be able to look after our own affairs.

Your argument is valid for everyone starting with the Prime Minister of Canada.

Mr. Claude Drouin: Mr. Laviolette, you talk about cuts to transfers. Are you telling us that the province of Quebec is the province with the lowest investment in health and education in Canada? Is it investing less than Newfoundland? Are you telling us that it is $200 less per capita than Ontario, $1.4 billion a year for health?

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Is that due to the cutbacks in transfers since these transfers were reduced in all provinces? Let me remind you that we are now back to the 1993-94 level as far as tax points are concerned, Mr. Laviolette, and that we are the most highly taxed jurisdiction in North America. Can you explain that to me?

Mr. Marc Laviolette: What I am saying to you is that if Quebec had an extra $2 billion to operate, that would make all the difference. We would make use of this money for our health system, our educational system or for social assistance, all of which come under provincial jurisdiction.

I did not expect to come here to defend the Canadian Constitution but that is exactly the situation. For as long as Ottawa continues to intrude in areas of provincial jurisdiction or to prevent the provinces from exercising their jurisdiction, we will keep having this same debate. That is what the difference is between the two.

Mr. Normand Brouillet: Mr. Drouin, you might perhaps take note of the fact that Quebec is the Canadian province that underwent the largest cutbacks in transfer payments. We could discuss figures for hours but that is a proven fact. One of the reasons we are talking about the need to restore the $3.8 billion in transfer payments in the next budget is because Quebec was stuck with almost half of these cutbacks.

You can recite your litany of statistics about social program expenditures in Quebec but that is the reality.

Mr. Marc Laviolette: When Ottawa siphons off money from the unemployment insurance fund, as it is now doing, in order to swell its surpluses and to build the kind of country it wants on the backs of the unemployed in Quebec and the Maritimes, that is annoying too. That's where the surpluses come from. They come from the cutbacks to transfer payments as well as the surpluses of the unemployment insurance fund.

The Chair: We shall continue with Mr. Guimond.

Mr. Michel Guimond (Beauport—Montmorency—Côte-de-Beaupré— Île-d'Orléans, BQ): Ladies and gentlemen, I'd like to thank you for your presentation. Let me make first of all a comment and then ask a question. I appreciated your reminder of the love-in in Montreal with all the chartered buses coming from Ontario and with no official accounting of the day's compensation of the participants.

We could also have recalled the $99 return air tickets for Vancouver to Montreal on 747s belonging to Canadian. We could have mentioned that certain telephone companies made their lines available free of charge to certain categories of people like engineers in the West who were able to call engineers in Quebec or lawyers and technicians to tell them: “We love you, we want you to stay with us.” We could also have mentioned the sums of money poured into Option Canada at the time, the exact amounts of which were never known. That is my comment.

Now for my question. Mr. Laviolette, for how long have you been in the union movement? For how long have you been an active unionist?

Mr. Marc Laviolette: For 25 years.

Mr. Michel Guimond: So you've had experience of labour relations against a background of violence, threats and fear. Is that normally a formula for a good relationship between workers and their employer? You realize that I am establishing a direct link with Bill C-20 that attempts, once again, to play this game of intimidation. “We won't negotiate afterwards.” How many times have we heard that? “We won't negotiate afterwards.” They put obstacles in the way. They make it complicated in an attempt to maintain the people of Quebec in a state of subjection. I'd like to hear your comments on that.

Mr. Marc Laviolette: First of all, concerning your comment about Canadian Airlines, let me say that during this period my wife called them to ask if she could go see the Rockies before we made our decision. Unfortunately, the offer didn't apply to those heading west. It was for people from the West travelling east. I'm serious, we decided to try it out. We realized there wasn't something quite above board in this love-in.

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As for intimidation, violence and so forth, that has never paid off in labour relations for either party, for the employer who eventually ends up losing because there are always costs to be paid and for the union members who are always the first to pay.

As far as labour relations are concerned, with the anti-scab legislation, we have civilized this state of affairs, which was a very serious irritant. I don't think it exists at the federal level, in the code, does it?

Mr. Daniel Turp: We tried.

Mr. Marc Laviolette: We tried, yes.

Mr. Daniel Turp: We tried but they didn't want it.

Mr. Marc Laviolette: That has helped civilize the relationship between the parties. This kind of intimidation has been in use in Quebec for a long time. We could give you a long historical description of how the Quebec people have been repressed in their attempts to assert their national identity. There's a good movie coming out on Delorimier that will remind us of certain historical facts. In Quebec we've seen many instances of this kind of thing, particularly in 1970. It never works.

Federalists who want to keep Canada together are going to have to find a way of making it work. The provinces will have to function in their area of jurisdiction and Quebeckers will have to be recognized as a people. Canada was founded on the negation of the Quebec people. The foundation was cracked at the very outset. That doesn't help.

Mr. Michel Guimond: In your brief you ask democrats in Canada to protest against this attempt to pervert the exercise of democracy in Quebec.

Are you aware of the open letter supporting Quebec's democratic right to self-determination, a letter signed by over 124 individuals and representatives of union associations? I'm anxious to see how our colleagues from the NDP will be voting on this bill since these union organizations are very close to the NDP. I'm convinced that the NDP will be voting against this Bill C-20. Professor Gary Kinsman of Sudbury was the one who sent this letter. Are you aware of it?

Mr. Marc Laviolette: I find that reassuring. No, I wasn't aware of it. I'm happy to hear that there are democrats who are finally rising up to denounce Bill C-20. I would like to have a copy of it. We will make sure that it is well known in Quebec. It's encouraging, because I was somewhat concerned. Not very much has been said about it. I hope that this will happen soon.

Mr. Michel Guimond: Thank you.

The Chair: Mr. Patry.

Mr. Bernard Patry (Pierrefonds—Dollard, Lib.): I would like to thank our guests. I have two comments to make and one or two questions to ask.

Mr. Laviolette, you started out by saying that Quebec was not a province. Ms. Poulin, you told us that a Canadian was a person living outside Quebec. I feel that these statements are a denial of Canada as it exists today. They are surprising, because the CSN is governed by a federal charter and because, even within the CSN, there have been affiliated unions from outside Quebec.

This is my second comment. Mr. Laviolette, you twice mentioned the UN and the universal rule of 50% plus one at the UN. I beg to defer. In the case of East Timor, an example that is often cited by the Parti Québécois and the Bloc Québécois, no threshold had been set for a majority, and the Secretary General of the United Nations was given the power to judge the results according to their context.

As to admitting or suspending a member State from the United Nations Security Council, that requires a two-thirds majority, and all decisions made by the Security Council must have a 60% majority, that is 9 votes out of 15.

Mr. Daniel Turp: That is not relevant.

Mr. Bernard Patry: If I may, Daniel.

What is the majority that is required, according to the CSN bylaws, in order to suspend a member of the executive committee or to relieve the CSN comptroller of his duties? What kind of majority do you need to revoke the jurisdiction of a federation within the CSN?

Mr. Marc Laviolette: Well, now we are mixing...

Ms. Lise Poulin: As to the last three questions, it would be two thirds, but we are dealing with individuals and the jurisdictions of a federation. A federation can have a number of jurisdictions, but for a group of unions, a federation—there are nine within the CSN—or a central council to become affiliated with the CSN or to become unaffiliated and independent, it would be 50% plus one.

• 1025

For example, the Fédération des travailleurs du Québec, the FTQ, could affiliate with the CSN with a majority of 50% plus one votes and become unaffiliated with a majority of 50% plus one votes. We don't represent individuals, but unions. The unions are always affiliated with the CSN. We are talking about the structure. We can see that you are well aware of our bylaws and our rules and we are quite pleased about that.

Mr. Bernard Patry: Mr. Laviolette, would Native people be allowed to leave Quebec following a referendum that might be held to remain in Canada? If the Yes side were to win in Quebec, would Native people have the right, yes or no, to leave Quebec if they answered yes to a referendum question asking whether they wanted to remain in Canada?

Mr. Normand Brouillet: We stated earlier that we agreed with the Native peoples right to self-determination. However, we also think that there is a geographic reality that must be taken into account, so that the day after a vote in favour of Quebec sovereignty, the Native peoples living on Quebec soil would remain an integral part of Quebec. As Mr. Laviolette said earlier, negotiations would have to be undertaken. Within the CSN, we feel that the day after a referendum in favour of sovereignty, all of the obligations that are at this time assumed by the federal government would revert to the Quebec government. At that time, negotiations would begin in relation to the positions of the Aboriginal nations.

But one thing is clear: we can't move these people outside Quebec along with the land that they occupy. It's a geographic reality. And we will have to use all of the wisdom that we can muster, on all sides, so that we might not only continue to live together, but live even better than we do now.

Mr. Bernard Patry: If I understand you correctly, you are denying the Native people the right to leave Quebec, because you say that there will only be negotiations with the province of Quebec.

Mr. Normand Brouillet: Yes.

Mr. Bernard Patry: If a referendum were held and if they decided to leave Quebec, would they or would they not have the right to leave Quebec? It's a very simple question.

Mr. Marc Laviolette: This is a hypothetical question. We must understand that the Native people are not demanding independence...

Mr. Bernard Patry: [Editor's Note: Inaudible]

Mr. Marc Laviolette: If I may... I have always thought it was rather amazing how one could use the Native people to deny Quebec the right to decide on its own future. This is a strictly hypothetical question. The people of Quebec will make their bed, they will undertake discussions with the Native people, and we will see what happens. For the time being, the Native people have not stated that they would be holding a referendum.

This is also the problem with Bill C-20, which attempts to frame all of the questions in advance. You can determine the scope of the questions, but you will never prevent the Quebec people from determining their future. Look at what is about to happen. If you want to create tension instead of negotiating the rules, well, keep on going. You've had a good start. It's dangerous for democracy. Your attitude is dangerous for democracy in Canada and in Quebec. I'm telling you that today: keep doing what you are doing and see what the future brings.

Mr. Normand Brouillet: When you talk about 93% of Native people, you should be careful, because you might be told that 60% of francophones voted yes during the last referendum. There was only one referendum result in 1995. It's the one that we are all aware of and that applies to every one.

The Chair: Order. The 45 minutes are up. I would like to thank the witnesses for appearing. We were happy to have you at the committee. Thank you very much.

[English]

We will now have a short break to get the next witness seated, and we'll be ready to go in a minute.

• 1029

• 1031

[Translation]

The Chair: Order, please.

[English]

We're ready to start with our next witness. Our next witness is Mr. Brian Crowley, the chair of the Atlantic Institute of Market Studies.

Mr. Crowley, welcome to the committee, and thank you very much for taking the time to appear before us today.

Mr. Brian Crowley (Chair, Atlantic Institute of Market Studies): Thank you, Mr. Chairman.

The Chair: You'll have the floor for 10 minutes, and then we'll do 35 minutes of questions and comments following. We have to end the photography. Let's go.

Mr. Brian Crowley: Would you like me to start now, Mr. Chairman?

The Chair: Sure. Go ahead, sir.

Mr. Brian Crowley: Ladies and gentlemen, I'm deeply honoured to have been invited to speak to you today on the matter of Bill C-20, the so-called clarity bill. I know I only have 10 minutes, so I'm going to move quickly into my formal remarks.

[Translation]

I think I should begin by explaining why I am here before you today. There are three reasons.

First of all, I have observed the political and constitutional scene in this country for a number of years and I have written a number of books and articles dealing with constitutional matters.

Secondly, I am an experienced constitutional negotiator, having served as a constitutional advisor for the Manitoba government during the negotiations leading up to the Meech Lake Accord, as well as with the Government of Nova Scotia during the Canada Round, which led to the Charlottetown Accord in 1992.

Finally, from 1967 to 1979, I was the assistant private secretary to Mr. Robert Burns when he was Minister of State for electoral and parliamentary reform in Mr. René Lévesque's government. Mr. Burns had the responsibility, among other things, for drafting the green paper on electoral reform and the well-known Bill 2, an Act on the funding of political parties. Moreover, what is most important in terms of my appearance here today, is that we drafted the text of the Provincial Referendum Act. (La Loi sur la consultation populaire).

[English]

Let me begin my substantive remarks by stating clearly that the government's clarity bill, while not perfect, is a vital, welcome, and belated addition to the constitutional, legal, and political framework within which Quebec's future and that of Canada will be determined. Moreover the bill is a logical and a necessary response to the invitation made by the Supreme Court of Canada to clarify the rules for future referenda on sovereignty and any consequent negotiations on secession.

Let me begin by underlining that one of the most basic roles of government is to reduce uncertainty. The purpose of human society is to improve the chances of individuals of realizing their goals and aspirations—

The Chair: Mr. Crowley, could I just interrupt you for a second? I know you're trying to get everything in in ten minutes, but—

Mr. Brian Crowley: Am I talking too quickly?

The Chair: You're going so fast that the translators are having difficulty with the translation. Do you have a copy of your remarks you can give to them?

Mr. Brian Crowley: I do, Mr. Chairman.

The Chair: That might be helpful, and then they could translate from that.

Mr. Brian Crowley: Perhaps someone could take that to the translators.

The Chair: Could you get a copy taken to the translators?

That will help as well.

• 1035

Mr. Brian Crowley: May I continue, Mr. Chairman?

The Chair: Yes, certainly. Go ahead.

Mr. Brian Crowley: One of the ways people reduce uncertainty is by living under governments that create a framework of rules that we call law. Those rules introduce an element of reasonable certainty about life and increase the possibility of each of us getting what we value most. For instance, the law of contract allows us to make agreements with others and to be sure those agreements will be enforced.

How does this apply to the clarity bill? In two ways. First, it is fundamentally legitimate for the federal government to act to reduce as much as possible the uncertainty created for all Canadians, including the Québécois, by the pursuit of sovereignty. Second, it helps to establish why the legal and constitutional status quo always has a powerful presumption in its favour, because it has been the basis on which the myriad plans and intentions of all individuals have been created and nourished.

Thus it is in my view not correct to see in the clarity bill an attempt, for example, to give more weight to federalist versus sovereigntist votes, but rather it is a way of saying the settled expectations of a civilized society count more heavily in the balance than the theoretical benefits of a fundamental social change whose consequences cannot be predicted.

[Translation]

After all, Mr. Chairman, who can tell us with any certainty what legal, fiscal, commercial, monetary, or private property systems will be in place, what territory will be administered by the new government, what the reaction of the international community will be, and whether or not the courts, the police and the armed forces will have a role to play or will remain independent if Quebec were to become sovereign?

That is only a very short list of the uncertainties that the sovereignist project gives rise to, not only for Quebec, but for Canadian society as a whole. Since the state must above all else promote stability and certainty so that individuals can grow and prosper, the federal government has not only the right but also the obligation to minimize the impact of this uncertainty, something with which the Supreme Court of Canada agrees.

Let's now deal with the majority. Even if the bill makes no mention of an adequate majority to undertake negotiations leading to the sovereignty of Quebec, the Supreme Court as well as the bill itself foresee a threshold that would be higher than a 50%-plus-one vote. Moreover, the question we must ask is: is this legitimate? I would say yes, without reservation. This is a principle that is both fundamentally democratic and fundamentally Canadian and Québécois.

Is it necessary to point out, for example, that a large part of our constitutional history, for at least 40 years or more, gravitates around Quebec's demand for a constitutional veto, with no consideration for the demographic weight of that province within confederation? This was one of the keystones of the constitutional positions taken by Jean Lesage, Daniel Johnson Sr., Robert Bourassa, René Lévesque and, of course, by Lucien Bouchard in relation to the Meech Lake Accord.

It is clear that the Constitution Act of 1982, for example, enjoyed considerable popular support when it was adopted, including in Quebec. However, all Quebec governments since that time have stated that it was an illegitimate constitutional amendment because the National Assembly had not given its consent.

Well, you can't have your cake and eat it too, even in matters relating to the Constitution. Moreover, democracy does not mean and has never meant a society where 50% plus one always wins, in all circumstances. That type of society would be nothing more than a tyranny by the majority, to use an expression coined by Alexis de Tocqueville. True democracy is based on this moral principle: only that which is acceptable to the majority should become law, but not everything that the majority wants can necessarily be legislated. Much to the contrary, as the Supreme Court stated so clearly, in Canada, there are at least four principles that govern the rights of a majority: minority rights, federalism, constitutionalism and the rule of law. It would not be exaggerating to say that in a democracy, even majorities must respect justice and fairness. That is what democracy is all about.

• 1040

[English]

As a final observation on this point, as we have seen, support for sovereignty fluctuates wildly over time, whereas both sovereigntists and federalists make use of our institutions, the institutions of Canada and Quebec, on a daily basis to build their lives and pursue their dreams. It is therefore morally as well as practically justified to expect a firmer and more durable expression of commitment by the Québécois to the sovereignty project than a simple 50% plus one.

[Translation]

You can't change your country like you change your shirt.

[English]

This is a decision freighted with great significance. To think it can be taken one fine spring day because of the latest tiff between Ottawa and Quebec City over air traffic control or sales tax or a handful of university scholarships is to trivialize the gravity and the grandeur of a decision to found a country.

A rather different criticism has been made of Bill C-20—namely, that failing to set a clear threshold means a future government could simply refuse to negotiate, no matter how strong the vote in favour. Let me say first of all that I agree with the criticism of the bill that it does not at least set a minimum threshold for a referendum result that would trigger Canada's obligation to negotiate, but let me leave that question to the question time.

For the moment, let me just say that the suggestion that a clear result on a clear question could simply be ignored flies in the face of both the law, as laid down by the Supreme Court of Canada, and practical politics. A clear expression of political desire to secede would cause chaos in both Quebec and the rest of the country because of the uncertainty it would create. Negotiations would be necessary.

I would point out as well that Quebec's referendum legislation does not require it to pursue negotiations in the event of a positive vote. Let us not forget that the law in Quebec is called the “Loi sur les consultations populaires”, not the “Loi sur la legislation populaire”. They're quite different. This is a matter for political leaders on both sides to resolve through normal political means.

On this point, I would like to cite my former boss, Robert Burns, who in 1977 had this to say about his referendum legislation:

[Translation]

That's why, in the present situation, a referendum can only have a consultative value, even if this consultative value in no way diminishes the moral value of a referendum for a government which could not, to my mind, move with impunity to ignore the popular will that is clearly and broadly expressed.

Mr. Chairman, I had other comments to make, especially with respect to the role of the federal Parliament as compared to that of the National Assembly, but I see that my time is up. Perhaps we will have an opportunity to come back to these during question period. I would like to thank you for your kind attention.

[English]

The Chair: Mr. Jaffer.

Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): Thank you, Mr. Chairman.

Mr. Crowley, you made it clear that you feel the inadequate majority based on 50% plus one is not, in your opinion, the right way to go. However, I guess there are two questions surrounding that, for me.

First of all, do you see that it's almost detrimental to start talking about moving that standard after you've had three referendums based on that pretty much accepted principle of 50% plus one?

Second of all, what would you then say would be an acceptable majority, or what would you suggest? In part of this bill, we're hopefully going to get some sense of clarity on what constitutes a clear majority. What would your recommendation be for that?

Mr. Brian Crowley: Well, thank you. I think that's a very helpful question, and I think several things need to be said about it.

First of all, we have to talk about both the history and the way the situation has been changed by the judgment of the Supreme Court. If you go back and read the position of the federal governments in prior referendums, it's not by any means clear that they were committed to accepting an outcome of even 50% plus one in those referendum votes.

Mr. Trudeau made it explicit, in fact, in several speeches that

[Translation]

if you knock at the sovereignty-association door, you will find that there is nobody there.

[English]

It seems to me, therefore, it is not historically accurate to say that the federal government has accepted the decision rule of 50% plus one in past referendums.

• 1045

The Supreme Court has added an additional element to the considerations here in that it has said very clearly—and this has come up throughout these hearings—that it is necessary to have une majorité claire. It seems to me it is quite clear that the Supreme Court did not say une majorité or une majorité faible. It said une majorité claire. If they had wanted to say a simple majority, an ordinary majority, or just a majority, it was quite open to them to do so. They did not. They said a clear majority. I think that means something.

I think it is entirely within the rights of the federal government to attempt to give form to some principles that have been laid down by the Supreme Court of Canada. I understand why the federal government in its legislation has not put in place a specific seuil décisionnel.

The Supreme Court of Canada's judgment explicitly says that you must look at the result when it is in hand. It's not something you can decide in theory, because each referendum result will take place in a specific set of circumstances that must be considered. I am of the opinion, however, that that does not exclude the federal government from saying no matter what the circumstances, there is a minimum that is required for us even to consider whether this result triggers the Supreme Court's obligation to negotiate.

My personal view is that it would be 50% plus one of all eligible voters in Quebec. It's a strategic consideration.

Mr. Rahim Jaffer: My other question has to do with the whole idea of negotiations. It's obvious that in order for the rest of the country and the federal government to take seriously a vote in Quebec, it would be important to have a simple and clear question and then to have all the partners come in good faith to the negotiations. What would your opinion be on how that should be constructed, and what would you suggest Quebec do in order to put in a clear question? How would you see the rest of the country playing a role in the negotiations? What would you identify as some of the important things that should be considered for negotiations, at least before this clarity bill goes through?

Mr. Brian Crowley: You've asked a long and complex series of questions. If I haven't answered some of your questions, please remind me when I'm done.

It seems to me that the clarity bill is quite careful not to take from the National Assembly its prerogatives. The bill does not say that the federal government must be consulted on the question, and it does not say that the federal government has a role to play in defining what question shall come before the National Assembly and be adopted by the National Assembly.

What it does say is that the federal government has been given discretion by the Supreme Court of Canada about how it will react to a referendum result based on the question. One of the things it must take account of in deciding how to exercise the discretion it has been granted by the Supreme Court is the quality of the question. That seems to be a perfectly legitimate thing to ask. So I don't think it would be correct—and indeed I think it would be damaging to the cause the bill purports to further—for us to try to give any role to the federal government in formulating the question. What it does is it asks the federal government to pass a judgment on the question.

That brings us to the issue of what the Quebec government and the Quebec National Assembly should do in order to increase the pressure on the federal government to find that the question is a clear one. I think that's step two. The legislation clearly says that among other things the federal government must take into account in determining whether the question is clear is what has been, for instance, the reaction of other parties in the National Assembly, legitimate political actors in the Quebec political process. I would think that, therefore, a Quebec government that wanted to increase significantly the chances the federal government could not accept the clarity of their question would change their referendum legislation so that at least one of the other major parties in the National Assembly would agree. It would be perhaps a two-thirds vote of the National Assembly in order to approve the referendum question. Indeed, that's not without precedent. In the National Assembly it takes a two-thirds vote to appoint the directeur général des élections, and I believe it takes a two-thirds vote in order to approve the appointment of le vérificateur général. Surely, a decision to leave the country is at least as important as those decisions. But again, this is a decision entirely for the Government of Quebec and the National Assembly to take, and that is quite appropriate.

• 1050

The Chair: The next questioner is Mr. Turp.

[Translation]

Mr. Turp, do you have a question?

Mr. Daniel Turp: No, Mr. Guimond does.

The Chair: Very well. Mr. Guimond.

Mr. Michel Guimond: Mr. Crowley, you seem quite familiar with Quebec politics and the dichotomy that exists between the two main parties in the Quebec National Assembly. Do you think that the allegiance of the Quebec Liberal Party is closer to the federalists than the sovereignists?

Mr. Brian Crowley: Absolutely, and I think that is the political issue that the Quebec people are most divided on.

Mr. Michel Guimond: Fine. Do you think that Robert Bourassa was a federalist leader?

Mr. Brian Crowley: Very close to it.

Mr. Michel Guimond: And why do you say close?

Mr. Brian Crowley: Obviously, following the failure of the Meech Lake Accord, Mr. Bourassa left the impression that he might make good on the threat of an independence referendum or a political option other than federalism, but I believe that, on the whole, there is no doubt that he was the leader of the federalist forces in Quebec.

Mr. Michel Guimond: I'm sure you remember that the Quebec Liberal Party was re-elected and that Mr. Bourassa himself returned to power in 1985 and was re-elected in 1989 with a fairly comfortable margin. Do you remember that?

Mr. Brian Crowley: Yes, of course.

Mr. Michel Guimond: You said earlier that in 1982, the unilateral patriation of the Constitution by Mr. Trudeau seemed to be accepted not by a majority of the population but at least by a good part of the Canadian public. Why is it that the National Assembly unanimously denounced this bold step, this unilateral patriation of the Constitution? When I say that the National Assembly was unanimous, I'm referring to members of the Parti Québécois as well as federalists liberal members in Quebec, from the Quebec Liberal Party.

Mr. Brian Crowley: I am not denying that. I was not talking about the opinion of the National Assembly; I was talking about public opinion. According to the polls and according to all public opinion indicators at that time, it was very clear that the majority of the population supported what was done by the Trudeau government.

The National Assembly was obviously against it. The constitutional amendment in 1982 changed the rules of the game for the National Assembly as it relates to Canada's constitutional evolution. The National Assembly was free to adopt its own position. I can also tell you that the great majority of members elected by Quebeckers to the House of Commons voted yes. Quebeckers therefore had two opportunities to express their democratic will on the 1982 amendment. What are you getting at?

Mr. Michel Guimond: What prevails in a case like that one? Would it be the opinion polls or rather the elected members of a majority party in the National Assembly? You seem to give the polls an importance that is unwarranted.

Mr. Brian Crowley: I find it unfortunate, as you yourself do, I'm sure, that the people were not consulted at that time. I believe that the people of Quebec and of the rest of the country would have endorsed the decision made by Mr. Trudeau, but that is only my opinion, and there is no way of proving it. I do know for a fact, however, that the Quebec government was against the idea of the federal government consulting the people, because the Quebec government was afraid of the outcome.

Mr. Daniel Turp: Well of course not! Come on!

Mr. Michel Guimond: That's preposterous!

• 1055

Mr. Daniel Turp: Mr. Lévesque wanted to negotiate. You don't know your history.

The Chair: Order. Order please. A question was put to the witness. The witness has the floor.

Some voices: Oh, oh!

Mr. Michel Guimond: You seem to be an expert on the political history of Quebec. Why did Premier Bourassa, a federalist—I mean Bourassa two—, not ratify the Constitution between 1985 and 1994? Why didn't he, do you think?

Mr. Brian Crowley: Well, I think there are two reasons for that. First of all, I said there was a difference between public opinion and the opinion of the political class. The political class was against it, for all of the reasons that we are aware of.

Secondly, afterwards, once the constitutional amendment was adopted, in Quebec there was an effort made to change public opinion about it. I must say that this effort was quite successful. Today, the result of a referendum on the 1982 accord would no doubt be different. I didn't say that this could happen today. I was talking about 1982, when the Constitution was patriated. We are not talking about how people would think 15 years after sovereignty. We are talking about public opinion at the time when the project was put forward. How relevant can it be to talk about the attitude of political leaders or of the population 15 years after the fact?

Mr. Michel Guimond: Where is your institute based? Do your members have dealings with Quebec?

Mr. Brian Crowley: Our institute is an institute for research on public policy, like the Institute for Research on Public Policy in Montreal or the C.D. Howe Institute in Toronto.

We do not have a large number of members. We have a board of directors with at least one member living in Quebec, but the great majority of our members are from the Atlantic region. In fact, we deal mostly with political matters relating to the Maritimes.

The Chair: Thank you.

Mr. Blaikie.

[English]

Mr. Bill Blaikie: Mr. Chairman, just to carry on the discussion, I can hardly wait until the next time my Bloc colleagues quote a poll—

Voices: Oh, oh!

Mr. Bill Blaikie: —particularly in respect of this issue, or any other, because one would be quick to remind them of the contempt in which they hold such measurements of public opinion.

I'd like to follow up on the discussion of the patriation in 1982. I know this is somewhat tangential, but it comes up all the time. It came up in the brief we had from the witnesses before you. This is a long-standing object of debate. Perhaps the witness would want to comment further after I make my comments.

As someone who was there at the time, in 1981-82, during the debate on the patriation, I think it's a mistake, a common mistake, to characterize this as something that was done over and against Quebec by the rest of Canada, shall we put it that way, because it's a lot more complicated than that. You alluded to how much more complicated it is. You talked about public opinion within Quebec at the time. I frankly don't remember what the polls were saying, but for the moment I'll take your word for it.

But I also want to say, as someone who was in the House of Commons at that time, that certainly, as someone from outside Quebec trying to get an opinion about whether or not such a unilateral patriation was totally illegitimate within Quebec, I found that was a very hard impression to get, when 74 out of 75 Quebec MPs in the House of Commons were supporting it.

• 1100

So if there is some offence to be taken against the so-called unilateral patriation...it wasn't entirely unilateral. It was unilateral only if you see it in terms of Quebec, Canada. More than the Government of Canada was involved; other provinces were involved. So in that sense it wasn't unilateral.

But if there is some offence to be taken, it seems to me it's that Quebeckers couldn't agree amongst themselves. Again, here we see a common phenomenon in which Quebeckers can't agree amongst themselves. The debate is framed as a debate between Canada and Quebec when in fact it's a debate between one group of Quebeckers and another group of Quebeckers, as we constantly see in this committee and in other venues as well.

In 1982, 74 out of 75 Quebec MPs were in favour of patriation and did not see it as a great offence.

I just wonder if you wanted to elaborate on that at all. I sometimes feel that the debate gets wrongly framed.

Mr. Brian Crowley: I think it's very important that we remember the dual nature of Quebec society. For instance, contrary to some of the things that were affirmed by the people who preceded me,

[Translation]

The Canadian people include all Canadians living in Canada, including Quebeckers. Quebeckers are both Quebeckers and Canadians. We can't change that reality. If wishes were horses then beggars would ride. Therefore, in 1982, the dual personality of Quebeckers brought about an identity crisis. There was the Canadian side, represented quite legitimately and very democratically in the House of Commons by a majority of 74 Quebec members out of 75 who were very much in favour of patriation, contrary to the National Assembly, which was unanimous in its opposition to the project.

Does that mean that all of Quebec, all of its personality, was against the project? I think the answer is clear. It's no. I must add that I myself was against the project in 1982, but that is another matter. I was against the merits of the project.

The Chair: Mr. Bachand.

Mr. André Bachand: Mr. Chairman, a number of questions must be asked. I myself will deal with Bill C-20. Between you and me, that is why we are here. You said that you would like, while recognizing that it's up to the National Assembly to decide what would be advisable to help after a yes vote on sovereignty, that the National Assembly should have a two-thirds vote in favour of the question. What percentage should be required in the House of Commons on a vote relating to the clarity of the question?

Mr. Brian Crowley: That's a good question. I haven't thought about it.

Mr. André Bachand: I think it's important. We often ask people to do things that we can't do ourselves. I'd like to know what you think, because you have worked on a number of issues including the negotiations leading to the Meech Lake Accord. In the bill, neither Parliament nor government is mentioned, only the House of Commons. How do you see the role of the Senate in the Canadian parliamentary or constitutional system?

Mr. Brian Crowley: In terms of the Constitution, it is very clear that a distinction has already been made between the role of the House of Commons and that of the Senate. Moreover, in the amending formula, we see that the Senate only has what is called a suspensive veto. The Senate can delay by six months the adoption of a constitutional amendment, but it has no veto. Therefore, there is already a difference between the two houses, a legitimate distinction, I believe, because the Senate has no democratic mandate. However, if one wanted to involve the Senate, I don't believe there would be many objections.

Mr. André Bachand: You gave us a list of various legal and other systems that would have to be negotiated after a vote in favour of separation. Would you have liked to see those things included in C-20?

• 1105

Mr. Brian Crowley: No. In fact, that isn't quite what I said. I said that no one could tell us what the legal systems, or other systems would look like in an independent Quebec because this would have to be defined by a new society.

Mr. André Bachand: The Supreme Court mentioned political actors. How would you define political actors? How would you interpret what the Supreme Court said?

Mr. Brian Crowley: Well, of course, the Supreme Court left the definition somewhat open. If the Supreme Court had wanted to make a definitive list, it could have done so. But it didn't. We can only assume that the minimal list included, obviously, for the purposes of negotiations, the governments and legislative assemblies of all provinces; it would also include the political parties that are represented in all the legislative assemblies. I believe that the Aboriginal people are also mentioned, although the decision is a little ambiguous as to the participation of native peoples...

Mr. André Bachand: Mr. Crowley, I'm sorry to interrupt you, but we are running short of time. In your opinion, what paragraph in the Supreme Court opinion states specifically that the federal government would be in charge of analyzing what constitutes a clear question and a clear majority?

Mr. Brian Crowley: The Supreme Court opinion says that the federal government as well as other actors within the Canadian political system would have to respond to a vote.

Mr. André Bachand: Would you like the provincial legislatures, which are also implicitly or explicitly mentioned, according to what you have just said, but which are rarely mentioned in the Supreme Court opinion—it talks about political actors—, to adopt a similar bill?

Mr. Brian Crowley: I believe that the other governments can adopt legislation to define where they stand in relation to eventual negotiations.

Mr. André Bachand: What paragraph in the Supreme Court opinion says that political actors—here, it is summarized by stating the House of Commons—must analyze the question before it is put?

Mr. Brian Crowley: It is quite clear that the federal government would have that discretionary power once the result of a referendum became public, but it does not mean that the federal government cannot in advance announce the criteria that it will apply in analyzing such a question.

Mr. André Bachand: What criteria are in the bill?

Mr. Brian Crowley: Well, the Supreme Court explained that the results would have to be evaluated according to the circumstances.

Mr. André Bachand: So you are saying that the bill is not clear.

Mr. Brian Crowley: No, that's not what I said. I believe that the Supreme Court said that the federal government had a discretionary power and that the bill clearly states that the federal government will evaluate the quality of the vote and the decision after the fact. The federal government is trying to clarify the process through which it will make a decision. I believe this is perfectly legitimate.

The Chair: Ms. Redman, you have the floor.

[English]

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

I have two questions for Mr. Crowley. If 50% plus one is the universal rule according to the Bloc and the PQ, why is it not written in Quebec's referendum law?

Mr. Brian Crowley: There are constitutional reasons, of course, why that's the case. As you may know, under our legal and constitutional regime only legislatures are empowered to pass laws, and the legislatures must retain their full discretion about which laws they will adopt. Therefore, all referendum legislation in Canada is consultative. In other words, what is asked is the opinion of the population, after which the government exercises its discretion as to whether to follow through on the opinion that has been expressed.

One could have said, I suppose, in Quebec's referendum legislation that any option that was put to the population that received less than 50% plus one would never be considered by the government, but they did not do that. In fact, theoretically, the legislation allows them to pass something that has been completely rejected by the electorate, because it contains no obligation for them to honour or even pay any attention to the result.

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Mrs. Karen Redman: Do you think the notion of partnership as presented by the Bloc and the péquistes is a realistic one?

Mr. Brian Crowley: Quebec and Canada for centuries have been woven together by human action, by intermarriage, by commercial relations, by political relations, and every other way. I think it's virtually impossible to separate them. Therefore, I think if Quebec and Canada came to a point where one of them was saying, either things have to change or we're out of here, the rest of the country would take that very seriously. I think they would have to. But I don't think it is proper, fair, or clear for the Quebec government, or indeed any government, to assume that a partnership can and will be negotiated in advance of having negotiated one.

If the question is, should Quebec become independent, then I think that question should be put. If the question is, would you like some kind of new arrangement with Canada, then it should be defined and negotiated and put to the population for approval. But they're separate questions. I think it's quite improper, if what we want is a clear expression of democratic will, to mix them up.

Mrs. Karen Redman: Thank you.

The Chair: Mr. Scott, please.

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

I'd like to have you comment on how this process or what's available in terms of a referendum for secession in Canada compares with similar opportunities or a lack thereof in other jurisdictions. We've heard a lot about democracy or lack thereof in this debate, and it seems to me that actually this is quite a civilized way to go about something as fundamental as this. Would you care to comment?

Mr. Brian Crowley: Are you asking me what is the procedure in other countries for similar referendums on fundamental questions like this?

Mr. Andy Scott: If a territory in the United States wanted to secede, how would they go about it?

Mr. Brian Crowley: They'd have a war. We already have that example.

Mr. Andy Scott: This is certainly preferable to that.

Mr. Brian Crowley: There's no doubt about it. Please let me clarify. I am not suggesting that we want to have a war in Canada. The question was, what would be the reaction in the United States? I cited the historical example. Please don't let anybody say I'm saying there should be a war. That is not accurate.

The question I was asked is, what is the international experience? Specifically, I was asked about the American experience. In fact, I've had this conversation about the possibility of Quebec secession with many Americans. Americans are quite funny. They're quite unaware of the rest of the world in many ways. I've had many of them say, but we settled that issue in the 1860s. I have to keep reminding them that they settled it only for themselves.

It seems to me that if you consult the international experience on referenda, you can find a range of experience. I'm not sure that referring to international experience will necessarily help us to resolve this very difficult issue. I think we have to decide for ourselves, as Canadians and Québécois together, what is an acceptable set of rules. If we want to set the bar slightly higher than other people and slightly lower than others, I think that's our prerogative as we work out for ourselves what it means to be Canadians. I'm not ashamed of that. Let's do it our way.

[Translation]

The Chair: I'm sorry, but the five minutes are already up.

[English]

Mr. Hill.

Mr. Grant Hill: Thank you, Mr. Chair.

You said that to begin with the bill could be improved. You're quite happy with the tenor and tone, as I am. You suggested setting a minimum number using 50% plus one of all the eligible voters.

Mr. Brian Crowley: Yes.

Mr. Grant Hill: Could you suggest other improvements to the bill that you think would make it better?

Mr. Brian Crowley: That's the principal one that comes to mind. If we want to indeed establish clarity, then I think we have to do so within the context of the rules laid down by the Supreme Court.

I think the Supreme Court put some difficult obstacles in our path, although it also clarified some things. What the Supreme Court judgment clearly says is that the political actors in Canada and Quebec must exercise a qualitative judgment after the referendum result is known, after the question is known.

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That being the case, it becomes very difficult for us to establish in great detail exactly what the federal government's attitude will be, exactly what it will regard as an acceptable threshold for a decision. By and large, I think the bill strikes a reasonable compromise between trying to establish that clarity and recognizing the restrictions the Supreme Court has placed on us.

Mr. Grant Hill: Would it be helpful, in your view, to more formally lay out the way the other provinces would be consulted? Let's say British Columbia decided they wanted to go down this road. The bill isn't very formal in the way the provinces are consulted; if there's a formal representation from the provinces.... Would it be helpful to lay out a more formal mechanism of consultation with the provinces?

Mr. Brian Crowley: For the same reason that I think it's important that the legislation not trample on the prerogatives of the National Assembly, I think it's also important that it not trample on the prerogatives of other legislative assemblies in the other provinces. Indeed, I think we will find that there will be various points of view in different provinces about how to proceed. It might be going further than is wise at this juncture to limit the federal government's negotiating room or ability to consult the provinces in the way it sees fit, given the circumstances of the eventual referendum result.

Mr. Grant Hill: One issue that has been discussed—and it's a very controversial one—is the ability of, say, the natives in Quebec to stay with Canada. There has already been will expressed in that direction. There are those who say that if Quebec is divisible.... I mean, obviously Quebeckers say that Canada is divisible. Would you comment on that?

Mr. Brian Crowley: You've raised two very important points. Let me speak to both of them.

First, on the aboriginal question, I think it's quite proper if a government or a provincial legislative assembly establishes principles on which it bases its policies. In this case, the principle of the National Assembly and of the Government of Quebec is that the people of Quebec form a people and that peoples have rights, and amongst those rights is the right to self-determination. Then it's a legitimate question to ask: are you willing to be consistent in the application of that right, or are you simply looking for a way to get something for yourself that you're not willing to grant others?

If it is also the position of the Government of Quebec and the National Assembly that

[Translation]

the Aboriginal people as well as Quebeckers are considered a people in their own right,

[English]

then it seems to me very clear that the same rights apply to aboriginals as apply to the Quebec people. I don't happen to agree with this way of seeing things, but it is a legitimate question to ask: are we being consistent? If the

[Translation]

Aboriginal people as well as Quebeckers are considered a people in their own right,

[English]

they have a right to self-determination and they have a right to occupy their territory and to determine what national allegiance that territory should have. If they have an allegiance to Canada and express that allegiance through legitimate democratic means such as a referendum, I think that's entirely open to them to do so. It would be quite improper for a majority of le peuple québécois, as understood by the National Assembly, to trample on that right.

The Chair: Mr. Scott, one question, and that will end our time with this witness.

[Translation]

Some voices: No, no, Mr. Chairman.

The Chair: You spoke twice during the last round.

[English]

You have one question.

Mr. Andy Scott: Thank you very much.

We've talked a lot about the clarity of the question and about the qualitative clarity of the number in terms of the majority. I'd like to just have you comment on what I referred to before as the shelf life of the “expression of the will”. We haven't talked too much about that, yet we've had two referendums with outcomes that we now know. How long does an expression of will last?

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Mr. Brian Crowley: I'm not sure there's a simple answer to that. Believe me, I understand the importance of the question, but I'm not sure there's a simple answer to it. If we take the election of a government, the expression of will in a parliamentary election lasts until the next one. I'd be reluctant to say that about a referendum result, which may not be repeated for 20 or 30 years.

Again, I'm not trying to avoid the question, but I think the correct answer is that this is a matter of political discretion and is something that can only be decided in the circumstances. A referendum result that gets 90% of the vote on a clear question has a longer shelf life than one with 50% or 51% of the vote, because it's a clearer, more direct expression of the democratic will of an entire society, as opposed to a narrow majority. I think that's about as much as I can say about it.

The Chair: Mr. Crowley, thank you very much for your testimony this morning. I'm sorry we've run out of time. I know there are a lot of other questions members would like to ask, but we'll have to end it here.

Thank you. We appreciate your attendance, sir.

Mr. Brian Crowley: I appreciate the committee listening to me so respectfully. Thank you.

The Chair: We'll take a quick recess before our next witness.

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The Chair: Order, please. Perhaps we could resume.

Our next witnesses are two persons appearing individually: Professor Robert Ware, from the University of Calgary, and

[Translation]

Professor Jocelyne Couture from the University of Montreal.

I would like to welcome both of you to the committee.

[English]

We are delighted that you are here and we thank you for taking the time to appear before the committee.

[Translation]

Mr. Daniel Turp: Mr. Chairman, point of order, please.

The Chair: Yes, of course, Mr. Turp.

Mr. Daniel Turp: I would like to table two notices of motion that read as follows.

The Chair: Could you wait until we have heard the two witnesses that I have just introduced?

Mr. Daniel Turp: I would like to know if the other motions will be examined after their appearance. Are we going to be dealing with the government motion at that time?

The Chair: We have decided to hear other witnesses until at least 1:15 p.m..

Mr. Daniel Turp: OK then, fine.

The Chair: Very well.

Mr. Daniel Turp: I will do it immediately after the appearance by the witnesses.

The Chair: Very well.

[English]

I understand that the witnesses will be sharing their time.

[Translation]

Who would like to go first?

Ms. Jocelyne Couture (Professor, University of Montreal; representing the Intellectuals for Sovereignty, Individual Presentation): I would first of all like to quickly introduce the group that I represent. It is called the Intellectuals for Sovereignty and is perhaps better known by its French acronym IPSO.

This group was created in 1995, almost five years ago, to promote dialogue on the national issue through public, individual and collective action. A few weeks after the group was created, IPSO already had 500 members: writers, artists, professors and students from all disciplines, all sovereignists of course, interested in debating ideas. As a sovereignist organization, IPSO has always wished and still wishes to assert its independence from all political parties. Our main activities involve writing, now as in the past, for newspapers or specialized journals, organizing round tables and conferences, and representing in various circumstances and venues, such as this one for example, a non-party sovereignist viewpoint.

I appear here today as a representative of the IPSO and I am speaking on their behalf to request the Canadian government to withdraw Bill C-20.

I will quickly give you three reasons why I make this request. The first involves clarity, the clarity of the bill. It is a bill on clarity and in which the word “clarity” appears at least 16 times, but it is an unclear piece of legislation in both what it says and what it leaves unsaid. It is intended to give effect to the requirement for clarity as stated by the Supreme Court, without saying what is meant by clarity. In other words, it is asking us to write a blank cheque which the government will then use it as it wishes.

This bill also provides for the participation of all provincial governments in eventual post-referendum negotiations, without saying a word about what that participation will entail. Are we supposed to ignore the fact that the Constitution enables one or two provinces to overturn a decision, as was recently the case?

This bill contains no mention of and is an attempt to make us forget past failed attempts to reach agreements among the provinces. It also creates confusion over the very concept of a majority by only mentioning the "simple majority rule". In the case of a referendum, the simple majority rule means an absolute majority, that is 50% plus one, and, moreover, the recognized rule in all popular consultations.

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The second reason why I am asking that the bill be withdrawn involves democracy. It is a bill which is fundamentally an insult to democracy in that it denies the powers of the state and the National Assembly of Quebec.

It contends that an absolute majority would not be a clear majority. Must we therefore require 60%, 70% or 80% of the vote? In that case, it would mean that 40%, 30% or even 20% of the Quebec people might decide the fate of all Quebeckers.

It once again confirms, as if it were necessary, the Canadian government's tendency to refer political matters to the courts by removing from democratic debate issues that should be submitted to the will of the people. Bill C-20, in view of the impact it could have on the future of Canadians, should itself be subject to a referendum, as long as it is clarified first, of course.

Finally, this bill flagrantly contradicts the principles of federalism with which the government claims it wants to comply. Not only is Canada incapable of recognizing that a number of peoples live within its borders, it is also about to pass legislation which perverts the spirit of federalism by making the provinces entities that are subordinated to the central state.

The government is thus betraying a colonialist attitude reminiscent of the system imposed by the Act of Union of 1840, which, you will remember, was based on the Durham report.

If passed, this bill would not remove Quebec's legitimate right to self-determination, but it would complicate the exercise of that right because it calls into question the democratic principles that form the foundation of Quebec society and constitutes a clear invitation to violate these democratic principles. In agreeing to introduce this bill in the House, the government is clearly indicating its priorities while demonstrating its casual attitude toward democracy.

The third and last reason why I am asking that this bill be withdrawn involves the procedure surrounding its adoption. This procedure is also an affront to democracy. Whereas the government, in the very text of the bill, states that it is prepared to negotiate and generously allows all the provinces the opportunity to state their views in a potential post-referendum negotiation, it stifles debate in the House on its bill and immoderately expedites passage of this obscure, antidemocratic, and colonialist bill in an attempt to seal forever the fate of a people.

The public hearings ultimately granted are merely a sinister joke in which we should only take part in order to denounce them. Who can believe that the government is prepared to consult the public, to listen to arguments and to weigh them carefully, when the decision to hold hearings was made at the last minute and the witnesses were invited to appear on short notice and in limited numbers?

In these circumstances that it itself created, it will be easy for the government to say that there is little interest in these issues and that this widespread “indifference” attests to broad support for Bill C-20. Meanwhile, groups and networks are forming across the country, groups that are not, I would point out, sovereignist networks, to express their opposition to Bill C-20. That was in fact mentioned earlier this morning.

The way in which these hearings are being held violates the most basic rule recognized by all legally constituted governments, that is the rule of law. Through its affirmation of the supremacy of law, the rule of law requires that the law be such that it can be understood by citizens. This means that the laws must be relatively stable. On numerous occasions, the government has permitted a number of referenda on sovereignty, has let the National Assembly decide on the referendum question and on the validity of the referendum results, claiming victory each time. Now that the result of the last referendum makes it fear imminent defeat, it is hastily preparing to change the rules governing the referendum question and even the absolute majority rule, without even consulting or clearly informing the population.

This action undermines the very foundation of constitutional democracy and leaves no doubt as to the government's intentions underlying Bill C-20. This bill, even if it is amended in the House, will always attest to a desire for domination, a contempt for the law, government treachery and institutionalized cheating.

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For these reasons, I am asking the government, on behalf of IPSO and all those who have previously displayed an attachment to democracy, to simply withdraw Bill C-20 and do everything in its power to erase even the memory of a bill that dishonours it in the eyes of the civilized world. Thank you.

I'm sorry that I read my brief, but I was only told at the last minute that I had five minutes instead of ten. Thank you for your attention.

[English]

The Chair: Mr. Ware, there are two minutes left for you.

Mr. Robert Ware (Individual Presentation): Thank you.

I want to review some simple truths. First of all, I'm going to comment about the process. I'm speaking as an individual, but I am a member of IPSO. I'm also a member of the group that signed a petition against the clarity bill, which I attach as an addendum to my comments.

A simple truth of democracy is that there should be extensive consideration of the views of citizens representing many interests. The time allotted for this bill is all too short. The institutional treatment, I believe, is cavalier. Moreover, it is not unreasonable for the government to seek opinions from the Supreme Court, but it should be emphasized that they are just that, opinions. In a good democracy opinions should be collected widely from established institutions and from citizens generally. It is a pity that so little deliberation is being allowed in this case.

Bill C-20 misleads in saying that the Supreme Court has confirmed, determined, or stated the meaning of anything. These are things the court can only do in making decisions. Those opinions, wherever they come from, can serve only to guide the representatives of the people in Parliament.

To look at substance on democracies and majority, there are some very general truths about democracy. There are two ways of understanding democracy: rule by the people or rule by the majority. These are obviously different. Rule by the people, the first understanding, is a definition of democracy. It gives some meaning, contrary to the opinion given in the fifth “whereas” of this bill, and it is rightly understood as government by all the people, where every citizen is equal. Of course, who constitutes the people is an important issue that shouldn't be left in denial. Who the people are and, more importantly, underlying our deliberations, what is meant by “the people” are questions to be resolved in the process. Different positions must be recognized.

With the polity determined, every citizen of the polity should have the protection of full participation and equal rights. The principle of equality especially has been taken very seriously and applies to everyone who votes. Every vote is to be given equal weight. There are to be no second-class citizens and no gerrymandering of the votes.

In the framework of these remarks about the meaning, there are also questions about procedures to be followed. To shorten matters here just a bit, let me make it absolutely clear that my view about a majority, which is the view of the dictionaries I've consulted and so on, is that it's understood as being over half, that is, 50% plus one. The notion of clear majority is not one I know. In the literature people talk about super majorities or extraordinary majorities. Those are even misleading in themselves.

A democracy can follow other procedures when it constitutes itself, and those procedures can be greater than a majority or less than a majority. But a majority that is 50% plus one is a default procedure for all democracies, I believe. Bill C-20 is unfortunate on this, and I think it's unclear on what is meant by a majority, a majority of votes, a majority of populations, etc.

I'd like to make some brief remarks about clear questions. Clear questions are understandable, in my view. I've looked at matters of language for a long time in my philosophical investigations of the nature of language. A question is clear if it's understandable. There's nothing about the complexity of a question that makes it unclear. If we can read it and understand it, then it is clear.

But the crucial question here is that any polity that decides on the issue to make a decision should also decide on the question that should be asked. It seems to me that Bill C-20 only threatens in this situation to limit the kinds of questions that might be asked, and in fact in a sense it brings unclarity, because the implications of answers to the questions are unclear. There are threats in the course of this, which I mention at the end, but my statement is being reproduced in full, so you will be able to look at it later too, I guess. So I'll conclude with that.

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The Chair: Okay.

Mr. Jaffer.

Mr. Rahim Jaffer: Thank you, Mr. Chairman.

Listening to you, Madame Couture and Mr. Ware, I can understand that you have some serious problems with this legislation, and you may even want to withdraw it. The official opposition has said we have concerns with this bill too, but we do support it in principle. The reason we say that is we feel there's a role for other players in Canada, with the secession of Quebec or any other province, for that matter, to know what certainty surrounds it or to have some discussion when it comes to negotiation. A number of other factors need to be dealt with, where other players have to be involved with the secession of any province.

I understand that you may have some problems with this bill, but what would you suggest in order to make it better, or to deal with the issue of allowing other players to be involved with achieving some level of certainty?

Mr. Robert Ware: There are two ways we can approach this. There are two questions.

What does the Constitution say when you're looking at a democratic situation? Institutions are set up for constitutional arrangements, and there is some debate, as you had before, about the nature of the Constitution, which is very important here.

The other question is, how much discussion and deliberation is allowed in the community and in the country to discuss the matters? That depends on the political forces we have. It includes a committee such as this, which should be getting extensive information from people all over the country, including the rest of Canada, as I am coming here, to see what the views are.

Other things should be done. Go to Alberta, for example, and talk about federal and partnership issues. I fear not enough of that has been done. You all know about the Calgary declaration, which is a good indication of the kind of debate that has been held in this country. It's very unfortunate, and that's a part of democracy.

But the institutional arrangements are the important ones to stick to. We have the Constitution to look at and parliamentary legislation to work on. In this case I think the proposed legislation is inappropriate.

[Translation]

Ms. Jocelyne Couture: You ask what we could do to improve the bill. As far as I'm concerned, nothing can be done. This bill attempts to predict what will and will not happen in the case of a positive outcome following a sovereignty referendum—positive for us, of course. A bill cannot list everything that could happen. In any case, it would not be a good idea to try to do that before a referendum.

The bill includes two very important elements: the majority and the clarity of the question. In fact, they are the two main components of the bill. There are insurmountable difficulties, and the very principle itself must be rejected. I'm against a principle that would allow the government, in a bill, to judge in advance—or give itself the right to judge—the clarity of the question and the power to set an acceptable majority, which would be different from the absolute majority.

As far as I'm concerned, there is absolutely nothing that could improve this bill. That is why I think the government should simply withdraw it.

Mr. Rahim Jaffer: Ms. Couture, how can we ask the other provinces to negotiate in good faith with Quebec or with another province that might have voted in favour of secession if we don't first try to clarify certain very important issues similar to those that we discussed with other witnesses, including, for example, the matter of passports and the debt?

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Ms. Jocelyne Couture: What we need is a rule that would specify how the provinces would take part in a negotiation and this rule must be submitted to a referendum vote. I don't think it's up to the government to unilaterally decide what conditions and what circumstances would apply for a negotiation to take place. That is my answer.

The Chair: Mr. Turp.

Mr. Daniel Turp: I would like to welcome the representatives of IPSO. I will take this opportunity to make a comment on what we heard earlier and to ask you a question.

My comments are addressed to our friends opposite, who seemed to agree with what he previous witness had to say. In saying that the 1982 Constitution is legitimate because public opinion polls gave the impression that there was agreement, one forgets that earlier, in 1980 or 1979, when the government was elected, constitutional amendments were not an issue, and that before that, during and after the referendum campaign, the impression was given that Quebec's demands would be acceded to, something that wasn't taken into account in the Constitution, but which later, caused the 73 Liberal members who had voted in favour of it to be defeated by the Conservatives. And there you have a real problem with legitimacy because the Constitution was imposed without the consent of the National Assembly.

My first question deals with that point. Do you see a relationship between the process that was used to adopt the 1982 Constitution and the present process to adopt Bill C-20?

Ms. Jocelyne Couture: There is a direct continuous link, and even a continuous link moving backwards through time. Earlier I alluded to the Act of the Union. The spirit in which these interventions were made remains the same today. Therefore, I believe there is a direct continuous link. Earlier I alluded to the colonialist attitude of the Canadian government. I'm not the only one to point out that it's the government's British heritage, something that it has never disavowed, which continues to apply even today and that is recognized in spite of its various disguises.

Mr. Daniel Turp: Let's pursue this line of thought. I asked a question earlier and you might have heard it. There is a potential conflict of legitimacy between two laws. I think that you have been or that you will be going to testify at the National Assembly on Bill 99. There is a law that states that a majority is set at 50% plus one. In the current law, the Referendum Act, there is no such 50%-plus-one rule. You do not want to respect this rule which is laid out in Bill 99 and which is found in Alberta and British Columbia law which, although limited to consultations, provide for this 50%-plus-one rule to apply. You are calling into question this 50%-plus-one rule that Quebec supports.

Using this same line, why do you think that they want to change the rule now, during this debate on the political and constitutional future of Quebec and Canada? Whose interest does it serve to change this 50%-plus-one rule?

Ms. Jocelyne Couture: In order to answer this question, all you need to do is some elementary arithmetic. You can do the sum: if 50% is not enough, make it 60%. Add a little more: 70% or 80%. You can do the sums, but you also need to know how to subtract. Each time you increase the percentage required, you diminish, of course, the percentage of votes that will be able to decide in the end. We are giving 20%, 30% or 40% of the votes the ability and the power to decide for everyone. If you set the rule of a clear majority at 80% plus one, then that means that 20% of the population can decide for the rest and say no to a referendum.

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When you think about it in these terms, I think that the answer to your question as to who benefits in the changing of this rule of the majority is obvious.

Mr. Daniel Turp: Ms. Couture, if the National Assembly passed a bill stipulating that it was up to the National Assembly to decide on the clear majority and on the clarity of the question and that the House of Commons passed Bill C-20, which states that it has the authority to determine what is clear, who would take precedence in case of a potential conflict?

Ms. Jocelyne Couture: The issue is knowing where the legitimacy lies.

Mr. Daniel Turp: You are a theorist.

Ms. Jocelyne Couture: You are asking me where lies the legitimacy.

Mr. Daniel Turp: You are a political theorist, and a political theorist must rightly have an answer to that question.

Ms. Jocelyne Couture: Once again, as far as I'm concerned, there is an immediate and obvious answer to this question. I said in my brief that if it were passed, Bill C-20 would not remove in any way Quebec's proper right to self-determination; it would complicate the exercise of this right, but it would not remove this right from Quebec. It's quite clear to me that if this bill were passed and that if there were a referendum in Quebec on a question determined by the National Assembly, that it is the legitimate perspective, the Yes vote of Quebeckers, that would prevail. That, to me, is quite clear.

The Chair: Mr. Blaikie.

[English]

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

I begin by agreeing with the witness. I agree that this bill doesn't remove any rights from Quebec, and that's why I support it in principle. If I felt it did remove from Quebec any rights that Quebec already has, or the rights of the National Assembly, then I would be very concerned.

You used the word “complicate”; you said all it does is complicate the exercise of those rights. That's a negative way of putting it. What it does is give some form to the exercise of those rights and make sure those rights can't be exercised in a way that is contrary to the expressed will of the Quebec people in a given referendum. That is to say, those rights cannot be exercised in a way that would trigger negotiations on secession from Canada unless it is clear the people of Quebec actually wanted to secede from Canada.

So this is my question. You used very strong language; you used the word “colonial” a couple of times. Do you really believe any question could be the context for negotiation of secession? Because this is what this bill is about. It's not about referendums on partnership or sovereignty association or anything else. The bill addresses specifically what would trigger negotiations for secession. So are you really making the claim that any question asked in a referendum that received 50% plus one should be a context in which the Government of Canada would uncritically enter into negotiations on secession?

Mr. Robert Ware: First of all, the bill is unclear on the rights question. It starts out saying there is no right under international law and so on. That's misleading. The point is the law is silent on these issues, and if something is not illegal, I suppose it can be carried out.

I find it very difficult, in the context of the federal government here—that's what we're looking at—that we question work on what should happen in another polity, such as what questions they should ask, for example. In this bill, it's not being said that they should ask a very explicit question with exactly the wording, but it's so close to that, it should be a question on secession.

I would think it's the decision of the body that's deciding an issue and about to vote on an issue to say what the question is. The federal government asks about secession. There's discussion about partnership in—

Mr. Bill Blaikie: But that's not ruled out. You could have a referendum on partnership, but it wouldn't trigger negotiations on secession. It would trigger negotiations on partnership. All this talks about is what would trigger negotiations on secession. So quite clearly, what would trigger negotiations on secession is a question on secession, not a question on partnership.

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Mr. Robert Ware: Suppose the people of Quebec, through their representatives, wanted to ask a question about secession with the possibility of partnership connected with it for a good reason. Just as people sometimes want more than one statement about a drastic measure, they may want partnership of some form, as the Bloc Québécois, for example, has promoted.

Why split the question? I don't know exactly what rules of order you use here, but there have to be very good reasons for splitting a question. It's not because a complex question is unclear. I want to make that explicit. The argument that has been given is that if there's any complexity to it, it's unclear. There are other reasons to split a question, and that would also be a matter for Quebec to decide, I think.

Ms. Jocelyne Couture: May I answer?

The Chair: Yes, please.

[Translation]

Ms. Jocelyne Couture: You are asking if, in my opinion, a 50%-plus-one vote on any question would be acceptable. I think that the question, once asked, requires an answer. Of course, we wouldn't accept just any question, but we have some experience with referendums in Quebec, as you may know, and the questions that have been asked in the past were understandable and clear for people with a normal level of intelligence. This insistence that we are placing on the clarity of the question assumes that we are dealing with people with very, very low IQs. Of course we can't just ask any question. However we are capable of coming up with clear questions on our own in Quebec.

I'd like to come back to the preamble to your question. You commented that I had a negative perception when I stated that Bill C-20 would complicate Quebeckers' exercise of their right to self-determination, because you could say that Bill C-20 provided a framework.

When I said that this bill would complicate the exercising of the right to self-determination of Quebeckers, I also gave the reason why in my speech. It complicates things because it's a call to ignore democracy and the basic principles of democracy.

According to this bill—and your minister Dion has been repeating it since then—we will be able to see, for example—and this is the price of a clear majority—region by region what type of majority was obtained. What do you think this means? It is an invitation to partitionists, to the people who live in democratic Quebec to ignore the traditional rules of democracy. This is why I say that this bill will complicate the exercise of the right to self-determination. I didn't use a negative expression to explain this, but rather a euphemism.

The Chair: No, that's already too long.

Mr. Cotler, you have the floor, please.

Mr. Irwin Cotler (Mount Royal, Lib.): I have a question for both of you.

You said that this bill would call into question the principles of democracy, that is was a breach of democracy. However, the unanimous judgment of the Supreme Court of Canada states, and I quote:

To be considered as the expression of the democratic will, the results of a referendum must be free of any ambiguity regarding both the question asked and the support obtained.

Do you accept this Supreme Court of Canada decision, which is based on the principle of clarity?

Ms. Jocelyne Couture: What is stated in the opinion of the Supreme Court is so banal that, in my opinion, it borders on vacuousness. That the results need to be clear and the question is to be clear, it goes without saying. It's obvious. That the results be clear means that there be no ambiguity. That is what the Supreme Court opinion outlines. It's so obvious as to be trivial. Without getting into interpretations, I think that the Supreme Court simply stated the obvious, without going out on a limb.

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However, saying that Bill C-20 is a consequence of the Supreme Court opinion, is in my opinion a leap of logic. Bill C-20 is not a consequence of the Supreme Court's opinion.

Mr. Irwin Cotler: Could you not say that the bill is simply an attempt to provide follow-up to the unanimous judgment of the Supreme Court; in other words, to give effect to this principle of clarity? This isn't simply some general principle. It's a very specific principle of clarity to ask: "Are you in favour of Quebec secession?" This is not simply some general theoretical question. This bill sets forward the rule of law. Describing this bill as an offence to democracy is tantamount to challenging the actual decision of the Supreme Court of Canada.

Ms. Jocelyne Couture: Not at all. I said and I repeat that this bill, if you want to talk of la primauté du droit, is in conflict with the rule of law. The rule of law means, among other things, that the law is such that it can be known. That's what that means, the rule of law. The law can in no way rule if it is not known by everyone.

One way to ensure that the law is known, is to ensure that it is stable. What we're in the process of doing now, is to change everything, even the rule of the majority which, as I argued earlier, has been validated during former referendums. We're trying to change the law in the middle of this process. And it's being done by tabling a bill which will be rushed through Parliament, without consulting or informing people about it. That is one thing.

The second thing is that this bill tries—maybe that's the intent of the bill—to clarify what the Supreme Court has already established as general guidelines. However, it does this without shedding any light on issues as important as participation, or the type of participation of the provinces for example, and the definition of a clear question. There is much talk about clarity, though what are the criteria for clarity, according to the federal government? We don't know.

They want us to sign this blank check that the government will then be able to use after the fact. I can just see the government saying, after the referendum question has been decided at the National Assembly, that the question is not clear. And if the question were reworded, once again the government would claim that it was not clear. In the end, the question will never be clear. Where will it end? And the same thing goes for the clear majority.

Of course, none of this is said in Bill C-20. What they want us to do, is to sign a blank check. That is unacceptable in a democracy.

Mr. Irwin Cotler: You speak of a blank check. The goal of this bill is to give the people the right to vote on a clear question, because unless the question is clear, Quebeckers will never be able to express their will in a democratic fashion. You could say that unless the question is clear, Quebeckers will not be able to exercise their right to self-determination.

Ms. Jocelyne Couture: Who will decide if the question is clear or not?

Mr. Irwin Cotler: The Supreme Court has said that to be clear, the question had to deal with the specific issue of secession. Thus, there would be no ambiguity.

Ms. Jocelyne Couture: Fine, but does the government really need to set itself up as the judge of clarity? What Bill C-20 states, is that the question must be clear. Who will decide if the question is clear? I think that those who are best able to decide if the question is clear, are those to whom the question is asked.

Mr. Irwin Cotler: The Supreme Court said that it's the House of Commons that has the mandate of deciding on the question.

Ms. Jocelyne Couture: That's not at all what the Supreme Court said.

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The Chair: Order, order. We will now move on.

[English]

Mr. Robert Ware: Can I comment on that? Would you mind?

The Chair: Very briefly, Mr. Ware.

Mr. Robert Ware: I would like to comment on the questions you were asking.

First of all, very briefly, I don't understand this tempest in a teapot about clarity. Plain English and plain French seem to me perfectly easy to understand. Then there's the other principle about who decides what to vote on. Most of Bill C-20 is clear—not all of it, I don't think, but most of it is clear.

On the majority, there are more important issues. There's a long tradition that is very clear that when any group gets together, it requires having some constituent way of getting them together, and that requires unanimity. Look at Hobbes, Locke, Rousseau, and just look at the obvious principles about that. You don't, in the middle of an organization, say, “Now the rules are different. We're going to require a larger percentage.” In the middle of Parliament, a party that has more than two-thirds of the votes doesn't get up and say, “Now we're going to change the rules of debate. It's going to be that you have to have two-thirds majority in order to do something.” The rules shouldn't be changed like that.

And one more thing is misleading in the discussion about the will of the people. It's absolutely clear that the will of the people is expressed by a majority of the people. That's the tradition you find throughout the history of political philosophy.

There is a reason to tie ourselves down in some cases, which are very much like the individual case. I might decide I'm not going to do something according to my will because of my own emotions getting away with me. So we tie ourselves down as a group and say we aren't going to cut off debate unless we have a very large percentage. But that doesn't say the will of two-thirds is the will of the people. The will of the people is still a majority. And there are further reasons to tie people down in that collective.

[Translation]

The Chair: Mr. Guimond, the floor is yours.

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

Professor Couture, despite being a recognized constitutional expert, I think Mr. Cotler is seriously mistaken. I would like to know what you think of his statement, according to which the Supreme Court judgment would give the House of Commons the opportunity to comment on the wording of the question.

Ms. Jocelyne Couture: Both my reading and my re-reading of the Supreme Court opinion do not allow me to agree with Mr. Cotler. I don't believe that the Supreme Court opinion gives this mandate to the Canadian government.

Mr. Michel Guimond: My question is to Professor Ware. You teach at the University of Calgary, and I'm happy that you agreed to come here to testify for us. According to you, given that it's been a few weeks since I've been out West, would the people of Western Canada, the intellectuals, the different groups, would they have liked this legislative committee to travel and hear them? Do you think that this is democratic to confine the debate to Ottawa, to frame it, to limit the time, and to gag the debate? Is this a good approach? Do the people of Calgary and Western Canada approve of this approach being used by the Liberal government of Canada?

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[English]

Mr. Robert Ware: Absolutely. Often in Alberta we feel very far from where decisions are made, and my impression is that when committees do go to Alberta, there are plenty of people who want to speak.

In the case of the petition against the clarity bill by westerners primarily in general, or people outside Quebec anyway, a lot of people wanted to state their views. It's already been expressed from that group that they would like to express their views, and it would be difficult, of course, for all of them to come. So it's unfortunate the committee hasn't gone to other places in the country to get depositions and statements.

[Translation]

Ms. Jocelyne Couture: Could I say a few words about that? There was a petition that was passed around earlier this morning, and it's still being passed around and being initialed by a small group of Ontarians who are by no means sovereignists, believe you me. And among those people who signed this petition, you will find names of people from Ontario as well as from Western Canada and from the Maritime Provinces. I think that this is quite telling. The people who signed this petition are people who would have liked to have been heard at these hearings and who did not have the opportunity to speak. I think that clarifies what my colleague Ware said in his answer.

Mr. Michel Guimond: Professor Couture, earlier I noted the three reasons given by IPSO why this bill would cause problems. With respect to the democratic aspect and to the fact that you said this was an insult to intelligent people, you mentioned that this bill contradicted Canadian federalist principles. Could you please explain this?

Ms. Jocelyne Couture: It contradicts the very principles of federalism that this government claims to defend, in that it is a bill that refers to the provinces, which doesn't refer specifically to Quebec, which refers to the provinces in general and, if we were to follow through, pass it, and apply it, it would establish the provinces as entities that are subordinate to the central government. Once again, this is part of our history, of our Canadian political culture, this idea of subordination. Historically, there has never been a federation in Canada and this act, that is to say the tabling of this bill, continues in the same vein of considering the provinces as subordinate entities to the central government.

The Chair: Mr. Drouin.

Mr. Claude Drouin: I'd like to thank our witnesses for their presentations.

First off, I'd like to share with you the results of a poll taken last October 30 by the firm CROP, with 4,992 Quebec respondents—I think you probably know about it—where it was determined that, contrary to what you said earlier, the majority of Quebeckers found that the 1995 question was not clear.

Ms. Couture, 61% of the people said that the question was not clear, that it was not about secession but rather partnership. What's more, we found out after the referendum that the negotiations would have lasted only one month and that, afterwards, independence would have been declared unilaterally. That does not reflect how people responded.

That's it for my comment. I'd like to ask you two questions to have your input on the referendum that took place in three municipalities in the Mont Tremblant region. One of the three municipalities refused by a majority of 95% to merge, and the government proceeded anyway and said that it was only one opinion.

One last point. Aboriginals voted 96% to remain in Canada. I would like to know what you think of that. Do Aboriginals have the right to remain within Canada, given that they are a people and that, as you said so well yourself, it is up to the people to decide? Did the Aboriginals, who voted 96% in favour of remaining in Canada, not demonstrate quite clearly that they wanted to remain?

Ms. Jocelyne Couture: I'd like to begin by answering your first question.

There was talk that, after a winning referendum, there would be a unilateral declaration of sovereignty. That appeared in the papers, but that was absolutely not part of any government of Quebec plan, and this rumour was disproved.

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With respect to the merger issue, I think that the case of municipal boundaries needs to be treated quite differently from that of national and territorial boundaries. I won't comment anymore on this, because I don't have much to say about the merger of municipalities in Mont Tremblant, and it's beyond my field of specialization.

The issue of the Aboriginal people always comes up. I think that the Aboriginal people, as a people, have the right to self-government. There is no doubt about that. They have the right because they are a people. I think that if they want to remain in Canada and that they want to do it as Canadians, that is a different issue. I think we need to distinguish these two issues.

As Aboriginal people, as a people, they have rights that are different from those they would have had if they were groups of Canadians who wish to remain within Canada.

Mr. Claude Drouin: Do you mean to say, Ms. Couture, that if they want to become a country on their own, there would be no problem, but if they want to remain in Canada, that will be different and more complicated, because they would no longer be considered a people?

Ms. Jocelyne Couture: Yes, that's what I think. However my field is more the field of philosophy than law. It would seem to me that from the perspective of legitimacy, there is a difference between the two.

Mr. Claude Drouin: I'd like to come back on one point. You said that the government had disproved this, however it was Mr. Parizeau himself, the head of the government of Quebec at the time, who mentioned this. I don't see how the government could have dissociated itself from the premier.

Ms. Jocelyne Couture: What was disproved, was that it would be immediately after a winning referendum. You spoke of a one-month time frame. I think that Mr. Parizeau mentioned more protracted negotiations which, if I remember well, would have lasted a year.

Mr. Claude Drouin: Thank you.

The Chair: At think that the time allocated for these two witnesses has now expired. I'd like to thank both of you for your testimony this afternoon.

[English]

Thank you very much. We appreciate your time.

Now we have a couple of business items to deal with in the committee.

Mr. Turp, I believe you have some notices you wish to give.

[Translation]

Mr. Daniel Turp: Mr. Guimond and I have two notices of motions that we would like to introduce. I would like to introduce the first motion.

I move that the motion on the number of witnesses invited to testify before the legislative committee, passed by the committee on February 14, 2000, be annulled.

[English]

The Chair: Thank you.

[Translation]

Mr. Guimond.

Mr. Michel Guimond: I would like to introduce the second motion to the legislative committee.

I move that the motion on the time allocated for the clause by clause study, passed by the legislative committee on February 14, 2000, be annulled.

[English]

The Chair: Okay.

Now I have two questions for the members. First, do you want to sit through this vote, or do members wish to go into the House to vote?

[Translation]

Mr. Bernard Patry: Out of respect to our witnesses, we can stay.

Mr. Daniel Turp: What are we voting on, Mr. Chairman?

The Chair: I believe it's a motion on time allocation.

Mr. Michel Guimond: To return to the agenda?

[English]

The Chair: I would suggest we continue, unless there's some problem.

[Translation]

Mr. Daniel Turp: Pardon me, but I know that on this side, we would like to go on vote because this measure is another attack on democracy, another liberal gag, which is at stake. I think we need to go on vote on this. I hope that we will be able to hear the next witness.

[English]

The Chair: Okay. You wish to vote, so we'll suspend the sitting.

Mr. Bernard Patry: What about the other parties?

The Chair: We'll see if there's enough—

An hon. member: He can go. We only need one member.

Mr. Rahim Jaffer: What is the vote on?

The Chair: Time allocation on Bill C-23.

Mr. Rahim Jaffer: Reform is against that, so we'll go vote.

An hon. member: Really? Oh, come on!

The Chair: All right. We'll hear the next witness first, and then we'll be able to go vote.

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Do members wish me to order lunch in? We have two other witnesses who are going to take us past 1.15 now. Especially if we interrupt for a vote, we're going to be going until close to 2 o'clock. Do members wish me to order some lunch, and we'll have it here while we see witnesses?

Some hon. members: Agreed.

The Chair: That will be done.

We'll have a brief break to get the next witnesses in place, and then we'll have plenty of time to hear their 10-minute presentation before the vote.

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[Translation]

The Chair: Order, please. Our next witness is Professor Andrée Lajoie. She has provided us with a copy of her brief. Welcome to the committee, Professor Lajoie. It's a pleasure to hear from you. The floor is yours for the next ten minutes.

Ms. Andrée Lajoie (Professor, Faculty of Law of the University of Montreal; Individual Presentation): Mr. Chairman, ladies, gentlemen, thank you very much. At the outset, I'd like to indicate that the document that was distributed to you is a legal opinion that I prepared on Bill C-20 for the Bloc Québécois party. It is accompanied by an English translation, which I have not read and therefore cannot verify its accuracy.

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Incidentally, I would like to underline, as I usually do in similar circumstances, that I have never belonged to any political party and, having watched political parties from the Pacific to the Atlantic, in the United States as well as in Europe, I'm not about to join one tomorrow either.

That being said, I will try to be clear. If those to whom I'm speaking understand, then it will be clear. Those are my criteria.

I'd like to discuss quickly the extremely narrow scope of Bill C-20, and the basis, which is on the contrary quite broad, of the need for clarity and the consequences that this will have for us all.

As far as the narrow scope of the bill is concerned, I would say that despite the ambiguity of the political discourse we have heard since Bill C-20 was tabled, it does not and could not compel the Legislative Assembly of Quebec either to do or to not do something because it is not subject to the authority of Parliament. We are in a federation. To claim otherwise would mean that the Parliament of Canada would be reappropriating the right of disallowance that used to belong to the Governor General, a power which, according to paragraph 55 of the Supreme Court opinion on secession, now obsolete. Thus, the bill has no more scope than any internal parliamentary directives or guidelines with respect to itself or to its members.

In layman's terms, we could say that Parliament is talking to itself. However, it is this useless legal component of the bill which, I repeat, will no more meet the legal objectives sought than any internal directives that does, in fact, reveal its real purpose.

This purpose is political: to misinform and scare Quebeckers, to rally, as a result of this, votes in the rest of Canada and, finally, to tie Mr. Chrétien's successor to the hard-line approach taken with Quebec, under pain of having to repeal a bill which would obviously result in a significant loss of support in English Canada. Essentially, this bill is orchestration on the part of Parliament, a diversion of its legislative functions for the purpose of partisan politics propaganda.

Secondly, in dealing with the basis of the requirement for clarity, the court stated in paragraph 76 that it viewed it as a particular case of constitutional amendment. Furthermore, the court stipulated that, according to the democratic principle it cited in paragraph 88, both the question and the majority should be clear, given that they are amending the Constitution and given that there must be respect for the democratic aspect of such an amendment. Obviously, the court does not purport that this obligation to respect democracy applies only to this case. It stated that these five principles that it outlined have always formed the basis of the Canadian Constitution.

What are the consequences of these two points I have just developed very quickly? First of all, the consequence of this basis is that any constitutional amendment, in order to be democratic, must be clear. This does not exclude questions that do not deal with secession. To the contrary, this implies that any other type of question must also meet this requirement for clarity if it results in a constitutional amendment.

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By the way, I would say that my colleague from Toronto, Patrick Monahan, and I cannot be accused of subscribing to the same political ideas as he does, wrote the same thing in an opinion he recently provided to the C.D. Howe Institute.

I would go even further. I would say that not only does this not exclude questions dealing with issues other than secession, but also that it requires, and this is something that has always existed, clarity for any constitutional amendment. Indeed, the principle of democracy did not wait for the Supreme Court to describe it in its decision on secession in order to apply in Canada.

This principle already existed back in 1982. If we have to talk about clarity, please explain the expression "free and democratic society", found in the first section of the Act of 1982, or "Aboriginal rights", found in section 35. Are we really dealing with clear expressions? The Supreme Court itself provided three successive definitions between 1982 and 1993 about what was meant by free and democratic society in Canada. As for ancestral rights, the definition has yet to be given. Really, if things had to be clear in order to adopt the 1982 Act, we would have grounds for worrying about its validity.

As for the consequences of limited scope, that has no impact on the Quebec Legislative Assembly. A question, an act, a document, a verbal or written statement, these are acts of language, social gestures for which the sole significance is determined neither by the individual making the statement nor, to an even lesser extent, by third parties, but something which is determined jointly by the person making the statement and the person to whom the statement is addressed.

If the question is put to the community of Quebec, it is up to the interpretive community of Quebec to assess its clarity. If this community were to determine that the question was not clear, it would be up to this community to make this assessment, including, on an individual basis, Mr. Chrétien and Mr. Dion, who are citizens of Quebec. However, as far as making this assessment according to the terms of the bill is concerned, meaning, in order to decide, on behalf of the federal authorities, whether or not the obligation to negotiate has been triggered, when it is a matter of determining whether or not the question was clear, the federal government should refer to the answer given by the people of Quebec as a whole.

However, the clear meaning is not monosemic. It's never understood the same way by everyone. Mr. Chrétien gave an example of this in the House when he said that, in his opinion, the question would be clear if it asked whether or not Quebec should be a country. If I understood him correctly, he was no doubt referring to a country, a nation-state recognized internationally with all the prerogatives of sovereignty.

And yet, when you consult a dictionary, you find another meaning of the word “country”; it's the region you come from. Last week, I was in Basque country in Spain, and I can assure you that the people there would be happy to learn that a country, and consequently the Basque country, would be defined as a country according to Mr. Chrétien.

Gilles Vigneault wrote that a country was winter. Notre pays, c'est l'hiver; no one who has gone outside this morning would contradict me about that.

A voice: [Editor's Note: Inaudible]

Ms. Andrée Lajoie: Good for you if that's what you saw.

A question on federalism comes to mind. I had brought a clipping from Time Magazine that was published two or three weeks ago, but I don't see it here.

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William Safire is a good republican conservative, but he is also a political analyst and linguist. Mr. Cotler, I can tell from your smile that you read this article. He stated that federalism can be defined a half-dozen ways and that we no longer agree on what it means. Accordingly, a question on federalism would not be clear either. This polysemy is not limited to this word; it is especially prevalent in the political field.

My daughter grew up in the shadow of the CSN. When she was a child, a girlfriend took her to the beach. I should point out to those listening to the interpretation that the word “grève” in French can mean either a “strike” or a “beach” and that her friend had told her that she would be bringing her to the “grève”. My daughter came back outraged, saying that there had not been any kind of strike at that place. She said that she hadn't seen any pickets or signs.

This problem is not restricted to the question. Acts of language are polysemic. What is important is that the people for whom the question is intended feel that they understand it when they answer it. Regardless of what was said earlier about a poll conducted five years after the fact which surveyed voters who are no longer the same, slightly more than 93% of all Quebeckers participated in the last referendum. If they did not understand what they were doing, well, we have something to worry about.

The Chair: I apologize, Ms. Lajoie, but I must point out that you have gone well beyond the 10 minutes you have been allotted.

Ms. Andrée Lajoie: I would just like to add three words to say that the federal political actors, including Parliament, should assess the clarity of the issue with respect to the reaction of Quebeckers and that, if a mistake is made, the sanction will be international, as the court states in paragraphs 152 and 154. It is the international community which will decide between what was referred to earlier as “the two legitimacies”.

The Chair: All right. Thank you very much. We will now take a short break. Everyone will return after the vote and we will be able to ask our questions at that time. Thank you.

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The Chair: Perhaps we could now begin asking questions.

[English]

Rahim, are you ready? You are first for your party. We'll start with Mr. Jaffer.

[Translation]

Mr. Rahim Jaffer: I would like to begin by asking Ms. Lajoie to explain her position on the clear majority. Is 50% plus one enough to determine a clear majority in a referendum of this type?

Ms. Andrée Lajoie: I cannot provide you with an expert answer; I did not study the issue from the legal perspective. I will simply answer you as a citizen.

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It is infinitely better than a minority. I prefer to be governed by a weak majority than by the minority, which is what would happen if we were to increase the requirement level for the majority. If the majority were 60%, that would mean that we would be governed by 40%. My choice is obvious.

Mr. Rahim Jaffer: All right. Do you think that this bill should indicate a minimum or stipulate exactly what results the federal government would accept before negotiating with the province? Or should we just wait until after a referendum to decide exactly what should occur?

Ms. Andrée Lajoie: Personally, I think that the entire bill should be withdrawn. This would, however, have only one effect, it would preserve the freedom of Mr. Chrétien's successor. Indeed, the other two effects of the bill have already occurred; disinformation of Quebeckers has been going on for quite some time and it is useless to...

I think that this bill is about the decision that the federal political authorities will make to determine how to decide whether or not to negotiate. That's it.

Mr. Rahim Jaffer: All right. I would also like to ask you what we can do, as a federal government, should this bill prove to be inadequate as far as the provinces are concerned, and I speak here of any province, in the case of a vote on secession. How can the federal government respect the other provinces during the negotiations? What is your opinion on the process?

Ms. Andrée Lajoie: My opinion is strictly personal; it is not a legal opinion. I think that it is up to the federal State and to the other provinces to decide amongst themselves which process to use in making their decision on whether or not to negotiate.

In the past, there has been a great deal of disenchantment among Canadians with respect to the political process, resulting primarily from the fact that, in 1982, and this was the case again in Charlottetown and in Meech, the people weren't consulted. We can therefore surmise that there will probably be an interest in broader consultations.

Now, it's not up to me to tell the federal government and the rest of Canada how they want to organize themselves. That is none of my concern.

The Chair: Mr. Hill.

Mr. Grant Hill: Thank you very much.

In your opinion, was the previous referendum question clear?

Ms. Andrée Lajoie: Listen, just over 93% of the people voted. Claiming that the people voted on something they didn't understand would be, you will admit, an insult to the vast majority of Quebeckers.

Mr. Grant Hill: Mr. Claude Castonguay, who testified here, said, and I quote:

“... I can say that in both the 1980 and 1995 referenda, the concept of association or partnership which was tacked on to sovereignty resulted in a great deal of confusion and ambiguity.”

When I say that to you, I'm a stranger, but Mr. Claude Castonguay is no stranger to you.

Ms. Andrée Lajoie: Mr. Castonguay is no stranger and he is entitled to his opinion. However, I think that if people claim that we're not being clear when we associate secession with preliminary negotiation, it's because they have decided in advance that there will be no negotiation on the part of the federal authorities. Accordingly, it seems ambiguous to them to talk about the federal state negotiating when it fact it will not. I am not going to claim that the federal State and the rest of Canada will not respect what the Supreme Court has asked them to do. Mr. Castonguay is free to have his opinion on the matter.

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[English]

The Chair: Mr. Turp.

[Translation]

Mr. Daniel Turp: First I'd like to thank you, dear colleague, for appearing before us this morning.

I would like to invite our colleagues, the members of this committee, to read Ms. Lajoie's opinion. This is an opinion that deserves to be read by anyone who is interested in this bill and in the Supreme Court opinion, regardless of what your conclusions may be, regardless of whether you agree or disagree with the bill.

In my opinion, this opinion will help enlighten both parliamentarians and citizens, particularly since it is the opinion of a legal expert who is, at the same time, a philosopher of law and someone who has a good understanding of the relationship between language and law. In particular, her opinion on what the Supreme Court of Canada is doing with the law and on the language it uses in order to develop and translate societal standards is really very useful.

Ms. Andrée Lajoie: As far as that is concerned, Mr. Turp, I would like to note that our colleague, Mr. Cotler, has told me the same thing.

Mr. Daniel Turp: That's great.

Ms. Andrée Lajoie: Would you allow me to quote you?

Mr. Daniel Turp: Yes. Moreover, there is one thing which, I feel, should be examined in greater detail by the committee. I refer here to what you have said about the way that the question is formulated, about the exclusions that have been raised in the bill itself, about the idea that there may or may not be any question on partnership, but that it is not clear.

There is a desire to have Quebeckers understand and accept the following: as soon as there is any reference to a mandate to negotiate or to a political or economic agreement, the question will not be clear; it will imply that Quebec does not want to cease to remain part of Canada and become an independent state. I would like you to clarify your reasoning on this issue a bit more, and in particular I would ask you to relate this to what Mr. Monahan told us. Mr. Monahan is to come back here, I believe. I would like you to tackle this issue, please.

Ms. Andrée Lajoie: Beginning with the end of your question, I will leave it up to Mr. Monahan to tell you what he thinks. I was simply quoting the opinion which had been made public, and which he had prepared for a think-tank, in which he stated that we could not deduce from the Supreme Court decision that any question other than one dealing with secession was to be disregarded. I hope that I have not gone beyond what he meant by saying this.

At any rate, that certainly is my own opinion. I would repeat what I said earlier, namely that I would go even further, given the basis that the Court gives for this requirement. The court specified that, if there is, in fact, a requirement for clarity, it is because secession results in a constitutional amendment and that constitutional amendments must be adopted in accordance with the principle of democracy. I conclude from this that any constitutional amendment must be presented clearly in order to respect the democratic principle.

This is why I said earlier that, if we were to judge the Constitutional Act of 1982 against this standard of the Charter, it is not clear that it would have legitimately become law, if we're going to play with words here. It is not certain that this legislation would have legitimately become law because it contained numerous ambivalent expressions, as I pointed out earlier, such as “free and democratic society” and “ancestral rights”.

When I raised this question, I was at times told that secession wasn't the same thing, that secession was an extreme case of constitutional amendment. I don't know if it is anymore extreme than the Act of 1982, because if Quebec leaves, the rest of Canada will not have to deal with any repercussions. The Constitution will not be changed within Canada. It could remain as it is. Even then, the Charter will continue to apply. There will still be freedom of expression, equality and Aboriginal rights. All of the amendments made in 1982 will remain. As for the amendment to provide for the secession of Quebec, it is a one-time amendment that has no temporal effect.

• 1310

Mr. Daniel Turp: Am I to infer from what you said today that we cannot necessarily say that a question containing an aspect on partnership is not clear? Should we say, in advance, as suggested by the bill, that as soon as there is a reference to a partnership, the question is no longer clear because it is no longer dealing with secession? In your opinion, is this equation valid?

Ms. Andrée Lajoie: Absolutely not, because we can be just as clear or just as unclear about secession as we can be about partnership. Everything depends on the wording of the question and the way it is understood by the people to whom it has been addressed.

Acts of language occur in a triangle. One person makes a statement intended for one or more individuals. The exchange occurs within an interpretive community which will finally give the common meaning, the literal meaning of the expression "common meaning", namely the meaning which prevails in a given society at a given time.

This is how we explain the interpretations provided by the courts. This is how we can explain any exchange of language. This is why I say that it is up to the interpretive community of Quebec, to whom the question has been addressed—a question that is not and cannot be addressed to the Parliament of Canada—to say whether or not it is clear and to answer as it sees fit.

[English]

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: Thank you, Mr. Chairman. I have just a few comments, to which the witness is invited to respond.

First of all, I want to take issue with the view that the rest of Canada would not be affected by the secession of Quebec. What you say is true, in the sense that the charter would continue to exist, etc. But even at that level, the amending formula would be affected, in its practice if not in its substance. And of course the effect on the rest of Canada, socially and economically and psychologically and politically, in terms of what might happen to a Canada without Quebec are of course debatable, but in my own judgment the secession of Quebec would have a tremendous effect on the future of Canada, and I think a negative effect.

Ms. Andrée Lajoie: I would say it would have an effect on the pride of Canada more than anything else.

Mr. Bill Blaikie: That might be true, but I think it would also be the case that it might even have an effect on the long-term existence of Canada, in my judgment.

I've read your paper, and it seems to me that the difference between yourself and people who are for Bill C-20, using your own language, is that you don't regard the rest of Canada as being part of the “relevant interpretive community”. I guess that's where I'd want to challenge you.

You argue earlier in your paper that the use of language implies a dialogue. Yet you seem to be arguing that everybody outside of Quebec is left out of the dialogue, out of the “relevant interpretive community”. Isn't there sort of a subsequent—again, to use your own language—“addressee” in this triangular dialogue? In the end, it's Quebec that wants to have a negotiation with the rest of Canada about secession. Are you really implying that there's no interpretive task whatsoever laid upon the rest of Canada as to in what context it would enter into such negotiations, so we're just at the mercy or we have no input into this at all, we're not part of the “relevant interpretive community”?

[Translation]

Ms. Andrée Lajoie: The rest of Canada intervenes in a very important discussion, after the referendum, once the Quebec interpretive community has determined, for itself, that Quebeckers have deemed the question to be clear and the majority to be clear. The obligation to negotiate is, at that point, triggered and this is when the dialogue between the rest of Canada and Quebec begins.

• 1315

To say that the rest of Canada should have its say in deciding on the wording of the question is tantamount to saying that the boss should define the union offer in the bargaining process. The management offer is not determined by the union. Once the offer has been made, bargaining ensues, but not before.

[English]

Mr. Bill Blaikie: Mr. Chairman, I would certainly reject what has happened a couple of times this morning, and that is this analogy between Canada and Quebec as employer and employee relations. To me it's an entirely different kind of relationship. A number of witnesses keep using this metaphor, and I'm not sure that it's adequate to the task we have before us.

[Translation]

Ms. Andrée Lajoie: Negotiations, regardless of where they may take place...

[English]

Mr. Bill Blaikie: Not all negotiations are the same.

[Translation]

Ms. Andrée Lajoie: ...always occur according to the same rules of balance of power, and you know this very well.

[English]

Mr. Bill Blaikie: I would think it would be more like a sort of familial negotiation, which doesn't make it any easier.

[Translation]

Ms. Andrée Lajoie: To each his own metaphor.

[English]

Mr. Bill Blaikie: I had another question there, Mr. Chairman, but conversation has eliminated it.

You say that there's this role for the rest of Canada after Quebec has expressed itself. It seems to me that this assumes a kind of homogeneity of opinion in Quebec that one wouldn't expect anywhere else. I mean, what if there were disagreement in Quebec? What if there were no consensus between sovereigntists and federalists, or even among sovereigntists? Why is it that the rest of Canada has to act as if it will always be the case that Quebeckers will speak with one voice on something as—

[Translation]

Ms. Andrée Lajoie: No, they are not going to speak with one voice; they are going to speak by an absolute majority, as in the case of an election. Why are Canadian citizens compelled to respect the elected government? For the same reason. Quebec does not speak with one voice; the rest of Canada doesn't either.

As we advance in the post-modern era, I would say that strong majorities are becoming increasingly rare. We saw this in Europe during the Maastricht referendum. I think that we're dealing with fragmented identities and that the best rule is the rule of the majority. Churchill said that democracy was terrible, but that everything else was worse.

[English]

The Chair: Okay, I'm afraid you've run out of time, Mr. Blaikie.

Mr. Bill Blaikie: If a majority were to speak—

The Chair: Mr. Blaikie, we'll try to get back, but your time really has expired, even with the interruptions.

[Translation]

Mr. Bachand.

Mr. André Bachand: Mr. Chairman, what I really like about this witness is the fact that she deals with the heart of the bill, the technical aspect. We often have an opportunity to discuss the political aspects, namely, the comfort zone that this bill creates outside of Quebec.

I have a question for Professor Lajoie. What would you have done with the Supreme Court opinion on the Quebec issue?

Ms. Andrée Lajoie: From whose point of view?

Mr. André Bachand: You choose. Let's say, from the legislator's point of view.

Ms. Andrée Lajoie: I would have abided by it, and that's that. As I said earlier, the idea to produce this bill is a diversion from the legislative function. This was absolutely unnecessary. We would have achieved the same result with an internal directive of the Government of Canada, for the political actors. This is a publicity stunt. No, I would certainly not have produced a bill.

Mr. André Bachand: Let's focus on the strictly legislative aspect of the bill, which saw the light of day thanks to the Supreme Court. You raised several important points. Do you feel that the bill reflects the Supreme Court opinion in its entirety or do you feel that this is not the case?

• 1320

Ms. Andrée Lajoie: I would say that the Supreme Court did not in any way prescribe the content of this bill, and I would even state that the bill, in my opinion, runs counter to the opinion of the Supreme Court with respect to the exclusion of questions on matters other than secession. In my opinion, the court stated the opposite. It laid the foundation to state the opposite, namely, that any constitutional amendment must be dealt with in a clear question. Consequently, this is not limited to the question on secession.

Mr. André Bachand: Let's talk about motivation. And here I would ask you to put on your philosopher hat.

Ms. Andrée Lajoie: I work with theory, but I don't do philosophy, God forbid!

Mr. André Bachand: Okay. We need a bit of this.

The reaction outside of Quebec has been very favourable to C-20 because people are saying that it is clear, that it is a truism, that we need a clear question and a clear majority. If you were invited as a guest speaker outside of Quebec, what would you say about Bill C-20?

Ms. Andrée Lajoie: I would probably refrain from talking about it. I have the impression that—am I going to say this here?—the rest of Canada or the Liberals in the rest of Canada have chosen Jean Chrétien to subdue Quebec. He's doing this and they're happy. That's understandable.

Mr. André Bachand: Thank you, Mr. Chairman.

[English]

The Chair: Mr. Cotler.

[Translation]

Mr. Irwin Cotler: Professor Lajoie, as I have said and as my colleague Daniel Turp has said, your brief and your opinion are very interesting. It gives us food for thought with respect to the clarity of the question. This is precisely the issue that I would like to focus on.

I would like to situate this issue in a context. The Supreme Court unequivocally and unanimously declared that the Constitution Act of Canada and any other statute of international law do not acknowledge the right to a unilateral declaration of independence. At the same time, the court said that the federal government had the duty to negotiate secession. This unanimous decision with respect to the duty to negotiate presupposes that two conditions have been fulfilled: the first one being that the question on secession was clear and the second one being that a clear majority was in favour of a clearly worded question on secession. My question is as follows:

[English]

Based on what the Supreme Court has given as the principle of contextuality—that judgments have to be interpreted in the context in which they are given—and inasmuch as this reference to the Supreme Court came after two referendums in which, if the question itself was not ambiguous, it certainly was interpreted in an ambiguous way by the respondents in Quebec, one third of whom thought they would still be remaining in Canada after the question, is not the requirement of clarity in the question asked referring therefore to the issue of secession only?

In other words, does not the Supreme Court state and restate in its judgment that there must be a clear question in favour of secession or a clear question in pursuit of secession? I can go on and on. The notion of a clear question in pursuit of secession would seem to me, based on this contextuality principle, to be incompatible with any other reference in a question that would somehow be something other than outright secession.

[Translation]

Ms. Andrée Lajoie: First of all, it is interesting that you have come up with a sixth principle, the one pertaining to contextuality, a principle that the court did not mention. The court talked about five principles, which it suddenly entrenched in the Constitution, and you have come up with another one. However, you are free to give your own interpretation. The five principles did not include contextuality.

• 1325

Regardless of the past context, the court did say that if there is a question on secession, it has to be clear. It never stated, anywhere, that the question had to be limited to secession. In my opinion, it states the opposite in that it says that it is because we are dealing with a constitutional amendment—everyone can read this and decide whether to agree or disagree—that we have to insist on clarity. The court maintains that it would not be democratic to adopt constitutional amendments on the basis of unclear questions. If Quebec wants to ask a question on partnership, can the question avoid the requirement for clarity? Not at all. The question will have to be clear in the eyes of those to whom the question has been addressed.

What prevents us from asking a clear question about both secession and the discussions in view of a partnership? You say that 30% of Quebeckers believed that they would remain in Canada. Maybe they were right. Maybe that would have been the result of the negotiations. There is no way of knowing, since the negotiation process would have had to take its course. I will come back to a parallel that Mr. Blaikie does not like: when labour negotiations get under way, people know what the starting point is, but no one knows where the negotiations will lead. The same is true with constitutional talks.

Mr. Irwin Cotler: No, I do not want the fifth principle brought into it. I agree with you. The negotiation process has to take into account four principles: democracy, federalism, the primacy of constitutional law and minority rights. I agree on that. I am only saying that there is a principle that is not applied only in this case. It is a general principle in constitutional law.

Ms. Andrée Lajoie: I agree with you.

Mr. Irwin Cotler: The court based itself on this contextuality principle. It is in this context that the Supreme Court of Canada ruling must be interpreted. When the court talks about a clear question on secession, taking into account the contextuality principle, I believe that it is talking only about secession and not anything else.

Ms. Andrée Lajoie: I do not agree with you on that. It would amount to applying the old principle of the legislators' intention to judicial interpretations, using the idea that in a given context, the legislator meant this or that. Everyone knows that this principle is now outdated and that legislation, like judicial interpretations, has to be looked at in context. The context is the one in which they will be used and not the one that was in the mind of the legislator or the judge.

In no way does the fact that there have been previous referendums on other questions prevent us from asking any question we want in the future. The question must be understood by those for whom it is intended. As was said earlier, it is not just any question that can be asked; the questions must be understood by the addressees.

In the same decision, the court said that any constitutional actor could initiate constitutional reforms, by referendum or some other way, although the means used must always be democratic. That is where the clarity requirement comes from.

The Chair: Mr. Hill.

Mr. Grant Hill: Madam, you believe that Canada is divisible, as is Quebec, which includes in particular the Aboriginal territory in the North.

Ms. Andrée Lajoie: You are referring to the Aboriginal issue. You are asking me a very big question, since even the Supreme Court took pains not to express any opinion on that. It absolutely did not prejudge this matter. It absolutely did not want to draw any conclusions in advance on that. The Supreme Court mentions Aboriginal peoples in talking about their claims; it mentions minorities and the Aboriginal people when it talks about their rights. I would invite you to check that; it is interesting to read. The court even specifies that it will not express any opinion on the Aboriginal situation.

Personally, I feel that the Aboriginal people have a right of self-determination which is certainly as serious as that of Quebeckers and which goes even further back in history. I have no hesitation in saying that. If I may, I would point out that they seem in fact to be exercising that right in Quebec and very successfully at that.

• 1330

I had the pleasure recently of doing a comparative analysis of the Nisga'a Treaty, the Nunavik Treaty and the 10 agreements signed between Quebec and Kahnawake. What I found was that the agreements in Quebec went further. Joe Norton is well aware of this. The federal government was not very pleased that taxing power had been delegated to the Mohawks of Kahnawake. No such agreement has been signed by the government of another Canadian province or by the federal government.

The negotiations that will take place between Aboriginal people and Quebeckers on the provisions in the agreement in principle with Kahnawake, including, for example, the respective land uses by the two groups, will certainly be handled as appropriately as those that may at some point get under way between Quebec and the rest of Canada.

Mr. Grant Hill: I will ask my question again. If Canada is divisible, is Quebec divisible as well, yes or no?

Ms. Andrée Lajoie: It depends on the circumstances and by whom. In the case of the Aboriginal nations living on the territories they inhabited at the time settlement began, I would say yes, of course.

Mr. Grant Hill: Thank you.

Ms. Andrée Lajoie: They are not minorities in the same sense as other groups.

Mr. Grant Hill: Will Mr. Chrétien's successor have the possibility of cancelling or amending this legislation? I thought I heard you say:

[English]

It would bind the successor of Mr. Chrétien.

[Translation]

Ms. Andrée Lajoie: I said that the third effect of this bill was to bind Mr. Chrétien's successor. He would be bound as follows: either he adheres to the act and maintains the same hard line—and Mr. Chrétien is pleased with the legacy he has left—or he decides to amend it. A parliament is never bound by the decisions of its predecessors. Mr. Chrétien's successor should have to face the music if changes are made to this legislation that received massive support from the rest of Canada. So the new prime minister will be caught between a rock and a hard place.

Mr. Grant Hill: Thank you.

The Chair: Mr. Bonin.

Mr. Raymond Bonin (Nickel Belt, Lib.): Ms. Lajoie, in your opinion the clarity of the question is to be decided only by those to whom it is addressed. What would it have taken in 1980 and 1995, when the official opposition in the National Assembly voted against the question; when the amendments to clarify the question were rejected by the Parti Québécois; when 61% of Quebeckers felt that the question asked in 1995 was not clear; and when the Prime Minister of Canada said during the referendum campaign that the question was not clear? Are you not really saying that it is up to the Parti Québécois alone to decide whether the question is clear?

Ms. Andrée Lajoie: Absolutely not. As I have already said, I have never been a member of any political party and I am not about to become one. I am not here to support the Parti Québécois...

Mr. Raymond Bonin: I did not insinuate that, Madam.

Ms. Andrée Lajoie: ...or the Bloc Québécois. The interpretative community in Quebec is the dominant opinion of those to whom the question is addressed. You say that a poll showed that the majority of those surveyed indicated that they had not understood the question. First of all, if I understood correctly, this poll was done recently, that is, five years after the question. The people who were surveyed are no longer the same voters. Second, I would really like to see the question. If the argument is that the referendum questions must be clear and that there is concern that the results might be manipulated, the same can be said for the questions asked in polls. I do not need to tell you that. I believe that these results show that there is some inconsistency somewhere, since 93% of those eligible turned out to vote. If I had to choose between those voters and the people questioned in the poll, I would go with those who voted and who represented the population as a whole rather than a sample, even though it might be representative.

• 1335

Mr. Raymond Bonin: Thank you. Do you agree with Mr. Turp, who says that the House of Commons has a role to play in determining whether the question is clear?

Ms. Andrée Lajoie: Before the referendum, I would say no. After the referendum, it will be up to the political authorities—what the court has called the political actors—whether at the federal level only or a combination of representatives from the federal and other provincial governments, to begin negotiations. These actors will have to decide, based on what the interpretative community of Quebec has itself decided.

If Quebeckers as a whole find the question clear and respond with a clear majority, but Canada refuses to negotiate, saying that it feels that the question was not clear, well, it will be up to the international community to settle the issue.

Mr. Raymond Bonin: So, it is not clear.

Ms. Andrée Lajoie: I will say it again: a statement is clear only to the person to whom it is addressed.

Mr. Raymond Bonin: You said that if 93% of people in Quebec voted during the referendum, it was because they understood the question and it was clear. When they voted, was it on sovereignty, sovereignty-partnership, independence for Quebec, renewed federalism or all those things, if it was clear? I would like a clear answer.

Ms. Andrée Lajoie: Clear does not mean monosemic. Some people were voting for independence, while others were voting for negotiations, hoping that they would be followed by a renewal of federalism, otherwise they were voting for independence.

As I have said, there is no such thing as monosemic language. The same would have been true if they had been asked if they wanted a country. I have given you examples that came from Mr. Chrétien himself.

Mr. Raymond Bonin: So, there were four parts to the question, and there could have been four groups represented by the answer.

Ms. Andrée Lajoie: There were not four parts to the question, and people who voted understood that. In a poll, the same is true; those surveyed never understand the question the same way, even though they all think they understand it.

I could give you other examples. When Quebec adopted the right to health services, Mr. Castonguay, who was here recently, understood that to mean a right limited by the resources and not an absolute right. René Dussault and Camille Laurin, in contrast, understood it to mean an absolute right. That is on the record. They all voted, and section 4 was very popular with Quebeckers until the federal government withdrew its funding.

The Chair: Your time is up.

[English]

We'll have just one brief question from Mr. Blaikie and that's it.

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

It seems the witness' case rests on not making a distinction between ordinary constitutional amendments and negotiations on secession. But having referred to the question earlier, in 1995, she admitted herself that there were differences of interpretation within the interpretive community.

What do you think would be a question? A lot of people come before us saying they don't like the legislation, but perhaps you could tell us on what kind of question Canada should negotiate secession. What would be a clear question in your view?

[Translation]

Ms. Andrée Lajoie: The question that will be considered clear by the interpretative community of Quebec.

[English]

Mr. Bill Blaikie: That doesn't tell us anything at all.

[Translation]

Ms. Andrée Lajoie: Those to whom the question is addressed. If Canada does not accept that as evidence that the question is valid and clear, the international community will assess its attitude in the negotiations. That is all.

The Chair: Thank you, Professor Lajoie. We are pleased to have heard your point of view here today. On behalf of all members of the Committee, I would like to thank you for appearing before us on Bill C-20.

• 1340

[English]

I should advise members of the committee that lunch is available at the back. Help yourselves.

We will continue with our next witness. There's been a slight change in the persons appearing.

[Translation]

We now welcome Mr. René Roy, Secretary General of the FTQ; Mr. Arnold Dugas, Quebec director of the United Steelworkers and FTQ Vice-President; and Mr. Émile Vallée, FTQ Policy Advisor.

Welcome.

Yes, Mr. Bachand.

Mr. André Bachand: Excuse me, Mr. Chairman. While I realize that we are on a very tight schedule, I would like to make a short comment.

[English]

The Chair: Cameras out, please. We're sitting.

[Translation]

Mr. André Bachand: I find it shocking that committee members would eat right in front of the witnesses. I leave this matter to your discretion, Mr. Chairman. I know that we are all hungry, but I'm concerned that we would be undermining the credibility of the witnesses and the committee's work if we were to eat ham sandwiches while we hear the witnesses. Our committee would not look very serious. I leave this in your hands, Mr. Chairman. I wonder whether it would not be better to suspend the meeting.

Mr. Daniel Turp: I agree with my colleague. There are limits to how much we can be rushed, and we should not have to eat while the witnesses are speaking.

[English]

The Chair: If the committee wishes to suspend, it makes no difference to your chair. Of course I'm in your hands.

[Translation]

Do you agree that we should suspend the meeting for a few minutes?

Mr. André Bachand: Mr. Chairman, I'm not recommending that you necessarily suspend the meeting. I am only saying that people around the table should avoid eating right in front of the witnesses. We need to keep in mind that our witnesses also have busy schedules, and we should perhaps not suspend our work. There are a number of possible solutions. I leave this to your discretion, Mr. Chairman, on behalf of the committee.

The Chair: You are not asking me to suspend the meeting, but just to ask the members to avoid eating at the table. Is that right? Very well. We can begin.

Gentlemen, you have 10 minutes for your presentation, and then there will be a question period, lasting 35 minutes. The floor is yours.

Mr. René Roy (Secretary General, Fédération des travailleurs et travailleuses du Québec): Good afternoon and thank you. My name is René Roy and I am Secretary General of the FTQ. I am accompanied by Arnold Dugas, vice-president of the FTQ, and Émile Vallée, our legal advisor.

The consultation exercise that the FTQ intends to undertake is essential. It is important for as many people as possible to be able to give their opinion on how the fundamental rights and prerogatives of the Quebec people should be exercised.

The FTQ, which represents nearly 500,000 Quebec workers, is grateful for this opportunity to appear before your committee. We do not intend to take the traditional route of giving a detailed analysis of Bill C-20. Instead, we want to clearly define our position regarding the bill and the reasons for our position.

The federal government, in introducing its bill, says that it wants a clear question and a clear majority. Quebeckers must respond just as clearly to this federal attempt to interfere in matters which do not concern it. If it is true that the Parliament of Canada will have to make decisions on strategies that it will need to implement if there is a winning Quebec referendum, it is premature, to say the least, to adopt strategic positions right now which cannot take into account the actual context in which the two governments will find themselves in the near or distant future.

The Quebec people expect a unanimous reaction and may accept the fact that, for entirely partisan reasons, the three political parties might be unable to agree. Quebec must therefore respond with a single voice to this attack by the federal government, as it has always done in the past under the leadership of both federalist and sovereignist governments in Quebec.

This unanimity will get the Quebec message across to the federal government, but in particular to the Canadian people. The FTQ supports this unanimous response.

• 1345

Now, let us talk about the reasons. Quebeckers are masters of their own destiny. It is up to them alone to decide on the future of Quebec inside or outside Canada. Quebec has democratic institutions that guarantee democratic changes. Quebec has no lessons to learn from anyone in that area. Our Elections Act, especially in the area of financing for political parties, is an example for others to follow. The same is true of our Public Consultation Act. Quebec does not need its big brother, the federal government, looking over its shoulder to correct these supposed democratic deficiencies. On the contrary, we feel that the federal government would do well to take some pages out of the Quebec book on electoral legislation, which it often promises to do but never does.

Moreover, the federal government is playing an extremely dangerous game by putting its oar into the democratic process and entrenching in law its intention to not respect the majority vote of Quebeckers if the Yes side wins in a sovereignty referendum. It will fan the flames that might unfortunately get in the way of civilized negotiations. When it does have an important role to play in representing the interests of other Canadians at the negotiating table, the government will absolutely need to sit down in good faith.

We are speaking on behalf of the unionized workers. These Quebeckers are very well placed to understand the principles underlying the requirement to negotiate in good faith. They find it revolting that one of the parties is already acting in bad faith even before the negotiation process is underway. How can we interpret in any other way what Ottawa is doing? The federal bill describes in detail all the situations in which the federal government would not see fit to enter into negotiations. It is as if an employer had the right to declare in advance that it would not negotiate if the union was demanding job security or wage increases.

As we know, employers cannot dodge their obligation to negotiate in good faith because they are bound by legislation. The federal government has no right to place itself above the law or above a Supreme Court opinion that has set out the obligation to negotiate in good faith.

Moreover, one wonders whether a government has the moral right to tie the hands of a government that might succeed it before a referendum is held. A new federal government that wanted to negotiate in good faith might be prevented from doing so by legislation. But we do not want to get into a legal debate. To this point, there have been as many interpretations of the Supreme Court opinion and the federal bill as there are commentators from all political sides.

We want to return this debate to the political arena and the strategic choices that both Quebec and the federal government must make when a referendum on sovereignty is held. In the context of that time, the results of a winning referendum will be analyzed as a basis for negotiations that must inevitably follow, and only then must all the issues to be negotiated be put on the table by both parties and negotiations begin in good faith.

Quebec has already had two referendums. The questions were clear. The people of Quebec knew what they were voting on, the referendum campaign of the Yes side and the No side guaranteed that understanding, and the results were also clear in terms of participation and final results. No one challenged them at that time. The results of the first referendum were accepted without question by the federal government, and it is easy to understand why. Its side won with a substantial majority. The results of the second referendum were harder to digest. The Yes side came within a hair of winning. That is the background against which the present federal position should be looked at.

The federal government could have chosen to recognize that nearly half of Quebeckers were expressing a strong desire for change. It could have interpreted the results as a signal to negotiate an internal renewal of Canadian federation, which was what was expected by an overwhelming majority of Quebeckers, both sovereignists and federalists.

The federal government chose to take a hard line: the 49% of Quebeckers who want change are not going to get it. Let us make sure that in the future, even if 50% plus one of them want change, they will not get it because the future will be safely padlocked.

It is understandable that the federal government would want to send a clear message to the people: vote on what you want and how you want, but Canada will be the one to decide whether the whole thing is legitimate. And we are telling you in advance that we will not negotiate in this or that situation. This is really what the bill is about.

• 1350

The bill does not want to give effect to the clarity principle in the Supreme Court of Canada opinion. It wants to limit the consequences of that opinion, which sets out the obligation to negotiate. The bill applies to all provinces and territories in Canada so that it does not look too bad and in case any other province or territory wanted to launch a sovereignist war. If a referendum is held in 10 or 15 years, the federal government at that time will not have the possibility of negotiating in good faith, in the context of the prevailing situation, since legislation passed years before will greatly restrict its rights to assess the socio-political context as it exists then. This is typical of a liberal government.

This is a dangerous bill. There is a price to pay when one is playing with fire. Bill C-20 is playing with fire. What will be the price to be paid? No one can say and few want to think about it. In Quebec, well-founded resentment is growing. There is no real reason to interfere, through federal legislation, in a situation of Quebec democratic consensus. Doing so feeds fears, which are also well-founded, that the federal government may not fulfil its obligation to negotiate in good faith. This does not bode well for the possibility of holding civilized negotiations.

In Canada, the feeling is one of lack of concern. The federal government is looking after things; what happened in 1995 will never happen again; you can sleep well; in particular, you can stop asking yourselves what Quebeckers really want. This is a false sense of security that may provoke very negative reactions if a winning referendum is held. There again, it bodes ill for civilized negotiations to take place.

In conclusion, the FTQ calls on the federal government to withdraw Bill C-20 and to recognize that any future referendum must take into account the political situation at that time and the circumstances where it will be held; the FTQ deems that this legislation is pointless for two main reasons: Quebec has no democratic deficit, and the Supreme Court opinion sets out the obligation to negotiate. These two principles must be kept in mind.

I will close on that. Thank you very much.

[English]

The Chair: Ms. Meredith.

Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.): Thank you, Mr. Chair.

Mr. Roy, thank you for coming this afternoon.

You made a couple of statements I disagree with. You made the statement that the people of Quebec knew what they were voting on and that they were very clear on what the end result would be. I find that interesting, considering how many Quebeckers felt they would still be part of Canada and how many Quebeckers felt they would still have members of Parliament in the House of Commons. I don't think it was clear to Quebeckers what the results would be if they voted yes.

You seem to object to the fact that the federal government is trying to bring before the people of Quebec what it would mean. You said the use of the negative results is threatening or is not helpful. If the people of Quebec do not clearly understand that there might very well be a very negative result, then how can you get a legitimate vote, if the discussion and the debate of both the positive and the negative is not presented before the voters in Quebec in another referendum?

[Translation]

Mr. René Roy: That is your opinion. Our opinion is that the questions asked in Quebec in 1980 and 1995 were very clear. The population as a whole understood very well what they were voting on. If there was any ambiguity, the two campaigns, the federalists and the sovereignists, clarified the issues well.

[English]

Ms. Val Meredith: You also made the comment that you feel the federal government should stay out of the issue, that it's for Quebec only—basically that the rest of Canada shouldn't concern themselves with the events in Quebec and with the concern of a clear question and a clear result.

• 1355

I find that a little interesting, considering that Quebec seems very willing to take the largesse of the provinces, which contribute to the equalization payments. Why is it okay for the rest of Canada to help the financial well-being of the province of Quebec but not be concerned about its political future within the Confederation?

[Translation]

Mr. René Roy: You misunderstood us. Canadians in the other provinces have every right to be concerned about Quebec's future. Moreover, in both referendums and all the other discussions there have been in Quebec, the federalists have strongly defended the objectives of the Canadian federation. There is no doubt that other Canadians in the federation have something to say on that. Furthermore, in the last referendum campaign, the federal people held a big rally in Montreal to explain to the people of Quebec why they should stay in Canada. In television advertising and through other publicity, as well as by all sorts of arguments, federalist supporters did a good job of laying out the Canadian position to the people of Quebec.

[English]

Ms. Val Meredith: There is a concern—and certainly my party has expressed it—that there needs to be a renewal of the federation that clearly identifies and respects the jurisdictions that were given to the provinces in 1867. There are a lot of people across this country who share that concern, that a renewal of the federation is far more beneficial in the end than Quebec advancing its separatist desires.

Are you at all interested, as an organization, in a discussion on renewing the federation as opposed to leaving the federation?

[Translation]

Mr. René Roy: I am not here to bear my soul, but Quebec participated in a number of discussions with a view to improving or amending the Canadian Constitution, or changing Canada as such. The last was on the Meech Lake Agreement. The Quebec legislature voted in favour of that agreement. Mr. Bourassa's government voted in favour of the Meech Lake Agreement, which was rejected by Canadians in a referendum. The Meech Lake Agreement was rejected by certain legislatures in Canada. So there have been a number of discussions involving Quebec aimed at changing the Canadian Constitution and bringing Quebec into the Canadian Constitution. As you know, Quebec has still not signed the Constitution of Canada. It was quite clear, after the Meech Lake Agreement was rejected by various legislatures in Canada, and not by the one in Quebec, that there would be a backlash and a referendum in Quebec as a result.

The Chair: Mr. Guimond.

Mr. Michel Guimond: Gentlemen, thank you for having made the effort to come here. Thank you as well for your presentation.

The FTQ, which is the largest trade union federation in Quebec, representing 500,000 workers, takes part in all debates. It has always been involved in all debates, in both social and political areas as well as in the field of labour legislation. It has always been an active player, even well before the time of Louis Laberge.

I have two questions to ask. In your presentation, you clearly demonstrated the undemocratic nature of Bill C-20. As you know, the Liberal majority has squarely refused to allow the Committee to travel to different parts of Quebec and Canada, it has set a limit on the number of witnesses, and it wants to bring in a gag order, to impose closure on the debate. It is expected that the government will very shortly begin discussions on closure. Do you think that such actions foster democratic principles? That's my first question.

• 1400

Here is my second question. I believe that the FTQ is affiliated with the Canadian Labour Congress. I would like to know if you have discussed this issue with your colleagues from labour bodies outside Quebec, people who promote democracy and respect for the various existing laws?

Mr. Arnold Dugas (Vice-President, Fédération des travailleurs et travailleuses du Québec): In the first place, within the Canadian Labour Congress, it has been very clear for many years that the decision should be made by Quebeckers. The CLC respects the desire of Quebeckers to decide on an independent Quebec. All of the trade unions that belong to the CLC and FTQ have adopted the same position. Both international and national trade unions believe that it is up to Quebeckers to reach a decision in Quebec.

As for your first question on democracy, we feel that Quebeckers are responsible citizens who are capable of passing judgement on the question. Some people say that this should come from the outside, that Quebeckers need guidance because they are unable to draft the question for themselves. In our opinion, this is an affront that Quebeckers will not accept.

Mr. Michel Guimond: Professor Lajoie, in testimony...

Mr. René Roy: The federal government wants there to be clear questions for referendums. I would invite it to submit its bill to a referendum in Quebec, with a very clear question: are you for or against Bill C-20? It would see what would happen. This bill places huge restrictions on the democratic rights of Quebeckers. If you want to treat everyone equally, we too should be treated this way. We have not had the chance to vote since 1874. The Quebec people have never been consulted in a referendum to find out whether or not they wanted to be part of Canada.

Mr. Michel Guimond: Professor Andrée Lajoie from the University of Montreal appeared before you. I do not know whether you had the opportunity to hear her, but she made some fairly strong and charged statements. She spoke of a colonialist past. In clause 1 of the bill, we read:

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

Do you see this as an example of colonialism? Do you think that the National Assembly's elected officials, in their work leading up to 1980 and 1995 referendums, had enough legitimacy to make decisions on the process in 1980 and in 1995?

Mr. René Roy: That goes without saying. All of the political parties in Quebec recognized that it was legitimate for the Quebec National Assembly to rule on the content and clarity of the question, and they also recognized that it even had an obligation to rule on this, and all the existing political parties took part in the process.

Clause 1 of the bill states that, even if the federal Parliament ruled that the question was clear and fully approved of the process, it would still have the right, at the end of the day, to accept or reject the outcome. The bill does not specify any threshold for the percentage of the vote, and the federal government could say that 60, 65, 70 or 75% was not enough.

The Chair: Mr. Bachand.

Mr. André Bachand: I would like to say a few words regarding clarity. You will not be able to find clarity here, either in the bill or among ordinary people. I conducted a little exercise on the weekend. I gave ten copies of the bill to ten different people, all French-speaking Quebeckers. I asked them what they thought about it. No two people understood the bill in the same manner.

After the 1993 election, when the Conservative Party took such a beating, some people believed that the GST would be abolished and that the Free Trade Agreement would be torn up. Does that mean that the election was not clear and that we should have started over again? Perhaps. Did the party in power lie at that time? In any event, it did not tell the whole truth. Was it clear? Was it enough to cast doubt on the election?

• 1405

That having been said, we should not give ourselves over to rhetoric. We must be careful. I find it somewhat exasperating to hear talk of a colonialist mind-set.

Do you believe that C-20 will influence political history? If so, do you believe that it is necessary to consult and mobilize all of your members?

Mr. Arnold Dugas: There has already been a mobilization. It is quite clear that we have the right to decide.

For us, it is also very clear that this is another move to colonize Quebeckers. We will not accept this.

Mr. André Bachand: I have to say that I do not agree with your use of the word “colonize”.

Mr. Daniel Turp: In the legal sense.

Mr. André Bachand: Daniel, it's even worse if we understand the word “colonize” in the legal sense. If we use it in a political sense, it is a stylistic device, but legally speaking, it's even worse.

In any event, have you adopted other means with your members of opposing Bill C-20?

Mr. René Roy: Not presently. In our view, it is so obvious that this question is the responsibility of the National Assembly that this bill should not change anything for Quebec society. Its right to decide its future for itself exists. Societies exist by virtue of the people who constitute them. A famous philosopher said that the world belongs to those who live in it. Political institutions and laws which, like this one, restrict democratic rights do not have to be respected by the people if they are constrain their actions.

Mr. Arnold Dugas: One thing is very clear on the subject of Bill C-20. In the past, at our conventions, we have adopted very, very clear positions. We have always opposed federal interference in the debate in Quebec.

The Chair: Mr. Drouin.

Mr. Claude Drouin: I would like to thank the FTQ representatives for their presentation. I have a few questions to ask them.

In the first place, do you believe that 50% plus one is enough to make a country? Do you think it is acceptable to create a country after a judicial recount? Do you find this sound? Is it a strong and solid foundation for a new country?

Mr. René Roy: Well, that is our opinion.

Mr. Claude Drouin: If that is your opinion, why is a 66% majority required to disaffiliate or disband a trade union? Why is it that a 66% majority is required to present a special resolution at a convention? In your organization, you need 66% of the votes to amend your bylaws, while 50% would be enough to create a country? If 50% plus one is the standard, why do you not adopt this standard within your organization? Please explain.

Mr. Arnold Dugas: I will explain this to you. It is not very complicated. You may have the wrong information.

For certification, it is 50% plus one; for disaffiliation, it is 50% plus one. This is very clear. The amendment of bylaws, with approval by the general assemblies at a convention, have nothing to do with membership in the federation. In order to leave or come back, you need 50% plus one. For all democratic institutions, it is 50% plus one.

For certain constitutional amendments, you need 66.6%. That is the only time when 66.6% is required. That is not necessary where it is a matter of deciding to join or not to join the organization. Our constitution is very clear on this point. At both the international and national levels, it is 50% everywhere.

Mr. Claude Drouin: Mr. Roy.

Mr. René Roy: There are delegations of power. At a convention, powers are delegated to a delegation. You are well aware of this because you are a member of Parliament. Whenever members are consulted by referendum in trade union organizations, the rule of 50% plus one is the one that applies.

Mr. Claude Drouin: Mr. Roy, you said in your presentation that the federal government had no business getting involved in the negotiations and that it was up to Quebeckers to decide.

Let us take this line of reasoning one step further. This means that, when a company wants to renegotiate, the employees should not get involved, that the employer is the one that invested the money, and the money belongs to it, that it is the one who decides and the employees have no choice but to comply? Is that what you mean? Canada, unlike the United States and France, which are indivisible, recognizes that Quebec has the right to decide whether or not it wishes to remain in Canada. We recognize this.

• 1410

Mr. Bouchard said that the Supreme Court opinion was an excellent opinion. Bill C-20 is based on this opinion so that there will be a clear framework.

When you obtain a strike mandate of 50% plus one of your members, you are not pleased. However, when you have a mandate of 65%, 70% or 80%, you say that it is a clear majority, that you are pleased, that your members are behind you and that you will go into action. And you are claiming that 50% plus one is enough to make a country? Maybe someone made a mistake because he had one glass of wine too many at dinner.

Some hon. members: Oh, oh!

Mr. Arnold Dugas: I am not sure that we can blame a glass of wine.

An hon. member: You are way off track!

An hon. member: Seriously, it is clear to me—

The Chair: Order, please.

Mr. Roy has the floor.

Order, please!

Mr. René Roy: Thank you, Mr. Chairman. You are correct in your reasoning: we much prefer 70% majorities to 51% majorities, but we have become involved in labour disputes following a 51% majority. In 1988, the dispute with Bell Canada lasted four months with two 51% votes. We respected—

Mr. Claude Drouin: You said 51%?

Mr. René Roy: We managed to get 51% against.

Mr. Claude Drouin: Okay.

Mr. René Roy: But we could just as well have obtained 50% plus one. It would not have made much difference.

On the matter of 50% plus one, that is our answer, but we agree with you that the stronger the majority, the better it is.

With regard to the question about federal interference, in the Quebec National Assembly there are federalist parties representing the federalist option, and sovereignist parties representing the sovereignist option. They are there to debate the future of the people of Quebec, and this is where the debate should take place. My friend, Mr. Vallée, would like to add a few words.

Mr. Émile Vallée (Legal Advisor, Fédération des travailleurs et travailleuses du Québec): The bill speaks of a clear mandate, but the bill itself is not clear. Bill C-20 does not mention a percentage; it does not mention 66.66%, 60% or 55%. The bill simply says that the mandate must be clear. What does "clear" mean?

Mr. Claude Drouin: That's a very good point you raise, Mr. Vallée. Ms. Lajoie said that decisions made earlier could cause problems. We did not specify a percentage, precisely so that when the time came, we could make a proper decision. If I may...

The Chair: I'm afraid we have to stop there. Your five minutes are up.

Mr. Turp.

Mr. Daniel Turp: Mr. Chairman, there is something I'm wondering about. It is 2:15; in principle, in accordance with the motion we passed, we should have suspended at 1:30. Isn't that right?

The Chair: No, at 12:30. However...

Mr. Daniel Turp: At 12:30?

The Chair: Yes.

Mr. Daniel Turp: I thought that it was 1:30, and that you had departed from the rule.

The Chair: No. We passed the suggestion by the Chair to the effect that during normal proceedings, we would sit only at certain times.

Mr. Daniel Turp: That's right.

The Chair: We have sat longer today because we had many witnesses. We were also delayed by votes and other things. We have therefore extended the meeting.

Mr. Daniel Turp: I hope that our friends on the Liberal side will want to take part in question period. May I suggest that we suspend the session so that we can all attend question period?

The Chair: The committee members want to suspend the session?

[English]

Mr. Reg Alcock (Winnipeg South, Lib.): No. We'd like to complete the discussion with these witnesses, and then I have a small motion to dispense with, and then we can go to Question Period.

[Translation]

Mr. Daniel Turp: What is that

[English]

small motion?

Mr. Reg Alcock: It's the motion I gave notice of on Friday.

[Translation]

Mr. Daniel Turp: You'd like to do that now, after we hear the witnesses?

Mr. Reg Alcock: Yes.

The Chair: Do you have any questions for the witnesses, Mr. Turp?

Mr. Daniel Turp: Indeed I do. These representatives of the FTQ have usefully refreshed the memories of those people who implied that a qualified majority was required for union affiliation or disaffiliation. For the past three months or so, the government has been trying to convince people that the qualified majority rule should apply for Quebec to become sovereign. My question to you is very simple. You were there for the 1995 referendum, as I was. Do you believe that Quebeckers understood the question? Do you believe that they made their decision with full knowledge of the facts?

• 1415

Mr. Arnold Dugas: One thing is certain: Quebeckers made their decision with full knowledge of the facts. The question was very clear, though many politicians tried to make it ambiguous.

Mr. Daniel Turp: Thank you.

The Chair: Mr. Patry, do you have any questions?

Mr. Bernard Patry: Mr. Dugas, you told Mr. Turp that the question was clear. So if the Yes side had won with 50% plus one, would Quebec have immediately declared independence?

Mr. Arnold Dugas: No, not at all. We would have sat down with the federal government and negotiated. Then, we would have seen how things were proceeding, and all the stakeholders in Quebec would have made an appropriate judgment.

Mr. Bernard Patry: What would have happened if negotiations had failed?

Mr. Arnold Dugas: I don't know whether we would have gone straight ahead with full independence, even with a majority of 51%.

An hon. member: I don't know about that.

Mr. Arnold Dugas: That is your opinion. The people of Quebec are very responsible, and one thing is certain: there would have been a period of negotiations. Independence would not have been declared overnight. We would have waited to see how the federal government responded.

Mr. Bernard Patry: What do you consider a clear question? What is a clear question that could be put to Quebeckers?

Mr. René Roy: The same question that was put in 1995.

Mr. Arnold Dugas: Regardless of whether the question is on secession, independence or negotiations, it is clear. You must respect the views of the Quebec people. They understand. They have been talking about independence for many years now, and there is a sovereignist government in Quebec. They are trying to promote the sovereignist option. The people of Quebec know exactly what is going on in the political arena and are perfectly capable of making an appropriate judgment.

Mr. René Roy: One thing is clear. Your leader, Mr. Chrétien, had no difficulty in understanding the question put to Quebeckers. He stood there before us and said that voting yes meant voting for separation. He obviously considered the question clear.

An hon. member: That's not what he understood in the question.

The Chair: Are there any other questions?

Thank you for coming here today, gentlemen. Your testimony has been much appreciated by all committee members, and I thank you for your assistance.

[English]

Mr. Alcock, do you wish to speak?

Mr. Reg Alcock: Thank you, Mr. Chairman.

Mr. Chairman, in keeping with our rule to provide advance notice of a motion, I provided notice of a motion on Friday, and today I would like to move that the committee may, if necessary to further accommodate the list of witnesses, continue to hear witnesses up to 5.30 p.m. on Thursday, February 24, 2000, provided that the chair shall put, without further debate or amendment, all questions necessary to dispose of Bill C-20 no later than midnight on Thursday, February 24, 2000.

Mr. Chairman, if I may, I'll just speak briefly to this. We've had this discussion before in the steering committee. This bill has been before us for 73 days. There's been a great deal of debate and discussion of this, both in and out of the House. We would like to get on with the business of the House.

We took into account some of the things that were raised. Certainly the House leaders for the New Democratic Party and for the Reform Party had indicated concerns about ensuring that the number of witnesses we had agreed to would have a chance to be heard. So we wish to make sure there's time available to do that, and that's why we'd like to extend the time the committee will sit this week, so that we can hear all of those witnesses and then get down to the matter of clause-by-clause on the bill.

• 1420

I note that we have been given notice of two other motions. Should this motion pass, one of those I suspect we could simply agree to, which is the rescinding of the time clauses on the clause-by-clause section of the motion. We got notice of that from the Bloc.

The Chair: Debate?

I'll start with Mr. Hill.

Mr. Grant Hill: I'd just like to once again reiterate how the process has not been suitable for the official opposition. The timing and the consultation have not been sufficient. Just as an example, Mel Smith, a constitutional expert from Vancouver who was one of our very preferred witnesses, phoned me to say for the time he'd been given, he could not come. He was unable to come. He thought it was incredible that he'd be given literally half an hour's notice and would be expected to come.

This is too important an issue to rush. I won't prolong this, because I know we're going to be outvoted, but I want my colleagues across the way to know that as an ally on this bill, I'm offended by the way this has been done. I say that as an ally who supports the bill. When you alienate your allies, I don't understand the strategy behind that. If someone could explain that to me, I'd stop criticizing so vigorously. I say to you in honesty, when you alienate your allies, you're doing something that makes no sense to me whatever.

[Translation]

The Chair: Mr. Guimond.

Mr. Michel Guimond: Mr. Chairman, on behalf of my party, I would like to say that the motion tabled before you is antidemocratic, and therefore unacceptable.

For the benefit of our colleagues and our television audience, I believe we should repeat the motion which is now being debated, and which was moved by the parliamentary secretary to the Minister of Intergovernmental Affairs, Mr. Alcock. Allow me to read the motion:

That the committee may, if necessary, to further accommodate the list of witnesses, continue to hear witnesses up to 5:30 p.m. on Thursday, February 24, 2000, provided that the chair shall put, without further debate or amendment, all questions necessary to dispose of Bill C-20 no later than midnight on Thursday, February 24, 2000.

Mr. Chairman, I respectfully submit that we oppose the motion, for a number of different reasons. First, the motion is nothing more than an attempt to cut off debate on a bill that finds absolutely no consensus in Quebec today.

Furthermore, we believe that the government has no grounds for rushing this bill through, after holding so few hearings and after hearing so few witnesses. In our view, we should take the time to hear everyone who wishes to speak on this bill. This is not a bill that can be dealt with overnight, or in a week.

This issue is not about accommodating witnesses. It is about respecting the right of people to be heard, the right of people to be heard by parliamentarians, the right of people to be heard by the government democratically elected on June 2, 1997.

• 1425

Mr. Chairman, this motion confirms that, particularly since this is a very important bill that questions the rules governing the exercise of democracy in Quebec. It is therefore quite natural, and desirable, and even reassuring that citizens want to be heard.

Mr. Chairman, this motion simply underscores the Liberal government's arrogance. The government does not wish to hear what the people have to say about its bill. Perhaps the government is afraid of being contradicted?

Mr. Chairman, there is nothing that could justify this motion. There is no reason to rush the bill through now. The timeframe imposed on the committee to hear witnesses is antidemocratic. Mr. Chairman, are you aware that, if this antidemocratic motion were passed, the committee would have less than two weeks to hear witnesses between the beginning of its hearings and the deadline imposed in the motion?

We cannot play along with this sort of charade, Mr. Chairman. It is unacceptable.

The committee's first meeting was on the evening of Monday, February 14. There is no reason why the committee should wrap up its hearings only nine days later. If this bill is so important, so crucial for democracy, then why rush the committee hearings by compressing them into only nine days?

In any case, Mr. Chairman, because the government is in such a rush, there will be no chance for the committee to hear witnesses during meetings scheduled for the afternoon and evening of Thursday, February 17 and the morning of Friday, February 18, since we could find no witnesses who would be ready or available to appear within such short notice.

Mr. Chairman, if this committee passes the motion before us, it will make a mockery of the hearings we are holding. The Prime Minister himself said last week that he had no time to waste on this and that we shouldn't spend too long over it.

However, opposition members do not believe they're wasting time by hearing what the people have to say, by listening to witnesses speak on Bill C-20.

The Minister of Intergovernmental Affairs justifies his bill by stating that his government has improved Canada in a number of ways, and will continue to do so. Here are some of the very words used by the Minister of Intergovernmental Affairs, who by the way does enjoy quoting himself:

We will be able to do so even better if no one in the country any longer threatens others with the possibility of separation.

I have just read an excerpt of the House of Commons' Hansard for December 14, 1999. This is yet another quote from the Minister of Intergovernmental Affairs.

Mr. Chairman, in our opinion there is no sovereignist threat, as some government members claim. As the members of the Supreme Court quite rightly pointed out in their opinion on Quebec secession, there is a legitimate will by Quebeckers to seek to achieve sovereignty.

• 1430

To illustrate my point, I will quote paragraph 1 of the opinion of the Supreme Court, which is this country's highest court:

The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. The amendment of the Constitution begins with the political process undertaken pursuant to the Constitution itself. In Canada, the initiative for constitutional amendment is the responsibility of democratically elected representatives of the participants in Confederation.

That is where we now stand, Mr. Chairman. We are the democratically elected representatives of people who do not accept that a majority within this government should use a motion like the one before us to muzzle us and prevent us from exercising our democratic right to put questions and hear witnesses. As the Supreme Court says, elected representatives may of course take their cue from a referendum, but in legal terms, Constitution-making in Canada, as in many countries, is undertaken by the democratically elected representatives of the people.

The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table. The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed.

That concludes this excerpt of the opinion of the Supreme Court.

Now, Mr. Chairman, to further illustrate my statements and persuade my colleagues on this committee and yourself that this motion is completely antidemocratic, I would like to elaborate on the argument this government uses to explain the process leading to this bill.

Obviously, by tabling this antidemocratic motion and introducing Bill C-20, which is just as antidemocratic, the government wishes to put an end to the sovereignist threat. Yet there is no sovereignist threat, Mr. Chairman, there is only the will of the people of Quebec to freely and democratically decide on its political future. But this unexplained rush by the committee would prevent Quebeckers from explaining to the government what ordinary citizens think about this bill. I would have expected that my colleagues across the way would wish to hear fellow citizens from Val-d'Or, Verdun, Shawinigan, Sept-Îles, Toronto, Vancouver, Thunder Bay, Fredericton, Saint-Georges-de-Beauce, Sainte-Marie-de-Beauce, Winnipeg, and many other places. Had we travelled to the regions, Mr. Chairman, we would have had an excellent opportunity to hear them all. However, the government majority within this committee has instead tabled a motion that we consider antidemocratic because it will prevent the people from being heard before this committee.

Mr. Chairman, because the Liberal majority on this committee is muzzling the opposition, members of the committee will have no chance to hear witnesses tell them why Quebec wants to decide on its own future. Nobody will have an opportunity to hear Quebeckers say why the fundamental rights of Quebec and the prerogatives of its National Assembly must be protected, protection that is denied by bill C-20 and the motion tabled by Mr. Alcock, parliamentary secretary to Intergovernmental Affairs minister Stéphane Dion, a motion that clearly demonstrates his desire to muzzle us.

• 1435

And that is not a new desire, Mr. Chairman. It has roots primarily in the modernization of the State of Quebec, and the will of the Quebec people to take their own future in hand.

Mr. Chairman, the movement toward sovereignty did not begin yesterday or the day before yesterday; it has been going on for 40 years, and even more.

At these hearings, we have heard witnesses mention Jean Lesage, whose theme during the 1960's was “Masters in our Own Home”. We have also heard about the motto of Daniel Johnson, Senior: “Equality or Independence”. Yet, Mr. Chairman, you will have to agree that Daniel Johnson, Senior, was hardly a sovereignist, any more than Daniel Johnson Jr., who had a summer job as premier at the National Assembly for several months. We could also have cited Robert Bourassa I, René Lévesque, Robert Bourassa II, Jacques Parizeau and now Lucien Bouchard. All the premiers that Quebec has had in the past 40 years, without exception, have demanded greater autonomy for Quebec.

Mr. Chairman, we should perhaps take a clear look at how the political and constitutional status of Quebec has evolved. You will agree that the Canadian constitution does not recognize the existence of the Quebec people; this is the same Canadian constitution that Quebec never signed, and whose patriation in 1982 was repudiated by all parties at the National Assembly. And we should remind everyone, Mr. Chairman, that Robert Bourassa, a federalist Quebec premier in power between 1985 and 1994, also refused to sign the Canadian constitution unilaterally patriated by Trudeau in 1982.

Yet it was a national community from New France which participated in the foundation of the Canadian federation, and which was at the core of all pre-federation constitutional arrangements instituted in colonial Canada by the United Kingdom. By using the words "colonial Canada", I am harking back to the statements made a few moments ago by Ms. Andrée Lajoie: she stated that bill C-20 reflected a colonialist attitude. My colleague, the honourable member for Richmond—Arthabaska, will of course agree with me. Colonialism was being used in the legal sense of the word. We must at least acknowledge it.

After Confederation, from the Conquest to the institution of the Union Act, the country which would later have its political borders change and become the Quebec we know today and the land of the Quebec people, had some 65,000 inhabitants. That was in 1760, at the time of the British Conquest. This population had grown from the 10,000 or so settlers who came from France in the 17th and 18th centuries, and founded a national community—that is, a community that was sociologically homogenous and had its own culture.

After the Conquest of 1760 and the cession of New France to England at the end of the Seven Years War, the new British colony was endowed with its first administrative structure. The new colony was named the province of Quebec by an act of the British sovereign, the Royal Proclamation of 1763, which replaced the military regime instituted after the Conquest with a civilian government.

The new government would eliminate French law, since the Royal Proclamation contained no express guarantees to protect the rights and customs of the new colony's inhabitants. In 1774, as a result of the people's demands, this was remedied with the passage of the Quebec Act, which re-established French-style civil law, guaranteed the free practice of Catholicism and replaced the oath of allegiance, which had prevented Catholics from holding public office and taking government positions.

• 1440

Political scientist Gérard Bergeron describes the importance of the Quebec Act as follows:

Before the new occupants had truly established themselves, the French Canadians saw the secular foundations of their own society officialized to some extent by the new regime and thereby consolidated for the future.

The adoption of this first genuinely constitutional document led to debate in the Westminster Parliament. Historian Jacques Lacoursière pointed out that allowing French-style law and granting some recognition to the Catholic religion sparked opposition by many British MPs.

However, the Constitution established by the Quebec Act did not meet the needs of the Loyalists, who had fled the American Revolution and whose massive numbers began to shift the balance in the province of Quebec, which was different from other British North American colonies. Loyalists had difficulty adapting to their new environment among French-speaking Catholics in their adopted province. French-speaking Catholics still accounted for some 85% of the population.

In addition to a different language and religion, the Loyalists found that the institutions, civil laws and culture of their new homeland were also completely foreign to them. The new minority's situation quickly prompted the authorities in the mother country to establish a new constitution for the province of Quebec. The 1791 Constitution Act separated the province of Quebec into two distinct entities. The first of these was Upper Canada, centred around Kingston—your riding of Kingston and the Islands, Mr. Chairman—where most newcomers of British origin and Loyalists settled. The second was Lower Canada, centred on the St. Lawrence Valley, which is still inhabited by a very large French-Canadian majority.

In Lower Canada, francophones were able to establish a political presence by establishing an assembly of elected representatives. However, their political influence was restricted by the absence of responsible government in that assembly. The bicameral parliamentary structure with elected representatives established in each of the two new provinces was accompanied by concentration of power in the Executive Council, whose members were appointed by the governor. The governor himself was appointed by the British government and acted under its authority.

Because of the numerous deficiencies, and particularly because the members of the assembly had no real control over government spending, people were generally discontented with the institutions of 1791. The pre-federation system instituted by the constitutional change did at least confirm the distinct character of French Canada among the British colonies, and paved the way for the advent of the Quebec's parliamentary institutions.

In 1831, Alexis de Tocqueville, a major political thinker, observed during a trip to Lower Canada that francophones had “their own government and their own Parliament. They are a distinct nation.” He noted that the francophone community had not only its own language, religion and mores, but also its own laws and institutions.

The Chair: One moment, please, Mr. Guimond. Mr. Mills has a point of order.

[English]

Mr. Dennis J. Mills (Broadview—Greenwood, Lib.): Mr. Chair, on a point of order, I apologize for interrupting Mr. Guimond's dissertation, but I think it's important that not only all of us here but the people listening to this understand what the process is at this point.

Could you please explain what's happening here? How long does he have with his dissertation? Normally these remarks are capped at 20 minutes. How is the chair handling this?

The Chair: There's no time limit on speeches in the committee. We're waiting for the end of his speech, whenever it happens. So I'm afraid—

Mr. Dennis Mills: I think he's only at about the 1800s right now, and he has taken 20 minutes.

The Chair: But there's no 20-minute limit on speeches in committee, so....

Mr. Dennis Mills: What about relevance?

The Chair: Of course I know the honourable member is speaking about the bill and the motion before us, which limits the time on the bill. I know he's perhaps going back in history, but he is explaining something that I think, so far, could tie into the bill when he draws it in, as I'm sure he's going to do.

• 1445

[Translation]

Mr. Guimond.

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

Now, we come to the 1840 Act of Union. The forced union of Upper and Lower Canada into a single province of Canada aroused no enthusiasm at all among French Canadians. Today, Mr. Chairman, a number of witnesses have mentioned that seminal date when the Union Act of 1840 was passed.

We must understand and appreciate the significance of that date. It was not just pulled out of a hat. A number of witnesses have mentioned it at the hearings this morning. Therefore, I will take pleasure in informing Mr. Mills of the thinking behind what followed the 1840 Act of Union. That is why I said the repercussions of the Act were important. That is why I said just now that the forced union of Upper and Lower Canada into a single political entity, the province of Canada, aroused no enthusiasm among French Canadians.

The Act was the result of a recommendation by Lord Durham, who had conducted an investigation for the British government into the political situation in Lower Canada following the troubles of 1837 and 1838.

The union, as envisaged in the Durham report, was a means of ensuring that the anglophone minority in Lower Canada was not subject to a francophone majority.

A plan by which it is proposed to ensure the tranquility of the government of Lower Canada must include the means of putting an end to the agitation of national disputes in the legislature, by settling, at once and forever, the national character of the province.

Durham goes on to say:

I entertain no doubt as to the national character which must be given to Lower Canada; it must be that of the British Empire; that of the majority of the population of British America;

Then look what he said here:

... that of the great race which must, in the lapse of no long period of time, be predominant over the whole North American continent.

Those are not my words. Those are not the words of the Bloc Québécois, Lucien Bouchard, or René Lévesque. It was Lord Durham who said that the great race must prevail, the race of the majority of the population of British North America.

Durham continues:

Without effecting the change so rapidly or so roughly as to shock the feelings and trample on the welfare of the existing generation, it must henceforth be the first and steady purpose of the British government to establish an English population, with English laws and language, in this province, and to trust none but a decidedly English legislature.

Lord Durham said that, Mr. Chairman. He went on to say:

I believe that tranquility can only be restored [...] by subjecting the province [of Lower Canada] to the vigorous rule of an English majority; and that the only efficacious government would be that formed by a legislative union.

Thus, Mr. Chairman, the new Constitution came into force on February 1841. Lower Canada lost its own parliamentary institutions, and even though French Canadians were the majority in terms of population, they became a minority within the institutions of a United Canada.

Moreover, English was established as the sole official language of government institutions. For the very first time in a constitutional document, French was proscribed. However, these provisions were repealed by the British Parliament in 1848.

The province of Canada consisted of two nations: one was a French-speaking and primarily Catholic nation; the other was an English-speaking and primarily Protestant nation. The United Province of Canada would have to find institutional practices that could be adapted to two distinct national communities within a single entity.

• 1450

The quest for responsible government gave the reformers of the now-defunct Upper and Lower Canada a common cause; they envisaged a dual executive for the Legislative Assembly, which led to a form of ethnic dualization in the politics of the province of Canada.

They even went so far as to apply a double majority rule, under which no major legislation could pass without a simultaneous majority among representatives of Canada East, or former Lower Canada, and of Canada West, or former Upper Canada.

Now, Mr. Chairman, let us consider Quebec's place in the Canadian federal system. You can see that this is obviously quite relevant, since both Bill C-20 and the motion before us now—apart from being both antidemocratic—are both yet another block in the pyramid built to put Quebec in its place.

An hon. member: That's right.

Mr. Michel Guimond: We know that in 1860, the two nations making up the province of Canada both wanted to change the political system that had been imposed on them 20 years earlier.

The Chair: Mr. Guimond, you appear to have finished discussing the events of 1840 and 1841, the union of the two provinces of Canada. Yet you have forgotten one very important thing: the first capital was Kingston.

Mr. Michel Guimond: That is true, Mr. Chairman.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): He's going to start again. There was Montreal as well, which the anglophones burned.

Mr. Michel Guimond: Mr. Chairman, I hope this very relevant intervention does not mean that everything I have said is no longer relevant and I will have to start over.

An hon. member: Yes, right!

The Chair: Not at all. It's just that the description of events of this period is something quite important to me. As you described so well...

Mr. Michel Guimond: Mr. Chairman, I think you are merely demonstrating that my speech could be improved. You are merely recognizing that I am entitled to make a few mistakes. I put a high price on my personal worth. I'm very modest, but I'm very interested in the cult of the individual. You will call me to order, because I may make some mistakes.

Mr. Daniel Turp: He is very modest, very very modest.

Mr. Michel Guimond: My modesty overwhelms me, Mr. Chairman.

Mr. Réal Ménard: Flora MacDonald does not have your knowledge of history, Mr. Chairman.

Mr. Michel Guimond: So the two nations that made up United Canada around 1860 both wanted to change the political system that had been imposed on them 20 years earlier, but neither could do so without the other.

I will now read you an excerpt from a speech made by George Brown, one of the Fathers of Confederation, on February 8, 1865. I was not there, Mr. Chairman.

Mr. Daniel Turp: Listen to this.

Mr. Michel Guimond: During the debate on the issue of the confederation of the provinces of the British North America, Mr. Brown said:

Whether we ask for Parliamentary reform for Canada alone or in union with the Maritime provinces, the French Canadians must have their views consulted as well as us. This scheme can be carried, and no scheme can be that has not the support of both sections of the province.

So you see, Mr. Chairman, how important this is in terms of acceptance. I will come back to this later.

An hon. member: Definitely.

Mr. Michel Guimond: Within United Canada, during the parliamentary debates on Confederation, important people involved in the creation of the new federation stressed the importance for French Canadians of having a federal system that would allow them to develop their own identity.

Étienne-Paschal Taché, the prime minister of United Canada, said the following when he presented the bill on Confederation on behalf of the government:

Lower Canada has constantly refused to listen to Upper Canada's request about representation based on number, for the very good reason that, since union between the two sections of the country is legislative, granting greater sway to one would subordinate the other to it. This will not be the case in a federal union, because all issues of a general nature will be the responsibility of the federal government, and those of a local nature will be the responsibility of local governments, which will have the power to administer their internal affairs as they choose.

• 1455

So you see again, Mr. Chairman, how relevant this is and how we can make a connection to bill C-20, to a referendum held in Quebec, to the wording of the question decided upon in the National Assembly, and to a clear majority of 50% plus one.

Even Étienne-Pascal Taché, the Prime Minister of Canada, said that it would be “the responsibility of local governments, which will have the power to administer their internal affairs as they choose”. He added:

If we get a federal union, it will be the equivalent of a separation of the provinces, and thereby, Lower Canada will retain its independence with all the institutions that are so dear to it and over which it will have the necessary control to protect them from any danger.

John A. Macdonald, the leader of Canada West and the Attorney General for this section, also recognized that a unitary state, that is “the legislative union”, in the political vocabulary of the time, would be unacceptable to French Canadians and poorly suited to their situation.

Mr. Chairman, I would like to quote from the debates on Confederation once again. George Brown also said:

I found this system—he was referring to the legislative union—was impracticable. And first of all, it could not meet with the assent of the people of Lower Canada, who feel that, in their unique position as a minority, who speak a different language and are of a different faith from the majority of people in Confederation, their institutions, their laws and their national associations, for which they have high regard, could suffer as a result. That is why—still according to Browne—it was understood that any proposal involving the absorption of Lower Canada's individuality would not be viewed favourably by the people of this section.

For George Étienne Cartier, the leader of French Canada and the Attorney General for Canada East during the negotiations on Confederation, the introduction of a federal system would recognize the French Canadian nationality. Cartier said:

This is [...] the significance that we must attach to this constitution. We see in it an acknowledgment of the French Canadian nationality. As a distinct, separate nationality, we form a state within a state, with the full enjoyment of our rights, the official recognition of our national independence.

That is what Cartier said.

I am sure that my colleague Mr. Mills will be pleased. I'm leaving the 1800s to go to 1956, the year in which the Royal Commission of Inquiry on Constitutional Problems, established by the Quebec government, found that the facts related to the birth of the federation showed that the French Canadians only agreed to Confederation on two fundamental conditions:

that the union be federative and that, within this union, they be recognized as such, as a distinct national group, and even given equal footing with the other ethnic group.

Mr. Chairman, the Royal Commission of Inquiry on Constitutional Problems stated that in 1956. It didn't happen under René Lévesque or Lucien Bouchard. In 1956 the Royal Commission of Inquiry on Constitutional Problems was established by the Quebec government. I think the impasse into which the current government has placed us with Bill C-20, and the motion that the Liberal majority on this committee is trying to impose on us, which is just as antidemocratic as the bill itself, provide confirmation that there is a refusal to acknowledge that Quebeckers constitute a distinct national group that should be given equal footing with the other ethnic group.

• 1500

Mr. Chairman, Confederation will be seen by some political and constitutional thinkers in Quebec as a pact between two founding peoples. That is what Jean-Charles Falardeau said in an article entitled “Les Canadiens français et leur idéologie” (French Canadians and their ideology):

This interpretation of Confederation as a pact is still surprising to English-speaking Canadians, for whom the 1867 Act can only be an act of the British Imperial Parliament whose exegesis must conform exactly to the letter of legal texts, which nowhere make specific reference to any pact. In any case, the sociologically significant and important fact is that French Canadians, since approximately the end of the 19th century, have interpreted the Canadian Constitution in this way. [...] Whether English Canadian public law specialists and jurists find it acceptable or not, it will remain one of the most deep-rooted aspects of French Canadians' definition of the history of Canada.

Although this dualistic concept of the country was challenged in the rest of Canada, it expressed as a fundamental political idea a desire on the part of French Canada to be associated as a full partner and participant in the building of this new country.

Another vision will show Confederation as a pact among the provinces, with an opposed vision of the Canadian Constitution mainly as mandatory law.

In 1884, Honoré Mercier, the Premier of Quebec, denounced the frequent intrusions by the federal government into areas that were the prerogative of the provinces. Mr. Chairman, as early as 1884, Honoré Mercier, the premier at the time, who was neither a separatist nor a sovereignist, was complaining about the intrusions of the federal government into areas that were the prerogatives of the provinces. This is what Mercier said:

The existence of the provinces preceded that of the Dominion...

He wrote "Dominion" with a capital, as though there were something divine about it.

... and it received its powers from them. The provinces had a responsible government in 1867: they had their own legislatures, their laws and the full autonomy of a colony. In the collective interest, the provinces delegated part of their powers: those that they did not delegate they retained and still have. They are sovereign within the limits of their powers and any violation of this sovereignty is a violation of the federal pact.

Maurice Duplessis, another premier who was well known for his ardent defence of Quebec's autonomy against the federal government's attempts to centralize, often defended Quebec's constitutional prerogatives by referring to the 1867 Agreement:

Our system of government is based on the principle of full autonomy of the provinces. There are excellent reasons for that, the most important of which is that, since the beginning, Canadian Confederation is not merely an agreement among the four founding provinces, but a sacred pact entered into between the two main races whose friendly co-operation is fair and essential to Canadian unity.

Maurice Duplessis said as well:

Confederation should be what the Fathers of Confederation, in good faith, wanted it to be: an association of sovereign provinces within the limits of their powers, and a sovereign federal government within the limits of its power. [...] The province of Quebec would have never agreed to be part of Confederation if it had not been perfectly clear that the guarantees on which Confederation were based were inviolable.

I'm sure, Mr. Chairman, that many people listening to us, people who knew Maurice Duplessis and who had a great deal of respect for his aspirations of autonomy, a certain generation of Quebeckers who liked Maurice Duplessis, but who have now become sovereignists, appreciate this quote from the former Premier.

• 1505

The concept of the pact among the provinces is based in particular on the theory of the existence and survival of the political entities that reached agreement in 1867. This theory was expressed in an opinion handed down in 1892 by the Judicial Committee of the Privy Council in London, which was then the highest court of Canada.

The Privy Council said this:

The objective of the Act [of 1867] was not to combine the provinces into one or to subordinate the provincial governments to a central authority, but rather to create a federal government in which they would all be represented and they would be given exclusive responsibility for administering matters in which they had a common interest with each province retaining its independence and autonomy.

I would point out again, Mr. Chairman, that this point was made by the Imperial Privy Council in an opinion made public in 1892. The Privy Council said:

The Government of the Dominion needed to receive the powers, goods and revenues required to carry out fully its powers under the Constitution, and the provinces to keep the rest for the requirements of administering the province. However, with respect to the matters specifically reserved for provincial legislation in section 92, the province remains free of federal control and its sovereignty is the same as before the Act was passed.

Mr. Chairman, this statement by the Privy Council was not to prevent the federal government from getting involved in areas under provincial jurisdiction. That is why we have witnessed a quest for equality and affirmation.

Since 1867, the importance of Quebec as a focal point for the French Canadian nation has continued to grow, and in the middle of the 20th century, more than 80% of the nation continued to be concentrated there.

After 1960, during the Quiet Revolution, Quebec showed its increasing desire to take control over areas that were important for its cultural, social and economic development. Moreover, Quebec's desire to assert itself is evident internationally with the growth of a network of delegations abroad and a direct international action policy designed by Paul Gérin-Lajoie, minister of education in the Jean Lesage government. In explaining this policy, Mr. Gérin-Lajoie stated:

Quebec is not sovereign in all areas: it is a member of a federation. But from a political point of view, it is a state. It has all of the elements: territory, people, and autonomous government.

That is what Mr. Gérin-Lajoie said. He is still alive and he is still very lucid. I had the opportunity to meet him last spring and to talk with him. I realized that he was still first and foremost a great Quebec nationalist.

Moreover, it is the political expression of a people who are different in many ways from the anglophone communities in North America.

Quebec has its own vocation on this continent. As the largest francophone community outside France, French Canada is part of a cultural universe that revolves around Europe and not America. In this light, Quebec is more than a federated state among others. It is the political instrument of a distinct and unique cultural group in North America.

In the 1960's, the Royal Commission on Bilingualism and Biculturalism was charged with studying the issue of equality of the founding peoples. In its report, the commission made a point, and I will quote a statement on page 179:

Since the outset, we believe that it is the key idea in our mandate. In fact, what is being proposed is not only the recognition of two languages and two main cultures with singularly different rights that could be recognized. We have also been asked to examine how the Canadian Confederation can develop based on the principle of equality.

• 1510

The Confederation of 1867 turned out to be a framework that did not ensure the equality of the peoples involved. In Quebec, that fact as well as a desire for greater political autonomy have given rise to calls for significant constitutional change involving a reformed status for Quebec.

Mr. Chairman, I would now like to quote from a speech made by the premier of Quebec, Jean Lesage, at the Canadian Club in Calgary on September 22, 1965. As far as I know, Jean Lesage, Mr. Chairman, was not a separatist premier; he was not a sovereignist, but he was a Quebec nationalist. Listen to what he said:

I have often spoken about what Quebec, as a focal point for French-speaking Canadians, wants. We want equality of the two ethnic groups that founded this country, we want to express ourselves in a way that is consistent with our culture and our hopes. We want, in the Canada of the future, a status that respects our specific characteristics.

Mr. Chairman, I respectfully submit that the motion tabled by Mr. Alcock, Parliamentary secretary to the Minister of Intergovernmental Affairs, Mr. Stéphane Dion, is antidemocratic and does not in any way respect the specific characteristics of Quebec men and women. Mr. Chairman, that is why we must denounce the motion that we consider antidemocratic, as well as Bill C-20, introduced by Stéphane Dion.

Mr. Chairman, in the election campaign of 1966, the party that was to win used the slogan "Equality or Independence", which symbolizes this quest for equality. Daniel Johnson, Senior, who became the Quebec premier, summarized this election campaign in the following way:

[A new] Constitution should [...] be designed so that Canada is not only a federation of 10 provinces, but a federation of two nations that are equal in law and in fact.

Mr. Johnson, Senior, said:

Federation, associated States, Confederation, special status, republic, regardless of the name, the new constitutional regime should give the French Canadian nation all the powers it requires to take charge of its own destiny.

Mr. Johnson also said:

After three centuries of hard work, our nation deserves to live freely. All the better if people can feel at home from one ocean to the other. That involves the recognition of full equality.

Mr. Chairman, I submit that the bill which was introduced here, which stipulates that each vote in a Quebec referendum could not have the same value, the same demographic weight, runs counter to this recognition of full equality.

Moreover, the motion that the government wants to impose, to gag us and steamroller through this work, in secret and at night, is totally unacceptable and undemocratic. Mr. Chairman, that is why I am pleased to speak to this motion.

I will continue. During the quiet revolution and in the following years, while throughout the world many national emancipation movements were taking shape in the context of decolonisation and asserting their right to self-determination, the French Canadian nation, which was more and more concentrated in Quebec, was fully integrating this territorial aspect in its reflections on the collective future of French Canadians. Although a minority within Canada, they did make up the majority in Quebec, where they felt better able to achieve their emancipation and build a society according to their own vision, although they did slowly start to see themselves differently.

• 1515

In January 1979, the Task Force on Canadian Unity made the following comment in its observations and recommendations, on page 25:

[...] In recent years, however, more and more have adopted the name and identity of Québécois, underlining this sense of themselves as a majority, a people.

Once again, it is a federal body, the Pépin-Robarts Task Force on Canadian Unity, that made those comments in January 1979. The Montreal Société Saint-Jean-Baptiste did not make those remarks.

However, Mr. Chairman, all proposals designed to reflect the Quebec national reality in the Constitution have failed or never been followed up on. That was especially the case of the special status sought in the 1960s and the asymmetrical federalism proposed by the Task Force on Canadian Unity, the Pépin-Robarts Task Force at the end of the 70s, that I mentioned earlier. The same is true for the concept of distinct society discussed in the 1980s and up until 1992.

In examining the constitutional debate from 1960 to 1976, historian Jean-Louis Roy wrote:

The most decisive fact since 1960 in relations between Quebec and Canada is the general acceptance by the majority of Quebeckers of the status of nation for their community. The refusal of English Canada, at least its spokespersons at the federal level, as well as the refusal of the anglophone provinces to recognize this fact precipitated the psychological breakdown of Canada. This refusal undoubtedly explains that no new constitutional project likely to merit Quebec's approval has come from English Canada.

The historian Jean-Louis Roy continued, by saying:

English Canada's refusal to recognize Quebec's status as a nation after more than 10 years of constitutional negotiations remains the essential reason for Canada's fragmentation.

Now, Mr. Chairman, we are going to study the challenge to the federal framework and the equality of peoples through sovereignty-association.

In 1976, the debate took on a new dimension with the arrival of René Lévesque as Quebec premier. He proposed, via a referendum, seeking out a new Quebec-Canada agreement outside the federal framework, called sovereignty-association.

The Quebec National Assembly started by adopting the Referendum Act in 1978, which is an umbrella act that sets out the Quebec referendum process. One of the characteristics of this process is a system of umbrella committees, called national committees, which bring together the proponents of the different options. The system plays an important democratic role in controlling referendum expenses. It is under this Referendum Act that the various referenda on the political future of Quebec have been held. The first one was held on May 20, 1980, by the Lévesque government, on sovereignty-association. At that time, members of the federal government and some provincial ministers actively participated in the No campaign.

Mr. Chairman, we often hear the federalist proponents say that in 1980 the question was not clear, the question was ambiguous, the process was tainted and undemocratic. It didn't, however, prevent the elected federal Liberals in Quebec from agreeing to get involved in a referendum process. Even the provincial premiers got involved in the referendum issue and came to Quebec to campaign for the No side. If the process was tainted, why did they agree to participate on May 20, 1980? At that time, members of the federal government participated on the No side, as I mentioned.

• 1520

In 1992, Liberal MP Brian Tobin, who is called "Captain Canada", went to the United Nations, with some small cod and turbot that he bought somewhere, to pursue like a pirate the evil Spaniards who had come to fish off the Grand Banks of Newfoundland. But what did Captain Canada say when he was a federal Liberal? Like the government of the day and all members of this House, he participated in the referendum campaign under the auspices of the umbrella organization that had been set up to limit spending. That is reality. That is what happened in the last referendum.

Joe Clark, leader of the Official Opposition in the federal Parliament at the time, stated that his participation in the 1980 referendum campaign implied recognition for the legitimacy at the exercise. The Prime Minister of the day, Pierre Elliott Trudeau, shortly before the vote, made a solemn commitment to renew the Canadian federation if the No side won the referendum. We all remember Prime Minister Trudeau's solemn commitment.

The results of the referendum of May 20, 1980, were 59.56 % for the No side, and 40.44 % for the Yes side. The premier of Quebec, René Lévesque, drew the following conclusions after this first referendum conducted by the Quebec institutions. Mr. Lévesque said:

The clear recognition [of the right to self-determination] is the most precious gain from the Quebec referendum. What was the result? It is now undisputed and indisputable that Quebec is a distinct national community that can choose its own constitutional status without outside intervention. Quebekers can decide to remain within the Canadian federation, or they can decide to democratically leave it if they deem that the system no longer corresponds to their aspirations and needs. This right to control its own national destiny is the most fundamental right that Quebec society has.

Now, mister Chairman, let's look at how the 1982 breakdown took place, because it is clear that despite Prime Minister Trudeau's promise to renew federalism after the 1980 referendum, the Constitution was repatriated unilaterally in 1982.

New constitutional negotiations got under way the week following the referendum on sovereignty-association. As I said earlier, despite the commitment by the Prime Minister to have the people reject the Lévesque government's plan, these negotiations led to the imposition on Quebec of the most significant constitutional changes since the birth of the Canadian federation.

Beginning in the 1960s, the federal government set the patriation of the Canadian Constitution as one of its priorities for constitutional reform. It involved including in the Constitution a procedure allowing a constitutional amendment to be made by Canadian political authorities and putting an end to the requirement to send amendment to British Parliament.

Along with patriation, constitutional discussions dealt with a number of subjects relating to reform. A number of Quebec governments actively participated in these exchanges, where their main priority was generally the status of Quebec and its constitutional jurisdictions.

However, negotiations on constitutional reform held after the referendum led to the isolation of Quebec on November 5, 1981, when it was the only province to reject the constitutional amendments put forward by Ottawa and the other provinces, since these amendments would reduce its powers in the areas of language and education and would not give the province a veto or the right to opt out of any constitutional amendment with adequate compensation.

• 1525

In fact, Quebec's attempt to veto the patriation plan was unsuccessful because in December 1982, the Supreme Court of Canada refused to acknowledge that, according to Canadian constitutional conventions, Quebec had a veto, even though Quebec had already exercised this veto a number of times.

On November 5, 1981, Premier René Lévesque expressed Quebec's determination to oppose the weakening of its position within the Canadian federation. Quebec's National Assembly, in turn, reacted to the amending, without its consent, of an agreement signed 114 years earlier, by adopting, on December 1, 1981, a resolution setting out the conditions that would have to be met for Quebec to agree to the patriation of the Constitution. This resolution, that I will be quoting from, expressly demands that the equality of the two founding peoples be recognized in the Constitution, and also that Quebec be recognized as a distinct society with all of the characteristics of a distinct national community.

This is what the resolution said:

The National Assembly of Quebec,

mindful of the right of the people of Quebec to self-determination,

and exercising its historical right of being a full party to any change to the Constitution of Canada which would affect the rights and powers of Quebec,

declares that it cannot accept the plan to patriate the Constitution unless it meets the following conditions:

1. it must be recognized that the two founding peoples of Canada are fundamentally equal and that Quebec, by virtue of its language, culture and institutions, forms a distinct society within the Canadian federal system and has all the attributes of a distinct national community; [...].

The federal government, however, was to turn a blind eye to this resolution by the Quebec National Assembly and in so doing, maintained the constitutional deadlock between Quebec and the rest of Canada. During that time, Quebec found itself trapped against the constitutional status quo. As political scientist Donald Smiley observed:

[...] an undertaking for constitutional review and reform whose presumed objectives were to bring about more harmonious relations between Quebec and the Canadian community ended in the betrayal of the Quebec electorate, the breach of a fundamental constitutional convention, an upsurge in Quebec nationalism and the even more serious challenge posed by Quebec to the legitimacy of the Canadian constitutional order.

Mr. Chairman, the person who said that is not necessarily a sovereignist. His name is Donald Smiley. He wrote that in a text entitled A Dangerous Deed: The Constitution Act, 1982.

He said that it ended in the betrayal of the Quebec electorate. I hope, Mr. Chairman, that you realize how serious these words are. He says that the Quebec electorate was betrayed, that a fundamental constitutional convention was breached, that there was a resurgence of Quebec nationalism, something that he noted. I hope that you realize that Bill C-20, that we have before us, is nothing more than the representation of this betrayal of the Quebec electorate in a February 2000 version. Some people continued to believe in the honesty of this government; there are still some of our fellow citizens who do. I believe that the motion that was introduced here, the motion intended to limit discussions, is a flagrant, if not eloquent, or even striking, illustration of that.

Mr. Chairman, the unilateral adoption of the Constitution Act, 1982, which formalizes the federal government's rejection of the concept of two founding peoples and replaces it by the concept of "one State, one nation", left a deep impression on Canada's constitutional landscape.

• 1530

Far from recognizing the Quebec people, the Constitution Act, 1982 introduces a new constitutional vision in which the duality and specific nature of Quebec are not recognized:

The 1982 Act has [...] constitutionalized the principle whereby Canada's multicultural heritage is maintained and enhanced, thereby imposing on Quebec a constitutional vision that does not necessarily reflect its reality within Canada: Canada was defined as a multicultural society, without constitutional recognition of the principle of the “Canadian duality” and the specific nature of Quebec. As it is mostly Anglophone, Canada's multicultural society can therefore become indifferent to the distinct identity of Quebec and its unique linguistic and cultural situation within Canada.

that, in 1867, had caused representatives of the French-Canadian people—the “Canayens”, as they were then called—to agree. Canada moved in 1982 to a constitution adopted despite the objections of a province where almost 90% of Canadian Francophones reside and which represents more than a quarter of the population.

Now Mr. Chairman, let's have a look at another chapter in order to properly understand why the motion introduced by Mr. Alcock, the Parliamentary Secretary to the Minister of Intergovernmental Affairs, Mr. Dion, is antidemocratic. Let us deal with the attempts to remedy the affront and the betrayal that was the unilateral patriation of the Constitution in 1982 by Trudeau, who had undertaken on the night of the May 20, 1980 referendum, almost 20 years ago, to try to gain the consent of Quebec for his project to patriate the Constitution.

The Chair: Mr. Guimond, I'm sorry to interrupt you, but it is now 3:30 and we must begin to hear the witnesses who will be appearing this afternoon. You may continue your intervention after we have heard the witnesses, around 5:30. Is that okay?

Mr. Michel Guimond: No, I don't think so, Mr. Chairman. I had intended to continue. And we will hear the witnesses after that.

The Chair: Yes, but...

Mr. Michel Guimond: I think that pursuant to Standing Order 116, Mr. Chairman, you cannot prevent me from speaking to the motion that was tabled. I don't intend to stop discussing it. We will return to hearing the witnesses once I have finished what I have to say, Mr. Chairman.

The Chair: Mr. Guimond, our committee adopted a motion that states that we will not debate motions relating to committee business when the witnesses are present. Since we intended to hear witnesses at 3:30, I must interrupt your speech, and you may resume later on.

Mr. Michel Guimond: Mr. Chairman, I would like to understand your decision. Do you not agree that under Standing Order 116, I am entitled to speak to the motion that was tabled by the Parliamentary Secretary? Do you not agree that I am exercising that right at this time?

The Chair: Yes.

Mr. Michel Guimond: Yes? In that case, why are you trying to prevent me from continuing to exercise it? I am debating the motion. I believe that you have recognized the relevance of what I have to say, Mr. Chairman. With respect, I would ask you to wait before calling the witnesses.

The Chair: No. When it began its hearings, the committee passed a motion stating that we would hear witnesses at the time at which they were called to appear, regardless of any motion that might be on the table at that time.

• 1535

It stipulates:

Every motion so presented (under section a)) may be moved only at the conclusion of the witnesses' presentations.

The witnesses have arrived and we can continue the debate after we have heard them. You may continue with your remarks at that time.

Mr. Michel Guimond: Mr. Chairman, I'm afraid I must insist. I am only trying to understand. This is exactly what happened this morning. At noon, after hearing our last witness from the FTQ, the Parliamentary Secretary to the Minister of Intergovernmental Affairs introduced his motion and we began to debate it.

I believe that in speaking now I am abiding by all of the points in the motion that was adopted. I must emphasize that I am abiding by the motion.

The Chair: Yes, yes.

Mr. Michel Guimond: The motion does not state that when a member begins to discuss a motion after hearing witnesses, he must interrupt his speech so that the committee can return to hearing the next witnesses. With respect, Mr. Chairman, that is not in the motion.

The Chair: As far as I am concerned, that is what it means. That was the aim of the motion. When we discussed it last Monday, I asked that very question and we agreed that we would debate any motion relating to committee business before or after we heard the witnesses.

I seem to remember discussing it with your colleague Mr. Turp, when he gave notice of a motion last week. I want our discussions to continue in that fashion. We had intended to hear three or four witnesses this afternoon and I think that's what we should do. We can continue to debate this motion after having heard the witnesses.

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Mr. Chairman, I just want to raise one point. With respect, Mr. Chairman, I was present last Monday and at no time did we state that when we began to deal with a motion, we would have to interrupt the debate to hear witnesses.

The only thing that this motion says, is that we can debate motions that are introduced after a 24-hour notice, after hearing witnesses. Once the debate is under way, no provision, in what we have adopted or in the Standing Order, Mr. Chairman, allows you to interrupt the debate on the motion and move on to hearing witnesses. This motion does not state that and the Standing Order does not allow that, Mr. Chairman.

The motion simply states that after hearing witnesses, we can begin the study of a motion, which is what we have done. The motion does not allow you to in any way interrupt the examination of the motion to return to the witnesses. That's not what the motion says, Mr. Chairman.

Having been here last Monday during the discussion, I know full well that it was never intended that this motion should mean that in the very middle of a debate on a motion, we could interrupt the debate to hear new witnesses. This motion simply says that once the witnesses have been heard, we can debate a motion, but at no time does the motion in question, or the Standing Orders, allow you to interrupt the debate on the motion to hear new witnesses.

If that is the case, tell me where in subsection c) it says that you are entitled to interrupt a debate on a motion that is begun after the witnesses have been heard, so as to hear new witnesses. The motion does not say that, Mr. Chairman.

The Chair: Mr. Bachand.

Mr. André Bachand: Mr. Chairman, I understand the strategy that the Bloc members are attempting, but I appeal to the Bloc, in spite of the resolution that was adopted, to call a truce out of respect for the witnesses.

Moreover, this evening we will be voting on a motion that would allow us to travel, a motion that is supported by all opposition parties. But out of respect for the people who took the trouble to come here today, I urge my colleagues to suspend this very interesting history lesson from Mr. Guimond, that he may continue after we hear these witnesses. I appeal to the Bloc's sense of logic, if they have any, to stop this now so that we can begin to hear the witnesses immediately.

The Chair: Mr. Alcock.

• 1540

[English]

Mr. Reg Alcock: On the same point of order, Mr. Chairman, I'd like to make a couple of points.

The first is that committees are free to set their own rules. The Standing Orders notwithstanding, committees have the ability to set their own rules of operation, and that is what we did. It was out of a desire to respect the witnesses, and that debate went on for some time.

The Bloc has from time to time expressed a concern about hearing witnesses. There's nothing in this motion that prevents Mr. Guimond from continuing with the discussion he wishes to have, but the intention of the motion, which was agreed to by the parties, was to allow witnesses, when they came here to present, to have their time to present, and then we would go back to House business. That's what was agreed to. Mr. Bachand confirms that, as I'm sure the others will.

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: Mr. Chairman, I just wanted to say that certainly that was the understanding I had at the time. I don't think we should paint too pretty a picture of it, though. It wasn't done just out of respect for the witnesses; it was done out of the knowledge that the government intended to limit the time and therefore we wanted to hear any of the witnesses. Given that we also anticipated procedural matters such as we have before us, this was the only way we could ensure that some witnesses would be heard or that indeed a decent number would be heard.

But that is in fact what was agreed to, and therefore I think, Mr. Chairman, you should proceed to hear the witnesses.

The Chair: Mr. Hill.

Mr. Grant Hill: And I will confirm that my understanding was that we would interrupt any proceedings so that witnesses would not travel a long distance and be turned away. In fact if we turned away these witnesses, whom I consider to be very important, I would consider it to be now anti-democratic from another side and it would be totally inappropriate to do that.

[Translation]

The Chair: Mr. Guimond, a brief comment.

Mr. Michel Guimond: Mr. Chairman, I beg to differ. I am absolutely convinced that this is not what the motion means. Before appealing your decision, Mr. Chairman, I would like you to determine the order of the debates and confirm that I will be able to return to my speech once we have heard the witnesses. Can you be more explicit in explaining your decision?

The Chair: Yes, I can repeat it for the benefit of the honourable member. He will have the floor once we have heard the witnesses and he will be able to continue his intervention. It's as simple as that.

I will now rule on the point of order. The motion adopted last Monday states that we will only resume the debate and the examination of motions such as this one after the witnesses have been heard and before the next witnesses begin their submission.

Mr. Stéphane Bergeron: Mr. Chairman...

The Chair: That is what we agreed upon. The other committee members have indicated that they all understood exactly the same thing, that is, that we had decided not to have such debates until the witnesses had been heard.

The witnesses should have finished by 5:30 or 6 p.m., and we may resume the debate later on this evening. As I stated, Mr. Bergeron, I will entertain no other argument on this point. The Chair has ruled for the time being. Since our agenda clearly indicates that we will have three sessions for witnesses during the day, we cannot hold such a debate, unless we do so between the times when we hear the witnesses. That is my decision.

Yes, Mr. Bergeron.

Mr. Stéphane Bergeron: A point of order. If you don't want to hear me on that point, I have no other choice but to challenge your decision, but I don't want to go that far. Mr. Chairman, you are interpreting the intention of the people who were there, while the text of the motion itself does not say what you would like it to say.

The Chair: That's my interpretation of the words in the motion.

Mr. Stéphane Bergeron: But the words do not say, Mr. Chairman, before hearing new witnesses. There is absolutely nothing in that motion that allows you to interrupt the debate on a motion.

The Chair: That is what I will do. In my opinion, that is what the words mean.

[English]

And that's my decision. If you want to appeal it, you can appeal it. Otherwise, I'm going to proceed with the witnesses.

• 1545

[Translation]

Mr. Michel Guimond: In that case, when can an opposition party or a member of the legislative committee object to a closure motion put by the government majority?

The Chair: At any time, as long as there are no witnesses before the committee.

The motion can be debated and we will continue the debate after having heard the witnesses. I have already told the honourable member that he may continue later on this afternoon. So, let us get started.

[English]

The first witness this afternoon—

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, I would like to point out that this is still the fifth meeting and the sixth meeting has not yet begun. This is still the end of the fifth meeting and, under section a) that we adopted, every motion introduced can be debated only at the conclusion of the witnesses' presentations.

This is still meeting number 5.

[English]

The Chair: Order. I've already made my ruling. I've indicated that Mr. Guimond may continue his remarks after the set of witnesses. I'm not considering it. We're in a separate meeting. We are hearing another group of witnesses, and that's what I'm going to proceed with now.

[Translation]

Mr. Daniel Turp: A point of order, Mr. Chairman.

[English]

The Chair: If it's on the same point, I don't want to hear it.

[Translation]

Mr. Daniel Turp: You must respect our wish to raise a point of order. I would like you to explain how it is that this fifth meeting has ended. I would like the chairman and the committee clerk to enlighten us on this matter. It is important for us to have a clear answer to this question so that we might determine whether the section that you are interpreting in this way is being properly interpreted.

The Chair: As the clerk indicated last Monday, we will give a new number to each meeting and we will have a separate agenda for each of the three meetings scheduled for the day, on which the names of the witnesses will appear.

[English]

We are continuing with today's sittings. We have not adjourned. We have not suspended the sitting. We are simply proceeding with hearing more witnesses, and we will come back to the session we were in before as soon as the witnesses are finished.

[Translation]

Some voices: Point of order.

[English]

The Chair: I'm not going to hear this endlessly, I warn you. I want to get—

[Translation]

Mr. Daniel Turp: How can this be the beginning of the sixth meeting?

The Chair: It's the same meeting.

Mr. Daniel Turp: No, it isn't the same meeting because there is a separate agenda, a different notice for the witnesses who are here. How can we begin the sixth sitting when the fifth sitting hasn't yet ended? You must explain that to us. The fifth meeting has not yet ended and you want to begin the sixth.

The Chair: Yes, and I am beginning immediately.

Mr. Daniel Turp: You can't interpret the Standing Order here.

The Chair: Professor Guy Lachapelle, would you please be seated and begin your submission.

It is my duty, as chairman, to ensure that the committee continues its work. I cannot continue to allow points of order intended to prevent the committee from doing its work.

Mr. Stéphane Bergeron: Mr. Chairman, pursuant to what Standing Order are you preventing me from introducing a point of order?

The Chair: As is the case in the House, the Chair always has the duty to ensure that the debate continues. Points of order cannot be entertained all day or until any particular time. We have already heard five or seven points of order dealing with the same point.

In my opinion, the committee has voted on how it intends to proceed. I have already ruled on that point and that's the end of it. We can continue the debate later on, but our witnesses are here now, they are ready, and I would like to hear them without further ado.

Mr. Stéphane Bergeron: Mr. Chairman, I want us to understand each other and I myself would like to understand. I would like to know what Standing Order prevents you from allowing me to introduce a new point of order.

The Chair: It is a decision that was made by a chairman and it is intended to ensure that a committee or the House may, as it is entitled to, continue its deliberations. That is what I am doing now.

Mr. Michel Guimond: If the Parliamentary Secretary had introduced his motion immediately after we had heard the other witness, then I might have had a minute to intervene before the appearance of the next witness.

The Chair: You will have many other opportunities to do it later this evening. We can continue the debate all evening if we want to.

• 1550

Professor Guy Lachapelle is here and he will make his remarks. Welcome to the committee, Mr. Lachapelle. You have 10 minutes for your submission and then the members will have 35 minutes for questions. You may proceed.

Mr. Guy Lachapelle (Professor, Department of Political Science, Concordia University; Individual Presentation): Mr. Chairman, committee members, ladies and gentlemen: Bill C-20, which you have before you, is an attack on democratic freedoms and is, in more ways than one, the fruit of intellectual dishonesty. The day after the 1995 referendum, Prime Minister Chrétien stated on the CBC program, The National, that he intended to invoke section 91 of the Constitution to enact “laws for peace, order and good government in Canada” so as to determine the question for the next referendum in Quebec. Bill C-20 seems to be his answer, and might even be a first step towards other actions.

Moreover, this so-called “clarity” Bill states that the House of Commons must rule on the clarity of the referendum question and majority before determining if the Government of Canada is obliged to undertake negotiations for a future secession. In other words, the federal government has decided to deny the legitimacy of the National Assembly of Quebec. The federal Bill raises a problem because the federal government does not need legislation in order to do what it has been doing for the past 50 years, that is, intervening in areas which are beyond its jurisdiction. It has no power over provincial elections or referenda. We believe that Bill C-20 is even unconstitutional.

The federal government is actually trying to enact into law certain criteria that will apply after the Quebec National Assembly has decided when the referendum will take place and what the question will be. These three criteria are: first, the federal government must agree that the question for the next Quebec referendum is clear, meaning that it must deal only with secession; second, the majority must be clear; and third, there will be no negotiation if the question refers to association or partnership with Canada.

Why does the Bill deal only with the wording of the question and the majority that is required, when in a referendum, there are other more important issues at play? The funding of umbrella committees, the role of television and air time, government activities and compulsory voting could have also been subject to federal government legislation. In fact, Bill C-20 closely resembles all of the hidden clauses that are written in the fine print of a contract that a no less scrupulous salesman avoids telling you about. Will there be other clauses in this Quebec-Canada contract that have not been mentioned and that Quebeckers should be made aware of?

Our comments today will be essentially technical in nature, even though the aim of the Bill is mainly political, that is to discourage a large number of Quebeckers from seeking independence. We will attempt to better understand what the concepts of “clear question” and “clear majority” mean in a practical and non-theoretical way. We are also wondering about the logic of Bill C-20. Why could Quebeckers not put forward an offer for partnership with the rest of Canada? On that issue, the Supreme Court decision in no way stated that the Government of Quebec could not consult the people during stages in the negotiation. In any case, this decision was only an opinion, and not a binding decision, as Justice Antonio Lamer so rightly pointed out. Therefore, why legislate if it is not necessary? No doubt for election-minded reasons. We will conclude by making a few recommendations.

First of all, what is a clear question? We wonder what that means. It is disappointing to see that Bill C-20 says nothing about that. According to C-20, the House of Commons will determine whether the question allows the people of Quebec to clearly express its intention to no longer be part of Canada and to become an independent state. The question in the next referendum cannot deal with a mandate to negotiate an offer of partnership or, more particularly, a political and economic arrangement. In both those cases, according to Bill C-20, there would not be a clear expression of will.

But if Quebeckers express a clear willingness to make an offer of partnership to Canada before declaring independence, the Bill cannot prevent them from doing so, unless the federal government were to decide, as in 1995, to state that it has no intention of negotiating.

• 1555

We must point out that recent opinion polls in Quebec have shown that Quebeckers are more and more inclined to think that a political agreement would not be viable, but that an economic arrangement is desirable. Incidently, we might wonder if Bill C-20 is not some roundabout way for the federal government to escape its obligation to negotiate.

Let's take a few examples from history, beginning with the history of Newfoundland, July 22, 1948. Historically, the federal government has never been able to clearly state what constitutes a clear question. When Newfoundland wanted to become part of Confederation, Canada's High Commissioner said that the question was ambiguous and equivocal, because it made no mention of the conditions for union that were offered by Canada. Canada's High Commissioner was worried about the referendum campaign because he said, and I quote:

Confederation entered the fight at a great disadvantage and, even if it were to win a majority, the foundations for the union would probably have to be reexamined.

What is interesting in these remarks is that it's essential that citizens know what will be the basis of a future union or a future partnership before a referendum. The voter wants to know on what basis the negotiations will be carried out, both in the case of a union and of a secession. The right to information is also a basic principle.

We believe that the government is mistaken when it maintains that, to lead to the negotiation of a secession, there needs to be a clear question on secession. Even with an ambiguous question that did not explain the terms of the union, Newfoundland became a Canadian province. According to the criteria established by Bill C-20, Newfoundlanders could no doubt say that Newfoundland's entry into Confederation occurred in an ambiguous manner.

Now let's look at the case of Western Australia's secession on April 8, 1933. The Prime Minister, Sir James Mitchell, tabled a bill in Parliament to hold a referendum at the same time as the 1933 general election. The referendum bill specified that two questions would be submitted to the voters, one on secession and the other on the establishment of an assembly where all of the states would have equal representation. The voters would answer two different questions printed on two different ballots, which read as follows:

1. Do you agree that the State of Western Australia should withdraw from the federal Commonwealth established under the Commonwealth of Australia Constitution Act?

2. Do you support the creation of an assembly made up of an equal number of representatives from each of the states of Australia, whose mandate would be to propose amendments deemed necessary by this assembly to the Commonwealth's Constitution?

The voters supported secession by 66.2%, but rejected the proposal to create an assembly by 57.4%. The voter turnout was close to 90%. It was in fact federal Prime Minister Lyons who proposed to the states that another assembly be established, in which the Commonwealth and the states together would have equal representation.

These examples demonstrate that there are many different ways to hold referenda. Bill C-20 offers no ground rules. Would it be possible, under Bill C-20, for the Government of Quebec to hold a referendum at the same time as an election? Would the following question be clear enough: "Do you agree that Quebec should withdraw from Canada?" Could the government of Quebec ask a two-part question, one on an offer of partnership, and the other on independence? Could they offer, as was the case in the Newfoundland referendum, two choices, independence or renewed federalism?

For a political scientist such as myself, this type of discussion is irrelevant because, in reality, it has been demonstrated that the question has a negligible influence on the outcome of a referendum. At a meeting in 1980, a group of referendum specialists were looking to set out certain rules around a referendum and published a document entitled Referendums: Guidelines for the Future, and their work was similar to the work of this committee. Professor David Butler, one of the referendum specialists, concluded the following after analyzing the Quebec referendum of 1980:

[English]

In fact, though Quebeckers might deny this, worries over wording may be exaggerated. People do not read the ballot to make up their minds. They go to the polls in order to vote yes or no, and their decisions will be based on the broad issue and the way in which it has been presented during the campaign. If the question is a loaded one, that fact will have been an issue in the debate; a loaded question may well boomerang in the faces of its drafters. Nonetheless, fair referendums do require the question to be as balanced and unambiguous as possible.

• 1600

[Translation]

Professor Butler's analysis shows that this whole debate on the clarity of the question is in fact not a legal issue, but purely an issue of electoral strategy. What's important is that the referendum campaign be a debate on the real issues and that the question reflects this. The Canadian government had every opportunity to criticize the Newfoundland referendum of 1949 as much as it criticized the Quebec referenda of 1980 and 1995.

If the 1980 and 1995 questions weren't clear, then how do you explain the Quebec voters who voted no, thinking they were voting for a renewed or decentralized federalism in each of these referenda? Were they misguided by the referendum question or by the politicians' promises? If Quebec was excluded from the Canadian federation in 1982, it's certainly not because of the 1980 question. And incidentally, the legitimacy of the patriation has been called into question by Justice Antonio Lamer. If Canadian federalism is in crisis these days, it's not only thanks to sovereignists.

Secondly, what is a clear majority? Bill C-20 leaves us holding our breath. It states that, in considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account (a) the size of the majority of valid votes cast in favour of the secessionist option; (b) the percentage of eligible voters voting in the referendum; (c) any all other matters or circumstances it considers to be relevant.

Bill C-20 resembles in many ways President Gorbatchev's law of April 1990, to dissuade the Baltic peoples from seceding. He modified the rule of ordinary majority for cases of secession and replaced it with the rule of two-thirds.

These new rules go against universally established principles. In fact, especially in paragraph (b), the federal government seems to agree with the idea of taking the absolute majority of the voters registered on the electoral list rather than the absolute majority of 50% plus one. In the case of the 1995 referendum, that means that the majority required for the Yes vote would have been 54.5%, given the voter turnout rate of 94%. If this is the case, why didn't they say so clearly? The federal government nonetheless participated actively in the Quebec referendums of 1980 and 1995 without calling into question the results of both of these democratic exercises.

Such was also the case during the referendum on July 22nd 1948, when Newfoundlanders chose by 52.34% to enter Confederation. Canada was at that time a confederation. Some ridings voted for responsible government. At that time, people were deeply divided with respect to what would constitute a sufficient majority, but the British government stated clearly that it would feel bound by any majority vote for Confederation and that it would be ready to take the necessary measures to bring about the union.

The British Parliament had left it entirely...

The Chair: Excuse me, Mr. Lachapelle. Your presentation has already gone past 10 minutes. Are you almost finished?

Mr. Guy Lachapelle: Yes, I'm almost finished, Mr. Chair.

The Chair: Very well.

Mr. Guy Lachapelle: The British Parliament had left it entirely up to the Government of Canada to decide on what would constitute an acceptable majority to have Newfoundland join Confederation. On July 19th, the Prime Minister of Canada, William Lyon Mackenzie King, met with Louis Saint-Laurent, who stated:

majority, Canada should not accept the province into Confederation. I said that we would need to wait and see what would happen if the majority were slight.

Even though many Newfoundlanders were particularly disappointed with the results, especially the Responsible Government League, the Canadian government decided nonetheless to consider the majority as sufficient enough to justify passing the required measures to obtain Parliament's consent for Newfoundland's entry into Confederation. Following this, the final conditions of the union were negotiated. On March 31, 1949, Newfoundland's entry into Confederation was made official.

Since 1995, a quick survey of opinions indicates that a number of intellectual politicians in Canada support the rule of 50% plus one, believing that equality of voting rights is a fundamental democratic principle. Allow me to quote here the former Prime Minister of Canada, Pierre Elliott Trudeau, who wrote:

itself to be guided by the rule of 50% plus one. Since all men are equal and since each is the seat of eminent dignity, it follows inevitably that the happiness of 51 people is more important than that of 49: thus it is normal, all else being equal, and taking into consideration the inviolable rights of the minority, that the decision made by the 51 carries.

• 1605

Moreover, a number of legal scholars and political scientists have stated that by using the expression “clear majority”, the Supreme Court of Canada didn't necessarily mean “qualified majority”. Professor Henri Brun is of the opinion that the Supreme Court was only referring to a qualitative majority established on the basis of a referendum.

However, what is important to remember, is that no Western democracy worthy of this name requires a qualified majority in a referendum. The rule of fair play is a fundamental rule in any democratic exercise. Calling this into question amounts to chipping away at the foundations of a society. This principle, incidentally, should included in Bill C-20.

The Chair: You have had 15 minutes and I believe that...

Mr. Guy Lachapelle: If you'll allow me, Mr. Chairman, I would just like to finish.

The Chair: You will have the chance to say more in response to questions from the members of the committee.

Mr. Guy Lachapelle: One more minute and I'll finish.

The Chair: How long?

Mr. Guy Lachapelle: One minute.

The Chair: Is it the wish of the committee to allow the witness to continue for two minutes?

Some hon. members: Okay.

Mr. Guy Lachapelle: You can read the third section on the partnership.

So, we agree that the transition must be made carefully, without disrupting services to Quebeckers in the event of a vote for independence. There must be no upheaval or legal vacuum.

We do not believe that this Bill brings anything constructive to the debate and quite simply it should be scrapped. It's an intellectual scam. It's not within the jurisdiction of the federal government to legislate for Quebeckers who are suffering from an obvious lack of democracy in Quebec. The UN will have to be involved in the next Quebec referendum in order to validate the results. Incidentally, Bill C-20 has no international legitimacy.

If the federal government insists on moving ahead, we believe that Bill C-20 should at least establish certain fundamental principles, which were outlined by the American government in response to the Gorbatchev government's move.

The principles are the following, and I will close on these: If Quebeckers vote clearly for independence, 1) the federal government should enter into negotiations in good faith with the Government of Quebec in order to minimize the negative impact of the transition; 2) the federal government should repudiate violence and intimidation, and economic or other sanctions as means to thwart the democratic will of Quebeckers; 3) the federal government, working with the Government of Quebec, after a majority vote by Quebeckers for independence, should put in place flexible mechanisms for negotiations; 4) the federal government should accept that the next Quebec referendum take place under the supervision of the United Nations; 5) a group of international experts should be directed to oversee the next referendum.

Quebec's sovereignty requires a great sense of responsibility, by the sovereignists and by the federal government. I'd like to thank you for your patience and for your time.

The Chair: Very well.

Mr. Hill.

Mr. Grant Hill: Thank you for your testimony. You said that Bill C-20 was unconstitutional. Did I hear correctly?

Mr. Guy Lachapelle: Precisely.

Mr. Grant Hill: Which clause are you referring to specifically, please?

Mr. Guy Lachapelle: The federal government could use section 91, as Mr. Chrétien would like to do, to create a referendum act. However, in the case of acts on related issues, the Libman decision, as we saw, clearly stated that it was within the jurisdiction of the provinces, more specifically under the Quebec Elections Act, to legislate on matters of referenda or elections. According to the Constitution, in my opinion and from a purely legal standpoint, I would say that this law goes against this principle of provincial responsibility to legislate, election issues.

Mr. Grant Hill: So then it's the Bill as a whole and not one specific clause.

Mr. Guy Lachapelle: The entire bill.

Mr. Grant Hill: Would it be necessary to go to court to prevent implementation of this bill?

Mr. Guy Lachapelle: You are asking me whether the Government of Quebec should turn to the Supreme Court to challenge the legality of this bill?

Mr. Grant Hill: Yes.

Mr. Guy Lachapelle: If the Government of Quebec did not think it advisable in other cases in the past, I think it is up to both the Government of Quebec and the governments of the other provinces to decide whether they think that the bill is contrary to their prerogatives and their legitimacy.

In my view, the Government of Quebec could do so in certain cases, but obviously this is a costly proposition and I think that right now it does not expect to re-open the debate on referendum legislation. The federal government has already said that Quebec's referendum and election laws could perhaps also be challenged in the courts. It is a political decision, not a legal one.

• 1610

Mr. Grant Hill: In your view, was the 1995 question free of ambiguity and confusion?

Mr. Guy Lachapelle: Yes, it was free of confusion. It must not be forgotten that the question appeared on the ballot. People voted on a question.

Your question has more to do with what we call strategic voters. How did voters interpret the question generally, or what did they want their vote to convey? I think that is what is most important. How are we to interpret the referendum's final result?

My view is that the question was clear. I would say that, even if the government had approved the Liberal Party motion to add the words “an independent country” to the question, the result of the referendum would not have been different. There was a significant desire for change in Quebec, and I think that the meaning and scope of the question were clear to everyone.

I did not have the time to talk about the referendum over whether or not Great Britain should join the EEC, but in that case, there were questions similar to the one on partnership in Quebec. After comparing many questions, one of my colleagues stated in an opinion that Quebec's question was entirely comparable to other questions.

There is also the case of Australia. That is why I gave you the wording. One can take the entire list of questions and see that, on the whole, the terms used are similar.

Mr. Grant Hill: Mr. Claude Castonguay, who is well known in Quebec, stated clearly before this committee that the question was very confused and very ambiguous. What is your response to this well known Quebecker, who has taken a very strong position?

Mr. Guy Lachapelle: Without wishing to interpret Mr. Castonguay's remarks, I think that what he said can be taken two ways. First of all, did people know what they were voting on in 1995? The answer is yes. As for the question, I share Mr. Castonguay's view, in the sense that next time I would very much like there to be two questions, like those of Australia, one on independence and the other on partnership.

This would not prevent Quebeckers from having this sort of question. As has been done elsewhere, the question could be divided into two parts. But, in my view, there was no ambiguity with respect to the vote, the results of the vote, or how the public interpreted the vote.

As a political scientist, I would say that, as we have seen in all referendums, the question has very little impact on the referendum result. All the empirical research proves this. I do not believe there are any federal data on the last referendum or even on Charlottetown. It will be recalled that the Charlottetown referendum question was also very ambiguous and lengthy. There are also examples of referendums held in the territories, on aboriginal peoples, referendums that took place here in Quebec, that also had very long questions.

The question is not the main thing. What is important in any referendum is the way the debate develops around an election campaign, regardless of the question, and the way the stakes are discussed. It is when the debate is over that a referendum's conclusion can be said to be completely clear.

The Chair: Mr. Turp.

Mr. Daniel Turp: Thank you for coming. I have a comment and a question, as well as a second question on Scotland. You are very familiar with the case of Scotland. I believe you are one of the experts on that situation.

First of all, I would say from your brief and your comments on section 91 that the source of the authority that the government wants to confer on the House of Commons for determining the clarity of a question or a majority is not clear. The claim that this bill is justified by the introductory paragraph in section 91 is certainly not obvious and is debatable. I would like to hear your comments on this point.

I would like to know whether you are able to identify the source of the constitutional authority that the federal parliament is using to pass this bill. Is there anything in the Constitution, in a constitutional agreement or in a principle invoked by the Supreme Court in its opinion on secession that could be construed as authority to pass a bill that we are told will introduce an obligation to negotiate with the federal government? That is my first question.

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This is the first time this has been raised with the committee. But there is undoubtedly a real problem with the constitutionality of this bill because it is very difficult, if not impossible, to identify a source of constitutional authority that would authorize the federal parliament to pass this bill.

Here is my second question. Since you are familiar with the case of Scotland, is it not true that there is a real consensus in the United Kingdom with respect to the applicable percentage, in the event that the Scots wish to become independent, and that it would be 50% plus one?

Mr. Guy Lachapelle: In reply to your first question, and this is what so upset me when I reread the Supreme Court decision, especially following Mr. Justice Antonio Lamer's comments, I would say that there indeed appears to be no legal basis for proposing this sort of bill. There is no agreement with respect to the election laws that would be subject to the approval of the federal parliament and, in the case before us, there is certainly no agreement as to the definition of terms.

That is why I made such a point in my brief of saying that, had the federal government wanted to pass specific legislation England did so by means of a White Paper setting out the entire referendum procedure. This is important. It is not a question of playing around with democracy and discussing party funding, the allocation of resources or air time on television. All this is done when there is a clear majority at the end of the road, a convincing result, and also helps determine that result.

I have examined the issue internationally. There were no specific set procedures for cases of secession. In most cases, the United Nations was simply asked to validate certain procedures and criteria with a view to independence.

In the case of Canada, to reply to your first question, no, there is no specific agreement or legislation, except for section 91, that could still be used, that could validate an exercise such as this one. Once again, in my view, this bill undermines not only the rights of Quebec, but of all Canadian provinces and citizens as well.

As for the second question, during the debate on the White Paper, there was much discussion about majority and about majority in terms of qualitative turnout. England was always sensitive to voter turnout. I would remind you that in the cases of devolution in Scotland and Wales, turnouts were barely 51% and majorities were very slim. In the case of Wales, turnout was barely 50%. So the White Paper's 50% plus one rule was always respected. So, internationally, in comparable democracies, parliamentary democracies, parliaments have adopted the 50% plus one rule.

Why should different legislation be passed here in Canada? That was why I stuck to cases of transition, such as Newfoundland joining Confederation or cases having to do with the Canadian context. I excluded from my brief cases such as the Republic of Czechoslovakia or other cases of successful succession that could have been mentioned.

Mr. Daniel Turp: To be more precise, Mr. Lachapelle, do the British political parties represented in the British House of Commons accept the 50% plus one rule in the event of a referendum on Scotland's independence?

Mr. Guy Lachapelle: The answer is yes. Another important principle is that the House of Commons has always recognized the Scottish nation. Since it recognized that people have the right to self-determination and that all nations have the right to self-determination, the Scots had this inalienable right to vote in a majority of 50% plus one for their independence.

The Chair: Fine. Mr. Blaikie.

[English]

Mr. Bill Blaikie: Mr. Chairman, I would just begin by saying that Scotland didn't have to be recognized by the House of Commons as a nation. It's not called the United Kingdom for nothing. It brought kingdoms together. It was already a nation.

I'd like to pursue the Scottish example for a minute. My colleague wanted to talk more about the majority, which is instructive. Is it not also the case, though, that in the Scottish and Welsh referendums the Government of the U.K., in this case the Westminster Parliament, had a hand in drafting the question? It wasn't left up to the Scottish nationalists to draft the question. Is that not the case?

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Mr. Guy Lachapelle: It's not really the case, because many of the members who were in the House of Commons also discussed that with the members of the Welsh assembly and the future Welsh assembly and other members. I discussed that process with the president of Plaid Cymru, and he was quite involved. His party was involved as well. In other words, if you want to apply the Welsh case to the Quebec case, then the Parti Québécois should be in the House of Commons and discussing that with the federal government. This is how it works.

Mr. Bill Blaikie: It is in the House of Commons in one form or another.

Mr. Guy Lachapelle: No.

Mr. Bill Blaikie: Members of the Westminster Parliament from Scotland and Wales were regarded as legitimate participants in the debate about what the question would be, n'est-ce pas? You just said that as members of the Westminster Parliament, whether they were from Wales or Scotland, they participated in the development of the question.

Mr. Guy Lachapelle: They participated, but—

Mr. Bill Blaikie: They weren't regarded as beyond the pale and outside the process and shouldn't have anything to do with it.

Mr. Guy Lachapelle: Like in Canada, I guess. It's the same process that we have seen so far.

Mr. Bill Blaikie: Thank you. In which case it would seem that federal members of Parliament as well have some role to play in the development.

Mr. Guy Lachapelle: As they played in 1995 and 1980 and in Newfoundland by discussing the quality of the questions. They have to be part of that, and this is their responsibility.

Mr. Bill Blaikie: Thank you.

[Translation]

The Chair: Mr. Bachand.

Mr. Bachand: One point which frequently comes up, Professor Lachapelle, is the divisibility of Quebec's territory with respect to two groups: natives and non-natives. In the case of natives, there is never any talk of partition; partition comes up for non-native groups wishing to remain in Canada. A distinction is made. I would like to hear your comments on this.

While you are on the topic, if you can find links with the Supreme Court opinion, so much the better, but between you and me, the Supreme Court has been extremely silent on the divisibility of territory. I would like your thoughts on this.

Mr. Guy Lachapelle: My reading of the Supreme Court decision is very simple. What it is saying is that, in the event of a vote for independence, both parties, the federal government and the Government of Quebec, should also envisage future links with native communities and minorities in Quebec.

I think that the transition is the responsibility of both the Government of Quebec and of the federal government. I am thinking of one debate in particular, the debate on citizenship. In the case of Quebeckers who wanted to keep their Canadian citizenship, it would perhaps be a good idea if transitional mechanisms were put in place. If there is to be a harmonious transition that respects people's rights, the process must be carried out in the fairest manner possible.

I will anticipate your next question and say that, yes, aboriginals have the right to self-determination. They are nations, and the ten aboriginal nations were so recognized by the Government of Quebec in 1984-1985. Under this principle, all nations have the right to independence. Quebec, as a nation, also has a right to independence. This is an inalienable principle. It flows from what John Rawls and other philosophers call simply the law of peoples. The law of peoples must, and will always, exist.

In the case of non-nations or minority groups, it becomes very difficult to decide how to define minority. My problem with partition is that I do not understand the criteria. I was again rereading the Liberal Party of Canada's Red Book. It talks about including partition legislation, but it talks strictly about partition and not about the criteria.

Criteria for independence and secession are one thing, but criteria such as electoral vote or a referendum vote to divide up territories strike me as completely absurd. Had this idea been applied to Quebec's last referendum, I think half of Quebec would already be independent and half not. This falls within what I call completely false visions of a political reality. Minority will have to be defined. In the case of secession, and for the transitional period, the Supreme Court talks about duly constituted groups. The Government of Quebec and the federal government will have to agree on who can sit at the bargaining table and what the bargaining mechanisms will be. This is not mentioned in either Bill C-20 or in the Supreme court opinion.

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Mr. André Bachand: I spoke with a number of people on the weekend, Mr. Lachapelle, and one of them made several comments. We covered this a bit at the beginning. One of the things this person said was that, if anything, Bill C-20 ought to help the sovereignist movement shed light on the black hole that Mr. Charest spoke about. One of those I spoke with added that this bill went even further, because it was the first time a federal bill recognized the divisibility of a given territory, a province in this case. He said that, although paragraph 3(2) recognized the territorial claims of aboriginal peoples, Quebec's sovereignists should be happy because it is the first time the federal government has undertaken to recognize the divisibility of a recognized geopolitical entity. What do you think?

Mr. Guy Lachapelle: With respect to secession, there is one important principle which applies and which has never been discussed, and that is that secession must neither be encouraged nor provoked. This is a universally respected principle. According to your interpretation, Bill C-20 is an attempt to get Quebeckers to vote for independence. In my opinion, and this is critical, one must first inquire as to the reasons for sovereignty. If Bill C-20 wants to talk about clarity, let us be clear. Let us be clear about the presence or absence of negotiations, about the principles of transition, about how our governments will be reconstituted. Reconstituting governments means that Canadians and Quebeckers will have to rewrite their Constitution. And this principle of reconstituting governments has nothing do with colonization or modernization. The principle of reconstitution applied in the case of the Republic of Czechoslovakia means that nations must rewrite their Constitution. If Canada wishes to undertake to rewrite its Constitution, it will have to spell this out. The important thing is to know what the mechanisms will be.

In response to your question as to whether the bill helps or hurts anyone, I must admit that that is of little concern to me. What I care about is whether the citizens of Canada and of Quebec will be able to continue to work together after independence. This transition continues to be important, and it is the responsibility of political actors to ensure that the transition takes place in a civilized and harmonious manner, without violence. I think that the Supreme Court has been saying this ad nauseam for a very long time now; this is a fundamental principle.

The Chair: Mr. Bonin.

Mr. Raymond Bonin: Thank you, Mr. Chairman.

Mr. Lachapelle, in your presentation, you referred to the Baltic nations and said that Bill C-20 is reminiscent of what the Soviet Union put in place to prevent the Baltic nations from separating. But I have facts that you did not mention with respect to what happened in those countries.

In Estonia, the question was: “Do you want the sovereignty and independence of the Republic of Estonia restored?” Seventy-eight per cent voted in favour. In Latvia, the question was: “Do you want Latvia to become a democratic, independent republic?” That was clear and 75% voted in favour. And in Lithuania, the question was: “Are you in favour of an independent and democratic Republic of Lithuania?” Ninety-three per cent were.

I think that the facts are important in this regard. Mr. Lucien Bouchard described the partnership project as a skeleton. Mario Dumont, one of the three people who signed the June 12, 1995 agreement, said in January that he had never been a sovereignist. He did not say that he was no longer a sovereignist. He said that he had never been one.

Do you think that a question on partnership is possible, with a partnership that is nothing more than a skeleton and a sovereignist leader who has never been a sovereignist?

Mr. Guy Lachapelle: Regarding the Baltic states, which you mentioned, it is clear, in my opinion—and the jurisprudence is there to prove it—that the majority requirement was 50% plus one.

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The question here is to determine if 50% plus one is enough to allow a provincial government to legitimately secede. In the case of the Baltic states, the answer was yes, 50% plus one constituted a clear majority under the Soviet laws of the day. That is something that has to be mentioned.

Mr. Raymond Bonin: Do you mean 50% plus one of those who have the right to vote?

Mr. Guy Lachapelle: Yes, of those who have the right to vote. You also need to mention that—

Mr. Raymond Bonin: It has to be said.

Mr. Guy Lachapelle: You need to mention that Mr. Gorbachev also held a referendum on renewed federalism. His referendum act, which was a federal act, gave each region the authority to amend the referendum question. Nobody ever mentions that. In Canada, the question would have been amended by each province.

In applying this model, the federal government could dictate a question in a bill such as the one before us, for example, and each province could use another question. There is a precedent in the Gorbachev case. He even changed the majority requirement, as I was saying, to two thirds. So we must be clear.

As for what Mr. Bouchard and Mr. Dumont said, they can be quoted extensively. My point of view has never changed: a partnership between Quebec and Canada is desirable, whatever the status may be. Some will say that we already have a partnership, and I will tell them that this kind of partnership is not viable, as demonstrated by the Meech Lake Accord and the Charlottetown Accord.

Therefore, the only thing left to do is to create a new partnership. This can be done after or before independence is achieved, whatever you prefer, but it is important to remember that the partnership proposed in the 1995 referendum was a formal offer made in good faith to Canadians by Quebeckers to arrive at a new way of sharing and managing responsibilities.

I would like to remind you that, under the Quebec law, negotiations to achieve that partnership were supposed to last a year. Both parties had one year to reach an agreement. There are other examples: the unification of East and West Germany took a year. I think that, sooner or later, we will have to state the facts and avoid slipping into cliches resulting from a lack of knowledge of the political reality of each of the states that have been mentioned so far.

The Chair: Mr. Patry, you have the floor.

Mr. Bernard Patry: Welcome, Mr. Lachapelle.

I would like to clarify a few things and ask you a simple question. You talked about Scotland. I would like to emphasize that, under the British law, the Scottish Parliament does not have the right to hold a referendum on separation. London has that power. You did not say that in your presentation, and people say we are like the Soviets.

In response to a question on a clear majority, one of the leaders of the Scottish separatist party, Mr. Paul Scott, member of the SNP, the party which has been the official opposition in Edinburgh since last spring, said: “Yes, we want a result that is absolutely clear”.

The next question was: “What would be the required threshold, in your opinion?”

Mr. Scott answered:

It depends on the situation. If the campaign was somewhat difficult, if many people were opposed, if the result is somewhat doubtful, then it must be recognized that it is not absolutely clear.

That was my comment.

You told us, in one of your conclusions, that a future referendum should be held under the auspices of the United Nations. Does it mean that, in Quebec, regardless of our political stripes, we cannot hold a referendum ourselves?

Mr. Guy Lachapelle: What it means in practical terms is that the state of politics in Canada at this moment—and Bill C-20 confirms that—does not open the door to an agreement between the federal government and the Quebec government on a future referendum question. Let us be realistic and responsible. As a political scientist, I can tell you that, in this kind of situation, it is the only option that is valid.

In fact, this option was proposed to us by our colleague Alan Cairns, from the University of Vancouver, who has already talked about the possibility that, sooner or later, a committee made up of independent experts would have to be established to judge the quality of the question and determine the required majority because these issues cannot be left to parliaments when there is no agreement.

I have been here for 13 hours and I see you agree with me that there is hardly cohesion and agreement on principles and things that seem clear. I repeat that the objective is not to encourage or discourage secession. The important thing, in a democratic process, is to ensure that the process itself respects the rights of the people to have quality information and to ensure that all issues are on the table.

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In my opinion, neither the Parliament of Canada nor the Quebec National Assembly have full authority to determine the required qualities, criteria or principles for setting the rules that will guide the next referendum in Quebec.

The Chair: Mr. Turp, you have the floor.

Mr. Daniel Turp: Thank you, Mr. Chairman. You want me to be brief, and brief I will be.

I would like to make a short comment with regard to the answer you gave Mr. Blaikie on the referendum held in Scotland on devolution. You will recall that, at the time, there was no Scottish Parliament and no Welsh National Assembly as there is now. Therefore, the rules of the game are different and the context is totally different now that there are Scottish members and Welsh members sitting in the House of Commons in Westminster, and not only Welsh-Scottish representatives.

I do not know if you saw that also, but in doing research on Scotland, I found something very interesting from a British member of the Labour Party, who said this about Scotland achieving independence, and I quote:

[English]

The legitimate way for the SNP to separate Scotland from England would be to win a Westminster general election.

[Translation]

Had this rule applied here, Quebec's sovereignty could have been achieved because the Bloc has managed to have a majority of members elected to the House of Commons twice in a row. So the Scots are evolving, and so are the British. It seems the British are willing to accept the 50%-plus-one rule. In your opinion, why are they not willing to do the same on that side of the House? You are a political scientist. You follow the debates. Give us your opinion.

Mr. Guy Lachapelle: Perhaps it is not so surprising when one looks at history. That is why I went as far back as Newfoundland. Even then, the 50%-plus-one rule was not accepted. Historically, the federal government has never accepted a 50%-plus-one majority as a rule before a referendum. That issue was at the heart of the debate in 1995 as well as in 1980. The question was to determine whether 50% plus one constituted a valid majority.

However, once the result was known, it was accepted. There seems to be a double standard. If you want to establish criteria, do it clearly to avoid any confusion. I am asking you this out of respect for your fellow countrymen and your constituents, who fully understand what is at stake in a referendum and who want to make an informed decision on this issue when they vote, regardless of the situation.

You could also have a Danish-style ballot, with nothing else but yes or no, without any question. That was the case in Denmark in the referendum on its integration to the EEC. The whole debate took place during the referendum campaign. If that is the example you want to follow, fine. There would be no question on the ballot. Can it be any clearer than that?

Beyond partisan considerations, one must know that a referendum is not a futile exercise, that it cannot be taken lightly. In this sense, my proposals and my recommendations still apply because I think this responsibility belongs to all the nations and the peoples that must judge the process. If I were Canadian, I would sometimes be ashamed of the way the debate has taken place over the last few years. Let us look at the way things were done in England, for the integration to the EEC, for example. I think we should review our criteria as a society when it comes to defending the interests of the people.

Mr. Daniel Turp: Thank you.

[English]

The Chair: Mr. Cotler, a single question.

[Translation]

Mr. Irwin Cotler: Mr. Lachapelle, you say this bill denies the powers of the Quebec National Assembly.

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I agree with you that it is the National Assembly's prerogative to formulate and to chose the referendum question. The National Assembly's prerogatives must be fully respected. However, the referendum question must also respect the requirement for clarity set out by the Supreme Court; it must be a clear question on secession.

In summary, constitutional rights bring constitutional responsibilities. In my opinion, that is the difference with regard to our referendum process on which this bill is based. You talked about the Supreme Court opinion and gave us examples from other countries.

First, the bill before us is inspired by the Supreme Court's opinion.

Second, the opinion of the Supreme Court of Canada took into account Canada's referendum history. That is another difference from referendum processes in other countries.

[English]

This is to answer Mr. Turp's question: where does the federal government get its authority to legislate on this matter? It gets its authority, among other things, from two principal sources. First, this bill is a domestic implementation of the principle of the Supreme Court of Canada. But even leaving aside the question of whether there was a judgment of the Supreme Court of Canada, when you are speaking about the dismemberment of the country....

You referred to international matters. This is not only a matter of national concern. This, as the entire history of international law has shown, is a matter of international concern. Certainly at a minimum there is federal jurisdiction in matters of national, let alone international, concern.

I'd like you to respond to that.

[Translation]

Mr. Guy Lachapelle: In response to your first question, I do not think Bill C-20 reflects the Supreme Court's opinion. This is exactly what I have tried to demonstrate in my presentation. The Supreme Court raised many elements which, unfortunately, I did not have time to discuss, including with regard to partnership and negotiation.

It is false to say, as the bill does, that a question on partnership could not be allowed. There is absolutely nothing in the Supreme Court's opinion to indicate that a government would not have the right to ask a question on partnership, which does not mean that there should not be a question on independence. That is a different issue.

The Supreme Court's opinion must not be interpreted. As Mr. Justice Lamer so rightly said, the Supreme Court issued an opinion. As a political scientist, I can tell you that this is a political debate, not a legal one. Therefore, the criteria should be political and not simply based on the Supreme Court's opinion. You can invoke the Supreme Court's opinion or you can hide behind the Supreme Court, but there are fundamental principles that cannot be set aside because of the Supreme Court, including freedom of expression.

I agree with you from an international standpoint. That is why I am asking that an international committee of experts be established. Maybe the President of the United States should examine and monitor the international rules of transition himself, since it would be in his own interest. Gary Becker, Nobel prize-winning economist, said that it would be possible for Quebec to make the transition over a five-year period. Even George Bush said that it would take the Baltic states five years to make the transition.

Criteria have already been established at the international level which would ensure this secession will occur in a respectful way. President Bush forced Mr. Gorbachev to recognize that the transition had to be done peacefully and with the utmost respect for the rights of the people.

This principle should be included in Bill C-20. Why is it not there? It seems to me that the Supreme Court was saying the same thing. If it is a basic principle supported by everyone, why not simply include it in the bill? It is a matter of interpretation.

I think the debate should go way beyond Bill C-20 because what you are doing and what you intend to do concerns democracy as a whole, and not only Quebec or even Canada. This bill violates basic principles, and I believe it goes against the rules of political ethics we have obeyed so far.

The Chair: Thank you very much, Mr. Lachapelle. It was a pleasure to have you here this afternoon. I am sure your opinions were very useful to the members of the committee. Thank you.

Mr. Guy Lachapelle: I sincerely hope so. Thank you, Mr. Chairman.

The Chair: Our next witness is Mr. Claude Ryan. I invite him to come to the table to make his presentation.

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Mr. Ryan, I am pleased to welcome you to the committee this afternoon. I want to thank you for your help.

I will give you 10 minutes for your presentation, and then there will be a 35-minute question period. I welcome you and give you the floor.

Mr. Claude Ryan (Individual Presentation): First of all, I want to thank you, Mr. Chairman, for your hospitality and assure you that my only goal in coming here is to be useful to the cause of well-understood Canadian unity.

For those who may not know me, I am a federalist from Quebec. I think I have always attached the utmost importance to the defence and promotion of Quebec's interests, the success of Canadian federalism and respect for democratic principles. The reason I am before you today is because Bill C-20 concerns me with regard to those three elements.

From the outset, I must recognize that preserving unity is a major responsibility of the central power in any federal system of government. If I express some criticism regarding Bill C-20, it is not because I deny the federal government any responsibility with regard to the possible secession of Quebec, but rather because the bill is generally based on an attitude of distrust and fear which, in my opinion, does not reflect the best the Canadian spirit has to offer. In the bill, this attitude results in certain proposals that are highly questionable in light of the federal principle and the democratic principle and that could poison the relationship between Canada and a large number of Quebeckers.

As for the requirement for clarity in the referendum question, clause 1 of the bill seems to go against the federal principle. Under our system, each level of government is deemed sovereign within its own jurisdiction. Generally it means that each level of government, as long as it acts within its own jurisdiction, can be free from interference from the other level of government.

In the third “whereas” of the bill, the federal government, in accordance with this principle, recognizes that “the government of Canada is entitled to consult its population by referendum on any issue and is entitled to formulate the wording of its referendum question”. However, it contradicts this statement by including in the bill a clause giving the Parliament of Canada the power to interfere directly in the referendum process at a stage where, according to the federal government itself, that process is under the National Assembly's jurisdiction.

If the National Assembly has the right to consult its population on a proposal to secede, it must be able to do so free from any constraint or interference from another parliament. The authority to determine the clarity of the question that would be given to the Parliament of Canada would mean it would obviously interfere with an ongoing referendum campaign. Such interference would be all the more improper as it might result, even before the vote took place, even before the people had their say, in a formal order from Parliament to the federal government not to enter into any negotiations on the result of a possible referendum, no matter what the result might be.

The bill sets several criteria, two of which should guide Parliament when determining the clarity of the question. 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.

From the standpoint of democratic principles, there is another major problem with clause 1. It could very well be in fact that a House of Commons' resolution stating that the question is not clear enough was approved by a majority of members from outside Quebec, whereas a majority of members from Quebec would hold the opposite point of view. Thus, even before the referendum, the federal government would be prohibited by a majority of members from outside Quebec to enter into any negotiations whatsoever with the Quebec government the day after a yes vote in a referendum on sovereignty. Indefensible in terms of democratic principles, the situation thus created might be untenable in political terms. It might even push Quebec public opinion in a direction opposite to the one the federal government or Parliament had intended.

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Still in political terms, it would be unrealistic and dangerous for the federal government to have its hands tied by a resolution from Parliament as to what course of action to follow the day after a yes vote in a referendum on secession. Indeed, no one can predict with any certainty what kind of situation would prevail at the time. Instead of having its hands tied by constraints defined in a totally different context, the federal government should have enough flexibility to set the proper course of action in such a situation.

In addition, clause 2 opens the door to a denial of democracy. It gives Parliament the authority to determine, the day after a yes vote in a referendum on sovereignty, the validity of the result, and I see nothing wrong with that. However, the bill goes on to state that Parliament shall take into account the size of the majority of valid votes cast, the percentage of eligible voters voting in the referendum, and any other matters or circumstances it considers to be relevant.

The first criterion is self-evident. However, the other two might allow Parliament to interpret the result in a manner that might negate or weaken the scope of a majority result in favour of secession. Without saying so explicitly in the bill, the federal government maintains, as we all know, that a majority of 50%-plus-one in favour of secession would not be sufficient for it to find the result acceptable. This position per se is not unreasonable. Indeed, there are in Canada many exceptions to the rule of the arithmetical equality of the vote which are not considered a breach of democratic principles. For instance, currently the Party Québecois holds the absolute majority of seats in the National Assembly, but it only got 43% of the votes in the 1998 elections. The division of the electoral map results too in many distortions with regard to the rule of the arithmetical equality of the vote. The fact that such distortion does not create any major rift is due to the existence of a consensus among the population and the major players to the effect that the practical benefits found in our system of representation, however imperfect it might be, far outweigh the contradictions it creates.

In this case, we are dealing with a referendum, not an election. If my memory serves me right, the 50%-plus-one-rule has always been applied to the result of any referendum held until now. In view of what I have just said, one might rightly argue that it should be changed in the case of a referendum on secession. However, the Parliament of Canada would be ill-advised to try to unilaterally impose its point of view on this matter before a referendum. As long as it is acting within its own jurisdiction, it is up to the Quebec National Assembly to make such a decision. If one wants to change this particular rule, action should be taken at this level, either through negotiation, or through pressure on the public opinion. It would be just as ill-advised for Parliament and the federal government to take it upon themselves to change this voting rule unilaterally after a referendum. If it is reluctant to do it before, it certainly should not do it after, for obvious reasons: there would be two different sets of rules, at two different stages of the game, which would be a total contradiction in itself. This is precisely what this bill intimates.

In conclusion, I wish that any provision that could lead to the unwarranted interference of the Parliament of Canada in the referendum process, and the unilateral imposition of a new rule to interpret the referendum result, be removed from the bill. However, I would find it quite appropriate for Parliament to demand of the federal government, by law if it so desires, that, in the event of a yes vote in a referendum on sovereignty, it promptly convenes a meeting of Members of Parliament, provincial and territorial premiers and aboriginal leaders to consider the proper course of action.

• 1655

Finally, I humbly submit that rather than multiplying confrontations which drive the parties further apart instead of bringing them closer, and which help create a distorted image of democracy in Quebec, it would be more constructive for the federal government and Parliament to take advantage of the relative lull we are currently enjoying to put the renewal of Canadian federalism back on the agenda in keeping with the many requests by Quebec and the other partners in the federation. Thank you.

The Chair: Thank you very much. We will now go to question period.

Mr. Hill.

Mr. Grant Hill: Thank you, Mr. Ryan, for your testimony. In your opinion, is plan A better than plan B?

Some hon. members: Ah, ah!

Mr. Grant Hill: Plan A could be debated for years, whereas plan B could prove difficult to implement.

In your opinion, was the 1995 Quebec referendum question clear, free of ambiguity or confusion?

Mr. Claude Ryan: It was not clear. If you are asking for my opinion, I would tell you it was not clear.

Mr. Grant Hill: Say it again.

Mr. Claude Ryan: I beg your pardon?

Mr. Grant Hill: I asked the question twice.

An hon. member: He said it was not clear.

Mr. Grant Hill: It is not clear.

Mr. Claude Ryan: In the same question, the population was asked to say yes to four different things.

Mr. Grant Hill: In your opinion, which would be the best way to make sure the question is clear?

Mr. Claude Ryan: The best way is the parliamentary one in keeping with the principles of our federal system of government. This means that the opposition, the various sectors of the civil society and the political forces must have their say on the question. It is up to the National Assembly to make the decision, and once it is made, it must be carried out without any interference.

However, in the event of a yes vote to a question that was not clear enough and that was arbitrarily approved by the government, the federal government would be faced with a situation where it would have to ask Parliament to decide. Nothing prevents the political players, either in Quebec or in the rest of Canada, from speaking out at any point.

Federal political players were fully involved in both referendum campaigns I took part in. The Prime Minister of Canada was involved in both campaigns, and rightly so.

Under a federal system, Parliament cannot do just anything to thwart a provincial legislative assembly's action so long as it is acting within its own jurisdiction. The usual recourse for Parliament is to go before the courts once an act has been passed. In the case of a referendum, it must not do so until the population has had its say. In my mind, there is here a fundamental contradiction which threatens the very principle of federalism.

Mr. Grant Hill: Canadians outside Quebec want the question to be absolutely clear. Why is it so difficult for Quebeckers to understand?

Mr. Claude Ryan: I would not like to embark into a political psychology course. I did not come here to do that. At issue here is whether or not the National Assembly has the right to ask a question it deems appropriate. We could debate elsewhere any issue you might want to raise, and I would have no problem with it, but I do not believe that in a couple of minutes I can explain the position of the Parti Quebecois government, which I have never been part of in any case.

Personally I have always been and still am opposed to a two, three or four part question. The channel to put my point across on the federal system to which we belong is the one I mentioned previously. I believe you should give it some serious thought.

• 1700

Mr. Grant Hill: Do you have a clear question to ask Quebeckers?

Mr. Claude Ryan: I will tell you one thing: I will not do it here. I will not give advice to the Quebec government through the Parliament in Ottawa. I have a piece of information that might be of interest to you. I did a fairly complete study for the C.D. Howe Institute on how to act on the Supreme Court opinion: how to look at the situation from now on. I believe Mr. Monahan, who is to testify after me, also wrote one. Luckily for him, his was published before mine, but it does not matter, this is the luck of the draw. I spoke about the Quebec government, the responsibilities of every political actor, including Quebec's. It is there that I will answer this question, not here, for reasons you will easily understand.

Mr. Daniel Turp: Mr. Ryan, I welcome you on behalf of my Bloc Québecois colleagues.

Here, in the House of Commons, we disagree on the merits of the thing, but we have a lot of respect for you as a political figure, for the interesting debates, the substantial debates we have with someone who respects sovereignists. We have always appreciated this in you. I hope our colleagues who agree with this bill will find that the arguments presented by the Bloc Québecois are not only its arguments. In his brief, Mr. Ryan repeatedly stated a number of objections we have raised ourselves. We are sovereignists. Democracy is dear to our hearts, and we believe that this kind of right of disallowance, this unreasonable bill, as Mr. Ryan puts it sometimes, does not deserve to be on the Parliament's agenda. This is the subject of my first question, Mr. Ryan. You said that a number of provisions should be removed. I understand there are several of them. Do you believe that this bill is justified? Should there be a bill on this issue?

Mr. Claude Ryan: There are a lot of arguments to be considered. Personally, I do not believe this bill is necessary at this point because there is not enough substance to put in it that would respect the constitutional principles I believe to be fundamental. However, if it were a bill through which Parliament were to obtain the guarantee that, the day after a yes vote in a referendum on secession, the government had to convene without delay, and also convene a meeting of premiers to look at the situation and decide on a course of action, I would have no objection. I believe it would be totally understandable and justifiable.

Mr. Daniel Turp: So, if I understand, you do not believe a bill is necessary, or even useful, before such an event does occur.

Mr. Claude Ryan: No, you did not understand.

Mr. Daniel Turp: All right.

Mr. Claude Ryan: Should Parliament find it advisable—it is its inalienable prerogative, which I totally respect—to pass a bill telling the federal government: in the event of such a result, you are ordered to convene Parliament immediately before taking any action, I would have no objection. It would not hurt to have it in writing somewhere.

Mr. Daniel Turp: But this is not the case. This is not the purpose of the bill before us now.

Mr. Claude Ryan: Yes, under clause 2, there is something to that effect. It says that, the day after a yes vote, Parliament should be convened to look at the result. Parts of this clause could be kept.

Mr. Daniel Turp: Fine. Regarding the question, you said, in a different forum, that to approve a question the National Assembly should reach a consensus or hold a qualified majority vote. As a matter of fact, answering a question I had put to him and that had to do with you, the minister reminded me of this the day after you gave your interview. Should the bill be debated or passed, do you believe resolutions on the clarity of the question or the majority should be approved by a qualified majority of the House of Commons?

Mr. Claude Ryan: Do you mean the House of Commons or the National Assembly?

• 1705

Mr. Daniel Turp: Well, in the House of Commons. For instance, the current bill says the House of Commons must determine whether or not the question is clear and whether or not the majority is clear. Should this be determined by a qualified majority of members? You are suggesting that, in the National Assembly, a qualified majority of members should decide whether the question is clear or not.

Mr. Claude Ryan: Regarding the first part of your question, the vote by the National Assembly, I had theorized that we could consider a two-third majority, but I changed my mind since. It was only an hypothesis, never a proposal.

Out of respect for the majority principle, I would indeed like to have such a guarantee, but I believe it goes too far. A two third majority rule does not apply to this exercise as it would to appointments to the Human Rights Commission, or to the appointment of the Auditor General or the Chief Electoral Officer. These are very specific actions which are supposed to be above partisan politics. A referendum plunges us into the parties' fundamental options, and I am not willing to give the opposition a veto on the question. I believe it would be a failure to respect minorities, to be frank with you.

Another reason for my changing my mind was the strong possibility of a party such as the Parti Quebecois, for example, winning two thirds of the votes in the National Assembly. It could then sail along unhindered. I am not prepared to agree to that either.

Mr. Daniel Turp: Thank you very much.

[English]

The Chair: Mr. Blaikie.

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

It's a great honour and opportunity to question somebody with the stature of Mr. Ryan. I'm very pleased to be able to do so.

I'd like you to help us a bit with some of the things that went on in past referendums, because there seem to be a number of competing claims. I start by saying my memory of 1980 and 1995 is that by and large 50% plus one was regarded as what would constitute a winning number. People were relieved when the yes vote didn't get 50% plus one, because it certainly was a situation in which that would have been regarded as a win. What would have come of it is another matter, but that was the goalpost, if you like.

Yet I've heard a number of government members, Liberals, say on a number of occasions now that 50% plus one was never accepted, that Mr. Trudeau said in 1980, “You can knock on the door of sovereignty, but there may be no one on the other side.” This was said this morning by a witness. And on a number of occasions, I've heard people on the government side—presumably in defence of the clarity bill and the implication, because it's not explicit that 50% plus one would not be enough—suggest that in the referendums of 1980 and 1995, 50% plus one was not one of the rules of the game.

I just wondered if you would want to comment on that, because it's an important thing. If it wasn't, then we're not moving the goalpost, or the government is not trying to move the goalpost. But if it was, then they are moving the goalpost.

Mr. Claude Ryan: In the 1980 referendum, if my recollection is right, Mr. Trudeau and the federal political actors never raised the question of the majority rule. It was generally accepted. What Mr. Trudeau had objected to was the sovereignty option proposal. He said “It's so ambiguous that I would not negotiate that.” He said that during the campaign. But he never challenged the majority rule.

In the 1995 referendum it was somewhat different. On a couple of occasions, Mr. Chrétien raised doubts about the validity of the simple majority rule. It never went beyond that. There was never any discussion between the actors on the no side of this question. And I can assure you that on the part of the Quebec Liberal Party, not the slightest question was raised about whether this was the rule to be followed or not. It was the rule.

Mr. Bill Blaikie: At one point you talked about the need to be doing something other than the clarity bill—basically the need to be renewing federalism instead of anticipating, in effect, the failure of federalism. I certainly agree with you. I certainly agree that I would much rather I was on a plan A committee as opposed to a plan B committee.

• 1710

But in the overall political circumstances—and I hate to say this—I wonder whether there's any reason to hope, at least in the short term to intermediate future, for a genuine plan A, that is to say a plan A that would go beyond administrative reform to actually some symbolic, constitutional, and substantive recognition of Quebec's distinctiveness within the Confederation. This has been tried. It has failed a couple of times.

Are we not in a position, given the current lay of the land politically, where the parties most likely to embrace a plan A that would do what I just described are the parties that are the weakest, federally speaking, and where the parties that are the least likely to come up with that kind of plan A are the strongest and competing with each other for government? So in the short term, the idea of renewing federalism in a way that is like anything we've talked about in the past, when we've talked about it, is just not in the cards.

Mr. Claude Ryan: If you'll allow me, I'd like to start with a remark about the present situation, the situation deriving from the opinion expressed by the Supreme Court.

This opinion considerably reinforced the position of the federal government, because it interpreted the Constitution as meaning Quebec cannot separate legally from Canada unless it is done through the amending procedures provided for in the Constitution. That's tantamount to a modification of the Constitution. Quebec will have to put up a very difficult battle in order to surmount that considerable obstacle. But it is there.

So they won a considerable victory from that strictly legal point of view, and to try to reinforce that with this kind of legislation is really excessive, in my opinion. I must express this in as clear terms as I'm capable of.

As regards the second part of your intervention, I recognize that there are difficulties in really undertaking serious renewal of federalism at the moment, especially if you think about the constitutional aspects, which the Quebec government has clearly stated it does not want to discuss. This does not excuse the federal government for not coming forward with proposals, concrete proposals, because they're not addressing only the Government of Quebec; there is the population of Quebec there.

We all know—all polls attest to this, and they've been attesting to this for the past fifteen years—that the will of the majority of the people of Quebec, over 60%, is for genuinely renewed federalism. And it's because nothing was coming, or it was so little and so meanly distributed, that a lot of them were attracted by the other proposition in the last referendum.

My contention has always been, do come forward with progressive, creative ideas in order to improve things, trying to take into account what has been emanating from Quebec for, I would say, three or four decades now.

To your difficulty, I would answer this. If a party that is weak wants to become stronger, let them adopt, to start with, some ideas that appear to be unpopular. Let it fight for them with courage and determination, as your party did a lot of times in the past few years, and it will at least exercise influence, if not necessarily power.

[Translation]

The Chair: Mr. Bachand

Mr. André Bachand: Mr. Ryan, thank you very much for coming on such short notice.

One of the problems for those questioning various aspects of Bill C-20 arises outside Quebec in what is commonly called the rest of Canada, although I do not like the expression. The bill gives a sense of security, some comfort, to many Canadians outside Quebec, who have not read it and have not had us explain it to them, since the government has decided we would not travel.

• 1715

In your opinion, what message can we give to the people in the rest of the country? Many think the bill resolves the whole problem, that virtue in inscribed in its provisions and that everything is under control.

Mr. Claude Ryan: I will say two very simple things. First, trust in Quebec democracy. I am pleased to be able to say here that democracy in Quebec, in my view, is more advanced than democracy in any other province in Canada. We are the only province in Canada to pass legislation to monitor the spending and incomes of political parties, legislation that is applied very broadly, in addition. It provides a very strong guarantee of democracy. Look at what is happening at the moment in the countries in Europe that do not have measures or that have laws they have failed to observe. The result is scandal and impropriety. We do not have this in Quebec. Ours is proper democracy, in the end.

Second, your question embarrasses me because I have said this perhaps 200 times in my public career. So long as we do not get to the bottom of things and so long as frank discussions are not held with Quebec where it stands, misunderstandings will remain and things will always be done improperly.

The latest example is the case of the social union. It was all very fine, and everyone supported it. But at one point, you look very closely at it and you realize why Quebec could not sign on. I do not think a Liberal government would even have agreed to social union the way it is defined. So, let us sit down and establish that, if we want a country that works with Quebec, Quebec must be included in decisions and not left out of them. We have left it out on a number of occasions in recent years.

Mr. André Bachand: I have two final questions, Mr. Chairman.

In 1980, you had the opportunity to serve as chair of the No committee. I do not know whether it was an opportunity, but you did very commendable work. If this were 1980, the government had introduced Bill C-20 at this point in the year and a referendum were set for May, how would you react to it as the chair of the No committee?

Mr. Claude Ryan: I will tell you quite honestly...

Mr. André Bachand: This is hypothetical, Mr. Ryan, and I recognize it.

Mr. Claude Ryan: Yes, yes. I will tell you quite honestly that there would be disagreement in my caucus. Half would call for submission to the federal bill and the other half would call for the defence of Quebec. If I were the leader, I would say that Quebec comes first in this case.

Mr. André Bachand: Thank you, Mr. Ryan.

The Chair: Mr. Patry.

Mr. Bernard Patry: Thank you, Mr. Ryan for coming. You are no doubt one of the well informed speakers on this matter.

I would like to go back to the 1980 and 1995 referendums. In 1980 and 1995, the Quebec National Assembly proposed a question and both times the question was approved by the National Assembly, but not unanimously.

On September 30, 1995, the referendum question was passed without amendment by a vote of 75 to 44, with one abstention.

We must remember that that the official opposition of the time had proposed an amendment to add two words in the French "un pays" following the word "devienne". So the question would have read at the start in French "Acceptez-vous que le Québec devienne un pays souverain". This amendment was rejected by a vote of 74 to 44.

It may be readily concluded therefore that the Government of Quebec imposed its question without regard to the opposition, whose amendment made the question clearer.

In the case of a future referendum, if the official opposition in Quebec City once again votes against the question and has its amendments rejected and if the Prime Minister of Canada makes it known that he too does not consider the question clear, what will happen if the Yes side wins with a small majority? What will happen if the federal government refuses to negotiate afterward? Are you not running the risk that the people will feel wronged by the federal government, since it is not in the interest of everyone to know in advance what the federal government and the official opposition at the National Assembly think, as Bill C-20 provides?

Mr. Claude Ryan: These are matters of political assessment, are they not?

Mr. Bernard Patry: Yes.

Mr. Claude Ryan: We are looking at political assessment issues. Suppose your fears are justified, and they may well be, does this permit the federal Parliament to legislate at a stage that comes under the jurisdiction of the National Assembly? That is the question. And I say no, definitely.

• 1720

It may intervene once the result is known. The federal players intervened in the campaign. When the question was adopted in 1980, the electors were told the question was not clear and that they were having a Quebec pulled over them—if you will pardon the expression. There was nothing they did not say. You already know, you were with us in the campaign at the time. We won and that settled the problem.

The second time, circumstances were different. The No side still won. I believe we have to trust in democracy. Let us do what I recommended earlier. Let us make these improvements. Some have already been made, and I recognize that. We can go further. We will go into battle and we will win. However, if we take measures such as those, we are likely to end up with the opposite effect. People will say were are imposing it on them. You know how Quebeckers are. Remember Mutt and Jeff; when Jeff wanted to push too hard, Mutt would say: enough, he needs a little lesson. We in politics know that, because we sometimes get sent packing when we least expect it.

The bill may very well have the opposite effect and, to my way of thinking, this would be most regrettable. I caution prudence and political wisdom: we have fought battles, we have preserved the country up to now, and we can still do so, but not with such measures.

So, in Canada, the bill is helping to tarnish the image of democracy in Quebec. This is most unfortunate, because the reality is quite the opposite.

Mr. Bernard Patry: Mr. Ryan, you answered a question from my colleague in the Bloc Québecois on qualified majority. What constitutes in your opinion a clear majority in the National Assembly? Can you give us a figure for a clear majority to a clear question?

Mr. Claude Ryan: Do you mean in the National Assembly?

Mr. Bernard Patry: Yes.

Mr. Claude Ryan: In the National Assembly, it is a majority of the members, as in Parliament here. I know no other rules, except in very specific instances such as those I mentioned: the appointment of the chief electoral officer; the appointment of the auditor general and the appointment of the members of the human rights commission. I think these three are the most obvious cases. For the rest, I think it is always a simple majority.

As far as the referendum is concerned, I would be prepared to argue that the National Assembly should consider whether the choice of a majority of registered voters would not give the public a greater guarantee of security. This would not infringe anyone's rights. It would mean, according to the calculations of the political scientists, 52 per cent, 53 per cent or 54 per cent. That in itself is a guarantee of greater clarity.

I do not know whether the Parti Quebecois would be prepared to agree to that, but I am prepared to publicly support this as a measure of prudence that would help weight the exercise a bit. We have to be aware of how the politicians in the two camps do their calculations at times—and I am not criticizing one or the other—: they are close and self-serving, often based on each party's immediate interests. In this case, if the players agree, a rule that is a little more rigorous would not be undemocratic, and the people would be very happy.

Mr. Bernard Patry: Thank you.

The Chair: We will continue with Mr. Turp.

Mr. Daniel Turp: Indeed, Mr. Ryan, I in fact have a question for you on the registered voters majority. If it can be debated—I know that “politicist” colleagues, Louis Massicotte and others have tried to propose this rule—, you are well aware that, had it been applied in the 1995 referendum, neither of the two options would have obtained over 50 per cent plus one.

We did the calculations. We were rather interested in knowing what the results would be for the 1995 referendum. So, with abstentions and so on taken into account, neither option would have had over 50 per cent plus one.

The basic objection to a rule like this, in the end, is that those who abstain, those who do not vote, count in a process in which democracy gives the freedom to vote or not. There are objections to such a rule. Perhaps it is time to change how we look at this rule too.

Mr. Claude Ryan: Obviously, we can change the way we look at certain things. However, the arguments you are putting forward fail to convince me. A lot of people are not going to go and vote on the day of the referendum or on the Sunday preceding it, for real reasons: they are sick, they have a hard time getting about. When a person has to look after their children or their parents, family circumstances sometimes prevent them from getting about easily. These people are not necessarily disinterested or politically apathetic. I would argue for having them counted in such an important occasion, because they will have to live with the consequences too.

• 1725

A vote of 49 per cent against 48 per cent in a referendum, for example, would mean the status quo would continue. That is clear. There is no problem with that. There is no need for 50.1 per cent. What is needed is a clear majority in favour of the change.

Mr. Daniel Turp: On the subject of a clear majority, the implication is that, by using the word “clarity”, the Supreme Court rejected the rule of 50 per cent plus one or 50 per cent plus one of the registered voters. Is that your understanding of the Supreme Court opinion?

Mr. Claude Ryan: There is a whereas in the bill—I think it is the fifth one—that is incorrectly formulated. It reads:

Whereas the Supreme Court of Canada has stated that democracy means more than simple majority rule—

This is wrong. The Supreme Court never said this in its opinion. It said that a legitimate political decision on such a radical constitutional change required the harmonious application of the four principles it cited. The principle of democracy cannot be applied to the exclusion of the constitutional principle, the principle of federalism and the principle of respect for minority rights. It never said that democracy meant more than majority rule. Had it done so, I would have been the first to protest.

I think this whereas is formulated incorrectly and does not reflect what the Supreme Court really said. I put that to the government members and I will say that I have discussed it with the experts. But I did not expect the question to be put here.

Mr. Daniel Turp: Thank you Mr. Ryan.

The Chair: Mr. Drouin, you have the floor.

Mr. Claude Drouin: It is my turn, Mr. Ryan, to welcome you and thank you for coming here to testify.

In a letter you wrote to La Presse in 1997, you said:

On the one hand, Parliament and the Government of Canada have the indisputable right to maintain the unity of the country.

You went on to say, very appropriately:

[...] the federal government will feel obliged—as it did in 1980 and 1995 without it being properly noted—to refuse to agree ahead of time to recognize the result obtained with an ambiguous question.

This morning, Ms. Lajoie, a professor in the faculty of law at the University of Montreal, said that there were four different interpretations for the 1995 question. You referred to this yourself when you said there were four questions in one. If the 1995 result had been the opposite and a majority had answered yes to the question, would Quebeckers have been given the mandate to negotiate with the Government of Canada?

You are putting a lot of emphasis on the sense of democracy of Quebeckers, and I agree with you totally, Mr. Ryan, but in democracy can the party in power not work to muddle things so that the people get mixed up?

In a poll, 61 per cent of the 4,992 Quebeckers surveyed said they believed Quebec would remain in Canada when they responded with a yes. I would like your comments on this aspect of democracy, Mr. Ryan.

Mr. Claude Ryan: As I have said from the start of my remarks, on the day following a referendum responding favourably to an obscure or ambiguous question, the government and the federal Parliament should assume their responsibilities.

Let us assume, for example that the Prime Minister of Canada campaigned during the referendum to show that the question was not clear. As the leader of the country's government, he would face major problems in the event of an ambiguous result. He would be well placed, after the referendum, to assume his responsibilities with all of Parliament. He would have sole responsibility for acting at that point. No one can deny him that.

• 1730

What I find unacceptable is trying to settle it ahead of time by establishing the sort of directives Parliament would give to the Government of Canada. This is what I find contrary to the federal spirit and the Canadian spirit and unlikely to provide practical results.

Mr. Claude Drouin: Mr. Ryan, you say that action by the Canadian government will then be legitimized. But what will the situation be in Quebec, where the majority of the people will have answered yes, when the Canadian government assumes its responsibilities because the question is ambiguous or equivocal? The situation might be a difficult one with a major impact on all Canadians.

Mr. Claude Ryan: They will need to meet together for a serious discussion, a real discussion. It will not be an exercise such as is going on today. They will be obliged to ask themselves: What are we doing? All hypotheses are then going to have to be laid out on the table, not just one. They will be obliged to act with the wisdom conferred upon them by their experience and to take into account the advice of Members of Parliament, as well as public opinion.

An essentially political problem cannot be transformed into a purely legal one. That must not be lost sight of. It can be framed as well as possible, but it must conform to the principles of our system of government.

Mr. Claude Drouin: In order to frame this problem, however, would it not be preferable for there to be a certain framework—since Bill C-20 gives recognition to the fact that it is the responsibility of the Government of Quebec to ask the question and to set the rules—rather than deciding on it afterward, when the situation is ambiguous and every one will have to lay all the cards on the table without knowing the results? It seems to me that it is a bit risky, when a question affecting the future of the country is involved, to decide afterward what is going to happen. It is better to do so before hand, rather than after.

Mr. Claude Ryan: If you start interfering with the formulation of the question, as this bill invites you to, your problems will have just begun. You have probably not taken part in the drafting of a referendum question. The lawyers will get involved, the legal experts will start messing about with it, and one of them will be astute enough to figure out a way of getting around things, of arranging it so that the courts cannot contradict. Or else there will be a never-ending series of challenges. I cannot see any way in which this can provide us with any more stability and clarity in the procedure.

Parliament will gain an enhanced status if a way is found to state with pride, and without fear of contradiction by serious and impartial people, that it is acting in perfect conformity with the principles of federalism and of democracy. If it respects these two principles, I feel it is going to know what it needs to do. If it wants to win the next referendum at any price, however, it is going to trip itself up. It is going to come up with things like the bill you have before you at the present time. Clarity and transparency are the same for all. The higher the position, the greater the duty is.

[English]

The Chair: Okay, you can have one question, Mr. Hill, and that's it.

Mr. Grant Hill: Mr. Ryan, the question of Canada as divisible is one that most of us have accepted. Quebec expresses its will clearly and plainly. The Supreme Court and this bill bring up the issue of the boundaries of Quebec, les frontières. Could you tell me what that means to you, “the boundaries of Quebec”?

Mr. Claude Ryan: It means essentially the boundaries as they exist today. There may be a few disputes here and there on very marginal problems, but fundamentally it would mean the boundaries as they do exist.

In the draft legislation, they referred to some potential modifications of the boundaries of Quebec. I would be happier if it said only that the boundaries of Quebec would be negotiated during the aftermath of a referendum in favour of separation. To suggest that changes would very probably occur is a rather dangerous stance at this time because it might lend justification to some people who might wish to divide the territory of Quebec according to interests that might be highly questionable. So the drafting here ought to be prudent.

• 1735

I cannot suggest that this matter ought to be above discussion. It would have to be discussed in the aftermath of a referendum. Any realistic person will agree to that. But to suggest that changes would be the order of the day is a different thing.

[Translation]

The Chair: Mr. Ryan, we have greatly appreciated your appearance before the committee today. It was a pleasure to have you here, and you have been a great deal of help to the committee in its work.

Let us move on to the next witness.

[English]

We'll have a little break.

• 1736

• 1740

[Translation]

The Chair: Before moving to the next witness, I have a few announcements to make.

Order, please.

[English]

This evening, by the time we finish this witness, the bells will be ringing for votes in the House of Commons. Could I suggest that we suspend the sitting of the committee at the conclusion of this witness' testimony, after the questions and everything, and resume at 7.30, when our next witness is due to appear? Would that be agreeable? Saving, of course,

[Translation]

Mr. Guimond, your right to continue after we have heard this evening's witnesses.

[English]

Is that agreed?

Some hon. members: Agreed.

The Chair: Dinner has been ordered for 7 o'clock in this room. So after the vote, members can return and eat, and we won't be sitting until 7.30, so you can eat and enjoy half an hour of time to contemplate your questions.

In that connection, our 7.30 witness will be Mr. Scott Reid. This is a change from this morning's published list. And at 8.15,

[Translation]

Professor Yves-Marie Morissette will be appearing. That will be all for this evening.

Mr. Guimond, you will have the floor after Mr. Morissette, unless there is any other change with unanimous consent by the committee.

We are now ready to hear Mr. Patrick Monahan, Professor at Osgoode Hall Law School in Toronto.

[English]

Welcome to the committee, Mr. Monahan. We thank you for taking the time to appear. We look forward to your testimony. You have the floor for 10 minutes, followed by 35 minutes of questions from the members.

Professor Patrick Monahan (Osgoode Hall Law School; Individual Presentation): Thank you very much, Mr. Chairman. It's a great honour to have the opportunity to address the committee, and indeed an honour for me to be addressing the committee following Mr. Ryan. I found his remarks very helpful and interesting. I did want to in fact comment on some of the points he made to the committee, because they raise some important issues of principle.

I do not have a written brief, Mr. Chair, although the C.D. Howe Institute has published a study I have prepared on the clarity bill, and I have made copies of that study available to the clerk of the committee, so if members would like to obtain a copy of that, they may do so.

I will not repeat the analysis in the study, however, as I only have 10 minutes. I simply want to deal with the issue of principle that Mr. Ryan addressed, and also Professor Lachapelle in his testimony, and that is the following: is the principle of Bill C-20, namely the principle that the House of Commons should pronounce on the clarity of the question and should also pronounce on the majority obtained in a referendum, appropriate in a federal society?

Both Professor Lachapelle and Mr. Ryan suggested this was contrary to the federal principle, because the matter of a referendum in Quebec on sovereignty is a matter of exclusive provincial jurisdiction, and it is not appropriate for the federal government to interfere in a matter of provincial jurisdiction; therefore this bill is a violation of the federal principle.

Let me say if the referendum question in issue were dealing with a matter in exclusive provincial jurisdiction, I would 100% agree with the comments of both Professor Lachapelle and Mr. Ryan. That is to say, if the Province of Quebec wishes to hold a referendum on a matter falling within exclusive provincial jurisdiction—such as, for example, whether to increase or reduce taxes at the provincial level in Quebec, or whether to amalgamate certain municipalities or not in the province of Quebec—then the House of Commons, in my view, has no business pronouncing on the clarity of such a question. That is a matter for the Quebec National Assembly to determine.

• 1745

The question, however, Mr. Chair and members of the committee, is whether a question dealing with the secession of a province from Canada deals with a matter within the exclusive jurisdiction of a province under the Constitution. I would have thought, Mr. Chair, that the answer to that is no.

The answer to that is no, as the Supreme Court of Canada clearly stated in its decision on the reference regarding the secession of Quebec. What the Supreme Court said is that secession implicates the interests of all Canadians, it implicates the interests of the Government of Canada, and it implicates the interests of other provinces, who are equal partners along with Quebec in Confederation. It implicates the interests of aboriginal peoples, who have constitutionally protected rights under our Constitution.

Therefore, it is not a matter of exclusive provincial jurisdiction. It is in fact a matter of interest to Canada as a whole, as well as to the other provinces, and it is therefore quite appropriate in those circumstances—and indeed, as the Supreme Court of Canada said, it is necessary—for the federal political actors, including the House of Commons and the Government of Canada, to pronounce themselves on issues such as the clarity of the question and whether a clear majority has been obtained.

Indeed, if you look at the Supreme Court of Canada judgment, you will see that the Supreme Court of Canada makes that quite explicit. It says there is an obligation on political actors and it defines those political actors as not simply being the Province of Quebec. It talks about the provinces and the federal government participating in negotiations. It says there is an obligation on those political actors to decide whether a question is clear and to decide whether a majority is clear.

The Supreme Court of Canada says that is something that must be decided at the political level, not at the legal level. It does not say those are issues for one political actor to determine, namely the Province of Quebec. It says that is a matter for political actors to determine, these political actors in Canada as a whole.

Indeed, it seems to me, Mr. Chair, with great respect to Mr. Ryan, that in his own remarks today he in fact confirmed that this is not a matter of exclusive provincial jurisdiction. He said that after a referendum, it would be appropriate for the Government of Canada to respond to whether there had been a clear question and whether there was a clear majority. That can only be because it is not a matter of exclusive provincial jurisdiction.

Go back to our issue about raising or lowering provincial income taxes in Quebec. The Government of Canada would have no more business to pronounce on the clarity of the question after a referendum on provincial income taxes than it did before, because that is a matter of provincial jurisdiction. So the argument that was raised earlier, again with the greatest respect to Mr. Ryan, it seems to me confirms the opposite of the proposition he put forward, which is that it is not a matter of exclusive provincial jurisdiction; it is a matter of interest to Canada as a whole.

What, then, of this argument that although it is appropriate for the House of Commons to pronounce on a question and to pronounce on the majority, this should only happen after the fact rather than before? It seems to me, Mr. Chair, that this again does not withstand scrutiny.

First of all, if the House of Commons as a political actor and if the Government of Canada as a political actor have the right to make a determination independently as to the clarity of a question and the clarity of a majority, then surely they also have the discretion to determine when they are going to make that determination. The determination of whether it's in advance of the referendum or after is something for the Government of Canada to determine in its discretion and for the House of Commons to determine in its discretion. As the court said, it is an independent judgment to be exercised.

In other words, once you acknowledge that there is an independent discretion to be exercised, then the decision as to the timing of that discretion—that is to say the timing of when the House of Commons would pronounce—is a matter for the House of Commons to determine and not exclusively after the fact.

Finally, it seems to me that it is entirely appropriate for the House of Commons to make this pronouncement, because this permits the opposition parties, as well as other members of the House, to participate in a debate on the clarity of the question. It is not a matter to be determined solely by the government in the secrecy of the cabinet room. There's a debate required in Parliament on the clarity of the question, just as there will be debate in the Quebec National Assembly on the clarity of the question and a pronouncement made in the Quebec National Assembly on that issue.

• 1750

Again, we do not need to wait until after the referendum has been held to make a determination as to the clarity of that question, because the wording of the question will be known. Indeed, as happened in both 1980 and 1995, the view expressed by the opposition party in the Quebec National Assembly was that the question was not clear.

It seems to me, Mr. Chair, that this bill is entirely consistent with the federal principle. It is a good-faith attempt, in my view, to give expression to the judgment of the Supreme Court of Canada.

I do propose in the C.D. Howe Institute's study, to which I made reference, some amendments that I would propose should be considered by the committee. If members would like to discuss those specifics, I'd be happy to go into those specifics. In general terms, however, I think the bill is an appropriate bill, and indeed a necessary bill. I would simply say that I believe it enhances democracy to have a pronouncement in advance of a referendum on the clarity of a question and not to wait until after the fact.

In other words, if the Prime Minister and the government and the members of the House of Commons have a view before a referendum as to whether the question is clear, surely democracy suggests that this view should be communicated to the electors in Quebec, who will have an opportunity, therefore, to have in advance of the referendum an understanding of the views of other participants in Canada on this important issue.

Thank you very much, Mr. Chair.

The Acting Chair (Mr. Andy Scott): Thank you very much, Mr. Monahan.

Mr. Hill.

Mr. Grant Hill: I thank you as well, Mr. Monahan.

Could you please direct yourself to the question of the majority and let us know where you stand on the majority issue?

Prof. Patrick Monahan: In fact, on this point, I believe the bill is deficient in not specifying a majority that should be required before negotiations could be commenced, on the same logic that I believe the government and the House should indicate what is a clear question in advance. I would also like to see the bill specify what would constitute a threshold of a clear majority that would be required before negotiations could begin.

On that point, it is my current view that this threshold should be a majority of eligible voters rather than 50% plus one of those who cast ballots. I discuss that in my C.D. Howe Institute paper. That's a change from what I had earlier proposed. I had proposed in an earlier study I did some years ago that the majority should be a bare majority of those casting ballots—50% plus one of those voting.

I have revised that view, Mr. Hill, in light of the Supreme Court of Canada's decision, in which it seemed to me to follow pretty clearly that in fact the court suggested that a majority of those casting ballots—50% plus one of votes actually cast—was not a clear majority. There are passages, in fact, in the judgment in which the court says that democracy is not consistent with or does not mean a mere majority rule, or merely a principle of majority rule—i.e., 50% plus one of those who vote.

On this point, then, I actually agree with Mr. Ryan. I think Mr. Ryan in fact proposed this rule in earlier public statements. I propose the rule of 50% plus one of eligible voters because it seems to me that this is a threshold that is reasonable. It's a threshold that does not discount the yes votes or make them worth less but at the same time requires some measure of consensus within a society in favour of yes before such a fundamental change would be contemplated by the other parties to Confederation.

Mr. Grant Hill: You would admit that's a slight raising of the bar compared with the previous two referenda, would you not?

• 1755

Prof. Patrick Monahan: I think that's probably right, although I accept that the Government of Canada was ambiguous in its position on this, that it never took a clear position.

But I think it was pretty commonly assumed that 50% plus one of voters was the threshold. Indeed, in my earlier study some years ago, I suggested that was the reason we should go with 50% plus one of those casting ballots. As I say, reading the Supreme Court of Canada's decision on this, I've now come to the view that 50% plus one of eligible voters would be a more appropriate threshold to be required.

Mr. Grant Hill: I have now heard from Quebec, on the issue on the clarity of the question, suggestions that this debate would prevent an unclear, ambiguous question from being posed in the future. Do you think that this very debate has been successful in highlighting the concerns of Canadians that the question maybe wasn't as unambiguous before as it could have been?

Prof. Patrick Monahan: I would agree with that.

I certainly think that it's not only the debate taking place in the House of Commons and in this committee, but that it's indeed the debate that occurred around the reference to the Supreme Court of Canada and the opportunity to address these issues in a systematic way, not only in the judgment in the court but in the argument that was made before the court, including, although the Government of Quebec did not participate, the amicus curiae, Maître Joli-coeur, from Quebec, who very ably presented arguments in favour of Quebec's right to secede unilaterally.

I think it has been, in other words, beneficial for Canadians to have this debate, so I would agree with that.

Mr. Grant Hill: And your other improvements to the bill...? You mentioned that you had more.

Prof. Patrick Monahan: I'm suggesting an amendment on the provision in subclause 1(4) dealing with the wording of the question. I do think that the current provision in the bill is unduly restrictive in the kinds of questions that could be proposed. I do have some wording as a proposed amendment, essentially to say that questions providing for an association or economic or political arrangements with Canada should be deemed unclear only to the extent that they would obscure whether Quebeckers seek to become sovereign.

In other words, I concede that there are certain questions that would involve an economic or political arrangement with Canada that would not obscure that issue—for example, the free trade area. I can imagine that Quebeckers would be asked a question about whether they wished to become sovereign and have a free trade arrangement with Canada; that does not seem to me to be unclear on the issue of whether they wish to form an independent country. I would not rule out that question from consideration in advance. That's the other suggestion I would make on that point.

The Acting Chair (Mr. Andy Scott): Thank you, Mr. Hill.

[Translation]

The Chair: Mr. Turp.

[English]

Mr. Daniel Turp: Thank you, Mr. Chair. I have a few questions for your colleague.

One of my first questions would be the following. If I recall, in September you wrote—and you were quoted in papers—suggesting that legislation wasn't a good way to proceed in this case. Is that correct?

Prof. Patrick Monahan: I actually did not write that. I had drafted an earlier version of what became this study, which I had not published. It was in a draft form. At that time, yes, that's correct: my view at that time was that we should not proceed with legislation, but that, rather, the government should proceed with a white paper only.

Mr. Daniel Turp: If I recall, one of the reasons underlying that choice is that it would give too much time and opportunity to the opposition to oppose itself of this bill—

Voices: Oh, oh!

Mr. Daniel Turp: —and I must admit that with numerous closures we have problems making a case for more consultation with more people like you who could be heard by the committee.

But let's come to substance. On eligible voters, there is a debate. Monsieur Ryan—and you—brought that debate before this committee, and it has been brought up elsewhere. The fact is, contrary to what you say, if you do take into account the voters who do not vote, well, their votes in fact will be assimilated to no votes. If you have 2 million yes votes and 1,950,000 no votes, but then you have 100,000 people who abstain, the yes vote, which has won, will have lost. So there is a problem of breach of the equality principle when it comes to the vote.

• 1800

I think we could argue for a long time on that, but I understand that you're not satisfied with the bill as it is drafted in this provision and that you would want to see the provision replaced by a clear rule of 50% plus one of eligible voters. Is that what I understand?

Prof. Patrick Monahan: Yes.

Mr. Daniel Turp: Okay. Second, on the partnership and on the other provision, which I think you say is too restrictive, I understand you believe that if the notion of partnership is mentioned in a question, that would not necessarily make a question unclear. It would depend on the drafting of the question. Is that correct?

Prof. Patrick Monahan: Yes, although I would be hard-pressed to imagine that some vague reference to partnership as a concept would be clear. What I would imagine, Mr. Turp, is that there would have to be a specification of what exactly we were talking about and—

Mr. Daniel Turp: If it implies the view that it's between sovereign states—

Prof. Patrick Monahan: Yes.

Mr. Daniel Turp: —that would be acceptable to you.

Prof. Patrick Monahan: That's right. The question would be clear as long as it was understood that what was being asked was whether Quebeckers wished to form a sovereign state.

The definition of sovereignty I would adopt would be the definition of Monsieur Parizeau, put forward in the draft bill of December 1994: the exclusive jurisdiction to levy taxes, to make laws, and to enter into treaties with foreign states. The understanding of what is sovereignty, I think, is understood. So as long as that is front and centre—understood as what's being asked—then I have no difficulty if we wish to have certain other elements introduced, as long as they do not obscure that essential point.

Mr. Daniel Turp: That's interesting. Just for the benefit of those who are listening to us, that definition that Monsieur Parizeau gave in 1994-95 was brought to the attention of Quebeckers during the referendum through leaflets sent to every house, through the publicity, and through many media and mediums, so that people could understand what sovereignty would mean if they chose sovereignty.

Let me just ask you a last question on this issue. On the other part, on the mandate to negotiate, do you think that is also something that could be asked without necessarily making a question unclear? Obviously the government, through this subclause 1(4), has excluded the two kinds of questions that were asked of Quebeckers by the Quebec government in 1980 and 1995. In that, you seem to agree with Alain Pellet, one of our colleagues. You quote his article in your paper for the C.D. Howe Institute. You would agree with what Monsieur Pellet says on this issue of clarity of a question...?

Prof. Patrick Monahan: No, not on paragraph 1(4)(a). I don't believe Monsieur Pellet actually focuses on paragraph (a), if I recall, but let me just say that paragraph (a) of subclause 1(4) says that a question would be unclear if it “merely” focuses on a mandate. It's the “merely” that is important, because the bill goes on to say that if it does not solicit “a direct expression of the will of the population” on whether it wishes to secede, it is the.... In other words, it is not objectionable if they ask for a mandate to negotiate, as long as the question asks directly whether they, that is to say, the voters in Quebec, wish to form a sovereign country.

So I do not think there is any difficulty with the first part of that clause.

Let me just add a comment on—

Mr. Daniel Turp: I understand you believe that—

The Chair: Mr. Turp—

Mr. Daniel Turp: —there could be a mandate.

The Chair: We're a little over time here. Let him finish the answer.

• 1805

Prof. Patrick Monahan: If I could just finish this, as well, you made reference to 1994, and of course the question in the draft bill of Monsieur Parizeau, which was clear in clause 1, was not the question that was asked. Although yes, there were leaflets sent out and there were hearings held in early 1995, the result of that was that the question was changed. To say that this was a clear question ignores, it seems to me, the subsequent events in later 1995.

The Chair: Monsieur Blaikie.

Mr. Bill Blaikie: Mr. Chairman, I have just a quick question.

One of the things that have concerned me and my party in this is those clauses of the bill that set out the political actors whose views need to be taken into account by the government in determining a clear majority previous to a referendum, a clear question. It seems to us that one of the political actors is left out. You mentioned him yourself in terms of making the argument that this is the proper arena for federal concern when you talked about the fact that a referendum in Quebec and a possible secession would affect the rights of aboriginal people.

I was wondering what your view would be on including the leadership of the aboriginal community in the province that was engaged in secession. In this case, if it were to be Quebec, for instance, it would be the Cree, etc. What would your view be on including them in the list of people whose views need to be taken into account?

Prof. Patrick Monahan: I must say I hadn't reflected on that particular question, but it seems to me that there should be no reason why those views should also not be taken into account. An amendment such as you have proposed to subclause 1(5) seems to me to be entirely appropriate, particularly given the comments in the Supreme Court of Canada judgment, which specifically discusses the position of aboriginal peoples and, I think, suggests very strongly that their views would have to be factored into the negotiations, perhaps not necessarily through a direct seat at the negotiating table, although even that may be a possibility.

Mr. Bill Blaikie: That would be another clause, yes.

Prof. Patrick Monahan: But certainly in the government, in the House of Commons, considering views.... It seems to me appropriate that such a statement could be included. I do note that subclause 1(5) isn't exhaustive, because it does say “any other views” the House considers relevant. But again, I think there would be no objection to.... In fact the suggestion you make would be an improvement to subclause 1(5).

Mr. Bill Blaikie: I have no more questions.

[Translation]

The Chair: Thank you very much.

Mr. André Bachand: Welcome. I have been reading what you have written on constitutional matters for quite some time, Mr. Monahan.

Which passages of Bill C-20 are the ones based on the Supreme Court judgment? Where does the opinion voiced by the Supreme Court provide justification that the clarity of the question must be determined before the end of the referendum process?

[English]

Prof. Patrick Monahan: The Supreme Court of Canada does not deal with the question of when the political actors should pronounce on the clarity of the question. The Supreme Court does not pronounce on that for the obvious reason that the court says these are matters for the political actors themselves to deal with. These are political aspects of negotiations, so it is not surprising that the Supreme Court does not say, is it appropriate to pronounce on the question before or after? They simply say that there is an obligation on the political actors to deal with issues such as the clarity of the question and the majority required.

Once we determine that it is an appropriate matter for the House of Commons or for the government to determine, then it seems to me to follow inexorably that the timing of any determination is a matter for the political actors themselves to decide.

[Translation]

Mr. André Bachand: I disagree with you. I am going to point out to you the paragraphs in which the Supreme Court states precisely that it is all one thing. If, a priori, the clarity of the question may not seem sufficient to suit certain people during the referendum campaign, the question may become a great deal clearer after a campaign, or vice versa. That is why the court tells the political actors to wait until after the process, because there are many elements involved.

• 1810

As for the political actors, where in the decision, Mr. Monaghan, does it state that the federal government is to take the other partners into account—take into account is a frequent expression in the judgment—in its analysis of the clear question and the clear majority? According to the spirit of the Supreme Court judgment, do you not think this should be done in collaboration with the provincial and other actors?

[English]

Prof. Patrick Monahan: That certainly would be possible. The Supreme Court, again, does not dictate a particular method for the political actors to determine if a question is clear. It could be that the federal government and the provinces together would make a determination, but it is not required that it occur in that way.

Certainly the other provinces would have a right to participate in the negotiations. The Supreme Court makes that clear. But again, we shouldn't look to the Supreme Court to say it is for the federal government alone, or the federal government and the other provinces together, because the court says all of those matters are political matters. Those are the political aspects of the negotiations.

While it's possible the federal government and the provinces together could do that, the other provinces at this point have not evidenced any desire or interest in this topic. It's for that reason that the leadership on this question has fallen to this body. It seems to me Monsieur Dion and the Prime Minister are to be congratulated for taking the initiative to bring this legislation forward, when other provinces, had they been left to their devices, probably would not have dealt with it at all.

[Translation]

The Chair: Be very brief.

Mr. André Bachand: There are some outlandish statements in what Mr. Monaghan has said. He has already changed his mind twice on these significant issues, and I hope that a third will be forthcoming.

You seem to be in agreement with the federal government's centralist interpretation of the Supreme Court judgment. You are rehashing the Supreme Court text in order to answer questions. If that is what you want to do, I am going to ask you what role the Quebec federal deputation to the House of Commons plays in the analysis of a clear question and a clear majority, and what role during the negotiation process.

[English]

Prof. Patrick Monahan: The role of Quebec members of the House of Commons is to participate as members of the House of Commons. They do not constitute a separate body, a separate political actor, in this process. I do not think it is a centralized view of federalism at all, with due respect, sir.

The Supreme Court of Canada has said this issue implicates not just the interests of Quebec. It is not a matter of exclusive provincial jurisdiction alone to determine whether a province is to secede and the terms upon which it is to secede. So it is entirely appropriate for the Government of Canada and the House of Commons to express a view, and other provinces as well. Other provinces have a right to express their own views on these issues, and they may take a different view from the Government of Canada. Nothing in this legislation will prevent them from taking a view if they wish to do so.

So if the Ontario legislature wishes to take a view, as indeed I hope they would if there were a referendum question, they may do so, and they may say they don't agree with the House of Commons. That will be for them to pronounce. But equally, it's for the House of Commons to make a judgment, in its view, as to the clarity of the question and the majority required.

The Chair: Mr. Cotler.

Mr. Irwin Cotler: Professor Monahan, I want to welcome you as well, as a colleague and a friend.

You are not only correct in stating that Claude Ryan recognized a constitutional basis for a federal intervention—I would call it an important clarifying remark—but as you put it, in his words, the intervention should come after, rather than before, the referendum. Your point, which was well taken, was that once one grants that the federal initiative has legitimacy, the issue of timing is one of independent judgment—that indeed, coming before the referendum process might actually enhance the deliberative and democratic process. But my sense is that Claude Ryan also appeared to be saying the intervention should be political rather than legal—that it should be, for example, in the course of parliamentary debate rather than through legislation.

• 1815

Today you stated Bill C-20 is not only a reasonable and an appropriate mechanism, as you wrote in your study, but even a necessary response to the Supreme Court judgment. As you put it, there's an obligation on the federal political actor to decide whether the question is clear or the majority is clear. Would it be correct to say Bill C-20 therefore is not only an appropriate and reasonable piece of legislation but a necessary response if the federal government is to take its role seriously as a responsible actor?

Prof. Patrick Monahan: Yes, and let me address the comment Mr. Turp made earlier: why have legislation?

Mr. Daniel Turp: [Inaudible—Editor].

Prof. Patrick Monahan: Yes. It raised the question, why do we need this legislation?

If we could simply say we had confidence that the House of Commons would in fact deal with this in a timely way and would address itself properly to the questions that need to be addressed, then we would not need this legislation. What has persuaded me that we need this legislation is, as a signal now—not just to wait until thirty days before the referendum or until the midst of the referendum, but as a signal now—that in fact this is an appropriate role, to clarify that, yes, this is an appropriate role, and yes, it will be exercised and the House of Commons will pronounce on this issue.... So the political actors elsewhere in Quebec and in other parts of Canada will know this type of determination will and must be made.

To put it in law does not mean it will not be a political determination, because ultimately the factors here call for a political judgment. The political judgment will be made by the members of the House of Commons. But to me, why this legislation is needed is so that we in effect clearly signal now, whether it's five years from now, five months from now, or twenty years from now, these are the judgments that will have to be made, and they will be made. That is an important message for all Canadians to have and to understand as we go forward in this debate.

Mr. Irwin Cotler: As a constitutional lawyer, you'd probably characterize it as a form of constitutional due process, giving prospective notice of the position a responsible political actor is taking in that regard.

Prof. Patrick Monahan: Yes, or another way I like to characterize this is as a sort of truth-in-advertising measure. It's saying a clear question must be asked and a clear message must be delivered. We impose these standards under the Business Practices Act. In the provincial legislatures, we say you must deal clearly with consumers. We don't wait until after the fact, after a contract has been made, to decide whether it's enforceable. We pronounce in advance certain kinds of rules. A clear offer must be made, and it must be clearly accepted. That's essentially what this bill is trying to achieve.

Mr. Irwin Cotler: I have one last and brief question. Since you mentioned our colleague Daniel Turp, I was wondering if you would agree with this statement he made in his submission to the Bélanger-Campeau commission in October. The statement is as follows, and I quote:

As for the right to secession, Quebec cannot claim that the aboriginal peoples do not have for their part the right to secession. The same rules are applicable to the aboriginal peoples as to the Quebec people.

Prof. Patrick Monahan: Well, in all due respect to Mr. Turp, I don't want to engage too much in reviewing what he may or may not have said. I would simply offer my own view to the effect that the Supreme Court of Canada has clearly said the aboriginal peoples and their views and their territorial claims need to be taken into account. This bill in clause 3 properly captures what the court has said on that issue.

• 1820

The Chair: Mr. Hill.

Mr. Grant Hill: You've mentioned provincial participation as being a fairly significant factor in this, meaning the provinces outside of the province asking to secede. Do you think the way the bill has laid out that provincial participation is a formal enough mechanism? If my memory serves me right, it says that the House of Commons shall take into regard any formal submissions by the province. Is that a sufficient enough consultation with the provinces?

Prof. Patrick Monahan: I don't see this legislation as precluding informal consultations with the provinces. What it does say is that the requirement to take into account the views of the provinces is only in respect of formal resolutions or statements by the government or legislative assembly of a province. I think that's appropriate so that a province will know exactly what types of statements will be taken into account. I think it's appropriate to have some kind of definition of the kind that we find in clause 1 of the bill. Indeed, I think we find the same in clause 2.

I have no objection to that requirement, and I certainly don't think it precludes further consultations. Again, I think it in fact envisages that other provinces will make their determinations on a question, and indeed it assumes that this will also be appropriate to be taken whenever a province decides to do so. If a province wishes to wait until after the referendum, it's left for them to do so. But clearly if a province wishes to make a pronouncement on the clarity of the question beforehand, equally that is appropriate in this bill, and it seems to me to be so in light of the Supreme Court of Canada's decision.

Mr. Grant Hill: Do you think it would be helpful to have the significant involvement of other parts of the country on such an issue?

Prof. Patrick Monahan: Yes, I do think it would be important to do that, but I also think the bill requires the House of Commons to have regard for those views. I see no objection to the bill as it's currently framed, and I think it would be inappropriate to try to regulate in a more precise manner the kinds of informal consultations that might occur between the Government of Canada and governments in other provinces.

Mr. Grant Hill: Finally, on the question of Quebec's divisibility, could you comment on that? If Canada is divisible and we have accepted that, do you accept the fact that Quebec itself could be divided?

Prof. Patrick Monahan: Well, absolutely. I have taken such a position in everything I've written on the subject over the last ten years. Certainly it seems to me to follow as a matter of logic that if Quebec can divide Canada, the Province of Quebec has no right to secede without its borders at least being discussed. This bill does not say the borders must be changed, it simply says the issue of borders must be addressed. That is consistent with the position of the Supreme Court of Canada. Interestingly, Mr. Ryan seemed to suggest that it was appropriate to have the issue of borders discussed as long as you didn't require changes. Well, that's what the bill says. The bill says exactly what he proposed should be the case.

So I agree that the borders issue must be addressed, and if significant areas in Quebec are contiguous to Canada, that would be one test that I would impose. There must be geographical contiguity or the ability to access the territory that is to remain in Canada, either via land or water. As long as that condition was met, then I think those areas that voted to remain in Canada should be permitted to remain in Canada.

That would be my view on the divisibility question, and I have written on that elsewhere in earlier studies. I do not think we should have a checkerboard or Swiss cheese in a country, so I would impose a requirement of geographic contiguity, meaning the ability to access the territory through land or water directly.

The Chair: Mr. Scott.

Mr. Andy Scott: Thank you very much, Mr. Chair.

I understood you to say earlier that you would accept the idea that once it was established that a question was seeking a mandate to secede, there could be some reference to a mandate to negotiate some form of partnership so long as it did not obscure the fundamental question as to secession. My question to you is simple: would either the question of 1980 or 1995 satisfy that measure in your mind?

• 1825

Prof. Patrick Monahan: No, I don't think either measure would satisfy that. As far as the 1995 question goes, there is opinion evidence in Quebec—that is to say, public opinion—that has been polled and indicates that a significant majority of Quebeckers believe the question in 1995 was not clear. It was a very convoluted question. Not only did it propose partnership, it proposed it in a very unusual way. It referred to an agreement that had been reached, so it was extremely ambiguous.

I think that in both cases, 1980 and 1995, the question was very unclear and ought not to have been sufficient to represent a mandate to negotiate secession.

The Chair: Thank you.

Mr. Turp, for one question.

Mr. Daniel Turp: Thank you.

I have one question, but I have to preface it with a question that will determine if I'll ask that question.

Have you ever said or written somewhere that when a question is drafted and adopted in the National Assembly, it should be adopted by consensus or with a majority of two-thirds, for example?

Prof. Patrick Monahan: Yes. In fact in the C.D. Howe study I note that the two-thirds rule is applied by the Quebec National Assembly itself to issues of fundamental importance, such as the appointment of the Chief Electoral Officer or the appointment of the ombudsman—and I'm not sure that's the name of the office, but it's essentially the ombudsman.

[Translation]

Mr. Daniel Turp: In French it is le protecteur du citoyen.

Mr. Patrick Monahan: Yes, le protecteur du citoyen.

[English]

Mr. Daniel Turp: So if you say that, would you suggest that this act should be amended to, for example, provide that a decision or determination on the clarity of a question or a majority should be taken by consensus in the House of Commons or by a two-thirds majority, in order to be consistent?

Prof. Patrick Monahan: The difficulty, Mr. Turp, is that the Government of Quebec does not accept that the question should be established by consensus. If the Government of Quebec were to agree that a question should only be proposed in a referendum when it achieved the result or the support of two-thirds of the members.... It's not just the members who vote, because the Quebec legislation on this requires two-thirds of members. If you abstain—which gets back to our issue about abstentions—that is a no vote for the protecteur du citoyen; that is a vote against that person.

If the Government of Quebec were to agree that a question must meet that two-thirds threshold, then it seems to me that it might be possible in those circumstances to consider that a special majority would be required in the House of Commons on the issue of the clarity of the question. The Government of Quebec has refused to accept that, so I see no reason why you would propose that rule here if you do not propose that rule in the National Assembly.

Mr. Daniel Turp: Theoretically, you'd say that—

[Translation]

The Chair: Order. We shall be able to continue the discussion elsewhere, but the time is up and we must all go to the House.

Thank you, Mr. Monahan.

[English]

for your attendance. I'm going to suspend the hearing until 7.30 p.m.

Mr. Guimond.

[Translation]

Mr. Michel Guimond: Mr. Chairman, I would just like you to repeat what you indicated to us just now concerning my right to continue to speak on Mr. Alcock's motion. What is it that you said?

The Chair: We will have two witnesses starting at 7:30 p.m., after which you will have the floor, Mr. Guimond.

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

The Chair: Goodbye for now. The session is suspended.

• 1829

• 1936

The Chair: Is everyone ready to begin?

Some hon. members: Yes.

The Chair: A few people are still eating.

[English]

but I think we could start hearing evidence. So I call the meeting to order.

Our first witness this evening is Mr. Scott Reid, a researcher and writer who's appearing on his own behalf. Mr. Reid, you'll have 10 minutes for your presentation, followed by 35 minutes of questions from the members. You have the floor, sir.

Mr. Scott Reid (Individual Presentation): Thank you.

Mr. Chairman, it's been nearly a quarter of a century since the election of the first Parti Québécois government under René Lévesque turned the merely academic subject of secession into a real possibility. Since that date it has become clear that there are two potential strategies possible for federalists to adopt in order to deal with this threat. I'm referring here to strategies dealing with secession, not with strategies for improving the federation to eliminate the underlying reasons some Quebeckers want to establish an independent country.

In other words, while there may be many forms of what has come to be known as plan A, there are really only two strategies for plan B. The first strategy is to reduce the cost of secession as much as possible. The second strategy is to raise the cost of secession as high as possible.

The logic of the first or cost-minimizing strategy is that secession is a realistic possibility and therefore it makes sense to focus on reducing its costs as much as can be done. The role of the federal government under this strategy is to identify the most dangerous and potentially costly issues associated with secession, and to try to develop practical and businesslike laws and institutions for dealing with these concerns.

This strategy would have the advantage of reducing the cost of secession for all concerned to the lowest practicable level should this contingency ever take place. It would have the disadvantage of making the second strategy impossible, and some would argue—I believe incorrectly—that it also makes separation too painless, and therefore more likely.

I should state for the record that I'm an advocate of the cost-minimizing strategy. Like most advocates of this strategy, I believe that the best and only way to keep Quebec in the federation is to provide a sufficiently attractive plan A so that there will be no future occasion on which a majority of Quebeckers could be convinced to break away from Canada.

The logic of the second or cost-maximizing strategy is obvious. The greater the barriers to secession and the higher the cost involved, the more likely that Quebeckers will be frightened into voting no in any future referendum on independence. As for its most dramatic form, as articulated for example in the 1980 book Partition: The Price of Quebec's Independence, advocates of this strategy propose to strip an independent Quebec of as much of its territory, half or more of its population, and presumably as much of its wealth as can be arranged.

Although the cost-maximizing strategy has an obvious appeal to many federalists, it is not easy to adopt if you are the representative of a party that intends to contest Quebec's seats in the next federal election, since Quebeckers have the alternative of voting for a party—the Bloc Québécois—that promises to represent the province's interest loyally under all circumstances, and not only up to the date of some future yes vote.

• 1940

So a modified version of the cost-maximizing strategy has been adopted by those federalists who find it attractive. Under the modified cost-maximizing strategy, the federal government merely identifies the dangers and costs associated with separation and tries to play these up as being as frightening and irresolvable as possible. The goal of this strategy would be to turn such practical secession-related issues as debt division, passports, trade and treaty rights, and territorial integrity into bogeymen in order to frighten Quebec voters into casting their ballots against secession in any future referendum.

Under this strategy, secession is characterized as a bottomless pit of despair—a black hole, to use a phrase that Jean Charest invented during the 1997 election. Those who advocate this approach claim that their role is to cast light upon these dangers, but never to attempt to resolve them. Indeed, as much as possible, they suggest that there is no solution to any of the problems associated with secession. And to the extent that it refuses to deal with the hard issues, the federal government is able to quietly boost the costs associated with secession.

To explain how this works, let me quote from an essay that Robert Young, the University of Western Ontario political scientist, wrote on this topic. Federalist leaders predict:

...that the variable costs of sovereignty will be high. They argue that negotiations will be long and hard and bitter, that fundamental issues like borders and minority rights will be subject to negotiation, and that temporary economic disruption and the erection of permanent barriers to trade both are very likely.

...

But, if Quebecers finally do discount this threat, and opt for independence, then the federalist strategy will have raised the costs of their decision.... This is because all the uncertainty about the constitutional and economic future will immediately hit Quebec and ROC as a sharp shock on the day after the referendum. ... In fact, it is hard to think of a more effective way of maximizing these costs than to refuse to contemplate how to cope with sovereignty until it occurs.

Now, for the last six years the current Liberal government has been a wholehearted advocate of this modified version of the cost-maximizing plan. I say this not to single out Mr. Chrétien for any special disapproval—or approval, depending on your point of view. His adoption of the black hole strategy differs in no important respect from that of the Mulroney, Clark, or Trudeau governments before him.

In fact, to his credit, he has parted company with his predecessors on one vital point. Since 1996 his government has consistently done all that it could to clarify one issue related to secession—that a unilateral declaration of independence is not an option. I note, however, that this energetic rejection of UDI does not signify a rejection of the black hole strategy and has been adopted precisely because it is the one area where clarity unambiguously increases the barriers to secession.

There is insufficient time for me to review any of the evidence that demonstrates just how consistently the current government has pursued the black hole strategy; however, a list of the government's actions in chronological order may be found at tab 1 in the dossier that the clerk has distributed to you. I believe the clerk has distributed those.

The question that concerns us today is whether Bill C-20 represents a fundamental shift from the black hole strategy to its opposite. At first glance, it certainly gives this impression. Addressing this committee last Wednesday, the Minister of Intergovernmental Affairs stated:

Secession remains a black hole. The clarity bill gives us the only flashlight to look into this hole. But a closer look reveals that while the government is willing to shine its flashlight upon the bogeymen who are said to inhabit the black hole, it is unwilling to haul them out of the hole, give them a good scrubbing, and make them the subjects of remedial legislation.

It's worth noting that to some degree the Clarity Act is simply a laundry list repeating the items that the Supreme Court had stated in its reference ruling as being necessary to take into account in secession negotiations, but cheerfully avoiding any mechanisms that could cause the court's concerns to be met in a businesslike manner.

A review of its provisions convinces me that the proposed law's real function is to make the path from a yes vote in that secession referendum to actual separation as murky as possible, notwithstanding the Supreme Court's ruling that if a clear majority of Quebeckers vote yes on a clear question in a referendum, the federal government would be obliged to enter into secession negotiations. This bill lays the groundwork for any post-referendum negotiations to be as protracted, drawn-out, and ineffectual as possible.

• 1945

This strategy seems to have been adopted in order to permit Ottawa to claim that it is complying with the Supreme Court's injunction to negotiate in good faith, while ensuring that negotiations will be endless, confused, and carry on until the separatists finally give up in exhaustion. If this tactic works, separatists will be presented with a Gordian knot that could be sliced through only by means of a unilateral declaration of independence, which the court has ruled to be illegal under international law and unconstitutional under Canadian law.

To make this point more clearly, I draw the attention of committee members to the text of what I consider to be a much better considered clarity act, which is located at the second tab in your binders. This is the law adopted by the Swiss canton of Berne in 1970 to provide contingency legislation for the orderly separation of one of the canton's regions and the establishment of that region as an independent canton within the Swiss confederation.

A review of the issues raised by secession reveals just how little clarity is provided by the Clarity Act. In its 1998 ruling, the Supreme Court stated that a series of practical issues, which were listed in its decision, would have to be negotiated before a province could be permitted to leave the federation. However, the court added, it is the political actors who must clarify exactly how each issue would be dealt with. This clarification is the ostensible purpose of this bill.

But instead of clarifying the government's position on each issue, the Clarity Act states simply:

No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in its negotiations,...division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the aboriginal peoples of Canada, and the protection of minority rights.

This is simply a restatement of the Supreme Court's injunction rather than an attempt to fulfil it.

[Translation]

The Chair: There is a bit of noise in the room, which makes it hard to hear the witness.

[English]

Could we have a little more quiet while the witness....

[Translation]

An hon. member: [Editor's Note: Inaudible]

The Chair: That may be the cause.

An. hon. member: Mr. Alcock is the cause

[English]

The Chair: Sorry to interrupt.

Mr. Scott Reid: Not at all.

No formula is even hinted at in the bill by which any of these vexed questions could be dealt with in order to lower the costs to all concerned.

None of these questions is so complex as to be impossible to resolve. At the third, fourth, and fifth tabs in the binders, committee members will find, respectively, an article I published in 1998 dealing with how to divide the federal debt in an orderly fashion while minimizing the cost to all concerned; an article from 1997 in which I summarize many of the proposals that have been made for redrawing Quebec's borders so as to minimize the number of loyal Canadians who would be forced to lose either their homes or their citizenships; and finally, a chapter from a 1992 book in which I propose a method by which federal legislation could ensure that the rights and claims of Quebec's aboriginal peoples would be respected in a secession crisis.

By contrast, under Bill C-20's Byzantine negotiating procedure, debts, borders, and other such issues would be dealt with only after a secession referendum is already over and goodwill on both sides is at a minimum. At this point they would be made the subject of an unwieldy set of multilateral negotiations involving, as subclause 3(2) puts it, “at least the governments of all of the provinces and the Government of Canada.” No mention is made in the bill of how negotiations should be structured in order to avoid bogging down. Are the participants to be treated as equal players? How will extraneous issues be kept off the table? In the absence of strict parameters, such negotiations could be safely assumed to be unending.

However, multilateral negotiations would represent merely the second round in the federal government's arsenal of delaying tactics. The first round would occur when, following a majority yes vote, the House of Commons would assemble and debate whether the majority had been clear. To deliberately leave this blank suggests that Ottawa will declare after the fact that whatever majority has been achieved was insufficient.

Better yet, perhaps the Commons would drag out the discussion of this issue to such a point that the real secession negotiations would never begin at all. The Commons hearings mandated by the Clarity Act certainly appear to have been designed to be as slow and as cumbersome as possible. In addition to taking into account the views of all parties in Quebec, the House is obliged to accept submissions from all other provinces and territories on whether or not the majority was clear.

Clearly, therefore, a preferable method of dealing with the question of what constitutes a clear majority is to establish the number, in advance of any referendum, in the text of federal law. To see one method by which this could be done, members should turn to the sixth tab in their binders, where they will find Bill C-341, a private member's bill introduced by Stephen Harper in the last Parliament. Also at that tab are two articles discussing the bill and making suggestions as to how to incorporate its major points into future legislation.

• 1950

Also, I want to draw your attention to the article at tab 7, which discusses why attempts to set the threshold for a clear majority at an unrealistically high level are likely to backfire on federalists.

One last point—

The Chair: Mr. Reid, we're well over time, and I would hope you'd conclude very rapidly.

Mr. Scott Reid: All right. This is the part where I say something nice about the government, so you'll want me to—

The Chair: I wasn't worried about who you were being nice to, I was just worried about the time.

Voices: Oh, oh!

Mr. Scott Reid: An honourable exception to the obfuscatory tone of this law is to be found in the manner in which it deals with the Supreme Court's mandate that no referendum will be valid unless voters have been presented with a clear question.

Subclause 1(4) of the Clarity Act spells out unambiguous conditions as to the kinds of questions that would be considered invalid. No question that focuses purely on a mandate to negotiate shall be treated as representing a clear mandate to secede; neither will any question that envisages “other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada”.

This is a simple, practical rule that really does clarify the situation and thereby reduce the likelihood that secession will cause unnecessary hardships to all Canadians. What a shame, I think, therefore that the rest of Bill C-20 could not have been drafted in a similar vein.

The Chair: Thank you very much.

Mr. Hill.

Mr. Grant Hill: Thank you, Mr. Chairman.

Mr. Reid, it sounded to me like you suggested that this bill could have a companion or at least be preceded by some improvements to the federation. Did I accurately...?

Mr. Scott Reid: I hadn't said that exactly, but I do think some form of what has come to be called plan A, which involves a series of improvements to the federation, is in order. There's a very long list of things that could be looked at.

There are some things that strike me as being obvious and don't require any effort at all, to my way of thinking. Returning to an issue that was raised in the Meech Lake accord—you may recall this—there was the constitutionalization of three Supreme Court justices from Quebec. This is a convention right now that's to be constitutionalized.

Another area is the formal disposal of a series of federal powers that I think everybody recognizes should be removed, and yet for some reason they aren't removed. I'm thinking of the declaratory power, the disallowance power. There is also the formalization of some kind of provincial role in choosing Supreme Court justices. Another one is some form of improvement to the Senate so that it genuinely represents provinces, which it does not now, although that was its original intention. One could go on and on in that vein.

Mr. Grant Hill: You suggested that the majority wasn't laid out and you felt that was a mistake. Would you comment on where you think the majority should lie?

Mr. Scott Reid: In one of the articles I've attached with the documents I actually refer to my own suggestions. There are two options I would consider realistic. Both of them are 50% plus one of something greater than the number of valid votes cast.

For example, 50% plus one of all votes cast has the effect of ensuring that all votes that are declared spoiled count as no ballot. That discourages the deliberate counting of “no” ballots as spoiled ballots, which occurred in three ridings in the last referendum. This is an important point, given that the individuals who carried out this action were effectively not prosecuted to practise. That therefore gives a practical encouragement to electoral officials to participate in this kind of fraud. Some kind of mechanism is needed to protect against that.

Alternatively, if one wanted to be a little bit tougher, one could say 50% plus one of all eligible votes. Sometimes people talk about 50% plus one of registered voters. This is an assumption that we register voters in Canada, which of course we don't.

I hesitate to suggest that one should pick a higher number. The reason I say this is that if one sets the threshold at, say, 55% or 60% or some higher number, one introduces the danger of strategic voting—that is, people who feel that while they do not want Quebec to secede, they do want to pressure the federal government into making changes, and the only way they feel they can do it is by giving their own government enough of a boost to genuinely frighten the federal government into taking action. I think there's some evidence that a bit of that happened in the last election.

• 1955

I don't think setting the barrier higher really means that if you were to achieve a 52% or 53% you would stop secession from happening anyway. I think the ball would start rolling.

For evidence of this, I would suggest people look at the example of the state of Maine, which seceded from the state of Massachusetts in 1819 following seven separate referendums. A majority was achieved on one referendum but not a large enough majority to meet the threshold set by the Massachusetts state government. The result was a snowballing of support in future referendums. All that really happened was that the secession process was slowed down and made more expensive and painful than it probably had to be.

Mr. Grant Hill: If you were in my position as a member of Parliament, would you vote for this legislation as an improvement on the previous situation or reject it altogether?

Mr. Scott Reid: I'm torn on that, because I do think the clause that deals with the clarity of the question is a genuine improvement over the previous situation. I must say, though, everything else seems to me to be making the situation less clear.

But you have to remember my perspective; I'm in favour of reducing the costs of secession as much as possible. It's not because I advocate secession but because I think it's a realistic possibility. If one favours that outlook, then that's the way to look at it.

I guess if you are in favour of increasing the barriers to secession, the costs of secession in particular, then you should support this bill. So it depends on your philosophy.

Mr. Grant Hill: Thank you.

The Chair: Mr. Turp.

[Translation]

Mr. Daniel Turp: That last comment is rather interesting. If I understand your point of view correctly, a bill such as this would increase the costs of secession, and by so doing would give the advantage, I would imagine, to the party adopting it and wishing to impose rules which strike you generally as totally excessive. Do I understand correctly?

[English]

Mr. Scott Reid: I think the point I was trying to make is that when one is trying to balance—as I guess is natural for political parties, although your own political party would be an exception here—the desire to establish high costs for secession with the desire to continue winning votes in Quebec, the logical thing to do is to hint darkly at any number of costs, to try to create costs but not to actually go out and create institutions that would directly create costs.

An obvious example here is that there is nothing preventing the federal government from producing legislation right now that would impose a very high percentage of the federal debt on a province that seeks to leave Confederation. Presumably, however, if legislation of that nature were to be undertaken, that would not help the governing party's prospects in the next federal election in Quebec, and neither would a series of other such rules we could think up.

One way of dealing with this, then, is to imply that fiscal catastrophe is waiting, without actually saying we're responsible for it; it's just the way the world works; whenever countries split up there is tremendous disaster. A good example of this was Paul Martin's commentary about a million jobs being lost prior to the referendum five years ago, if you remember.

[Translation]

Mr. Daniel Turp: Did you find credible the comment claiming the potential loss of one million jobs?

[English]

Mr. Scott Reid: Do I find credible the threats the federal government is making?

[Translation]

Mr. Daniel Turp: No. Did you find Mr. Martin's comment during the referendum campaign credible? That is what you have implied.

[English]

Mr. Scott Reid: Oh, well, I'm not an economist, but I have to say that did seem a bit suspect.

• 2000

[Translation]

Mr. Daniel Turp: You also seem to be questioning those clauses of the bill which address the costs of secession, and I acknowledge this.

I would like to ask you another question. You have many objections. Some of them we share and we are not, obviously, members of the same political family. Would another objection not be that this bill will lack legitimacy when passed, because at least 49 Quebec MPs will have voted against it? If the Quebec Conservatives vote against it, and the 44 Bloc Québecois members, plus one independent, that will make 60% of the Quebec members who will have voted against it. What value, then, does a bill have if it does not have the assent of 60% of members?

[English]

Mr. Scott Reid: I'm not sure I would quite agree with that logic. If that were true, then presumably the 1982 Constitution would have tremendous legitimacy because it was supported by a vast majority of members from Quebec.

Mr. Bill Blaikie: Some 74 out of 75.

Mr. Scott Reid: Right, and if I'm not mistaken, the one who opposed it was Warren Allmand. Is that correct?

[Translation]

Mr. Daniel Turp: And one other person.

[English]

Mr. Scott Reid: Anyway, it doesn't really matter.

Mr. Daniel Turp: They lost the election the next time around. Remember that? Boy, did they ever.

Mr. Scott Reid: Fair enough, but I'm not sure I would want to base my opposition to the bill on who voted for and against it. I don't think Quebeckers or anybody else wind up basing their opinions on laws on who supported it the last time around.

[Translation]

The Chair: All right then. Mr. Blaikie.

[English]

Mr. Bill Blaikie: I don't think it was Warren Allmand.

Mr. Reg Alcock: Yes, it was.

Mr. Bill Blaikie: Was it? I thought it was the Conservatives. It was the Conservatives. I thought it was Roch LaSalle, for some reason. Anyway, it wasn't a Liberal.

In any event, Mr. Chairman, I have a question. You mentioned yourself some of the things that you thought should be done by way of renewing the federation, and I agree, as I've said earlier, that we'd much rather be discussing a plan A here than a plan B, and a plan B that has some inadequacies both in terms of process and substance. I don't want to engage you in a full debate on the renewal of federalism, but it seems to me the things you mentioned don't go to the heart of the matter of a plan A that would renew federalism in a way that would meet what Quebec federalists have identified. I'm not sure whether there's a plan A that can satisfy diehard separatists, but I've always been convinced that there was a plan A that could meet the requirements of so-called soft nationalists or even separatists who wished they weren't or wished they didn't have to be, etc.

In that respect, I wonder what you would have to say on that. In terms of the kinds of things that in the past were tried and were rejected, but which reflected some kind of asymmetry in the federation both in terms of opting out but also in terms of recognition of Quebec as a distinct society or the Calgary declaration as unique, etc., those are the things that it seems to me are problematic. Those are the things that have made renewal of federalism very difficult. Every time they've included that they've run into problems, and in fact of course they ran into problems with the Reform Party, they ran into problems with the Liberal Party.

I'm wondering whether it isn't whistling in the wind, or whatever the appropriate metaphor is, as long as those two political traditions, which right now are fairly dominant, are radically opposed to any kind of constitutional recognition of that reality. Then we can have decentralization and devolution, and all those things, but as long as it doesn't contain that sort of symbolic dimension, is it really going to go anywhere?

• 2005

Mr. Scott Reid: Of course, the Constitution is much harder to change than simple laws. That's why, when looking at the five points in the Meech Lake accord, I pointed to the one that was completely non-controversial. I don't think there was any controversy over the merit of constitutionalizing the convention about the three justices coming from Quebec.

I've jotted a few points down here that seem to me to be subject to being addressed at a non-constitutional level, and yet potentially to be effective.

An obvious one, the most important one by a mile in my opinion, is the use of the federal government's spending power to try to direct provinces as to how they spend their own money in areas of their own jurisdiction. It's a sore point with many provincial governments, but it's particularly a sore point in Quebec. Opting out is permitted from some programs, but of course it's always opting out under so many conditions that in practice it's not really allowing the province to operate as a sovereign, independent state in that area of jurisdiction, which, after all, is the point of federalism.

Under federalism, each province—or state or canton—is a separate independent state in areas of its own jurisdiction, or ought to be. So the spending power is a violation of that. It's not unique to Canada; the Americans have a version of the spending power that is more detailed than our own.

I used to live in Australia; they have a version of it too. That doesn't change the fact that it's a constant sore point and it could be dealt with by a variety of different means: a change to a system of tax points, for example, as a means of making most federal transfers; I think to make the equalization system somewhat less arbitrary would be an improvement; subsidies to groups such as Alliance Quebec are seen as, again, an attempt to interfere in internal cultural affairs in Quebec.

Another area I found very interesting is this. I wrote a book on language policy and I was very interested to discover in the course of my research that the number of jobs open to unilingual francophones in the federal public service has been in continual decline thanks to the poor design of federal official languages legislation and its application to the federal public service. As more and more jobs get designated bilingual, a disproportionately large share of those come from jobs that were formerly designated open to unilingual francophones, the result being that increasingly, as time has gone on—and this is going back to the mid-1970s—the majority of Quebeckers are frozen out of any kind of position, certainly, with any kind of level of responsibility in the federal public service.

So there's a series of measures of this sort that I think could be helpful.

The Chair: Mr. Bachand.

[Translation]

Mr. André Bachand: First of all, thank you for coming.

After your presentation, I asked myself whether you were for or against the questions tabled by Dr. Hill, and I am still wondering whether you are in favour of this bill, or opposed to it. You raised a number of interesting points. However, to someone from Quebec who likes protesting against the federal government the last items you raised were extraordinary. Those of us in this prison of a legislative committee have a very tight timeframe for receiving witnesses to help us discuss proposed amendments and perhaps to help advance certain ideas. That is why we receive witnesses. As far as you are concerned, I would like to hear, as an assistance to us in our reflection, what reasons there are for you to support Bill C-20 and what reasons there are for you not to support it.

[English]

Mr. Scott Reid: I think the one reason to support Bill C-20 is the fact that it does provide some good rules with regard to the clarity of the question to be asked in a referendum, and that's no small matter.

In terms of the reasons for opposing it, I think the failure to address the real contingency issues, any of them, except by saying that they'll be negotiated after the fact, is certainly a huge reason. I would have preferred something that simply didn't mention the issues of borders, debt division, and that sort of thing. I think the comical failure to name a number as to what is meant by a clear majority is just preposterous. I'm trying to think of what else I would mention. I think those are the main points. You could go on and critique it in more detail, but those are the main points.

• 2010

[Translation]

Mr. André Bachand: Is it your opinion that we must take the Supreme Court judgment into consideration? Must we live with Bill C-20, which the minister has presented to us as reflecting the opinion of the Supreme Court on the reference concerning Quebec, the logical follow-up to it? Do you believe that the opinion of the Supreme Court must be taken into consideration? The Supreme Court is nevertheless fairly clear on the question and on the majority, acknowledging the jurisdiction of the National Assembly or any other provincial legislature, although in this case Quebec is what is being referred to. Where do you find your legal justification for this?

Moreover, if you are opposed to the Supreme Court judgment, according to some, you are opposing a rule of law. According to some, this judgment has force of law, while others hold the opposite view. Regardless, what do you consider the legal basis for including a clear question and a clear majority?

[English]

Mr. Scott Reid: I don't have the Supreme Court's decision here in front of me, but I'm sure you're reasonably intimately familiar with it. The Supreme Court does say there are questions that need to be addressed, but that they are political in nature and therefore need to be addressed by the political authorities. That includes the items that are listed in the last paragraph of this law, including the borders, the division of debt and assets, the taking into account of the rights of minorities, and so on.

It also includes the definition of “clear majority”. The court could have said we're going to put a number on this. They could have done that. That would have been, I think, unwarranted judicial activism, and I applaud them for not having done that. But that doesn't preclude others from trying to choose a number that is clear within the consensus that exists in Quebec society and Canadian society as a whole.

On this basis, I would point to the fact that quite a number of polls in Quebec have indicated that the majority of citizens do not regard simply 50% plus one of votes cast as being a legitimate majority. The term “clear majority” wasn't used when some of these polls were done going back as far as 1993-94. But clearly there are the beginnings of a consensus on the need for some number to be specified.

Interestingly enough, it's higher than the numbers I've actually suggested. If you take 50% plus one of valid ballots cast, that boosts you up to about 53% of total votes cast, I think, based on a 93% turnout. If you go for 50% plus one of all votes that potentially could have been cast, you're boosting yourself up to about 56%, I believe. It's just interesting to note that the number that came closest to being a consensus, back in 1993 when the first of these polls was done, was 56%.

Something where the political authorities attempt to find out what the people as a whole want and believe seems to me to be the best way to go about the exercise. That suggests that all authorities, not just federal authorities but also provincial authorities, should engage in that kind of exercise.

The Chair: Mrs. Redman.

Mrs. Karen Redman: Thank you, Mr. Chairman.

Mr. Reid, you say that it's preposterous not to set a majority in advance of a vote, but in paragraph 153 the court said:

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.

• 2015

My question is, is it Parliament that's preposterous or the court when it states that you can only evaluate clarity when it's done in context?

Mr. Scott Reid: With regard to the interpretation you give to those words, the court did not say after the fact of a vote. It said in the context of a vote.

I don't see anything wrong with trying to anticipate in advance what would be a reasonable level at which to set it, especially since we've had two go-arounds on this exercise. Things might be different next time, but we know that last time we were dealing with a premier who was prepared perhaps to go ahead with a very small majority, what would not constitute a real majority at all, and enact we don't know exactly what, but perhaps a unilateral declaration of independence, which would have cast the entire country into chaos. I don't think any pettifogging after the fact about what was and wasn't a majority would have stopped that from happening if you hadn't established a level of legitimacy to the federal position by stating it in advance in the context of a wide-ranging discussion that included, as I mentioned in my earlier comments, the input of as many people as possible in Quebec.

Mrs. Karen Redman: You also voiced some concern as to the negotiations that would happen with the federal government. I would be interested in hearing who you think are the political actors the court refers to that should be part of that negotiation. It sounds to me as if taking due process is something you have some concern about.

Mr. Scott Reid: I'm not sure I follow you. Taking due process—

Mrs. Karen Redman: You talked about negotiations being very protracted and the number of government bodies and levels that could perhaps be involved, and you felt that might be a never-ending story. So who would you see being involved?

Mr. Scott Reid: I would see all the people mentioned by the court, and the court mentioned the provinces. There are no players in here that aren't mentioned in the Supreme Court decision. I'm just suggesting that this sort of consultation take place beforehand.

A really obvious example of this is the fact that—and this is mentioned in one of the points at tab 1 in the handout—during the course of the Supreme Court's deliberations, on three separate occasions the federal Attorney General went to the Supreme Court and instructed it that it was not to give a decision, that it had not been asked which of the potential amending formulae was appropriate to allow the secession of a province, and there are three that are potentially applicable here.

Right away we're left in the situation where we don't actually know certain things. When we talk about involving the provinces, are we talking about involving seven out of ten of the provinces with 50% of the population? Are we talking about needing the support of all of them? Are we talking about needing just a bilateral constitutional amendment? Are we talking, for example, about needing some parts of the secession agreement to be approved using the section 35 provisions of the Constitution, which constitutionalizes certain aboriginal treaty rights? In other words, you'd have to go to the relevant aboriginal peoples and seek their approval for those aspects.

We don't know any of those things, because the government instructed the court not to rule on it. I think, frankly, that should be the subject of another reference case or should have been allowed to be decided in this reference case.

At any rate, the point here is that these things should all be worked out in advance and these parties and their roles should be established in advance, as opposed to trying to put it off until after the fact, at which point it becomes very difficult. The thing is that if it takes several years before the fact, that's fine because we have the time. After the fact you have a crisis. For example, lenders aren't going to give their money to a Canada that can't decide how the debt is going to be divided, when they have the option of giving their money to any other country in the world or any other private corporation, and that's all it takes to have a lenders' strike. Then we cannot pay back the Canada savings bonds and other federal debt instruments, which represent the largest component of most people's RRSPs. I can go on and on in this vein, but the point is that if you do it in advance, then it doesn't matter if it's protracted. If you do it after the fact, it matters a great deal, because the costs are so high.

Mrs. Karen Redman: But what I'm hearing you say is that you have no problem with the political actors that are named in the legislation.

Mr. Scott Reid: I can't see anything wrong with the list of actors. That's the list that was brought out by the Supreme Court.

• 2020

The one exception I did notice was in the question of whether the yes vote is a clear majority. I noticed that not only the provincial governments are invited to participate but so are the territorial governments. Of course I don't think this question should be resolved in this manner, after the fact, anyway, but I did think, Wow! We're going to be asking the Government of the Yukon to offer its commentary on whether or not, say, 52% or 53% is a clear majority.

The Chair: Mr. Jaffer.

Mr. Rahim Jaffer: Thank you, Mr. Chair.

Mr. Reid, you spoke about the issue of borders. I just have a quick question. If Quebec can be divided from Canada, would you agree, or what are your thoughts, on dividing Quebec where there are majority votes to stay within the country?

Mr. Scott Reid: I published a book on this very subject in 1992, called Canada remapped: how the partition of Quebec will reshape the nation.

The model that makes sense for dealing with this issue is to emulate the method that was used in the Swiss canton of Berne in the 1970s, when in fact they faced a similar crisis. An area of the canton of Berne was agitating to secede, and this was permitted under legislation adopted by the canton. But at the same time, individual municipalities, or communes, as they're called in Switzerland, were given the right to hold local referenda on whether to remain in Berne or to be part of the new canton of Jura.

It's interesting to note this was a situation characterized, prior to the adoption of this legislation, by a degree of violence and irredentist terrorism, led by a group called the FLJ, modelled on the FLQ, interestingly enough. After the legislation was adopted, the issue was resolved peacefully. So if it worked there, there's a very realistic possibility that it could be made to work here.

There's one additional level of complexity. That's easy enough when you're dealing with municipalities in southern Quebec. It's a bit more complicated when you're dealing with northern Quebec, because you have multiple, overlapping land uses. For example, the Cree in northern Quebec have traditional lands that overlap the Hydro-Québec power dams that were installed in the 1970s, at great expense to all Quebec taxpayers. Some form of resolution to that would have to be found, which would be separate from this mechanism.

In the book—and in fact I included this part in the handout—I propose using a model based on the manner in which the territory of the Panama Canal Zone was divided. Of course the Panama Canal Zone no longer exists, but I propose the manner in which it was divided during the 80 years of its existence.

Mr. Grant Hill: Mr. Reid, could you just very briefly go over your formula for dividing the debt in the event of secession?

Mr. Scott Reid: Sure. In a nutshell, I don't think it's profitable to enter into discussions over whether Quebec ought to pay 25%, which is its share of the population, or 23%, which is its share of the GDP—my numbers may be out of date, but that sort of thing—or some other number and disputing it back and forth. The costs involved in fighting over who pays how much, the costs in the form of creditor lack of confidence and therefore the higher interest rates they will demand in order to lend you money, are so great that any form of direct, face-to-face negotiation simply doesn't make sense.

You have to remember that in any negotiations the way each party gets its side to a certain degree is to say “Well, look, if I don't get my way to some degree, I'll take my marbles and go home.” But you can't do that when you're dividing the debt. You can't take your marbles and go home, because you have to keep on refinancing the debt. You have to keep on paying it back to your creditors.

So what I recommend—and again, I have an inclusion in the handout that deals with this subject—is to establish a panel consisting of representatives of the governments of the three largest creditor nations, just because it's an odd number. Then they can consider a final offer provided by the Government of Canada and a final offer provided by the Government of Quebec, and choose which of those two offers is more reasonable. Once that offer is chosen, both sides have to live by it.

• 2025

As you are no doubt aware, in labour negotiations, this kind of final-offer arbitration is a way of forcing both sides towards the middle, so each one hopes to gain the minor advantage that can take place if it wins its side.

If that were done, I suspect Quebec would wind up taking a share of the debt very similar to its share of Canada's gross domestic product, somewhat less than its share of Canada's population. This would leave an equal burden on both governments, and significantly, it would be the arrangement the creditors would favour in their own interests, because they would be choosing an arrangement and a proportion for either side based upon what seems best to them for their citizens and their institutions who hold Canadian federal government debt, as opposed to what's best for the people of Quebec or what's best for Canada.

The Chair: Mr. Reid, I want to thank you for your testimony today. We appreciate very much the time you've taken to appear before the committee, and I'm sure all the members join me in thanking you for your assistance today. Thanks.

You have a point of order, Mr. Blaikie.

Mr. Bill Blaikie: Mr. Reid kept referring to a handout. I don't have the handout.

The Chair: You won't get it until it's been translated, Mr. Blaikie.

Mr. Bill Blaikie: Oh, that's why. Okay.

The Chair: You know the rules of the committee.

[Translation]

Mr. Daniel Turp: A point of order, Mr. Chairman.

The Chair: Yes, Mr. Turp.

Mr. Daniel Turp: I would like to tell the members of the public who are watching that the reason the documents are not being distributed in English and in French strikes me are rather obvious: the witnesses are turning up with documents they have not had time to get translated, and the committee is not in a position to have them translated, having just received them. It is quite obvious that we will not get some of them in the other language before the end of the sittings, even.

This is something that allows us to demonstrate to the viewing audience that the work of this committee is being done precipitously, which is unacceptable.

[English]

The Chair: I don't think that's a point of order. The committee agreed to this method of proceeding at the beginning instead of another method, and that's that. We're in the hands of the committee. Members can ask the witness, if they wish, for a copy and get it from the witness, but the committee can't distribute them because of the order we adopted at the beginning.

[Translation]

Mr. Daniel Turp: The result of the rush can be seen.

The Chair: It is as simple as that.

Mr. Daniel Turp: Yes, but—

[English]

The Chair: Our next witness this evening is Professor Yves-Marie Morissette,

[Translation]

of the McGill University Faculty of Law.

Professor Morissette, welcome to the committee.

[English]

We are pleased to have you here tonight and appreciate your taking the time to appear. Under the rules we've adopted, you will have 10 minutes for your remarks,

[Translation]

and then 35 minutes will be allocated to members' questions.

Welcome. You have the floor.

Mr. Yves-Marie Morissette (Professor, McGill University Faculty of Law): Thank you, Mr. Chairman.

I am going to speak in French, but I will be able to answer in English any questions asked in English, if required.

I am here this evening essentially as a legal expert, and I would like to address three things: the scope of the reference on the secession of Quebec as I understand it, and two specific aspects which are, of course, the focal point of your concerns: the clear question and the clear majority. My particular emphasis will be on the clear question.

The point of departure of this undertaking which brings you together at present is this reference on the secession of Quebec. I believe it has offered the opportunity, for the first time in the history of Canadian constitutional jurisprudence, to reconcile two values, and this is a point on which I would like to focus a fair amount of emphasis, that are not always addressed in constitutional law: legality, of course, but also legitimacy, which is central to this referral and comes up as often as the concept of clarity. There are, I believe, 13 references to a clear question, but there are 21 to legitimacy.

Speaking of which, the Supreme Court has refrained from getting into politics. It has set the requirement of a clear question, but has refrained from stipulating what the specific conditions of that requirement would be. It has spoken of a clear majority but, wisely in my opinion, has refrained from stipulating which of the definitions of quantitative majority in application at the present time would be used.

• 2030

It therefore seems to me that as much consideration must be given to what the Supreme Court has not said, the unexpressed which is political, as to what it has said. Among the ideas that can be taken from the judgment are two which are, in my opinion, particularly pertinent for your purposes.

The first is that, all things being equal, the legitimacy of a referendum outcome is proportionate to the percentage of clearly expressed votes in favour of an option. That is a principle which transcends legality, so that if a referendum were, for example, carried out according to the rule observed in Quebec in 1980 and 1995, i.e. 50% plus one, it will be a legal referendum, no doubt about that, but its legitimacy would vary considerably according to whether the result were, say, 50% plus one, or 85%. This notion of legitimacy is present and is one of the things that explains what the impact of the referendum will be on international law. The Supreme Court refers to this directly.

Second, the court states that, generally speaking, legality is characterized by greater legitimacy than illegality; that is obvious. Legitimacy is not, however, mere legality, and thus legality may be an obstruction to legitimacy. This is also a very important notion. This is, in my opinion, the reason for the obligation to negotiate being included in the judgment. There has been much said about this obligation. It was rarely, if ever, mentioned before, and now it has become part of Canadian constitutional jurisprudence.

Thus, the Supreme Court is putting political staff on their guard against two errors, or two slight legalistic distortions. The first is to say, as was heard prior to the reference on secession, that, regardless of the number of votes cast in Quebec, in the final analysis, the procedure for amending the Constitution and hence for secession, will always been section 41 of the Constitutional Act of 1982, and that in fact it will always be possible to refuse to allow a province to recognize a very strong majority in favour of secession.

This legalistic distortion is, in my opinion, condemned by the Supreme Court in its judgment.

The second one, on the other hand, is that a simple majority is sufficient to ensure legitimacy. The Court stated and I quote:

It would be a grave mistake to equate legitimacy with the "sovereign will" or majority rule alone, to the exclusion of other constitutional values.

With this backdrop on legitimacy and legality, the Supreme Court is telling us that both the clarity of the referendum question and the clarity of the majority obtained will have to be looked at.

As you are aware, two referendums have been held in Quebec: the first in 1980 and the second in 1995. In both cases, the question was drafted by the political party that formed the government. In both cases, the question did not meet with the approval of the Official Opposition, and in both cases, at least according to the polls, the questions asked contained a certain number of ambiguities such that they did not necessarily meet this clarity requirement.

It appears that if the Supreme Court constantly comes back to the idea of clarity—that it mentions 13 times—, it is with the purpose of ensuring that the ambiguities likely to arise when natural language is used are eliminated as much as possible or at least minimized.

I believe that if referendum practice in Quebec had been fully respectful of this democratic precept, then the Supreme Court would not have insisted so much upon this aspect.

More particularly, I would like to refer to one aspect of the 1995 referendum question. You will recall that the question was as follows:

Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and the agreement signed on June 12, 1995?

Even a superficial analysis of this question shows that it in fact provides for three possibilities: pure and simple sovereignty; a partnership within the scope of the agreement proposed by the parties forming the majority in Quebec; or the status quo, in the hypothesis of a No side win in the referendum.

• 2035

It seems to me that there is an obvious analogy here to be drawn between this situation and that which the French Constitutional Court looked at in 1987 when it was called upon to study the question asked in the independence referendum held in New Caledonia.

It nullified this question by developing a doctrine on the double requirement of clarity and loyalty in the wording of the referendum question, and I believe that its analysis in that case could be applied to the 1995 question.

As you well know, American law offers numerous examples of referendums: Initiative and Referendum Acts. The constitutions of several American States contain requirements aimed at eliminating two-part questions and at forcing the party drafting the referendum question to limit it to one idea only. In my opinion, the 1995 question does not meet this test.

As to the requirement for a clear majority, here again the Supreme Court comes back several times to this aspect, but it appears, a priori, that it does not reject the possibility of a conventional absolute majority rule, namely 50% plus one. Such a rule would not necessarily be contrary to the court's directives.

A referendum administered in this way, on the basis of a clear question and producing a majority of more than 50% plus one could, depending upon the rest of the context, satisfy the Supreme Court's ruling.

I however believe that it is to play with fire to launch a referendum process the result of which will be very close; to put to the people a question that, in the minds of a good many voters, is ambiguous; to purport to legitimize a radical transformation of constitutional structures with a majority of only slightly more than 50%; and when the result of the vote gives rise to serious concerns as to the lawfulness of the voting process.

However, this is in fact very close to the situation that came about in 1995, the difference, obviously, being that the result was the reverse. You know the numbers as well as I do: the majority was of 54,000 votes and there were 85,000 rejected ballots. There were also positive elements: 93% of registered voters voted, which obviously is a sign of a healthy democracy. But with such a slim majority, had the result gone the other way, in essence, the Supreme Court's criterion would not have been met.

Add to that the practice of States over the past 50 years and in particular—they were presented to you last Friday—the cases of the 13 last referendums held over the past 15 years.

For all these reasons, therefore, Bill C-20 is to my mind entirely in accordance with present-day Canadian constitutional law. In my view it re-establishes an acceptable balance in the debate on sovereignty between Quebec sovereignists and federalists. It prevents the referendum procedure from itself becoming a winning condition or from serving one of the two sides. It guarantees that the referendum will be a neutral and impartial disclosing agent of voters' wishes. For all these reasons, I believe you should recognize its usefulness, in its present form.

It is also my belief that it adds the following to the debate: in a parliamentary system, the sovereignist Opposition in Canada's parliament will have the opportunity to defend the sovereignist point of view and, if it so wishes, to attempt to convince Quebec voters that the federal government's resistance to the sovereignist program is illegitimate under the principles of constitutional law as set out by the Supreme Court.

Given these circumstances, I have difficulty understanding opposition to this. Thank you.

The Chair: Thank you, Mr. Morissette. We will now move on to the first set of questions, from Mr. Jaffer.

Mr. Rahim Jaffer: Thank you, Mr. Chairman.

Mr. Morissette, I would ask you to clarify your position on what a clear majority would be. As I listened to your presentation, my impression was that you perhaps see problems with a 50 plus one percentage. If such is the case, then what can the government do to clarify this matter of a clear majority? From what basis would you suggest we work?

• 2040

Mr. Yves-Marie Morissette: This is a problem that can be resolved legally or politically. I believe that in Canada's present situation, it would be very difficult to resolve it legally, because there is no consensus as to what would constitute an acceptable majority. For my part, I believe that a majority of registered voters would already be progress compared with the absolute majority that I described earlier.

But it appears to me that there could not be sufficient consensus for an acceptable law to be passed and that, consequently, this law would itself risk being the subject of controversy, which would be unfortunate. Therefore, we must attempt to deal with the problem in the political arena and urge all stakeholders, in particular the political actors in Quebec, to recognize that secession or a unilateral declaration of independence with a very slim majority could prove to be catastrophic.

That is my feeling. But I do not believe that the Supreme Court has eliminated the possibility of a referendum administered with an absolute majority, in the technical sense of the term.

Mr. Rahim Jaffer: I have a question on the divisibility of Quebec. In the event that certain municipalities or regions of Quebec voted in favour of remaining within Canada, would Quebec be divisible? What is your opinion?

Mr. Yves-Marie Morissette: The Reference referring to the secession of Quebec is a reference on the secession of Quebec. Analogies with municipalities, regions and sub-groups are in my opinion questionable. I do not, however, eliminate the possibility that certain portions of the territory that are for example occupied by groups having ethnic or cultural autonomy, might constitute, for the purposes of a rule for secession to the majority, sub-groups capable of separating from Quebec or of staying within Canada following a majority referendum vote in favour of the secession of Quebec.

I do not believe it is very plausible that this logic be extended so as to include municipalities or specific pockets of the electorate that have consistently tended to vote against sovereignty or its substitutes.

Mr. Rahim Jaffer: I have one final question for you. Many people have identified problems and weaknesses in the bill. What might we do to improve it?

Mr. Yves-Marie Morissette: I am not a politician. I am just a lawyer, a university professor. It seems to me that is fine just the way it is. It is not perfect, but why not leave well enough alone, and it is a marked improvement over the situation we were in previously, where we had no idea what the Canadian government and Parliament's attitude would be in the face of a new referendum plan.

Subjectively and personally, I would have liked to have seen agreement on a majority rule other than absolute majority. Earlier, I mentioned a majority of registered voters; it might even be advisable to demand more than that. But unless there is consensus, then we lapse into the arbitrary. As I mentioned, my feeling is that it would risk bringing about negative political repercussions that would be even more serious than the problem we are seeking to resolve.

To my mind, this bill offers a very acceptable compromise. I do not really see how I could improve it, unless we were to change the interpretation of the Supreme Court reference and the theory on the secession or the sovereignty of Quebec.

The Chair: Mr. Turp.

Mr. Daniel Turp: Dear colleague, McGill University is a great institution of Quebec that I love and appreciate. First of all, allow me to suggest another interpretation than yours, and than that of several people, of the notion of simple majority.

• 2045

When the Court talks in its opinion of a simple majority, I and others believe that what it means, in essence, as its entire argumentation infers, is that a referendum vote is not sufficient for there to be accession to sovereignty, given that there must be a constitutional amendment. That is what I understand from the Supreme Court's reasoning. When it talks of a simple majority, it does not mean a simple, absolute, qualified majority and so on. It mainly discusses the process through which sovereignty could be achieved within the Canadian constitutional framework through a referendum. The referendum is not enough in itself, because there must be a constitutional amendment process. I would like to hear what you have to say about the constitutional amendment process. The ruling, that you are very familiar with, does not deal with the procedure to be followed. Clause 3 of the bill does. Is it your feeling that there is some clarity on this question, either in the Court's opinion or in the bill?

Mr. Yves-Marie Morissette: There are two aspects to your question. There is that of the majority and that of the amending process.

With regard to the majority issue, I believe that the Supreme Court deliberately abstained from detailing its thoughts. When it speaks about the majority issue, it deals only with it qualitatively, and not quantitatively. This is why I say that the possibility of an absolute majority, technically, in other words 50% plus one, is not eliminated. However, it has been said elsewhere that we must not overestimate the democratic principle of an absolute majority. I believe that the message underlying this part of the advisory opinion is that we will always be haunted by the principle according to which legitimacy is proportional to the number of votes in favour of a given option. Therefore, a commitment to making a fundamental change to the Constitution with a majority of 50% plus one might very well be doomed to failure. I am speaking here of the question of the majority.

Mr. Daniel Turp: I took note of your statement when you explained that, contrary to what we often hear, the Court did not exclude the idea of a clear majority being 50% plus one and that we must envisage making a distinction between the legal majority and what would be a sufficient majority politically speaking. You make this distinction: a majority of 50% plus one might not be enough, politically, to move forward with an accession to sovereignty program of this importance, as you say, in the context of constitutional amendments.

Mr. Yves-Marie Morissette: There comes a time when legitimacy goes beyond legality, and vice versa. To respond specifically to what you have just said, I believe that the reason why it was not spelled out that an absolute majority is insufficient, is that the intent was to not rule out, a priori, the possibility of a referendum being held with an absolute majority rule and of it producing a sufficient majority to bring about political change.

Mr. Daniel Turp: It is very interesting to hear you say that, because a lot of people do not want to give that interpretation to this opinion, having us believe that a majority of more than 50% plus one is necessary according to the diktat of the Court's opinion.

Mr. Yves-Marie Morissette: That is not my feeling.

Mr. Daniel Turp: You disagree. Thank you.

Mr. Yves-Marie Morissette: Regarding the second point, that of the constitutional amendment process, I believe it all holds together.

Were the Supreme Court a demiurge in Canada's political life and were it to bring about the type of referendum process set out in its opinion and if a substantial majority, let us say, to pick an arbitrary number, 64%, were obtained in answer to a clear question in the context of an absolute majority rule, then, if we read the opinion carefully, it would have to launch a process of constitutional negotiation and amendment that would in the end transform the procedure set out in section 41 into something more formal. All other things being equal, the majority obtained would be endowed with a legitimacy such that it would garner consensus.

• 2050

Mr. Daniel Turp: You therefore agree with what Ms. McLellan stated at one point during the Court's proceedings. Do you remember what Ms. McLellan said?

Mr. Yves-Marie Morissette: I do not know what you are alluding to.

Mr. Daniel Turp: She stated that we would need a new amendment procedure for these issues.

Mr. Yves-Marie Morissette: That becomes a little like what we called concertation in college. I think the Court itself said that secession is not provided for under the Constitution. There are constitutions where this is explicit, but that is not the case of the Canadian Constitution. We will have to manage without, ever mindful of the demands of legitimacy.

Mr. Daniel Turp: May I ask another question, Mr. Chairman?

The Chair: Your time is already up.

Mr. Blaikie, please.

[English]

Mr. Bill Blaikie: Thank you, Mr. Chairman. I'd like to follow up on a few things.

First of all, we're talking about amending the Constitution. An earlier witness talked about the fact that the bill is unclear about which amending formula would be in order to effect a constitutional amendment that affected secession. Do you have an opinion on that? Do you see that as an inadequacy in the bill? Do you have an opinion as to which amending formula, either the unanimity or the two-thirds comprising of 50%...? Which formula do you think would kick in here?

Mr. Yves-Marie Morissette: Well, I would say a few things in answer to your question.

First, I think the decision of the Supreme Court is not so much unclear as deliberately vague on the applicability of the amending formula. I think there is a consensus that technically it would have to be section 41, because you're talking about changes that are so radical that they will necessarily entail some of the things that require that extreme form of consent, yes.

Second, I think it's one of the great virtues of this decision that lawyers transcended law in this decision and realized that clarity and explicit rules at some point along the line are an obstacle to a desirable legitimate political outcome. I'm talking about the members of the Supreme Court. I say lawyers; they are judges. Instead of saying it should be 50% plus one, or instead of saying that for this and those aspects it should be section 41, which we all understand superficially, they underscored repeatedly that a clear answer to a clear question triggers a process that we like to think will produce a politically acceptable solution, and therefore amending the Constitution will be less important. It will be in the order of a formality. I think that's the gist of the judgment.

So which amending formula is it? Probably the most exacting one. But by the time we get there, if we follow the other steps, it shouldn't be a problem.

Mr. Bill Blaikie: I have a further question, Mr. Chairman.

I heard you say earlier, unlike some other witnesses, on the fact that the court spoke about a clear majority, that in your interpretation of the court's opinion a clear majority doesn't necessarily rule out 50% plus one. You could have 50% plus one on a clear question, and in some circumstances that might meet the test of a clear majority. Is that what you were saying?

Mr. Yves-Marie Morissette: I would say certainly that 50% plus one as such is no reason to disqualify as a priori a referendum that has not yet been administered. Once you get to the result and you look at the context, you may find that even though this is the rule under which you operated, and you met that threshold, you do not have a clear majority because, for example, there were irregularities of some form or another.

Mr. Bill Blaikie: What kind of language would you suggest in the bill? If we were going to put 50% plus one into the bill, what kind of language would you need in order to allow for that uncertainty, allow for the fact that there could be a 50% plus one situation that didn't meet the test?

• 2055

Mr. Yves-Marie Morissette: I wouldn't put the 50% plus one standard in the bill. I would simply leave it the way it is and leave the political actors to take positions in the context, the relevant context, on whether or not this was a clear majority.

I realize that this in a sense is a recipe for controversy if the conditions under which the referendum is run are similar to those we experienced in the last referendum. But I think one of the messages the court is giving us is that we shouldn't do referendums under such conditions; we should be more careful and ask questions that are clear, adopt a process that will produce a more definitive outcome. If you go by all the obligations that are set out in the judgment, I think you might actually avoid the kind of problem you're describing.

Mr. Bill Blaikie: The only thing that's set out in the judgment before you get into the debate about whether something constituted a clear majority—

Mr. Yves-Marie Morissette: Is the clarity of the question.

Mr. Bill Blaikie: —is the clarity of the question.

Mr. Yves-Marie Morissette: I think that's quite substantial, though.

[Translation]

The Chair: Mr. Bachand.

Mr. André Bachand: I find all of this very interesting. I do not share Mr. Morissette's conclusion regarding the bill, obviously, but he has brought up very legal points. Even a good political battle would not change anyone's opinion, but we thought, without however having any certainty about it, that “clear majority” was a term found nowhere. There must be some basis. It must be said that the recognized and established basis for a clear majority is 50% plus one, but will the vote allow for sovereignty or secession? That is another question, and we will see in due course.

You say that you are satisfied with the bill. Do you not believe that the bill, in certain respects, goes further than the Supreme Court's opinion, while in other respects, it does not go as far? For you, what are the major differences between Bill C-20 and what is contained in the Supreme Court's opinion? What is missing and what has been added on either side?

Mr. Yves-Marie Morissette: You could perhaps enlighten me because I have no spontaneous answer to give you, but it appeared to me that the bill fit very very closely with the Supreme Court's opinion, using the same terminology and to some extent maintaining the same degree of fuzziness. I cannot talk about the same ambiguities because to my mind, there are not ambiguities, but rather a deliberate choice to remain vague. The bill basically adds a process.

Mr. André Bachand: That was not my question.

Mr. Yves-Marie Morissette: In my opinion, what is certainly very clear is what is going to be done. It is an improvement, introduced between the Supreme Court's opinion and the tabling of the bill, over what existed previously. As to the rest, it seems to me that the bill very meticulously follows the opinion. Of course, certain things such as the border issue, which is sure to bring about some teeth-grinding, are mentioned, but those and other things are also mentioned in the Supreme Court opinion. I believe that as long as we respect the letter of the opinion, then all we are doing is making it operational. If we had left things as is, we would not have had the advantage of the coming debate on the clarity of the question and of the majority, a debate that everyone will participate in because it will be public. I believe this is a marked improvement.

Mr. André Bachand: In your view, should we deal with the question before the vote, before the referendum in Quebec, in accordance with the Supreme Court's opinion?

Mr. Yves-Marie Morissette: I would tend to say yes. We can certainly deal with the clarity aspect before the vote.

Mr. André Bachand: Some people say that giving an opinion before or during the referendum process somehow takes away the prerogative of the provincial legislature, as it is called in the ruling. The Supreme Court states that the partners in Confederation have the right to initiate any constitutional change, be it broad, like this one, or small, as in the case, for example, of denominational schools, using a motion. The opinion deals with motions, does it not? And it deals also with referendums. Therefore, the prerogative is theirs, notwithstanding the importance of the constitutional change, because the Supreme Court really treats it as a constitutional amendment.

• 2100

The Supreme Court is silent on this. It even indirectly says: "Do not touch that, because if you do for that question, then the federal government will tend to interfere in other areas". The Court seems quite clear on this, professor. It is true that in political affairs, the provinces and the federal government have a role to play and can sit down around a table and draw up a shopping list, but the prerogative for constitutional change nevertheless belongs to the partners in Confederation. Would going against that not be going against the constitutional principle itself?

Mr. Yves-Marie Morissette: I am not convinced we are talking about the prerogative for constitutional change.

Mr. André Bachand: Forgive me. I meant the initiative.

Mr. Yves-Marie Morissette: It is not quite the same thing. In my opinion, that prerogative is not threatened. What is being changed is the way in which the federal government, in a broader sense—I am not talking about the executive branch—, will express itself on the clarity of the question to be voted upon in a province. Nothing prevents the government of Quebec from going forward...

Mr. André Bachand: Mr. Morissette, forgive me for interrupting you.

Mr. Yves-Marie Morissette: I simply wanted to give...

The Chair: No, no.

Mr. Daniel Turp: This is interesting.

The Chair: Yes, it is always interesting, but the problem is that there are limits here to be respected. It would not be fair to the other members who, like you, wish to ask questions in the second round, Mr. Turp.

Mr. Patry.

Mr. Bernard Patry: Mr. Morissette, thank you for coming to visit with us. You earlier gave the example of the French Constitutional Court's decision on the clarity of the referendum question in New Caledonia. Could you elaborate on that and tell us what the French Constitutional Court had to say about the clarity of the question as well as the way the Court's role was received in France?

Mr. Yves-Marie Morissette: How was it received? I must tell you that I have no idea, because I have never had the time to go and check in the issues of Le Monde published when those events were taking place, but I am convinced that the way in which it was received had no impact on the result. That law was nullified and everything stopped there.

I have a document containing the various “whereas” clauses. It is in fact a very short decision. It is five pages long. There are three whereas that are particulary relevant and that in my opinion might, by analogy, apply to a question such as that that was put to voters in 1995. If you wish, I could read it to you.

Mr. Bernard Patry: If it is a page long, the Chairman will say no.

Mr. Yves-Marie Morissette: It is not a page; just 15 lines.

Mr. Bernard Patry: Very well.

Mr. André Bachand: Was this before consultation or afterwards?

Mr. Yves-Marie Morissette: Before. Here then is the text.

Whereas the question put to the peoples concerned must meet the double requirement for loyalty and clarity in the consultation; whereas, if it pleases the government, in the context of its jurisdiction, to indicate to the peoples concerned the orientations envisaged, the question put to voters must not contain ambiguities, especially with regard to such indications;

Whereas it flows from the terms of clause 1 of the act that the question the concerned peoples of New Caledonia will be asked to vote on deals not only with a choice in favour of the accession of this territory to independence or of its remaining within the Republic, but also, in relation to the latter, with a statute the essential elements of which the interested peoples will have been made aware of;

Whereas this text is ambiguous; indeed, it has planted in the minds of voters the false impression that the elements of the statute are already set, whereas the determination of this statute comes under [an act that is not yet in force]; it therefore follows that the provisions of clause 1 of the act relating to the essential elements of the statute do not comply with the constitutional requirement for clarity in the consultation;

The Court declares the act null and void.

We could undertake a linguistic analysis of the text, but I believe the 1995 question was open to the same type of criticism.

Mr. Bernard Patry: Thank you.

Mr. Morissette, we are often accused of being anti-democratic and of having taken a hard shot at Quebec. No one from the Bloc Québécois or the Parti québécois talks to us about the respect of the rule of law. Mr. Facal, last fall, told us that the government of Quebec would in no way respect the opinion of the Supreme Court of Canada, and this same message was repeated the following month by the Premier of Quebec.

• 2105

My question is very simple. Can democracy exist in the absence of the rule of law?

Mr. Yves-Marie Morissette: My answer is very simple. I would sometimes like to think that the words spoken by Mr. Facal went perhaps beyond his thoughts.

Mr. Bernard Patry: Thank you, Mr. Chairman.

The Chair: Mr. Cotler.

Mr. Irwin Cotler: I would like to extend a warm welcome to my colleague, who is a former dean and a very distinguished legal scholar in our province. Adding on to Mr. Patry's question and to what we have heard from other witnesses, I would like to ask you a question regarding the conclusion of your presentation.

A few separatist witnesses have denounced the bill as a rejection of democracy. They said that the purpose of the bill was to “muzzle Quebec in its right to self-determination”. The conclusion in your brief rejects this accusation.

[English]

What is the basis au fond for rejecting this accusation, having a regard among other things to your own notions of legality and legitimacy?

Mr. Yves-Marie Morissette: That's a tough question. I don't want to go into hermeneutics and deconstruction and this kind of stuff. I think to some extent it's a question of perspective.

It would seem to me that, strictly speaking, nothing here has any incidence on the prerogatives of the National Assembly of Quebec. It continues to be free to do whatever it wants, except that it's put on notice that in this game where it takes two to tango, one of the parties to the negotiation may take exception to some of the aspects of the process that is about to begin or has already taken place.

I don't see that this is an infringement of those prerogatives you referred to earlier. You can still have the debate, you can still formulate the question as you wish, you can still have the referendum, and you will ultimately be judged by history.

[Translation]

The Chair: Mr. Turp.

Mr. Daniel Turp: It will be Mr. Rocheleau.

The Chair: Very well. Mr. Rocheleau.

Mr. Daniel Turp: He made up his own question.

Some hon. members: Ah, ah!!

Mr. Yves Rocheleau (Trois-Rivières, BQ): Mr. Morissette, you said in your statement that a two-part question was generally speaking not very acceptable.

In the context of your argumentation, how do you react to the referendum question that the Federal Department of Indian and Northern Affairs will be putting, on February 27 and 28, to the Montagnais of Lac-Saint-Jean, a question that has three parts and to which voters will have to answer "yes" or "no"? How do you react to this practice which in your view is more or less acceptable?

Mr. Yves-Marie Morissette: Given the very terms of the question you are asking me, I would have to say that if there is more than one part, then there is a problem. However, I know nothing of the context. I am not trying to avoid the issue; I am simply telling you that you have caught me off guard. You did not send me any notice regarding section 403 of the Code of Civil Procedure. I had no idea that you were going to bring up a matter such as this. I believe that the Supreme Court opinion is an invitation to look at the context and to go beyond the rules. If I had the context, I would perhaps nuance the answer that I have superficially given you.

I believe it is generally accepted that a referendum question, just like an opinion poll question in the area of social science, must as much as possible be limited to a single idea.

Mr. Yves Rocheleau: As a consolation, Mr. Morissette, just tell yourself that the minister was just as stumped as you when we asked him the question.

Mr. Daniel Turp: Mr. Chairman, may I continue? Do we have a little time left?

The Chair: I would also like to give Mr. Bachand the opportunity to ask another question.

Mr. André Bachand: Mr. Chairman, thank you very much for your great generosity. I would like to ask a question that is perhaps slightly off topic.

• 2110

Those who condemn Bill C-20 look for their arguments in the 150 some paragraphs of the Supreme Court's advisory opinion. I would like to say in passing, Mr. Chairman, that I have a four year-old boy. One day I was talking on the telephone about the 150 some paragraphs and he said to me: “There are also more than 150 Pokemon”. I do not know if there is a link between the number of Pokemon and the number of paragraphs.

Mr. Daniel Turp: Pokemon C-20.

Mr. André Bachand: At paragraph 137, the Supreme Court talks about the failed attempts at amending the Constitution. Should a bill such as this contain a positive element of change to the Constitution so as to convey a more positive message? As I was saying, in paragraph 137, the Court talks about the various failed attempts at amending the Constitution. I obviously do not want to quote this out of context.

Mr. Yves-Marie Morissette: This is the sentence you are wanting to quote:

137. The continuing failure to reach agreement on amendments to the Constitution, while a matter of concern, does not amount to a denial of self-determination.

Mr. André Bachand: Do you see any positive avenues in Bill C-20?

Mr. Yves-Marie Morissette: Forgive me, but I am not sure I understand your question, for which I am sorry. Are you asking me if it would be appropriate to add this consideration to those already contained in the bill?

Mr. André Bachand: An example was given. Will this be maintained? I doubt it. A clear question and a clear majority will trigger a negotiation process for constitutional amendment. Under the Constitution as it now stands, even if we recognize the right of partners in Confederation to initiate change, there is no obligation to negotiate. There is no obligation results-wise in Bill C-20. With a view to diluting the serious criticism certain people have made of Bill C-20, would you look favourably upon the inclusion of this mechanism forcing negotiation, but obviously not forcing a given result?

Mr. Yves-Marie Morissette: This mechanism? Forgive me once again...

Mr. André Bachand: Alberta held a referendum on the election of senators. Nothing came of it. In the Supreme Court's view, for there to be negotiation on the major constitutional change that secession would be, would it not be advisable to go a little further and to be more positive? That is what is commonly called plan A. For example, if Alberta wanted senators to be elected, which would require amending the Constitution, could we not say that following a referendum with a clear question and a clear majority, there would be a requirement for the various political players of the federation to negotiate?

Mr. Yves-Marie Morissette: I will perhaps disappoint you, but in my opinion, that should not be the case. I believe that what the Supreme Court is envisaging in this reference regarding the secession of Quebec is a very drastic remedy. It coincides with a particular difficulty, namely the phenomenon of the secessionist will, that can come back repeatedly in a federation whose constitution does not provide for a process in this hypothesis.

If I am not mistaken, this was invoked in the case of the Montfort Hospital, as well as by Native peoples and in various other cases. The reference on secession was used in attempts to substantiate the idea that any will to change anything in the Constitution should trigger the same process. I would say, in all modesty, that such an interpretation of the opinion is truly abusive. The opinion limits itself to the matter of the reference it speaks to, namely secession.

Mr. André Bachand: Thank you, Sir.

The Chair: Mr. Turp.

Mr. Daniel Turp: My question relates to the constitutional amendment process. You alluded to it earlier. I would like to place you before a situation in which Parliament decides that the question is clear and that the majority is clear, a referendum is held and the yes side wins and a constitutional amendment process must follow. When such a process must take place, the provinces must participate.

• 2115

One province considers that the majority was not clear, that the question was not clear and opposes passage of a constitutional amendment allowing for the secession of Quebec. I say one province, but it could be three, five or seven. Let us say that it is only one province that objects.

The federal government, that was prepared to pass a constitutional amendment, must then participate in a process in which it will oppose a province and eventually participate in a referendum in a province, Alberta, for example, or British Columbia, to tell the voters of the province that they must accept the constitutional amendment. Do you not see a problem with the idea of a constitutional amendment process that would have the federal government participate in a provincial referendum in order to tell voters to accept the constitutional amendment that their province is asking them to reject?

Mr. Yves-Marie Morissette: First of all, I must tell you that, a priori, I am not one of those who look kindly upon frequent changes to the Constitution. That mindset dictates my attitude. It colours the way in which I view those situations.

Secondly, what you describe has already to some extent come about in another context: it was not a matter of secession but of passing other important constitutional reform measures. And we saw the difficulties that that brought about.

You were asking me if I feel uncomfortable with the hypothesis of the federal government having to go and defend... Well, it seems to me that it should be consistent. If it judged the question and the majority to be clear, if it undertook to negotiate and if these negotiations led to a result it and the other parties are satisfied with, then everything should flow naturally. At that stage, it would have to continue moving in the same direction and convincing others. If its work at convincing others is unsuccessful and there is a legalistic obstacle of the type I alluded to in the beginning, then, in the end, it would be up to international law to decide.

Mr. Daniel Turp: That is very interesting.

[English]

The Chair: We're going to end on this note.

[Translation]

Everyone has a lot of questions to ask this evening. Mr. Morissette, thank you for appearing. Your participation was most appreciated. I believe you have something to distribute.

[English]

Mr. Yves-Marie Morissette: I have a text, if you want it.

[Translation]

The Chair: Excellent. We thank you for your assistance in our study of the bill.

We are now resuming debate. Mr. Guimond.

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

For the benefit of my colleagues opposite and of those who are watching us on television in the comfort of their home, I would like to say that I spoke on this motion Monday from 2:30 p.m. to 3:45 p.m. And just what is this motion about? The motion being discussed was moved by the parliamentary secretary to Minister Stéphane Dion, and it reads as follows:

That the committee may, if necessary to further accommodate the list of witnesses, continue to hear witnesses up to 5:30 p.m. on Thursday, February 24, 2000, provided that the Chair shall put, without further debate or amendment, all of the questions necessary to dispose of Bill C-20 no later than midnight on Thursday, February 24, 2000.

Mr. Chairman, we of the Bloc Québécois are of the view that this motion is undemocratic and therefore unacceptable. Mr. Chairman, I remain convinced that your interpretation was wrong, but I have tremendous respect for the institution you represent and for you as an individual, as a well-known legal expert and perhaps—who knows?—as speaker of the 37th Parliament. The future will tell. We will see what the speakers of the 35th and 36th Parliaments will decide to do.

• 2120

Mr. Chairman, given that I have about 12 hours and 10 minutes left before the appearance of the next witnesses, who are slotted for Tuesday at 9:30 a.m., I will attempt to explain why it is important to hear witnesses and why it is unacceptable in this case to limit debate.

Mr. Chairman, we are against this motion because in our opinion its sole purpose is to shorten debate on a bill for which there is no consensus in Quebec.

Mr. Chairman, you have been very attentive, as have been most of my colleagues on both sides of the table, and I believe that everyone here can see that there is no consensus of opinion regarding the bill in Quebec.

We of the Bloc Québécois are of the opinion that nothing justifies the government's haste to pass this bill after having held so few hearings and listened to so few witnesses. Mr. Chairman, we are talking about a maximum of 45 witnesses for a bill of such importance.

We of the Bloc Québécois believe that we must take the time to hear all of the citizens who wish to express their views on the bill. This is not a bill the fate of which can be decided upon overnight or in the course of a week. It is not a matter of accommodating witnesses. It is rather a matter of respecting the right of citizens to be heard and to be listened to by parliamentarians and by the government.

Mr. Chairman, we of the Bloc Québécois believe that this is a very important bill that challenges the rules of the exercise of democracy in Quebec. Consequently, it is perfectly normal, desirable and even reassuring to note that citizens wish to be heard on this issue.

This motion tabled by the parliamentary secretary to Minister Stéphane Dion is but further proof of the government's arrogance, a government that does not want to hear what the people have to say about its bill. Perhaps the government is afraid of being contradicted?

Mr. Chairman, we believe that this motion is unjustified because there is no urgency to have this bill passed immediately. We of the Bloc Québécois believe, and I am convinced that all democrats are in agreement with us, that the schedule for the hearing of witnesses by the committee is undemocratic.

If this motion is carried, there will have been less than two weeks between the beginning of the committee's work and the end of the hearing of witnesses. Mr. Chairman, we believe that this is unacceptable and even indecent.

Mr. Chairman, there is no reason for the committee, whose first meeting took place in the evening of Monday, February 14, to finish its work nine days later. As a matter of fact, because of the government's haste, it was impossible for the committee to hear witnesses during the meetings planned for Thursday, February 17, in the afternoon and in the evening, as well as for Friday, February 18, in the morning, since no witnesses were ready to appear on such short notice.

Mr. Chairman, once again today, on Monday, February 21, witnesses have come here prepared. I am convinced that they slaved all weekend in order to produce solid statements for the committee. I do not wish to congratulate only those witnesses who appeared for the Opposition's side. All of the witnesses who came here did so to table briefs with us in good faith. I believe there must be a presumption of good faith.

• 2125

However, Mr. Chairman, the fact that most witnesses were unable to submit their statements in both of Canada's official languages clearly illustrates the haste with which witnesses were called. When such time limits are imposed, witnesses are to a certain extent penalized.

Mr. Chairman, we are of the opinion that if the committee passes this motion, there will have been but a pretence of hearings. The Prime Minister himself stated last week that he did not have any time to waste with this and that there was no reason to stay up all night. What a beautiful legacy, what a beautiful political testament from a man who has been against Quebeckers for all 32 years of his political career!

Mr. Chairman, we believe that Opposition members do not consider that they are wasting their time by listening to what people have to say regarding Bill C-20. There is no sovereignist threat, contrary to what certain government members are saying. Rather, as the Supreme Court judges rightly state in their advisory ruling in the matter of a reference on the secession of Quebec, there is a legitimate will on the part of Quebeckers to seek to achieve sovereignty.

Mr. Chairman, I would like to take advantage of this opportunity to pursue with the chronology of events and the history of Quebec and, to a certain extent, the history of Canada that I was relating to you. My colleague, Mr. Patry, is whispering my lines to me. This is quite a change, since my colleague, Mr. Patry, a Liberal MP, had his questions whispered to him all day long by the henchman for Minister Stéphane Dion, who left with his big bags and his questions. It is unfortunate that Liberal members are not allowed to ask me questions, Mr. Chairman, because they would really be surprised. I am the one who has the floor. They would be surprised. How could Liberal members ask me questions? They no longer have Stéphane Dion's henchman.

Mr. Bernard Patry: I will not discuss the headaches and the backaches that you are giving me by forcing me to remain seated to listen to you.

Mr. Michel Guimond: Mr. Chairman, on July 1, 1867, the British North America Act was passed. Four provinces came together: New Brunswick, with Fredericton as its capital, Nova Scotia, with Halifax as its capital, Ontario, with Toronto as its capital and Quebec, with the city of Quebec as national capital, the only national capital we, as Quebeckers, have.

Also, the Senate was created. Section 93 of the British North America Act provided for a denominational rather than a linguistic school system. Throughout the province of Quebec on that 1st of July of 1867, the British flag flew and God Save the Queen was sung. That must be music to the ears of someone from Kingston and the Islands. Mr. Chairman, that must be music to your ears. We know how much the people of Kingston and the Islands are attached to the motherland and to the Queen. I am convinced that God Save the Queen is regularly sung in Kingston and the Islands. The echoes of God Save the Queen can be heard throughout Gananoque Bay and from one end to the other or your riding, Mr. Chairman. But, unfortunately, the francophones, on that 1st of July, 1867, have trouble accepting that the anglophones will be called "Canadians", because the word "Canayens" had previously been reserved for designating the francophones of Lower Canada.

Let us remember, Mr. Chairman, that on the 1st of July, 1987, there was no referendum held to entrench the decision. The British North America Act was a British Act that came into force after having been voted on solely by the British Parliament. In principle, despite the Statute of Westminster, it can be amended or modified only by British law. Let me further add that with the exception of what took place in New Brunswick and in Newfoundland, with the proclamation of the act, no popular consultation, no referendum, no election was ever held on these matters. No one in Canada was even ever elected with a mandate to change the Constitution.

On April 6, 1868, the fiercest opponents of Confederation were certainly the Nova Scotians. Mr. Chairman, they even flew the flag at half-mast on July 1st, 1967.

• 2130

Mr. Chairman, in order that we might better appreciate the population situation in 1871, I will tell you that Quebec had 1,194,151 inhabitants, whereas the population of Canada minus Quebec was of 2,497,741 souls.

On March 2, 1878, Luc Letellier de St-Just, a Liberal minister in Ottawa, is appointed lieutenant-governor in Quebec. Relations between him and Premier Charles Eugène Boucher de Boucherville are so strained that he dismisses him. On March 8, 1878, he appoints Henri Gustave Joly de Lotbinière, another Liberal.

On September 1, 1880, by virtue of the Imperial Order-in-Council of July 31, 1880, all of the British territories and possessions in North America not yet integrated into Canada and all of the islands adjacent to these territories and possessions, with the exception of the colony of Newfoundland and its dependencies, are annexed to Canada.

May 11, 1885, marks the beginning of the Battle of Batoche, in Saskatchewan, at the end of which the Canadian militia crushes the Metis nation, led by Louis Riel, during the second Northwest Rebellion. Despite being Francophone, Riel will be judged by a unilingual English-speaking jury. He is found guilty and hanged on November 16, 1885, in Regina.

On November 16, 1885, this hanging of Louis Riel triggers a groundswell of French-Canadian nationalism. The idea of a national party uniting all of the forces of the nation is in the air.

On September 16, 1891, the federal parties become concerned by all of the consideration shown to Honoré Mercier, a Quebec nationalist capable of succeeding in making Quebec an independent state. They will seek at all cost to make him fall. They discover, on December 16, 1891, that the federal government's grant for the construction of the railway of Baie des Chaleurs, the beneficiary of which is Honoré Mercier, had in part been misappropriated by Ernest Pacaud, the treasurer for Mercier's party. Lieutenant-governor Auguste-Réal Angers removes him from office. Tried before the court on a accusation of bribery for a paper mill contract with J.-A. Langlais, he is acquitted on November 4, 1892. He is later re-elected.

Mr. Chairman, we have here a fine demonstration of what happens when... Mr. Chairman, I do not know if you agree with me, but it seems that history tends to repeat itself to some extent. Look at what is happening in the Department of Human Resources Development. Since the return of Parliament on February 7, the Opposition has been talking of losses of 1 billion dollars, while the Prime Minister has said that we are only talking about $251.58. Where is the truth between 1 billion dollars and $251.00?

So, as I was saying, Honoré Mercier is re-elected in Bonaventure in 1892. He will remain in office until his death, on October 30, 1894.

On June 23, 1896, Wilfrid Laurier, a Liberal, is elected Prime Minister. Wilfrid Laurier is a Canadian. He believes, deep down, that the two peoples living in this country have everything to gain by uniting and by looking for what they have in common rather than cultivating their differences.

Wilfrid Laurier wants Canada to distance itself from Great Britain and the United States. During the election campaign, the right to education in French in Manitoba resurfaces. Wilfrid Laurier, more the skilled politician than the convinced champion of the Catholic minority, refuses to clearly take position. This is amusing: when the soup is too hot, you refuse to taste it.

Nevertheless, Wilfrid Laurier, aided by the Premier of Manitoba, Thomas Greenway, abolishes separate Francophone schools in Manitoba. He however authorizes religious teaching in French or in any other foreign language in the last half-hour of classes.

On October 12, 1899, Great Britain goes to war against the Boers. English Canadians want to help their motherland, whereas French Canadians, the Canayens, who recognize themselves in the Boers, reject Canada's involvement in a war that is not theirs.

• 2135

Henri Bourassa rejects the imperialism of Great Britain. Wilfrid Laurier tables a ministerial order and puts 8,300 soldiers at the disposal of Great Britain and grants it 3 million dollars. This compromise avoids a crisis.

Mr. Chairman, given that I see that my colleague from Broadview—Greenwood, Mr. Mills, is listening very carefully, I believe that I will go into fourth gear and speak much more slowly during the 11 hours and 55 minutes I have left. I will speak much more slowly so as to allow him, and our interpretation specialists on Parliament Hill, who are most competent...

The Chair: And the Chair.

Mr. Michel Guimond: And the Chair. I will therefore speak a little more slowly. However, Mr. Chairman, if you see that I am falling asleep as I speak, I hope that you will be so kind as to awaken me.

Mr. Daniel Turp: I will take care of that, Michel.

Mr. Michel Guimond: We must remember that Wilfrid Laurier had already clearly told British Minister Joseph Chamberlain, on the occasion of Queen Victoria's Diamond Jubilee—and everyone will remember that Queen Victoria's Diamond Jubilee was in 1897—, that in the event of a war between Great Britain and the Boers, Canada would not get involved and would not put its army at the disposal of England.

When the Boer War breaks out, Henri Bourassa reminds Wilfrid Laurier of his commitment in these terms:

It is because circumstances are difficult that I ask you to remain faithful to your word. To govern is to have enough heart to be able to risk power in order to save a principle.

Those are the words spoken by Henri Bourassa to Wilfrid Laurier.

During debates in the House, Henri Bourassa explains his opposition to having the pay for soldiers gone to the Transvaal pegged on the Canadian rate, which at the time was much higher than the British rate. He is booed by English-speaking MPs. When he attempts to explain himself in French, there are cries of: Speak white.

On November 6, 1900, Alphonse Desjardins, aided by his spouse Dorimène, and a few citizens, establishes, in Lévis, the first Caisse populaire. I recognize here, to my left, the member for Lévis, who represents his riding well. I am convinced that the Mouvement Desjardins is, for him and for all the citizens of the beautiful riding of Lévis-et-Chutes-de-la-Chaudière, a source of pride. Alphonse Desjardins' idea at that time was to organize people's credit on the basis of people's savings. His idea was to fight usury and usurious loans and to offer a true instrument of economic emancipation. His initiative was so successful that today the Mouvement Desjardins has 5 million members and its assets amount to twice the Quebec government's budget.

This weekend, Mr. Chairman, the new president of the Mouvement Desjardins, who will succeed Mr. Claude Béland, was elected. I would like to take advantage of this opportunity to congratulate Mr. Alban D'Amours for being elected head of the Mouvement Desjardins, and I do so on behalf of all my colleagues from the Bloc Québécois and also, I am convinced, on behalf of the 301 members of the House of Commons. The Mouvement Desjardins is most certainly the pride of the co-op movement, in Quebec as well as in Canada and throughout the world. The Mouvement Desjardins is a beautiful example of the distinct character of Quebec.

In 1904, Henri Bourassa begins to plead in favour of bilingualism in federal institutions. He supports a motion by Armand Lavergne. This motion hardly garnishes any support. From that day on, he will seek to obtain the acceptance of the presence of French Canadians from sea to sea.

The difficulties confronting Francophones outside Quebec are legion. Wilfrid Laurier pleads in the House in favour of granting to the two new provinces of Alberta and Saskatchewan the same right in the area of schools as Quebec. An overwhelming majority of Anglophones refuses to follow him on this road. Francophones find themselves with even fewer rights than what they have in Manitoba.

• 2140

And this is how Henri Bourassa closed a public meeting:

Every time I return to my province, I am saddened to see developing there a feeling that Canada is not a Canada for all Canadians. We are forced to reach the conclusion that Quebec is our only country because we have no freedom elsewhere.

Mr. Chairman, Henri Bourassa said that in 1904, before the creation of the Parti québécois, before that of the Bloc Québécois, that took place in May 1990, during the Sorel-Tracy convention.

If Henri Bourassa stated in 1904 that Quebec was our only country because we have no freedom elsewhere, that illustrates the famous question we have constantly been asked since the birth of the sovereignist movement some 40 or 45 years ago: "What does Quebec want?" What do you want? What does not suit you?

On September 1, 1905, Mr. Chairman, Saskatchewan, with Regina as its capital, and Alberta, with Edmonton as its capital, become the eight and ninth Canadian provinces by virtue of the Saskatchewan Act and the Alberta Act. They encompass the former districts of Assiniboia, Athabaska, Alberta and Saskatchewan. The creation of Alberta and of Saskatchewan leads Wilfrid Laurier to recommend the solution retained for Manitoba. This move marks the death sentence of a bilingual country and of true cultural duality in Canada.

Mr. Chairman, to properly understand how the situation was evolving in parallel in Quebec, I would like to quote from the writings of an Austrian author named Stefan Zweig, who wrote about Quebec and Quebec City on March 25, 1911. To put things in context, I would point out that this writer was travelling in the United States and had taken the train to go to Quebec. He writes:

In Boston, the winter evening had been grey. In these industrial American cities, one does not feel the day going dim: the grey cloud of clammy smoke the thousands of chimneys and steamboats belch out without respite grows ever more dense, ever more murky, ever more oppressive. Then all of a sudden, the billboards light up, loud slogans climb the faces of gigantic buildings at perilously high speeds, diving head first only to relaunch themselves. It is then that we know that night is falling: street lamps light up the avenues, the turbulent crowds become calm and everything is bathed in a dull metallic grey. In these cities, winter prefers to don cloaks of fog.

Then, beyond this oppressive city, en route for the North!

Mr. Chairman, one must understand that this Austrian writer is setting off for Quebec City, for the North.

Here, the trains have a quicker rhythm, the grey days in these febrile towns send lead coursing through your arms and legs, and sleep comes overwhelming, heavy, satisfying.

In the morning, I awake; below me, the wheels are turning. Something woke me up, friendlier than any day spent up until now in America, something clear, radiant. I look up. The curtains are drawn. But their glass lets through a type of southern sun.

Curtain! And I must close my eyes. Never have I seen such bright snow. As far as one can see, on every side: perfectly smooth snow across the Canadian steppe...

Mr. Chairman, to understand his perspective properly, one must understand that in 1911, people talked about the Canadian steppe. Canada and Quebec were a very sparsely populated country with an immense steppe.

... blinding under the first rays of the sun that, red and round, rolled ever higher on the horizon. The air is calm and clear: one can see for miles around and one never ceases to tire of the white snow of winter, magnificently pure and peaceful. And way above, the sky becomes, with the dawning day, ever bluer; and ever more glistening, ever more sparkling in the incandescent sun of this incomparable white.

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And this lasts for hours and hours on end. Somehow, this brightness had to penetrate my body through my eyes, through my lungs: a magnificent vigour invades you all at once. You feel the urge to jump from a train, to run, to walk in the air that intoxicates you with its clarity:...

Here is what is relevant to this clarity bill; he speaks of air that intoxicates you with its clarity.

... a certain sensation of activity—similar to what you also see in American cities, though it is more nervous here and more energetic—-rises up inside you before this countryside, laid out endlessly before your eyes.

White light for unending hours. Once in a while, the train goes through a forest whistling: the trees have shed the snow they held in their arms, that they stretch out, free, towards the blue, their feet still imprisoned in the white ground. The houses too—wooden houses, red and yellow, welcoming and simple—are already animated and shine through their windows; and there, the rooftop still wears its white winter hat. In the train stations, you see the first Canadians, fresh, tanned faces, tall frames in multicolored sweaters or shaggy furs. You hear for the first time the singular French spoken by these people. Pulled by small horses, similar to those of Russia, sleighs with clinging bells stream before our eyes. All of a sudden, a group of young girls on skis catches up with us alongside the railroad...

One must understand, Mr. Chairman, that the train is going downhill; you must not think that the train is going uphill.

All of a sudden, a group of young girls on skis catches up with us alongside the railroad and for five minutes, in a gulley, races at the same speed as the gigantic Canadian Pacific engine. At last they disappear off in a distance and we pursue our route through the silent snow.

I can tell you, Mr. Chairman, that if the train had been going uphill, the girls would have had to have good legs and good calves.

At last Quebec City, the old capital of New France. To reach it, one must cross the Saint-Lawrence River from Lévis. It is grandiose to see this immense river frozen into one solid block of ice from one shore to the other. Large steamboats are held prisoner in the vast green blanket, small sail ships are covered with a crust of ice all the way up to the mast, as if in a glass dome. The ferry, equipped with its own icebreaker, cuts its way across; it shuttles back and forth, without reprieve. During this half-hour, the water has had time to form another crust: one hears a light crackling sound under the keel, like that of spun glass being broken.

On the other shore, Quebec waits. I know nothing more touching in our modern concept of the world that these isolated linguistic islands that faithfully resisted over the centuries and that now are silently crumbling, destined for ruin, obstinate but powerless. Everything germanic in America is such an island in collapse, but this decline is, to the eyes, less tragic, less obvious than that that struck down other French possessions.

Of the India that Dupleix conquered years ago, nothing is left but Pondichéry—another one of these small touching towns with a loyalist tradition—, of Canada, that was French under three kings, there is nothing left but these few villages that today courageously defend themselves against the English tidal wave. Two or three hundred soldiers sent off from France at the right time could have saved India and Canada against the English: sadly, these last surviving Frenchmen, these descendants of the heroes that Cooper and Thackeray celebrated in their novels, are repeating history here. Champlain and Dupleix, those great French heroes—who lacked only durable success and the wings of their exploits—are the true spiritual ancestors of Napoleon. Without these valorous adventurers, Napoleon would be as difficult to understand as Shakespeare, without the pre-Elizabethan playwrights. Both lie in lost tombs and one must scour through rare books or faraway lands to understand the breath of their exploits.

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Mr. Chairman, I will now make an aside. The author tells us that both men have lost tombs. There is a whole controversy in Quebec these days because an archaeologist named René Lévesque—he has no family ties with the other René Lévesque—has been for several years now searching for Champlain's tomb.

This Quebec, that was once the most important city of America, the place from which France was going to extend its domination over the States all the way to the Great Lakes,—this city, not long ago filled with fabulous Indian adventures—today makes one think of a quaint French provincial town. All at once...

We are in 1911, Mr. Chairman.

... we forget that we are in America. The people here do not have that irritating haste; they are polite and thrilled when a stranger speaks to them in French. For the first time in weeks, I have heard real laughter, free and relaxed; I have sensed, in the narrow streets, a deep feeling of well-being. Through the streets, down in the harbour, one hears the loud clamour of English billboards. The American brick buildings, that have no value, and for which not a cent was wasted on good taste, line up one in front of the other, but the people walk by without even seeing them. You only hear French in the street and still far off towards the East.

We should never tire of praising the admirable tenacity these few thousand French people showed over 150 years in order to defend their language. It is true that six million Germans, if not more, were swallowed up in America, without hardly leaving a trace. They did not ensure the survival of their language in the smallest town, the remotest province. And here, these few thousand French people, without the support of the motherland, without any assistance whatsoever, have preserved their language and their traditions. That is one of the most singular feats of a so-called decadent race, a virtually unequalled feat in modern history.

A walk through the city teaches us a little bit more about it. Left and right along the streets you see nuns and priests.

We must remember, Mr. Chairman, that in Quebec we have a very important Judeo-Christian tradition.

In fact, they are the ones who mounted resistance. Nothing protected the Latin races—the French in Canada and the week and corrupt Spanish States in Central America—from assimilation by the English as much as the forbidding attitude of Catholicism, that always saw the English as heretics and sworn enemies. While German Protestantism was rapidly taking hold in the free American church, and most pastors soon began preaching in English rather than in German, here, the priests, in their schools, educated the children in French in the Catholic faith. Omnia instaurare in Christo is here the motto of the French newspapers (that, I say in passing, have retained their national identity whereas the German press is imitating the journalistic style of American papers). The intransigence of Catholicism and the famous large families of the French Canadians constantly cited as an example in France but not practised there, have, here, constituted a bastion that today represents an unparalleled monument to national energy.

In truth, this heroic battle against infinite domination seems to be coming to an end. The French have already lost Montreal because of the speed with which foreigners have come to settle here. The city, that over the past decades has known gigantic growth, is the point of convergence of an ever-growing European invasion.

The Chair: Mr. Alcock would like to make a point of order.

[English]

Mr. Reg Alcock: Mr. Chairman, is there a quorum here?

The Chair: No, there is no quorum.

[Translation]

The quorum required to hear witnesses is five members, but in all other circumstances, the quorum is eight. I therefore have the regret to tell you that in the absence of a quorum, we must adjourn the meeting.

Mr. Michel Guimond: But, Mr. Chairman, I would like to verify...

The Chair: I would like to tell the honourable member that we will continue when we resume debate.

Mr. Michel Guimond: Excuse me, Mr. Chairman, but I would like to be sure that I will have the floor when we resume debate. When will we resume debate?

The Chair: Tomorrow morning, once we have heard the witnesses. The meeting will begin at 9:30 a.m.

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Mr. Michel Guimond: Will the discussion deal with the motion tabled by the parliamentary secretary?

The Chair: Yes.

Mr. Daniel Turp: On the point of order. I would like to understand...

The Chair: I do not wish to hear points of order in the absence of a quorum.

Mr. Daniel Turp: But I would like to understand something.

The Chair: You will be able to put questions to me once the meeting is adjourned.

This meeting now stands adjourned.