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]

Thursday, February 17, 2000

• 1018

[English]

The Chair (Mr. Peter Milliken (Kingston and the Islands, Lib.)): Order, please.

[Translation]

We are ready to begin. Cameras must be taken out of the room, please.

[English]

Ladies and gentlemen, this morning our first witness is Mr. Jack Jedwab, executive director of the Association for Canadian Studies. He's appearing today, however, on his own behalf. I know members will want to hear his comments.

Mr. Jedwab, under the rules we've adopted, you have 10 minutes, after which there will be 25 minutes of questions, about five minutes per party. We then will divide among the parties whatever time is left of the 45 minutes allotted.

We look forward to hearing you and thank you very much for your attendance today, sir. The floor is yours.

[Translation]

Mr. Jack Jedwab (Individual Presentation): Thank you, Mr. Milliken. I would also like to thank the other members of the committee. I am pleased to be here to talk about Bill C-20, which deals with secession.

• 1020

Obviously, this question is extremely important for all Canadians, as it will have an impact on the future of this country. I will try to be brief and to respect the 10 minutes that have been given to me in order to give my thoughts on the issue.

My argument will be divided into two parts. First of all, I will deal with the general issues covering the whole secession issue, regardless of which province or entity tries to leave Canada, and secondly, I will focus specifically on the situation in Quebec.

I feel that Bill C-20 is a crucial answer to a question which is just as crucial, namely, the secession of a province from Canada. This is an attempt to find a balance between political and legal questions that follow secession. I feel that the political and legal aspects of the question are closely related. I know that there have been debates on both sides of the issue, with some people saying that this is a legal question, and others saying that it is a political one. Fundamentally, I feel that these two aspects are related.

In my opinion, the objective of Bill C-20 is legitimate and is an attempt to define certain conditions should a province, as a result of a referendum, decide that it no longer wishes to remain within the federation. The bill reaffirms, in a fair manner, the right of a province in Canada to consult its people through a referendum on any question whatsoever and to formulate the referendum question. This is in keeping with the decision rendered by the Supreme Court of Canada.

Although a province may ask its citizens to answer a question, the results of such a consultation are not necessarily those sought by the provincial legislator, particularly if the results have a political impact and legal repercussions on jurisdictions beyond its territory, in the regions where the consultations did not take place.

Consequently, the results sought by those holding the referendum on the question of a province's status within the federation, in this case on secession, has a better chance of being recognized if the question is free of any ambiguity. This is particularly important in the case of a province trying to secede from Canada and which has asked a question that will have an impact not only on the territory located beyond its jurisdiction, but also on the individuals within this very province. This has an important impact on the legitimacy of the results.

The Supreme Court of Canada stated, in its decision, that a clear majority and a clear question were related. From the political standpoint, and this how I'm looking at the question, there is an obvious link, as I described earlier. Indeed, we must consider the quality of the question, just as we might consider the number of people voting for or against the option presented. It is the clarity or the quality of the question and the majority obtained that will have a decisive effect on the mandate of a province seeking to secede from Canada.

• 1025

Clause 3(1) of Bill C-20 talks about the parties that would be included in the negotiation process should a province try to secede from Canada. In my opinion, any negotiation should at least include the Government of Canada as well as all of the provinces. This is founded on historical and modern considerations.

The first consideration which justifies my support for such a negotiated process stems from the British North America Act of 1867. This Act was not negotiated between Canada and the rest of Canada, nor between Ontario and the rest of Canada. The negotiating process involved Ontario, Quebec, New Brunswick and Nova Scotia, namely, four provinces. This is a point of view that should be taken into account, at least as far as the historical aspect of the issue is concerned.

In our opinion, not only the provinces and territories who joined the federation after 1867 should be included in the negotiating process, but also the Aboriginal peoples, including the representatives of official historical minorities.

Although the legislator is justified in not going into too many details of the complex negotiating process, Bill C-20 does raise certain issues that could be discussed during negotiations for secession. Obviously, there are many other issues, in clause 3(2) of the bill, which will be included in the litigation for secession, but we feel that the mobility of rights and the mobility of citizens should be one of the aspects included. This can be explained by the fact that, between 1966 and 2001, according to my estimates, at least one million Quebeckers will have moved elsewhere in Canada, whereas slightly more than 400,000 Canadians will have come from elsewhere to settle in Quebec.

I believe that there are some extremely important issues that should be taken into account with respect to citizenship, the right to mobility and its impact on other provinces and territories. Some may say that this is all part and parcel of citizenship, but I feel that the mobility of individuals is a unique issue, particularly if the secession of a province, regardless of which province it may be, results in heavy migration elsewhere.

Still in conjunction with clause 3(2), the government should consider the possibility of adding something about the effectiveness of the process. The precedents in our country's history compel me to raise this issue, particularly with respect to the negotiation of assets and liabilities. About 15 years ago, I had the opportunity to study a precedent with respect to an asset referred to as the common school funds.

If I may, I would like to give this example in English. This is an excerpt from an article that I wrote a long time ago.

[English]

At the time of Confederation, the provinces of Quebec and Ontario had divergent expectations regarding the division of assets and debt. The excess of debts of the provinces, the assets, credits, and liabilities of Upper and Lower Canada, were to be divided and adjusted according to the decision of arbitrators.

Following Confederation, there appeared to be a strong desire on the part of both Quebec and Ontario administrations to resolve the outstanding fiscal issues between them as soon as possible.

[Translation]

I believe that that shows the good will of the parties involved.

[English]

The longer the issue remained unresolved, the less propitious it seemed for both provinces.

Prior to a so-called final arbitration of these assets in 1870, the Quebec arbitrator appointed by that government, Charles Dewey Day, resigned from the committee, leaving the decision to the governments of Canada and Ontario.

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The greatest source of controversy in the division of pre-Confederation assets between the provinces of Ontario and Quebec centred mainly around what was called the common school fund.

In the late 1870s, a decision of the judicial committee of the Privy Council appeared to open the way towards a final settlement. However, in the aftermath of the decision, which regarded it as a sharing of the asset, there was still some divergence over the interpretation of what “sharing” meant between the two provinces. This resulted in a series of legal challenges over that fund that lasted into the early 20th century.

I draw attention to this because it demonstrates the complexity of some of the negotiations around these issues. This was not, in our terms, a very large asset and yet it took some 30 years of negotiation before some resolution could be made. Therefore, I believe that for all parties concerned it might be useful to consider having, in subclause 3(2) of the bill, some reference to the process being efficient, because I don't think it would be in anyone's interest for 30 years of discussions to take place around that one issue, which will obviously

[Translation]

to have an impact. If, in order to resolve the question of these assets alone, and despite a great deal of good will at that time on both sides, namely Quebec and Ontario, it had required 30 years of discussion, you can just imagine where the process would have gotten us. I felt it was important to draw your attention to this matter.

Let's move on to another topic, partition, an issue which makes us all uncomfortable, I believe. Personally, this issues makes me very ill at ease, and those who know me know that I do not support it. However, in my opinion, in analyzing what is really happening throughout the world when secession occurs, we see that this process can create uncertainty with respect to the boundaries and even get the two parties to think about the matter and reassess the way their territory is organized.

I will give you an example. Very often, as you may know, the issue of partition—I don't like this word—is linked to the anglophone community in Quebec. However, in actual fact a significant number of francophones in Quebec also think that the boundaries are not necessarily a fixed thing. This may come as a surprise to you, but according to certain studies... I have documents to back this up, because I find this issue is important and I recall that, back in 1995, CROP and Environics conducted a poll. I had the question in French and translated it into English. I will quote it to you in English, if I may.

[English]

Some two out of three Quebeckers in February 1995, according to a CROP/Environics poll, responded favourably to the proposition that if Quebec were sovereign, the francophone regions in the rest of Canada should have the right to attach themselves to Quebec if they so choose.

[Translation]

This means that the option of New Brunswick forming part of Quebec is seen by two thirds of Quebeckers, namely, a clear majority, as being quite legitimate. To be fair, 56% of Quebeckers also agreed that francophone regions in a sovereign Quebec that wish to remain in Canada could do so if they wanted.

These ideas are extremely difficult and problematic, however, I do feel that it is important to point out that there are many Quebeckers who see no problem in challenging the territorial integrity of New Brunswick. I don't think that people thought the same thing about Saint-Boniface, because it would be difficult to annex Saint-Boniface to Quebec. This goes to show the complexity of the territorial question and the issues that may arise from the negotiations. Consequently, the legislator must give thought to these issues and take an approach which will lead to some type of stability for the process.

I will now deal very briefly with the issue of partnership in conjunction with the Quebec referendum question. I have often said and I will say again that partnership, in my opinion, contradicts the concept of secession. There are no mutual relations between these two cases.

I remember when, in 1992, Jacques Parizeau told Time Magazine that support for sovereignty could vary between 52% and 62% depending on how the question was framed. It is important to remember this, and it is especially important that the legislator bear this in mind.

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I would like to develop other points, but I will stop here in order to allow some time for questions. I'd like to thank you for your patience and for giving me the opportunity to give my thoughts on these issues which are so very important for the people.

The Chair: Thank you, Mr. Jedwab. We are very pleased to have you here today. Mr. Jaffer will be the first to ask questions and make comments.

[English]

Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): Thank you, Mr. Chairman. Thank you to the witness for his presentation.

My first question surrounds the idea you mentioned about the importance of having a clear question and the importance of having a clear majority. I think one of the best ways to determine what is a clear majority is based on a number. Many of us believe that the standard of democracy, which is usually respected, is a 50%-plus-one standard. I'm curious as to whether that's something you would respect in the outcome of a referendum or what your thoughts are on that type of standard in particular.

Mr. Jack Jedwab: I think 50% plus one has a certain legal reality within it. But I think the more important issues involved are of both a political and a moral nature. In a 50%-plus-one situation, I would be part of the 49.9% of people who would vote against a proposition dealing with secession. I would have concerns, in particular if you think of the undecided body of electors in Quebec.

As an aside, I must tell you I have days when I wish I were undecided because it's such a popular group in Quebec and it gets the attention and, very often, in a referendum period, great affection from both the yes and no sides.

That group has a tremendous amount of power. Because of its indecision, were it to change its mind the next day in the event of a 50%-plus-one situation, it would create a very problematic situation. You know, yesterday I voted for it but today I've changed my mind. I think that has to be borne in mind when you're dealing with the issue of 50% plus one, if you wish. It would certainly affect the mandate.

Again, there's a very important political dimension in this. If you want to effect a secession, it's best to do it in a way that its legitimacy from a political standpoint would be such that it would have a strong mandate. I don't think 50% plus one per se would give a very strong mandate, even though legally it would certainly have some relevance.

Therefore, I think we'll have to determine that as Canadians for whatever province chooses to go this particular route. One secession could obviously trigger further secessions within the federation. I think we have to examine the relationship between the quality of the question and the quantity of the outcome. The more diffuse and the more obscure the question is, obviously the weaker your mandate is going to be.

Were Quebec to ask a question directly on secession and were it to be above 50%, not 50% plus one per se but above 50% in a modest way, then I think that would give the impression to many Canadians that there is a relatively strong expression that's been made here on a very direct question.

Mr. Rahim Jaffer: I think no one would argue with the idea of a clear question. I think it's very important, and it obviously would affect the outcome of a result. Yesterday we heard from the minister, and if I understand you correctly, I believe it's almost dangerous to evaluate what you would consider to be a clear majority if you leave it until after the referendum. I think the rule should be set ahead of time so everyone knows the game you're playing.

I'm not quite sure I understand you exactly. Are you saying we should wait to see what the result is and then determine what should be a clear majority, or should we know what that figure is?

Mr. Jack Jedwab: I think we should wait to see what the question is and then potentially make a determination at that particular time, based on the question. I think the question is the key to the issue to a very real extent. Right now you have Guy Laforest from the ADQ saying their party's position is being both sovereignist and federalist. Imagine a question that would include both such elements.

That's why I think the question is absolutely crucial. As someone who approaches this from a political standpoint, I'm more inclined to say first we want to see what people are being asked and then we'll make the determination as to what the quantitative element could be.

Mr. Rahim Jaffer: So based on that question—

Mr. Jack Jedwab: But I wouldn't want to be premature and give out a number not knowing around what the question may revolve on such a particularly sensitive affair.

• 1040

Mr. Rahim Jaffer: But you wouldn't be opposed, once you see that question, to the standard of democracy being 50% plus one. Is that what you're saying?

Mr. Jack Jedwab: I think the 50% plus one is a standard, and certainly it has some relevance, but it will again depend tremendously on the question.

Mr. Rahim Jaffer: Sure. Fair enough.

Mr. Jack Jedwab: It also would still have to take into consideration these various other issues, some of which I've raised and are raised in the bill, involving the issues related to native communities, minority language, mobility, citizenship, etc., as well as assets and liabilities, where I've given you just a small example.

Mr. Rahim Jaffer: That's the basis of my next question. If I understood you correctly, you said we should maybe consider French associations outside of Quebec wanting to attach themselves to Quebec in the event of a secession.

Mr. Jack Jedwab: I personally think such a proposition is ridiculous, but two-thirds of Quebeckers in two polls seem to think it's perfectly reasonable. Maybe I'm missing something, but you can't say it's reasonable for one part of Canada to attach itself to a sovereign Quebec and not throw into question the whole territorial issue and come out and say the territorial issue is absolutely sacrosant, it can't be touched. It's offensive to even discuss it when obviously there's a problem there.

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Thank you, Mr. Chairman.

I'm always amused and concerned when I hear the debates on the partition of Quebec. If Quebec's territory were divisible, most of this territory would already be sovereign, because, with the exception of the Outaouais, Montreal West and perhaps Beauce, the other regions of Quebec all voted for sovereignty in 1995. That's proof, in my opinion, that Quebec's territory is not divisible. It's also the proof that Quebeckers respect the verdict that was given in 1995 by the citizens, despite the fact that the results were very tight.

As for the 50% plus one, you said, a few minutes ago, that if sovereignty were to occur following a result of 50% plus one, you would be part of that 49.9% of people who would be dissatisfied with the referendum results.

I am part of the 49.3% of Quebeckers who are dissatisfied with the referendum results of 1995. And what has the federal government done since then to deal with this deep desire for change as evidenced by the way that Quebeckers voted during the 1995 referendum? I would like to quote an article that you had published in the newspaper La Presse on the 21st of December of last year, in which you stated:

If support for sovereignty is decreasing...

—which you really did not show in your article—

...for the past while, it is not because of procedural barriers; rather, the reason should be attributed to a lack of vision on the part of the leaders of the sovereignist movement.

If we were to consult the polls which you probably used, we would see that support for federalism is also down. I maintain that there is perhaps a lack of vision on the part of the federalist movement in Quebec as well. I would like to hear what you have to say on this matter.

Mr. Jack Jedwab: As for the poll results, I think that there are some obvious patterns. I could, for instance, quote Pierre Drouilly, who analyzes poll results, and who feels that the sovereignist option is declining.

As far as federalism is concerned, allow me to say this: if you want to play the poll game, the souvenir edition of the magazine L'Actualité—I would imagine that you've had an opportunity to read it—says that 75% of Quebeckers felt that Canada was the best country in the world and 54% of sovereignists agreed with this statement. This really had an impact on me.

I think we are going to get into a debate on...

Mr. Stéphane Bergeron: But what does that prove, what you are saying?

What I am hearing right now reminds me of what Pierre Elliott Trudeau said in 1976 to the effect that the sovereignist movement in Quebec was dead. Just a few months later, the Parti Québécois was elected to form the government. Because of this tendency people have to delude themselves and to believe that the sovereignist movement is in rapid decline and about to disappear, no effort is made to renew federalism.

I would therefore like to ask you the following question. In the 1995 referendum, 49.3 percent of Quebeckers expressed a profound desire for change. Does Bill C-20 respond to this desire for change?

You were talking about a lack of vision on the part of sovereignist leaders. Is there not a lack of vision on the part of federalist leaders?

• 1045

Mr. Jack Jedwab: I think that a significant number of Quebeckers want a clear process. Just to come back once more to the polls, I would say that Quebeckers expressed the desire in a number of polls to have a clear process and a clear question. I think that after two referendums, the government of Canada, which many Quebeckers identify with despite their ambiguous attachment, is responding with Bill C-20 to the desire of these people to see Canada take its responsibilities to ensure that there is a clear process.

With respect to the demands, to begin with, I am not here to represent the federal government, but I think that—

Mr. Stéphane Bergeron: No, but I quoted you on the lack of vision by sovereignist leaders. Are we not dealing with a lack of vision by federalist leaders?

Mr. Jack Jedwab: No, because I think that in Quebec, there are federalist leaders. Alain Dubuc, for example, is a federalist and is going to suggest other solutions in the coming weeks to enable Quebeckers to assert themselves. In my opinion, we have plenty of latitude within Canada. The Charter of Rights and Freedoms enables Quebeckers to affirm their special characteristics, such as the French language, if they want to. We can do that. There are no barriers to having these characteristics entrenched.

Mr. Stéphane Bergeron: Let us talk about clarity, Mr. Chairman.

The Chair: I am sorry, Mr. Bergeron, but your five minutes are already over.

Mr. Blaikie, you have the floor.

[English]

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you, Mr. Chairman, and my thanks to the witness for his testimony.

Following up for just a second on something that my Reform colleague brought up, it would seem to me that in your answer to his question you were saying that, first of all, you'd have to know what the question is before you'd want to pronounce on the majority. But it seems to me that what the bill does is establish that the question would have to be secession. It would have to be about whether Quebeckers wanted to have a separate country. It could not be about partnership or sovereignty association or any of the other things that you were worried might be in the question and might therefore affect your judgment about clear majority.

So given that the bill itself provides that the question can only be a clear one and can only be about secession, it seems to me that you don't have to reserve judgment on the question. You know what the question, or least the question that this bill addresses, will be about. It'll be about secession or it won't be a question that this bill has anything to do with and it won't obligate the government to secede.

So perhaps you could just revisit that and answer that question based on the fact that it would be a clear question and it would have to do with secession and with Quebec being a separate country. If it were that kind of question, would you regard 50% plus one as enough?

Mr. Jack Jedwab: Maybe my reading of the bill isn't accurate, but I don't know that the bill insists that the question must absolutely be about secession or nothing else will count. I think that one would have to look qualitatively at what the question is.

If the question talks about Quebec becoming a sovereign country or an independent country, etc., then a qualitative judgment will have to be made as it relates to the quantitative outcome of it in order to make a determination about what the strength of the mandate will be. I don't think the bill says you must ask a question on this particular issue in this way. It's only making a suggestion that the question should be as unambiguous as possible, and obviously many would say that since secession is what is at issue, that would give a seceding province the strongest mandate were it to include such terminology in the formulation of the question. Anything less than that would make for a weaker mandate. But it does not mean, and I don't believe, that it would not be politically relevant even if the question did not bear on secession.

Mr. Bill Blaikie: That's my point. Some other question would be politically relevant, but it wouldn't be relevant to the Supreme Court decision. It wouldn't be relevant to whether or not the conditions were being created for an obligation to negotiate on the rest of Canada. What the bill lays out is the nature of the question that would create that obligation.

• 1050

So I'm not sure whether you don't have the same understanding of the bill or whether you're just hedging on whether or not you really want to answer the question.

But I have another question for you that has to do with—

Mr. Jack Jedwab: I don't think the bill spells out what the question should be.

Mr. Bill Blaikie: I think the bill does.

I think it's a point well taken that the aboriginal leadership needs to be part of the negotiations that would be created by a clear question and then a clear majority.

In the bill there are two sections where the government says, in determining, first of all, prior to a referendum, whether or not a question is clear, and then after a referendum, whether or not a majority is clear, that they would take into account the views of the provinces, the legislatures, other political parties in the legislatures, and the territories. I wonder if you would also share the view that the aboriginal leadership or the aboriginal community should be part of that list of political actors whose views should be taken into account in determining those questions.

Seeing as you've already taken the view that the bill should be changed or that the bill is inadequate in respect of aboriginal peoples in terms of their participation in the negotiation, in this sort of pre-negotiation period, where we're determining whether or not to negotiate at all, should they also be included?

The Chair: A brief response, please.

Mr. Jack Jedwab: As far as my reading of the bill goes, there is reference to at least the provinces of Canada being included. All I'm suggesting is that you may want to get more specific about involving aboriginal communities in the negotiations.

I think when we think about the various issues that may be involved in this, for example the whole question of assets and liabilities, which is inevitably an issue you can't avoid, that matter alone entails the involvement of all the provinces of Canada around the negotiations in that it will impact on those provinces. I think as such there are various other issues that will arise that are of crucial importance that will sufficiently impact upon aboriginal communities, which would necessitate, in my view, a more direct reference to their presence in that particular article of the bill.

I don't think it would be healthy to legislate or to get into all the various details on committees and subcommittees that may be involved where negotiations are concerned. For example, for matters of territory, one may argue that it would be more relevant to the contiguous areas—New Brunswick, which I referred to earlier...

[Translation]

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

Mr. André Bachand (Richmond—Athabaska, PC): Thank you, Mr. Chairman.

To begin with, thank you for being here and welcome. In your presentation, you point out that Bill C-20 is a crucial response to the arrival of a secessionist movement in a province and that the Supreme Court played an important role because it laid the groundwork for this bill.

You do, however, raise some small points you might have liked to see added. Today, if you were asked to draft the bill, what would you change? What would you add? What would you take out?

Mr. Jack Jedwab: As I said, I would add something in subsections 3(1) and 3(2) about the participation of Aboriginal peoples in the negotiation process. I also think that the mobility issue is extremely important.

An Ontario government document obtained recently under the Access to Information Act showed that government is interested in the mobility issue. People are interested in the possibility that a significant proportion of Quebeckers might leave their province for the neighbouring province of Ontario. Although some people say that the Citizenship Act can deal with that, I feel that this aspect is sufficiently important to be included in the list. At the same time, though, I do not think that the list should be very long, because there are many issues that come out of such a process.

Mr. André Bachand: The Supreme Court talked about political actors. Could you give me your definition of the concept of “political actors” that is found in Bill C-20?

• 1055

Mr. Jack Jedwab: The political actors in the negotiation process are, first, the government of Canada, then the elected representatives. In the case of Aboriginal communities, it would have to be people who are duly elected, and in the case of official language minorities, it would also have to be elected people.

Mr. André Bachand: According to what the Minister and the Prime Minister have said, Bill C-20 stems from the Supreme Court ruling. Do you think that the way the notion of political actors is used in the bill corresponds to the definition given by the Supreme Court? What paragraph of the Supreme Court ruling says that the federal government is the main actor?

Mr. Jack Jedwab: I do not necessarily want to analyze the Supreme Court ruling from the perspective of political actors. With all due modesty, however, it seems to me that any negotiations must involve the elected representatives at the federal level as well as those at the provincial level, since the credibility of the process needs to be mutually reinforced. If Quebec or another province, such as Ontario, for example, were to withdraw or try to withdraw from Canada, it would call into question the federation's legitimacy, since a broad view of the issue must be taken. The provinces would therefore need to reinforce that legitimacy. That is where the actors would reinforce each other mutually in any negotiations resulting from secession.

I cannot offer you any impromptu analysis of the Supreme Court ruling or of the impact that it had on legislators concerning the concept of "political actors", but I am giving you my opinion on the process. I have a lot of objections to the idea of partnership, since it means destroying the federation, on the one hand, and offering a partnership, on the other.

Mr. André Bachand: Do you not think that the provinces would have something to say about the clarity of the question and the clarity of the majority?

Mr. Jack Jedwab: In a political process, given that secession has a vital political dimension, I think that it is up to the actors, to those who are directly affected, to decide whether the mandate is strong enough and clear enough to begin the negotiation process. Whichever province is involved, if the referendum result has an impact that is as significant as secession, I believe that it is up to the elected officials, who represent the people directly affected, to ensure that the public has clearly understood what is at stake. In the 1995 referendum, poll after poll indicated that at least one person in four, even among young voters, thought that the province of Quebec would remain a province within the federation—

Mr. André Bachand: One has to be careful with polls. People also thought that the Liberal government wanted to get rid of the GST and rip up the Free Trade Agreement.

The Chair: Mr. Bachand, your time is up.

Mr. André Bachand: These perceptions exist.

The Chair: Mr. Mills, you may go ahead.

[English]

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

Mr. Jedwab, thank you very much for coming here on such short notice.

In your testimony, you referred to this experience in the late 1870s of the sharing process on the common school fund. You talked about the arbitration process and how it took over 30 years. Have you given thought to the arbitration process? Should we have a clear question? Should we have an acceptable majority? Who would those arbitrators be? We talk about political people being involved, but very few people have a political career—I think the average is around six or eight years in most legislatures across the country. What thought have you given to the notion of how these arbitrators would organize, and do you see some of those arbitrators, on behalf of the Government of Canada, coming from Quebec?

• 1100

Mr. Jack Jedwab: I think these are extremely complex issues. I raised this example because I think it suggests the great complexity involved in any arbitration. I suppose one could make all kinds of analogies to boards of directors and suggest that a board of directors may want to identify those who'd be part of the arbitration process. But obviously, in the case of Quebec, it would be very difficult to identify those people who'd be part of the process of negotiation if their legitimacy arose from the electorate of Quebec, and again, that being put into effect by a referendum on secession where a clear majority emerged.

So I really couldn't answer that, for I think all those things would have to be taken into consideration, and the process would be extremely complex.

I would say, with respect to minority language communities, any person who is involved in negotiations should be a duly elected representative of constituencies with important anglophone concentrations, insofar as any negotiation process may affect the particular rights of that community.

Mr. Dennis Mills: Well, Mr. Bachand touched on this briefly last night in our committee. He put a hypothetical situation forward where perhaps the executive of the Government of Canada at that day might be a Quebec prime minister, and certain members of the executive would come from Quebec. Let us imagine there was a separation. Have you thought of what position that executive would hold in terms of their capacity to be arbitrators or negotiators on sharing of assets? Have you thought of that?

Mr. Jack Jedwab: As I say, it would be a very complex process. My answer to that is I haven't given it sufficient consideration to come up with an answer for you. But if you desire, I certainly could do that within a short period of time based on a political point of view.

Mr. Dennis Mills: Thank you very much.

Thank you, Mr. Chairman.

The Chair: Mr. Patry.

[Translation]

Mr. Bernard Patry (Pierrefonds—Dollard, Lib.): Thank you.

Thank you, Mr. Jedwab. The things that you have said and written reflect a deep concern about protecting minority rights in Quebec, and more particularly the rights of linguistic minorities. This morning, you referred to Aboriginal people.

[English]

In your view, is it reasonable that certain key issues be dealt with in negotiation on the terms of the succession, including the division of assets and liabilities, any changes to the borders of a province, the rights, interests, and territorial claims of first nations, and the protection of minority rights? Is it reasonable to do such a thing with Bill C-20?

[Translation]

Mr. Jack Jedwab: I am sorry, but could you clarify your question?

Mr. Bernard Patry: Is it reasonable?

Mr. Jack Jedwab: Yes.

Mr. Bernard Patry: Is it really reasonable for the government of Canada to follow up on the Supreme Court of Canada opinion concerning the rights of minorities, Aboriginal peoples and linguistic minorities?

Mr. Jack Jedwab: I think that the federation has a responsibility to some extent to protect the rights of these communities. Once again, everything will depend—I feel everything is connected, and we're coming back to this again—on the clarity of the question and the quantity or quality of the majority. All this will affect the individual on the ground and will have an effect on the way in which I am going to conduct myself personally as a member of a linguistic minority.

I am extremely, and perhaps primarily, concerned about the fate of francophone communities outside Quebec in the case of secession and how the obligation to protect these minorities would be carried out. I'm concerned by the idea that linguistic minorities could be taken hostage in negotiations after a secession referendum.

That is one of the reasons why I would like to avoid at all costs getting ourselves into that kind of situation. However, I will respect absolutely the desire of a clear majority of the Quebec population, on a clear question, to no longer be part of Canada. I should say that, although I belong to that minority that remains attached to Canada, if there was a clear question and a qualitative majority, I would be quite prepared to support any province seeking to leave Canada, even though I would do so unhappily.

• 1105

That would not have a mobilizing effect. The political problem would arise if there were a majority of 50% plus one. That would not really have a mobilizing effect for many people.

The Chair: Thank you. We must move on. Mr. Bergeron, you have another five minutes.

Mr. Stéphane Bergeron: Mr. Chairman, Mr. Jedwab has again brought up the fact that he would be part of the 49.9% and that he would like that to be taken into account. I would remind him that I am among the 49.3% and I would have liked that to be taken into account, which is certainly not the case in the bill we have before us.

You said earlier that Quebeckers agreed that there was a need for clarity. I agree with you. I think that Quebeckers support clarity. It is like being in favour of virtue and apple pie. Everyone is for virtue and apple pie. It goes without saying that everyone is in favour of clarity.

However, do Quebeckers support this specific clarity? I do not know. And if Quebeckers, as you are saying or seem to be claiming, really felt that way, why would the government be so determined not to go and listen to them in their communities?

You are here today. I imagine that you would not be here if you had not carefully studied the Supreme Court opinion and Bill C- 20. Where does the Supreme Court opinion make any reference to the federal government having the power and the responsibility to give effect to the requirement for clarity that the court set out in its opinion? That is the first thing.

Second, when you read the rather muddy criteria in the bill about how the question would be defined and what a clear majority would be, do you think that these criteria, as they are given in the bill, allow for a very precise definition of a clear question and a clear majority? In your opinion, is the bill clear in what it says about the clear majority and the clear question?

Mr. Jack Jedwab: I believe that it offers...

To begin with, I would like to say that I am very pleased that we agree that there is a consensus in Quebec on wanting a clear question.

Mr. Stéphane Bergeron: It is like motherhood and apple pie.

Mr. Jack Jedwab: Personally, I do not feel that the 1995 question was clear. I imagine that we do not agree on that. If that is the case, I would be very pleased to hear you say so.

Mr. Stéphane Bergeron: Did you vote in the 1995 referendum?

Mr. Jack Jedwab: Yes.

Mr. Stéphane Bergeron: Good. I imagine that you must have understood the question.

The Chair: Order, please. We ask our questions and the witness always has an opportunity to answer. Order.

Mr. Stéphane Bergeron: I imagine that you must have understood the question when you voted in 1995.

The Chair: The witness has the floor.

Mr. Jack Jedwab: I had my own interpretation, but unfortunately, there were many sovereignists who did not agree with it. That is what frustrates me. Nearly one quarter of those who voted yes thought that Quebec would continue to be a province within Canada. I find that very frustrating. I was not able to convince them that that was not true. I tried to do so.

Mr. Stéphane Bergeron: People are intelligent enough to understand.

Mr. Jack Jedwab: That is why I believe that it is important, in the interest of all Quebeckers and all Canadians, that things be as clear as possible. I have often said that I found that the ideas of partnership and secession were contradictory.

Mr. Stéphane Bergeron: And what is your answer to the question that I asked you?

Mr. Jack Jedwab: On what?

Mr. Stéphane Bergeron: The two questions that I asked you.

Mr. Jack Jedwab: Could you repeat them quickly?

Mr. Stéphane Bergeron: Yes. To begin with, where does the Supreme Court opinion say that the federal government has the power and responsibility to give effect to the requirement concerning clarity? Second, do you find that this bill is clear on the issue of the clear question and clear majority?

Mr. Jack Jedwab: I believe that the Supreme Court did not tell the legislators to draft a law on this. However, there are many Supreme Court opinions that do not tell them to create legislation. That is not necessarily the Supreme Court's role. The Supreme Court issues an opinion, and the legislators may, depending on how they see things, formulate a policy or legislation on the basis of that opinion. I do not necessarily see any contradiction in this area.

Mr. Stéphane Bergeron: And my second question on the clarity of the bill regarding the clarity of the question and of the majority?

Mr. Jack Jedwab: There are parameters laid down in the bill. I do not think that the Quebec government wants the federal government to impose the question. It is opposed to the federal government placing the question directly in the legislation. What the bill gives are parameters.

The same is true with respect to the percentage of the majority. I do not think that people want a specific percentage to be indicated.

• 1110

Ideally, when a secession takes place, all the contracting parties should show good will. As I have said to you, I feel that the good will will result from a clear process, a clear question and a clear majority.

Personally, as I have already told you, if there was a clear question and a qualitative majority, I would be prepared to support Quebec in a move that would personally make me very unhappy. If the process was clear, that would be my position.

The Chair: Your five minutes are up.

Mr. Stéphane Bergeron: Already?

The Chair: Yes. We would normally have had two five-minute periods after the first five-minute turn, but it is now 11:10. Each of the participants has taken a little more than the five minutes that were allocated, and the time we have for this witness is really over. If everyone agrees, I would suggest that we call the next witness. Are you in agreement?

Some voices: Agreed.

The Chair: I would point out to you that we have already used up nearly 55 minutes, since everyone took a little more time than I had intended.

Mr. Stéphane Bergeron: We had agreed on a 45-minute period, but also that there would be one-five minute round followed by two additional five-minute rounds.

The Chair: Yes.

Mr. Stéphane Bergeron: The agreement had two parts to it, if I may describe it that way.

The Chair: If everyone wishes to have another five-minute round, I will give it if I am asked. But since we have gone over the allocated time, I suggest we move on to the next witness.

Mr. Blaikie.

[English]

Mr. Bill Blaikie: Mr. Chairman, I just want to support your decision that we need to move to the next witness. We've gone over our time. The idea was that we would have the five-minute rounds and then the rest would be distributed according to your wisdom. It may be that next time you'll want to go to another party or whatever and try to keep it to the five minutes. But I don't think we can do anything other than move to the next witness. We have people lined up here.

[Translation]

The Chair: Mr. Bergeron.

Mr. Stéphane Bergeron: If we're discussing the agreements we reached, I will remind you that we had agreed that the committee would meet at 9:30 this morning. But we didn't begin until 10:15 or even 10:20.

Despite all the agreements that were reached between us and to which you may refer, we will speak out strongly and forcefully against limiting the witnesses that appear before this committee. I therefore interpret your decision, Mr. Chairman, as another attempt to place limits on hearing the witnesses who are before us.

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Mr. Chairman, this is all the more so since I believed there were no witnesses this afternoon.

The Chair: That's correct.

Mr. Daniel Turp: That's correct, isn't it? There are no witnesses this afternoon.

Mr. Stéphane Bergeron: In that case, why hurry the witnesses?

[English]

The Chair: But the witnesses have agreed to come at a certain time. We didn't start earlier because that was the time that was agreed upon. All I'm saying is—

[Translation]

Mr. Daniel Turp: We have an interesting man appearing before us.

[English]

The Chair: All I'm saying is, while we could have another five minutes, we have run over five minutes, because the questions and answers and the witness's comments all took longer than the slotted time. So if everyone agrees, I suggest we just move on and start with the next witness. Okay?

I want to thank you, Mr. Jedwab, for your appearance.

I want to say to all members that I don't like to bulldoze members or the witness at the end of the five minutes, and I have allowed some liberty to members and the witness in going on a bit longer than the time. I'm not trying to be harsh, but I'm trying to get moving and be fair to the next witnesses, who are waiting to give their testimony. So we'll move on.

Thank you very much, Mr. Jedwab. We appreciate your attendance.

• 1114

• 1116

[Translation]

The Chair: Order, please. We may resume.

The next witness is Mr. Michel Lebel, a retired constitutional law professor. Professor Lebel, you have the floor.

Mr. Michel Lebel (Individual Presentation): Thank you, Mr. Chairman.

Ladies and gentlemen of the House of Commons committee, I would like to begin by saying that I am very honoured to have been invited to participate in the committee's work. I feel that this work is important because it concerns matters that are fundamental for a country, namely, its territorial integrity, the possible secession of a large chunk of this country, and the democratic process that should or that could be used for a referendum on secession or on sovereignty. Secession and sovereignty are not synonymous terms, but they are the terms that I will use in my presentation because secession and sovereignty are intimately linked. Some people speak of secession, while others speak of sovereignty, but in the end, what's important, is that we agree on the realities of the situation. I take advantage of this opportunity to tell you that I myself, and you will see this in my remarks, emphasize social and political realities when discussing such issues.

The subject, while a very important one, is not new. The issues dealt with in this bill have been debated broadly and at length in the last few decades in Canada, and in Quebec in particular. And not very long ago, the Supreme Court, in its reference, formally dealt with the issue in great detail from a legal point of view. That is one of the reasons we are here today.

Before getting to the heart of the matter—I know that I have 10 minutes—I want to say a few words of warning as to the nature of my intervention.

In the first place, I would like to say that I am not a member of any political party, either federal or provincial. I'd also like to state I have never in my life met with or spoken to Mr. Stéphane Dion. I say that because...

[Editor's Note: Inaudible]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): —

Mr. Michel Lebel: No. I meet all kinds of people, but I say that because I am appearing here as an individual. That's what it means. I take this opportunity to point out also that I do not intend to discuss strategic matters. I don't come here as a strategist. I am note defending any strategy, neither that of the Liberal Party nor that of any other party. This must be clearly established. Therefore, I'll probably not answer any strategic questions. I'm here to try to go to the heart of the debate, but given the limited time available to me, I have no illusions.

• 1120

As the chairman mentioned earlier, I was a professor of constitutional law for 26 years at the University of Montreal and at the University of Quebec at Montreal, but that is not the main reason for my appearance here, today. It is important for you to know that I am here primarily as a democratic citizen, and—this may surprise some of you—only secondarily as a federalist. That doesn't mean that I'm not a federalist; I am. However, to paraphrase a teaching from the Bible, it is my view that, regardless of a State's form of government—federation, confederation, unitary State or monarchy—political systems must be made for man, and not man for the systems.

In other words, I do not dismiss any system and I do not claim that one of them will prevail. Throughout history, some systems have disappeared, there have been federations and confederations that have disappeared and others that have been created. There have also been nation-states created. We also see this with societies, they evolve. However, this does not mean that they're all equivalent. What I respect, is the fact that these forms of government were chosen democratically by the people, following free elections and as a result of choices that were as enlightened as possible, except for any fascist or Nazi regimes and governments that commit wholesale human rights violations. But I respect the democratic process, apart from the exceptions that must be taken into account now and forever, I hope.

That having been said, I come to the main point of this short analysis, which will probably continue during the questioning, which is whether or not this bill is democratic. In my opinion, in many respects the term "undemocratic" is applied to proposals too readily, on the excuse that they violate rights. Democracy is too important for this term to be applied lightly. It should not be used rhetorically.

Like everyone in Quebec, I often read and hear remarks to the effect that this bill is undemocratic, that it would undermine the rights of the National Assembly and place a straitjacket on it. Now, this type of remark concerns me. I think it goes to the heart of the matter: is this bill democratic, yes or no?

Since I have little time, I will put aside a number of points to consider the main parts of the bill. I'm going to ignore other, broader considerations and limit myself to the heart of the matter. Under this bill, following a referendum on secession, there would be negotiations only if the results were free of ambiguity both in terms of the question asked and in terms of the support it achieves. As for the question referred to in clause 1 of the bill, it is important to note that, despite the contents of this clause, the National Assembly of Quebec remains, and must remain, fully in control of formulating the question.

• 1125

In this respect, I do not see any federal government diktat here. Certainly, in clause 1, the bill spells out what is not clear for the federal government, for its purposes, in particular, everything regarding the elements that might be added to the plan for secession or for sovereignty, as it is sometimes called. However, this is solely in relation to the powers of the federal Parliament. It's the federal Parliament that is taking action as the federal Parliament. It is giving its opinion and indicating how it views the issue of clarity. I find it absolutely normal, healthy and democratic that it take the initiative and stipulate what, in its opinion, might or might not constitute a clear proposal.

We have to look at the current, real political and legal situation, that is, that the federal government is not a foreign, unconstitutional or illegitimate government in Quebec. Within its jurisdiction, at the present time, it is as legitimate as the government of Quebec. I was careful to specify "within its jurisdiction". There are elected members of Parliament and there is a whole series of powers that are within the jurisdiction of the Parliament and are exercised by the federal government.

On a referendum question involving the integrity of Canada's territory, I believe the federal government would have the right, and even the duty, to state its position, because it is the indivisibility of territory that would be at stake. The Quebec government has also said on several occasions that the territory of Quebec must remain whole and undivided, with its current borders. It said that it would not agree to any limitations on or partition of its territory. Territorial integrity is the basis of sovereignty in international law.

It is therefore obvious that, if the federal government believes there is a possibility it might lose part of its territory, it has the right to state its position on the manner in which this might happen and under what conditions. This is not binding on the National Assembly. The National Assembly can do as it likes and ask whatever question it wishes. This would obviously create a conflict.

The Chair: Mr. Lebel, I'm sorry, but your 10 minutes are over.

Mr. Michel Lebel: It's already up?

The Chair: Yes. Perhaps you could continue to state your position in the answers to questions or comments that will be directed at you.

I give the floor to Mr. Jaffer of the Reform Party.

[English]

Mr. Rahim Jaffer: Thank you, Mr. Chairman. I appreciate the comments made by the witness. Maybe I could direct him, though. He started talking about the issue of the question. If he could move to the issue of what constitutes a clear majority, that's something on which I think many of us want to hear what people have to say.

We in the opposition have said the standard we would respect would be 50% plus one, which most democracies recognize. I'm curious about what you as a constitutional law professor would say to that.

Prof. Michel Lebel: If I may, I will answer the question in French.

Mr. Rahim Jaffer: Yes, that's fine.

Prof. Michel Lebel: The other questions I can answer in English.

Mr. Rahim Jaffer: I understand.

Prof. Michel Lebel: I think Mr. Turp understands English also, but I'll answer this in French because it's a very important question.

The question is a very difficult question, and in a certain way it is also a very emotional question. That's part of the story. That's part of... I won't call it a game because it's not a game, but it's part of the thing.

[Translation]

What exactly do I think about this issue of the majority? I will perhaps startle some of you. I've been reluctant for a long time to take a stand. I've played with the question. About two years ago, I did some writing on it. I had thought about it, but at a certain point, after reflecting and analyzing, I came to the following conclusion: in my opinion, if we want to...

• 1130

Before stating the figure that some of you are waiting for, I want to say something. First... There's a reasoning behind it. They have a phobia—

[Editor's note: Inaudible]

Mr. André Bachand: —

Mr. Réal Ménard: I'm waiting.

Mr. Michel Lebel: No, but they have a phobia of figures.

Mr. Réal Ménard: You'd think we were at the University of Quebec at Montreal. We are going to run out of time.

Mr. Michel Lebel: No, no, no. Wait a minute. It's a serious question. First, let me say that, for the secession of a country, 50% plus one makes no sense, absolutely no sense. It's ridiculous and politically worthless. I will say it very clearly, it is politically worthless. There's no possible power relationship, from the strictly political point of view. Why?

Second—

Mr. Daniel Turp: It's strategic.

Mr. Michel Lebel: No, no, it's not strategic. Hold on. I must insist. I clearly said that I wasn't here for strategic reasons. That's clear. Otherwise, I would not have come. I'm not talking strategy, but substance.

I'm talking, Mr. Turp, about democracy in the event of a country seceding, when there is a secession. This is the only thing I'm concerned with. And when I say that there would have to be a greater majority than 50% plus one, it's in the interests of the people, and that's the end of it.

I myself would be able to live in a system, in a unitary State, in a federal State, as long as the people decide on it freely, clearly and without ambiguity. I did say that I was appearing here as a supporter of democracy, first and foremost. It's not true that all solutions and all choices are possible for a democrat. I am prepared to debate the issues because I do not claim to have a monopoly on truth, but I am speaking out for respecting the people.

I'm going to raise a question of substance. If I say that 50% plus one is not the right solution, it's because I feel that, ethically and morally, this would be a bad and harmful way of proceeding. Why? Because it would set people against one another. In the event of a strictly mathematical victory, I know which is the winning side when there is 50% plus one, but it's not a matter of winners and losers.

What really matters is that the people be the winners, and not the political parties. Personally, I do not care, because I have no party position. What really matters, is that sovereign people should win without being divided. And the worse thing that could happen to Quebec and to Canada would be for people to begin secession procedures with a very slim majority. It would be the worse thing that could happen to us.

To think otherwise would be pure fantasy. It would be wishful thinking. But that is not reality. That is not the reality we are dealing with. It is more difficult to deal with reality. We may have dreams, but reality is often more demanding. That is my opinion.

Now, ideally, what would be my wish? My wish would be that at least two thirds of Quebeckers, at least 66%, should have to vote clearly for independence or sovereignty. In this way, we would avoid all the trivial debate on how to negotiate with the agreement of all the provinces. That would be swept under the carpet.

The Chair: Professor Lebel, the five minutes are up. Thank you.

Mr. Turp, you have the floor.

Mr. Daniel Turp: Mr. Chairman, I would first like to welcome my former professor, because Mr. Lebel taught me constitutional law. He gave me a course on language rights in Quebec in 1977, at the University of Montreal.

[Editor's Note: Inaudible]

Mr. Michel Lebel: ...Mr. Turp.

• 1135

Mr. Daniel Turp: Besides, Mr. Lebel has taught students who, like myself, interpret things in a way that is totally different from his. Let me tell you that in our class—you remember well—there was also Daniel Proulx, our colleague from the University of Ottawa, whose presentation I hope we will hear, and who, unlike his professor, says that this bill is in total disagreement with the Supreme Court opinion on most of these issues.

You are an expert on federal constitutional law...

Mr. Michel Lebel: Yes.

Mr. Daniel Turp: ...and you are interested in strategy, because you just mentioned the balance of power that would no longer exist if we only had a majority of 50% plus one, and this is a strategic consideration.

Mr. Michel Lebel: No.

Mr. Daniel Turp: Yes, it is strategy.

Mr. Michel Lebel: No, excuse me. I am here, my dear Mr. Turp, as a political philosopher.

Mr. Daniel Turp: Yes, a philosopher who has...

[Editor's Note: Inaudible]

A voice: We noticed that.

Mr. Michel Lebel: You have noticed that.

Mr. Daniel Turp: Philosophers also get involved in strategy.

The Chair: Order, please.

Mr. Daniel Turp: My dear Mr. Lebel, let us discuss constitutional law...

Mr. Michel Lebel: Yes, go ahead.

Mr. Daniel Turp: ...and about one of the issues you have raised: the question. Two lawyers said that the section in this bill that deals with the question was not in agreement with the Supreme Court opinion. Let me mention Patrick Monahan who wrote, very recently, that the fact of excluding the mandate to negotiate and especially partnership totally disagrees with the Supreme Court opinion. Alain Pellet, a highly regarded expert in international matters, said the same thing: the idea of excluding the partnership notion from the question is contrary to the Supreme Court opinion. I would like to have your opinion, as an expert in constitutional law, on this issue.

Mr. Michel Lebel: Well, is this really a constitutional matter? This is a political issue, purely political. The Supreme Court is not God the All Mighty. The federal government can, with a bill like this one, make a very narrow definition of clarity for the purpose of the debate and of its bill, by excluding other aspects from the question, such as partnership, if it finds that they are not clear. It has the right to do so. I do not see how this could be unconstitutional.

Mr. Daniel Turp: He says that it agrees with the Supreme Court opinion. So I am asking you your legal opinion.

Mr. Michel Lebel: I do not know whether this is a legal opinion, but in my mind, things must be clear. It is strange, because basically, the important point in the sovereignist project is secession, or sovereignty. So, the vote must absolutely bear on that point. We must respect the population's decision on that point. This is the very heart of the matter. They want sovereignty, independence. Mr. Parizeau said it. He said it and repeated it constantly. At first, his draft bill, before the 1995 referendum, said: "Do you want Quebec to become a sovereign country?" That is the basic question.

Mr. Daniel Turp: Do you not think that it is excessive, as the legal expert Monahan seems to think, that they should tell us that partnership cannot even be mentioned in a question? You know as well as I do that sovereign countries like those in the European Union have partnerships with other sovereign countries.

Mr. Michel Lebel: I understood your question very well, but I do not want to get involved in strategic considerations.

Mr. Daniel Turp: Listen, I'm asking you for a legal opinion.

Mr. Michel Lebel: If you want a legal opinion, let me tell you that I clearly prefer the bill as it stands: when dealing with secession, the question should be put on only one thing, secession, period. The rest will come later, as the need arises. There must be one clear question about secession alone.

Mr. Daniel Turp: But you have not answered my question.

Mr. Michel Lebel: Yes I have.

Mr. Daniel Turp: Does excluding partnership agree with the Supreme Court opinion?

Mr. Michel Lebel: Yes.

Mr. Daniel Turp: Do you really think so?

Mr. Michel Lebel: Yes.

Mr. Daniel Turp: So, you disagree with Mr. Monahan and Mr. Pellet.

Mr. Michel Lebel: Totally, if that's what they are saying.

Mr. Daniel Turp: Very well. My second question is about the referendum and majority. You say that a majority of 50% plus one would be ethically and morally harmful and pernicious.

Mr. Michel Lebel: Yes.

Mr. Daniel Turp: Is a 50% plus one majority harmful and pernicious in a referendum like the Charlottetown referendum?

Mr. Michel Lebel: Those are two totally different things. It is not the same issue at all.

Mr. Daniel Turp: What is the difference?

Mr. Michel Lebel: Well, the issue is basically different. Charlottetown dealt with constitutional reform. Although substantial, nonetheless, it was only reform. Creating a sovereign State is the most weighty decision a society can make. Therefore, it needs massive support. It does not need support that can vanish after a few weeks of turmoil. It takes massive support, with all due respect to the citizens.

• 1140

Mr. Daniel Turp: And what would you say if they said that votes are not equal?

The Chair: Mr. Turp, order. The five minutes are up.

Mr. Daniel Turp: One last question.

The Chair: To be equitable, I must give the floor to someone else.

Mr. Blaikie.

[English]

Mr. Bill Blaikie: I'll just make a brief comment, Mr. Chairman, and I apologize if I have to get up at some point. I have to go to speak in the House on the Bloc motion on the clarity bill. You can't be in two places at the same time, so I apologize to the witness if I leave in the middle of his answer to my question.

It just seems to me that more needs to be said about this whole question of the fact that the bill leaves out questions on partnership or association, etc. Is that somehow at odds with the Supreme Court opinion? It seems to me that the Supreme Court opinion didn't deal...

My understanding of the Supreme Court opinion is that Quebec or any other province is free to have any kind of referendum on any kind of question of partnership or association that it likes, but that there's only one kind of question that will create the obligation to negotiate that the Supreme Court talks about. We're talking here about the federal government laying out what would create the obligation to negotiate secession, not the obligation to negotiate partnership or the obligation to negotiate association. That's an ongoing political matter that is pursuant to the ordinary process of constitutional amendment, as part of which a certain province might have a strategy by which they would have a referendum to show massive popular support for their particular constitutional proposal for association or partnership. But when it comes to what the Supreme Court talked about, it was talking about creating the conditions that would obligate the rest of Canada to negotiate secession with Quebec.

I don't take the view—and I sense that you don't either—that the fact this bill doesn't deal with all these other things is at odds with the Supreme Court. This bill doesn't have to deal with these things in order to do what the Supreme Court was talking about.

Prof. Michel Lebel: I totally agree with you. It's very simple. I won't repeat what I said, but to me it's evident that if another referendum takes place, it doesn't have to deal with... Excuse me, but I have to correct myself.

Quebec can ask any question, including one on partnership. There's no problem there. Quebec can ask any question. What the federal government then says is that if they talk about partnership, Ottawa doesn't negotiate. That's it, and that's a fair deal. After that, something else happens. That is a conflict, mind you, but something else happens. That's the political struggle, when something else happens. I don't know what it will be.

[Translation]

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

Mr. André Bachand: As you know, Mr. Chairman, Mr. Blaikie is about to make a speech in the House about the motions of our Bloc Québécois confrères. Can you imagine that, I am speaking out on behalf of the New Democrats!

The Chair: No, you are here today to represent the Conservatives. You have five minutes.

Mr. André Bachand: I wanted to work on that with you Mr. Chairman.

Mr. Réal Ménard: We must not mistake our allegiance.

Mr. André Bachand: I am ready for any kind of allegiance, but I do not want to wear a wedding ring.

Mr. Lebel, you said that you came here to speak about democracy. You said that the population of this country made its political choice in a free election. Let me remind you that there was no universal suffrage in 1867. But now, thank God, we have it.

Regarding the 66% issue, you said that you were not satisfied with the bill. I am putting words in your mouth and you tell me if I am right or wrong. You are not satisfied with Bill C-20 because, in fact, it is full of ambiguities. In your mind, if I follow your reasoning, in order for the voters to make a free choice, the result and the procedure must be understood by all the voters. Thus, as far as you are concerned, if there is to be a 66% threshold, it must be enshrined in the Act, in the Constitution or somewhere else, if I understand correctly. This is my first question.

• 1145

Here is my second question. Let us suppose that we now have a new threshold. The basic threshold previously accepted by all partners was 50% plus one, or an absolute majority, and a new threshold, of two thirds, was either implicitly or explicitly recognized. What would happen if the result were 65.9%?

Mr. Michel Lebel: You have put several questions.

Mr. André Bachand: I basically put two questions.

Mr. Michel Lebel: I clearly stated that I did not come here to discuss strategy.

Mr. André Bachand: Professor Lebel, the issue of the basic threshold...

Mr. Michel Lebel: I will answer your questions.

Mr. André Bachand: The 50% plus one threshold has always been our basis. Is this enough? That is another issue.

Mr. Michel Lebel: Yes.

Mr. André Bachand: I won't discuss strategy because you did not want to discuss strategy, but nonetheless, 50% plus one is the agreed basic threshold. You are proposing a new threshold. You are not satisfied with the agreed threshold.

Mr. Michel Lebel: You say that the 50% plus one threshold has been agreed upon. Who has agreed on it? We must agree on the terms. As a matter of fact, who has agreed on that?

Mr. André Bachand: The act...

Mr. Daniel Turp: That is another matter or another situation. We are not going to get involved in...

Mr. André Bachand: According to your criteria, we have two democratically and freely elected governments: the Quebec government and the Ottawa government.

Mr. Michel Lebel: I never understood that the Ottawa government had agreed that 50% plus one was an agreed basic threshold. Of course, they said that it was a victory. Fifty per cent plus one was a victory for me too. There is a winner and a loser. It does not take a PhD in mathematics to understand that. But even so, is it sufficient? That is another matter. Is it morally acceptable? That is another matter.

[Editor's Note: Inaudible]

Mr. Daniel Turp: —

Mr. Michel Lebel: No, no, this is not strategy. Let me repeat that I am only concerned with the interests of Quebeckers and Canadians as a whole. I want the best decision to be made to improve the living conditions of Quebeckers and Canadians as a whole, and that is all. It is not an issue of powers, etc., but we want to improve living conditions for people, especially in their daily lives. That is all.

You asked whether the bill should be amended. If I had a choice, I would amend it, out of respect for our citizens.

You asked whether a majority of 65.9% would be sufficient. I say that it would be, obviously.

Mr. André Bachand: It would be sufficient?

Mr. Michel Lebel: Yes.

Mr. André Bachand: Thus, 50% would not be sufficient, but 65.9% would be.

Mr. Michel Lebel: Yes, yes. I am talking about two thirds. With one third of the people in a society not satisfied, we already have problems. I do not want to frighten you, but there would be problems. And with more than one third, will we see the emergence of a federalist party that wants to get back into Confederation?

Mr. André Bachand: Very well. I have a final question.

Mr. Michel Lebel: Don't you think that many Quebeckers, like Yvon Deschamps, want six months in the federation and six months of sovereignty?

Mr. André Bachand: I have a last question, Mr. Chairman. Let's suppose that 66% of Quebeckers answer yes to a clear question. We are not talking about strategy. One third of the population, namely, the Aboriginals, don't vote. For example, I am thinking of the Northern Cree. In that case, is the territory of the province of Quebec divisible or indivisible?

Mr. Michel Lebel: Would it be divisible or indivisible? In my opinion, I would like the territory to remain indivisible, as I would wish the territory of the rest of Canada to be indivisible.

Mr. André Bachand: Therefore, this is another aspect of the bill that you—

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

Mr. Claude Drouin (Beauce, Lib.): Mr. Lebel, thank you for your presentation.

You recognize that Bill C-20 allows Quebec to decide on the question and the rules, and you say that this is not anti- democratic. Quebec will decide whether or not to hold a referendum and will formulate the question. Mr. Monahan said that in the opinion of the Supreme Court, the 1995 question was not clear. I would like to have your opinion on the 1995 question. Do you believe that this was a clear question?

Mr. Michel Lebel: In my opinion, it was not clear. Furthermore, I have reread it. I have it before me:

Do you agree that Quebec become sovereign,

—there is no reference to either state or country—

...after having formally offered Canada a new economic and political partnership, in the context of the Bill on the Future of Quebec and the agreement of June 12, 1995?

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Mr. Réal Ménard: Did you vote?

Mr. Michel Lebel: I'm a good citizen. I obviously voted. I understood. Had I not understood the question...

Having said that, caution is necessary. I will answer your question. Secession or sovereignty do not involve the same situation as in the case of the Maastricht Treaty, the Charlottetown Accord, or any other reform. The issue is a vital one, basic: Do we, or do we not, create a sovereign state? Therefore, to be clear, the question cannot contain two notions.

In this case, there are two elements. The emphasis is on the partnership, and Mr. Parizeau himself said that this was the winning formula. The emphasis on partnership is to make sovereignty acceptable. This is the principle: When a question has two aspects, it cannot be clear. It can be understood, but that doesn't make it clear. You all know very well that many people did not understand the question. That is a fact. Many people did not understand it. Therefore, in order to respect people, the question must be clear. In this respect, I agree with Mr. Parizeau. He said that the question had to be clear: Do you want a sovereign country? I totally agree with this question, but I would never agree to asking an ambiguous question.

Mr. Réal Ménard: You can never go wrong by following Mr. Parizeau.

Mr. Michel Lebel: No, no. I do not agree with him in a number of areas.

The Chairman: Mr. Drouin.

Mr. Claude Drouin: Continuing in the same vein, Mr. Lebel, you said that for Quebec to achieve a position of strength and be able to negotiate clearly and cleanly, the 66% standard might be acceptable. Are you saying that because you think that a federalist's vote counts for more than a sovereignist's vote, or is it that you want to make sure that the public is dealing with a clear majority?

Mr. Michel Lebel: I am not talking about weighing the votes. Is a federalist vote more important than a sovereignist vote? I am merely asking for a two-thirds vote, a massive, complete and strong vote as has happened in almost all cases of secession in the world. Usually, the people who separate vote massively for secession, 80% or 90%. They want nothing more to do with the colonial or dominating power, and it usually happens after a civil war. They want out and that's it. There are no discussions on clarity, and so on. Ninety percent of the people want to leave. Ask the Algerians. Ask many communities. They voted for it. It was clear and clean. There was no ambiguity. There was no partnership. It was clear and clean. They wanted independence. This was a vital need in view of their history.

But this is not the case here in Quebec, and this is what people don't seem to understand. We seem to be somewhat dominated by the Parti Québécois agenda. We realize that the people of Quebec, whether we like it or not—and I'm saying this as a democrat—in the majority, poll after poll, referendum after referendum, do not want it. We cannot agree with this. We can say that the public does not know what it is doing, but this is the reality. The public prefers the Canadian federation option, when it is clearly asked. This is the reality. We can hate it and want to change it, but this is the situation at the present time.

The Chairman: Your five minutes are up. Mr. Jaffer, you have the floor.

[English]

Mr. Rahim Jaffer: My question has to do with a particular part of the legislation. We were discussing the issue of negotiation. The legislation says that 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.

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Now, if we look at what happened in 1980 when the effort pretty much was to seek a mandate to negotiate sovereignty association, it would almost make sense that if you could follow that sort of process, afterwards you could obviously put to the people another referendum on the clear mandate of those negotiations. You would deal with the problem you identified where you don't want to put people against people, but you want people to win. Would that be something that you'd say would force the negotiations to be clear, and then give the result to whoever would in a sense win on those negotiations that have been created with all parties involved to give it more legitimacy, and maybe the people would come out the winners? I would like your comment on that process.

Prof. Michel Lebel: I can understand your point, but I'm trying to figure it out. There will be negotiation if there's a clear question and a clear answer with a strong majority. If there's a clear question and a clear majority, my feeling is that things would go well. There would not be, I think, constitutional objections with regard to the constitutional amendment process. That would be secondary. But things must be clear regarding the question and the number of people who approve the question. Then the rest, according to the spirit of the Supreme Court reference case, would be secondary.

Mr. Rahim Jaffer: What sort of question would you consider to be clear?

Prof. Michel Lebel: Does Quebec want to become a sovereign state? That's it. As Mr. Parizeau said the first time very clearly, do you want to be a sovereign state? That's a clear question. If there's a yes, then anything can happen. Any kind of contract or treaty can come, and it's done in Quebec. But first you must make this question clear and not mix the two.

The Chair: Next is Madam Redman.

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

The question I have is actually quite simple: Monsieur Lebel, if you were a member of Parliament, would you vote for this bill?

Prof. Michel Lebel: Yes.

The Chair: Monsieur Guimond.

[Translation]

Mr. Michel Guimond (Beauport—Montmorency—Côte-de- Beaupré—Île-d'Orléans, BQ): Thank you, Mr. Chairman.

Professor Lebel, I will read you the following question:

Do you accept and approve the settlement agreement, dated, for reference purposes, the 14th day of December 14, 1999, between the Montagnais band of Lac-Saint-Jean and Her Majesty the Queen in right of Canada?

Do you agree to sanction, pursuant to sections 38(1) and 39 of the Indian Act, the absolute transfer to Her Majesty the Queen in right of Canada, by the Montagnais band of Lac-Saint-Jean all rights and those of its members pertaining to all parcels of reserve lands on concession IX of the Ouiatchouan township?

By voting “YES”, you authorize the Chief of the Lac-Saint-Jean Montagnais band of Lac-Saint-Jean or any other member of the band council duly authorized by resolution to sign on behalf of the band council and its members, all documents and take all measures required to put into effect the settlement agreement and the absolute transfer of all parcels of the reserve lands on concession IX of the Ouiatchouan township.

YES or NO

Mr. Lebel, do you agree that this question meets the clarity criteria in Bill C-20?

Mr. Michel Lebel: Excuse me, but—

Mr. Michel Guimond: Would you like me to reread?

Mr. Daniel Turp: There are two aspects.

Mr. Michel Lebel: I did not understand.

Mr. Michel Guimond: I shall reread it to you.

Mr. Michel Lebel: I don't see the relationship. I am not aware of the question, and neither am I aware of the background of this debate you are raising about the Aboriginal nation. I don't know what this is about, and therefore, I cannot give you a substantive answer.

Mr. Michel Guimond: I am reading you a question from the Canadian Department of Indian and Northern Affairs that is addressed to a Lac-Saint-Jean Montagnais band. It is a referendum question, and requires a yes or no answer.

Mr. Michel Lebel: Who asked the question?

Mr. Michel Guimond: The government, the Department of Indian and Northern Affairs.

Mr. Michel Lebel: If I understand correctly, this is not a referendum held by The Montagnais.

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Mr. Michel Guimond: I shall reread the question:

Do you accept and approve the settlement agreement dated, for reference purposes, the 14th day of December 14, 1999, between the Montagnais band of Lac-Saint-Jean and Her Majesty the Queen in right of Canada?

Do you agree to sanction, pursuant to sections 38(1) and 39 of the Indian Act, the absolute transfer to Her Majesty the Queen in right of Canada by the Montagnais band of Lac-Saint-Jean all rights and those of its members pertaining to all parcels of reserve land on concession IX of the Ouiatchouan township?

By voting “YES”, you authorize the Chief of the Montagnais band of Lac-Saint-Jean or any other member of the Band council duly authorized by resolution to sign on behalf of the band council and its members all documents and to take all measures required to put into effect the settlement agreement and the absolute transfer of all parcels of the reserve lands on concession IX of the Ouiatchouan township.

YES or NO

Was this question that the federal government asked the Montagnais clear?

Mr. Michel Lebel: I will tell you frankly that I do not feel able to answer your question.

Mr. Michel Guimond: You are unable to answer?

Mr. Michel Lebel: In the context and with all of this, I do not feel that I am able to answer your question.

Mr. Daniel Turp: I should like to point out to you that there are two aspects. Is it not true that there are two aspects?

Mr. Michel Lebel: In some cases, there may be 50 aspects.

Mr. Daniel Turp: Oh... oh.

Mr. Michel Lebel: They are clear there. At the time of the Charlottetown referendum, it was absolutely ridiculous because there were so many things. It required an expert in constitutional law to understand what it was all about.

Mr. Daniel Turp: Was the question clear in Charlottetown?

Mr. Michel Lebel: Yes, but it's the content. Attention, if you please. The important thing in this case, is the content. I am not familiar with the content of this agreement. Is it good?

Mr. Réal Ménard: Answer the question. Was it clear?

Mr. Michel Lebel: In my opinion, it was not clear. I have to be consistent. Had it been clear, I would have answered yes or no. I am not capable of doing so. Therefore, there is a problem, in my opinion.

Mr. Réal Ménard: And you are educated.

Mr. Michel Lebel: Yes, but you are also educated.

Mr. Réal Ménard: Not bad.

Mr. Michel Lebel: You are playing word games, and I don't want to play.

The Chairman: Thank you very much, Mr. Lebel. Your evidence has been very worthwhile. You have raised many questions and comments.

[English]

Thank you very much for your appearance.

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• 1204

[Translation]

The Chairman: Order, please. We will now hear from Mr. Claude Castonguay, who appears as an individual witness. Mr. Castonguay, thank you for your help. You have the floor.

Mr. Claude Castonguay (Individual Presentation): Thank you, Mr. Chairman. If I understand correctly, I have about 10 minutes to make my presentation. Therefore, I shall try to be as brief as possible.

I participated actively in the referendums in 1980 and 1995. I obviously also witnessed the 1992 referendum, even though I did not participate very actively in this, but I can tell you that in the 1980 and 1995 referendums, the concept of association or partnership which was added to the idea of sovereignty created a great deal of confusion and much ambiguity.

• 1205

I believe that one of the main reasons for this was that partnership or association was presented as something that automatically had to accompany sovereignty. Obviously, the idea was to reassure Quebeckers by always linking the idea of association and partnership to the objective of sovereignty. You may recall that, during the 1995 referendum, the present Premier actually had to intervene during the campaign to reinforce the partnership concept, so as to avoid an outcome that, otherwise, would have obviously been very negative.

A number of Quebeckers, and I was able to assess this and see this on several occasions during each of these two referenda, did not have a very good idea of what the objective was. Obviously, if the yes side had won, it would have been absolutely impossible to interpret the results either way, particularly if the yes side had got slightly more than 50 percent. I'll come back to this issue in a few moment because I would like to give you a few examples.

It seems to me that there still is confusion today. When I was looking at the information available on this issue, I saw that a CROP opinion poll recently showed that 35 percent of Quebeckers believed that Lucien Bouchard wants to reform federalism. We can see just how much confusion there will be if once again we graft the idea of association or a partnership onto a question during a future referendum. However, it is essential for Quebeckers to really have a clear idea of what the issue at stake is if such a referendum is held.

Furthermore, the Supreme Court stressed in its ruling that secession was too important an event to have the slightest ambiguity concerning the will of Quebeckers. In my opinion, it's obvious that even if we ignore the Supreme Court ruling, the independence of Quebec would have a profound effect on all of Canada and its citizens, including those who are in Quebec and wish to remain Canadians. This is not an issue that is solely of interest to Quebeckers who may want to choose independence. It concerns all Quebeckers, and obviously, that includes those who wish to remain Canadians. We mustn't forget that on two occasions a majority of Quebeckers indicated their desire to remain Canadians.

Consequently, I think one cannot be indignant because the federal government, on behalf of Canadians, or the Parliament of Canada wants to set out the rules of the game that it plans to follow in the event of another referendum on sovereignty. Once again, this issue is not solely of interest to sovereignists, it is also of interest to people like me, who are both Quebeckers and Canadians.

In my opinion, the question in 1995 was not clear, and I mentioned that earlier. Let me give you my first example. At the time, I was having ongoing discussions with a number of people who taught political science at a university in Montreal. I asked one of these people what the question asked meant, and he told me that the question that was asked in 1995 was merely intended to seek a negotiating mandate. I asked him to go back to the question and to read it carefully, and he saw that if the government was of the opinion that negotiations were not progressing satisfactorily, it could immediately begin the process of declaring independence, or, if after one year, the government was not satisfied with the outcome of the negotiations, it could do so as well.

• 1210

So the question was not just asking for a mandate to negotiate. Because of this kind of confusion, it was impossible to analyze the 1995 result, in my opinion. One thing came out, and that is that a majority of people responded no. What did the people who voted yes want? That was far from clear.

This brings us to the issue of the majority required. In theory, a majority of 50 percent plus one is enough when one is voting in the House of Commons or when one is negotiating a collective agreement. But in practice, when dealing with such an important issue that could lead to Quebec separating from the rest of Canada, a government that wanted to move toward independence with such a small majority would quickly be facing extremely serious problems. Its majority could evaporate, given the various problems that independence could lead to.

I don't know what an acceptable threshold should be. Furthermore, I don't think there is any consensus on that question. That is why I think it is reasonable for the Parliament of Canada, in consultation with all its partners, to make a judgement on the value of the majority expressed. It seems to me that after an election or a referendum, as we have seen so many times in the past, we interpret the meaning of the vote that was just held. I think this is a reasonable approach. In my opinion, in no way would this give Parliament or the Government of Canada authorization or the ability to make an arbitrary decision about the will of Quebeckers if there was a clear question and a clear majority. That would be untenable.

I would like to make a brief comment about another matter, in light of everything that has been published in our newspapers in Quebec over the past while about this bill, which I have read and reread. I was a member of the National Assembly, and I believe I have a firm understanding of what a bill means. I did not see anything in this bill that limits the jurisdiction of the Quebec National Assembly nor the right of Quebeckers to decide their future. On the other hand, this right must be used within a political context, a very real context. In no way can this right force Canadians outside of Quebec to automatically accept partnership or an association. It seems to me that if ever a majority of Quebeckers voted for the secession of Quebec, there would be an extremely strong negative reaction outside of Quebec. Given the rather short timeframe, I don't see how it would be possible to negotiate any kind of agreements after such an event.

The bill specifies or sets out a number of issues that will have to be negotiated.

• 1215

We have debated the issue of Quebec's independence in an extremely sustained fashion on so many occasions since the late 1960s that the main issues that would be negotiated have now been rather well identified. I find it to be quite normal to remind the people of this so that there is no ambiguity as to what would be negotiated.

I would just like to make one comment that goes somewhat beyond the scope of this bill, Mr. Chairman. I'll be very brief.

Passage of this bill will not end the history of the various dealings between Quebec and the rest of Canada. I believe that the fundamental problem, which periodically comes to the surface, stems from the fact that the vast majority of Quebeckers do not accept that concept of Canada that does not recognize the specific nature of Quebec and which ignores their concerns, particularly the concerns of francophones regarding the future of their language and their culture.

I hope that once this bill is passed, we will turn our attention to that issue, so that when there is a government in Quebec city that wants to begin a dialogue, Quebeckers can hope to finally escape the situation that has gone on for far too long, which created uncertainty and which in many ways harms both Quebeckers and all Canadians.

[English]

Mr. Grant Hill (Macleod, Ref.): Thank you, Mr. Castonguay, for your brief comments.

Half an hour ago in the House I made the very same statement that you just made. I felt the question in 1995 was confusing. I went on to say that I felt politicians understood what it meant, journalists understood what it meant, academics understood what it meant, but the average person in the street who might not follow politics every moment could be confused by that question.

I felt that was an innocent statement. I felt it was my opinion, a factual statement. I was attacked moments later for insulting all Quebeckers, even though I was born in Quebec. I've been raised in the west and I admit to having a western perspective on this.

You as a Quebecker have made the same statement, and I don't believe you will be criticized for insulting Quebeckers or saying the question was confusing.

Mr. Claude Castonguay: Well, I hope not.

[Translation]

Mr. Grant Hill: Me too.

[English]

You stated that the majority for you should be left not spelled out. I wasn't sure of the reason why you wouldn't spell the majority out and make the majority specific. Can you explain why you wouldn't set a number?

Mr. Claude Castonguay: I don't believe there is an agreement on what should be an accepted level. Some people say 50% plus one. In my opinion, 50% plus one is an appropriate figure in theory, but we're dealing with a highly practical question that will have to be dealt with in a given context. It seems to me that people can analyse a vote and can give an interpretation to a vote and they can decide whether it is a sufficient vote or not.

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If we try to set a level in a vacuum, as we are now at the moment, that would appear satisfactory to some people. It is obvious that a lot of other people will say “No, this is much too high”. So it seems to me that it is a debate that leads nowhere. The decision should be left to the people who will be here in the House of Commons and the Senate and to the people who are involved in this question and who have arrived to make a judgment.

Mr. Grant Hill: Do you worry that the level could be changed according to whatever the percentage a referendum might gain?

Mr. Claude Castonguay: I don't believe so. If there is a clear question and a majority of Quebeckers say “We want to go”, it will be quite obvious whether this is a genuine wish to go or not. And it could very well be a majority of 58%, it could be 63%, it could be 55%. There will have to be a judgment made.

I don't think that anybody here in the Parliament of Canada could retain the people of Quebec by increasing the level if it was really their wish to leave. And this can become obvious. It's not only a question of a certain number of votes for or against. I believe the context justifies a judgment, and the way the majority has been reached can also justify that a judgment is made on its value.

Mr. Grant Hill: Thank you.

[Translation]

The Chair: Mr. Turp.

Mr. Daniel Turp: Mr. Chairman, before I ask Mr. Castonguay my question, I would like to tell my colleague, Grant Hill, for whom I have a great deal of respect, that he has no doubt gotten carried away. At least I hope so. You are entitled to your own interpretation of the 1995 question. We can disagree, and I don't believe that we should feel insulted because we disagree about the interpretation of this matter.

Mr. Castonguay, you are one of the creators of the modern Quebec State, and my colleagues within the Bloc Québécois recognize you and your contribution to the modern Quebec that you have built.

I'm going to ask you what I think is a tough question, a question that I asked the Minister yesterday at the very end of the meeting. You were a member of the National Assembly, as you mentioned a few moments ago, and you know that the National Assembly is also looking at a bill regarding the prerogatives of the Quebec government and the people of Quebec, a bill that contains provisions regarding the majority—50 percent plus one—and regarding the Assembly's prerogatives with regard to the question itself.

What will happen if the National Assembly, after a referendum vote, deems that the majority is clear, and a few days later, the House of Commons decides that the majority is not clear? In the final analysis, where does the sovereignty of the Quebec people lie? Which bill should prevail?

Mr. Claude Castonguay: The right of Quebeckers to self-determination has been recognized. I believe that Quebeckers are free to decide their own destiny. In my opinion, what we're talking about here is how this is to be decided. I realize that it is always difficult to discuss hypothetical situations, but even so, I will try to comment on your question.

If the National Assembly of Quebec decided that the majority was clear and if it had the opposition's agreement, I think that aspect would have to be taken into consideration by Parliament here in Ottawa in the decision it would have to make or the judgement that it would have to make. That's why I was saying a few moments ago that it is difficult to establish what the threshold should be.

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In the event of that hypothetical situation you describe, if we had a government at the Quebec National Assembly that was elected by a minority of Quebeckers, and an opposition that represents a majority of Quebeckers, as currently is the case, and if the opposition voted against a motion recognizing the validity of the vote, I think that the government or the Parliament here could be influenced in its own judgement.

That is why I was saying a few moments ago that the judgement to be made must bear in mind not only the percentage, but also the context and analysis of the true will of Quebeckers.

Mr. Daniel Turp: I appreciate your answer. Nevertheless, in the case of a potential conflict regarding legitimacy... In effect, if the bill is passed, there could be a conflict of legitimacy between the two assemblies. If the members of the National Assembly unanimously decided that the majority was clear and the federal Parliament decided that it was not clear, after considering the view of one of the provinces or any other relevant views, if there was this true conflict the day after the vote, where would Quebec's sovereignty lie? Which opinion would prevail? Would it be that of the National Assembly, or that of the House of Commons?

Mr. Claude Castonguay: If Quebec or the National Assembly put the matter to a vote after a referendum in which the yes side won a majority, I certainly believe that it would be free to do so. However, in that case, there would be an extremely serious issue, in my opinion. That would happen in an almost impossible context. That's where we see all the consequences that could flow from a situation in which the will of Quebeckers may not have been truly expressed clearly.

In fact, the independence of a province such as Quebec, in a society as complex as our own, where there are all kinds of ties, is an extremely complex matter that raises many, many other issues, not only those that are set out in the bill. This is also an issue that stirs up a great deal of emotion.

Indeed, the kind of questions that you are raising are making Quebeckers reflect, and they lead them to the conclusion that the consequences of sovereignty would not be advantageous; they prefer to remain within Canada, which all in all has been a relatively good thing for them, even though there are obvious difficulties and problems.

Mr. Daniel Turp: You really don't want to answer my question. You have kept your politician's habits.

The Chair: Time's up. Normally, we would have questions from members of the New Democratic Party, followed by members of the Conservative Party. Since they are not here, we will now turn to members of the Liberal Party.

Mr. Alcock.

[English]

Mr. Reg Alcock (Winnipeg South, Lib.): I'm very pleased that you can be here today, Mr. Castonguay.

I'm interested in two things. I'm interested in the discussion between Mr. Turp and Mr. Hill around this issue of clarity. We have a statement from the current Premier of Quebec, who indicated in October that that partnership represents seven to eight percentage points more support in the population; therefore, they must think twice about clarifying the option.

So it raises the question about who's really trying to fool whom or who's really respecting whom.

I'm intrigued, Mr. Castonguay. You have had a very long and very distinguished career. In fact, if I'm correct, you were the Minister of Health who introduced universal health care to Quebec.

Mr. Claude Castonguay: Yes.

Mr. Reg Alcock: You have a reputation of being a very strong federalist but a strong nationalist also, a strong supporter of Quebec.

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I think it's fair to characterize you as not always agreeing with the current Prime Minister. I think you've had more than one occasion to have a debate, and yet both of you, both Quebeckers and both with long and distinguished careers, come together around this bill. While you may have different views of where Quebec may end up, you both are able to support this mechanism for clarifying these questions.

Tell me, how do you come to that, and do you believe this process will produce the kind of clarity that Mr. Turp says he wants and that I think we all feel we have to have if we're going to head down this road?

Mr. Claude Castonguay: As I said, I was involved in the 1980 referendum and the referendum in 1995, and I have followed this question. I was a participant in the Victoria conference in 1971 as a member of the Quebec government. I have followed this never-ending debate for almost forty years now, and I have come to the conclusion that we have to end it at some point, and the sooner the better.

If we were to go into another referendum, it is my conviction that we must do everything to avoid the kind of situation we've had after 1980 and after 1995, where the sovereignists did not really accept the decision of the majority and said “We'll go at it again”.

So this time, if there is to be another referendum, it seems to me the experience of the past two referendums justifies that we do everything necessary to make sure we know exactly what was meant by the vote in this referendum.

[Translation]

The Chair: Mr. Cotler.

Mr. Irwin Cotler (Mont-Royal, Lib.): Mr. Castonguay, as a Quebecker, I would like to extend a warm welcome to one of the fathers of the quiet Revolution, perhaps not so quiet a revolution.

My question has to do with the Quebec government's position on the Supreme Court of Canada ruling. On the one hand, the Quebec government praises the Supreme Court ruling. On the other hand, it rejects this bill, which is based on this same ruling. How should we take the criticisms from the Quebec government? What are they criticizing?

Mr. Claude Castonguay: Mr. Cotler, I've been asking myself the very same question. As I said, I have read the bill more than once. I have read the criticisms that have been made of it, and I still cannot see how this bill limits the jurisdiction or the prerogatives of the Quebec National Assembly.

It has been said, and I reiterated this a few moments ago, in my opinion, if the people of Quebec clearly state that they want to leave Canada, nothing in this bill will keep them from doing so. However, the bill does say that the Parliament of Canada, the federal government or Canadians represented by their duly elected officials will begin negotiations, and will do so within a framework that is set out in this bill, which I think is normal.

The Chair: Mr. Ménard has the next five minutes. He is not a member of the committee, but the Bloc Québécois indicated that he could ask questions on their behalf.

Mr. Ménard.

Mr. Réal Ménard: Thank you, Mr. Castonguay. In the final analysis, it is always thanks to a climate of frank cordiality that things change. I'm sure that will bring back some pleasant memories.

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Mr. Castonguay, I want to understand your point of view. I'm in my early thirties, and as is somewhat the case for Mr. Turp, in my eyes your are an emblem that represents modern Quebec. But in the event of a potential conflict, the issue at the very heart of this bill is whether the members of the National Assembly can decide whether the question is clear and decide to begin the process.

You are familiar with the operations of the National Assembly, and if the National Assembly decides that the question and the results are clear, how can we accept that the federal government, through the House of Commons, be involved in the process? That's what I don't understand.

They can't tell us that we can decide whether the question is clear if the House of Commons itself says that it is not clear. The National Assembly must decide that for itself. If the Assembly has its own process and if all the parties are part of the process, I think you'll agree that in such circumstances the Assembly will have more strength.

In other words, don't you agree that this bill, in its current form, gives the House of Commons and the federal government an unacceptable veto, since it says that even if the National Assembly were to recognize that the question was clear, the House of Commons could say that it was not clear?

In your opinion, if there were a conflict, if the National Assembly said yes and the House of Commons said no, how could the matter be settled?

Mr. Claude Castonguay: First of all, I do not believe that we could always avoid a conflict regarding the result of a referendum between Quebec and the rest of Canada, be it through a bill or through statements made prior to a referendum. I think we would be quite naive to believe that we could resolve this in advance by means of legislation or statements.

Once again, I have the same reservations I expressed before: it's always very difficult to discuss hypothetical questions. If there were a really clear question and a really clear result, in other words a solid majority, and if the National Assembly were to declare unanimously that that is enough for it to come to the conclusion that Quebeckers wanted to leave Canada, at that point, in my opinion, the Parliament of Canada would be in a situation where it would have to respond to such a vote in a positive manner.

As I said before, this bill does not give the Parliament of Canada terms of reference that would allow it to proceed arbitrarily. I think it would have the responsibility of handing down a clear judgement.

Mr. Réal Ménard: I want to understand you, Mr. Castonguay. You're telling us that if the National Assembly were to decide that the question and the results are clear then that is what must prevail. We are dealing with the legitimacy of and the confrontation between the two institutions. You're saying that the self-determination of Quebeckers is recognized and if the National Assembly decides that it's clear, then that is the voice that must prevail.

Mr. Claude Castonguay: If the question were very clear: “Do you want Quebec to leave Canada or become sovereign?” and if a high percentage of Quebeckers were to clearly say yes, then I believe that at point, Parliament would have to say yes. Nothing in this bill would justify the Parliament of Canada saying no. But we know full well it's quite likely that won't necessarily be the case and that's why this bill, that sets out what will be done if it isn't clear, is so emphatic about the necessity for clarity.

I don't see why you're so worried. It's a matter that will be decided in a political context. You say that Quebec has such a right and such a prerogative and the Parliament of Canada says it has such responsibilities and that it will discharge them in such a way. I think that's normal.

• 1240

Mr. Réal Ménard: You can't blame us...

The Chair: The five minutes...

Mr. Réal Ménard: A thirty-second summary, Mr. Chairman.

You can't blame us for wishing that it be established clearly that the National Assembly will have the main say in this case. You can't blame us for that.

An Hon. Member: Well, no.

Mr. Claude Castonguay: No one denies that.

Mr. Réal Ménard: And you are of that opinion.

Mr. Claude Castonguay: No one denies that.

The Chair: Fine.

Mr. Bonin, you have the floor.

M. Raymond Bonin (Nickel Belt, Lib.): Mr. Castonguay, thank you for your excellent presentation. I never had the opportunity of meeting you but I know you through the media. We might as well be neighbours or brothers. I don't at all feel any different from you even though I'm a Franco-Ontarian and was never a citizen of Quebec.

You mention the fact that some members of the separatist movement were afraid of losing their language. That's one of the reasons—not the only one—that moves many people to support this option.

My grandchildren who live in Northern Ontario, 600 kilometres from the border, make up a sixth generation of francophones outside of Quebec. My colleagues from Quebec, both the separatists as well as my colleagues on the government side, are surprised to learn that there are seven caisses populaires Desjardins in my riding whose voters are 40% francophone. It also surprises them to learn that before becoming a member of Parliament, I was a professor in a French community college and my wife, before retiring, was a teacher in a French elementary school managed by francophones and that my son teaches in a French high school managed by francophones.

I'm saying all that, Mr. Castonguay, because one of my great concerns is this 50 percent plus one. I should add that we get six French TV channels back home including TFO, Ontario's French television station. We francophones outside of Quebec know Quebeckers; they're our cousins, as our ancestors come from Quebec. I am worried about this 50 percent plus one, because every time I talk about this kind of thing, I'm astonished to see the reaction of Quebeckers who say that they didn't know that.

If, after a vote, we were to learn how the francophones managed to survive and work together with the anglophones while being independent, I'm sure that that would get at least a few people to change their minds. That's why, in my opinion, 50% plus one is very dangerous.

I'd like to get your reaction to that situation.

Mr. Claude Castonguay: Fine. If you'll allow me a brief comment, I would say that it's not only the sovereignists who are concerned about the future of the culture and the language in Quebec. We have the same phenomenon everywhere with the new means of communication as well as the strength of American culture and style. We can see that with the debates they're holding within the European Union. It's a matter that is of some interest to all peoples who wish to preserve their identities.

I must say I have a lot of admiration for the francophones outside of Quebec, that I know better, for the Acadians, that I know, for the Franco-Ontarians. I have a lot of admiration for what you have done and what you are doing.

Now, about this matter of the majority, is 50% plus one enough? In my opinion, in theory, you can argue in favour of 50% plus one, but in fact, on such an important issue, that has such serious implications, not only for Canadians outside of Quebec, but also for the Quebec Canadians who don't wish to separate, it seems to me a distinctly insufficient majority which could actually fade away rapidly as a result of all the problems which would obviously arise once independence was declared.

The Chairman: Fine.

Mr. Hill.

• 1245

Mr. Grant Hill: There are four major issues in the legislation: borders, minority rights, interests of the Aboriginal peoples and the division of the debt. There are also other issues. In your opinion, should the legislation include other major points?

Mr. Claude Castonguay: I can't really answer that question. I know it's not wise to try to give an exhaustive list of all issues. Those four issues were clear in the debates held over the last years, but one could imagine that other problems could arise. I'll give you two examples.

How will the transfer of federal government employees to Quebec be done the day after separation? What guarantees would those employees have as to their job security and their integrating within the Quebec public service?

If we were to take the road to independence, we would also have to settle the matter of the Quebec Pension Plan and the Canada Pension Plan. A lot of Quebeckers have entitlement under the Canada Pension Plan recognized for their years of service in Quebec. How would the assets be divided? What kind of assets would be transferred?

There are a certain number of questions like those that would arise. I never tried to list them all, but it seems to me the list could be very long. After Quebec has separated, would there be free movement of the labour force, of goods and services, or would there be an attempt to put up some barriers? In view of the resentment that this might lead to, the discussions might be very difficult.

We know that despite the agreement on internal trade between the provinces and the federal government that was signed a few years ago, there are still a lot of barriers and trading in goods and services is far from being carried on harmoniously within Canada. What would happen in the event of separation? That's a matter that seems also important to me. Exchanges between Quebec and the rest of Canada are very important even though they're perhaps less important than they have been in the past.

Mr. Grant Hill: Let's talk about establishing Quebec's borders. According to the Constitution, Quebec's borders are set. If secession were to occur, would it be possible to alter those borders?

Mr. Claude Castonguay: I'm neither a lawyer nor a constitutionalist. The only two things I can say about that is that it seems to me that certain Aboriginal peoples' right to land ownership are recognized by treaty. If those peoples did not want to remain within a sovereign Quebec, would they have to? I think that's a major question.

Beyond that and any judicial or constitutional question, you know as well as I do that a number of people in Quebec, in many municipalities, have expressed the wish to remain within Canada if there were a vote in favour of sovereignty. I don't know at all if they'd have the right to do so, but I know very well that that would create an extremely tense situation after a vote on sovereignty. It seems to me we should try to avoid those situations by any means.

[English]

The Chair: All right, we're virtually finished, but I'll allow

[Translation]

another question for Mr. Guimond which will put an end to today's deliberations.

• 1250

Mr. Michel Guimond: Mr. Castonguay, just to refresh my memory, can you tell me when you left the National Assembly?

Mr. Claude Castonguay: In 1973, at the end of my mandate before the second time the Liberal government of Robert Bourassa was elected.

Mr. Michel Guimond: So you were in that position for quite a while and before that you played an advisory role for long enough to know that the National Assembly... Do you consider that the National Assembly is really the custodian of the rights and powers of the Quebec people and that its role is to defend them against any attempt to infringe upon their rights? Is this a fair representation of your thinking on that?

We could give the example of the unilateral repatriation of the Constitution in 1982 that all parties, including your old party, the Quebec Liberal Party, were opposed to. Mr. Trudeau persisted anyway and repatriated the Constitution.

Mr. Claude Castonguay: I agree with you in saying that the Quebec National Assembly is there to defend the rights of Quebeckers within its jurisdiction. It is also there to determine if, in the case of a referendum, the majority of Quebeckers want to remain within Canada or leave it. I have no problem with that. It's up to the National Assembly of Quebec to protect the rights of Quebeckers in its areas of jurisdiction.

Now, you mentioned the 1982 Constitution repatriation. This is clearly a stain, an episode in Canada's political life that has not been corrected and that is the source of all the debates that we continue to hold on the matter of Quebec's status within Canada. I find it unfortunate that we're still debating this in the year 2000. That is why, once I've had my say here, I would hope that once this chapter is closed, with the passage of this bill, that we'll look again to this matter of Quebec's status within Canada.

Mr. Michel Guimond: Does Bill C-20 erase that stain?

The Chairman: Mr. Guimond, it was understood you were entitled to one question. I really think your time has expired.

Thank you, Mr. Castonguay, for your help. It has been much appreciated by all members of this committee. Thank you very much.

[English]

Ladies and gentlemen, I have a couple of announcements.

[Translation]

There will be no meeting of this committee this afternoon or tonight because we don't have any witnesses.

Mr. Daniel Turp: Not even tonight?

The Chairman: Not even tonight. That's too bad, because I know that all members would like to sit and work and so on, but we have no further witnesses for today.

If there are witnesses tomorrow morning, you will get—

Mr. Daniel Turp: There aren't any?

The Chair: Not at this time.

Mr. Daniel Turp: Oh, there aren't any.

The Chair: So you'll be getting a notice this afternoon, before 5 p.m.. You might have to prepare for a meeting tomorrow morning.

Anyway,

[English]

we will meet tomorrow at 12:30 a.m. We'll hear three witnesses beginning at 12:30 a.m. tomorrow.

[Translation]

Mr. Daniel Turp: Could you explain why we have no witnesses?

The Chair: The parties gave me lists and the clerk and I tried to find witnesses from those lists.

[English]

Some of the witnesses on the list we don't know about; we haven't heard from them. They haven't indicated if they would like to appear, so we will keep working on that.

[Translation]

Some honourable members: Oh, oh!

The Chair: Order. There is no pause in the debate at this time.

[English]

Mr. Turp has informed the clerk he is withdrawing the two notices of motion he gave us yesterday. We will not be proceeding with those until we get further notice.

I've also indicated you will hear by 5 p.m. if we will hear witnesses in the morning. But tomorrow afternoon, starting at 12.30 p.m., we have three:

[Translation]

Mr. Bernard Amyot, President of the Groupe des Cent; Mr. Jean-Pierre Derriennic, Junior Chair at the political science faculty of Laval University; and for the Organisation Pro-Démocratie, Mr. Gérald Larose et Mr. André Tremblay. All four will be here tomorrow.

On Monday and Tuesday our schedule will be very heavy.

• 1255

The meeting stands adjourned.