Mulcair’s Folly

New York - In my last comment in these pages, I cautioned federalists against allowing the Parti Québécois’ underwhelming 2012 election performance to lull them into complacency. Even with a mere minority government, the Péquistes will pounce on any political friction between Quebec and the rest of Canada, the better to roll the referendum dice again. There is no telling what developments may so offend Quebecers as to make a third referendum a realistic possibility. Separatism has appeared to go into terminal decline before and yet still experienced frightening resurgences, usually with little or no warning. It is exactly when separatist sentiment is at low ebb that federalists should prepare a strategy for dealing with the threat if it ever rears its head again.

So my reaction to NDP chief Thomas Mulcair’s recent proposal to replace the Clarity Act with a new law, Bill C-470, is not one of pure derision. The Leader of the Opposition is wise to prod English Canada to decide—now, between separatist surges—how to respond to a hypothetical future Yes vote. His error lies not in poking the sleeping dog of Quebec nationalism, but in the rancid meal he wants to feed it. Bill C-470 would strengthen the Clarity Act’s requirement of a clear referendum question while weakening the Act’s stance on the necessary margin of victory for the Yes side. This is folly, for the wording of the question never was the critical factor in the sovereignty controversy, and the “50% plus one” standard never was a legitimate basis on which to break up a country. 

I have never fully sympathized with the more than 30-year-old federalist lament about the deviousness of the wording of the 1980 and 1995 referendum questions. To be clear, I don’t dispute their duplicity. (I’ll never forget the interviews in Donald Brittain’s superb 1986 documentary The Champions: The Final Battle, in which former PQ cabinet ministers Claude Charron and Claude Morin admitted that they had to have “some tricks” in the 1980 question in order to maximize the Yes vote.) Rather, my point is that the referendum questions’ vagueness was not the root cause of so many Quebecers’ willingness to vote Yes. 

If Quebecers have twice rejected sovereignty, it is not out of any misty-eyed Canadian patriotism, but because they know that their bread is buttered in Ottawa. Recognizing this, the Péquistes have striven to assuage Quebecers’ concerns about the costs of independence by claiming that they could achieve it without any sacrifice. They could keep their Canadian citizenship, continue to do business with English Canada (and with the U.S. and Mexico, through NAFTA), continue to use the loonie, and so on. Most of this is contemptible nonsense, of course, but it has probably convinced many Quebecers that they could secede from Confederation painlessly. For instance, roughly 25% of Yes voters in 1995 reportedly believed that if Quebec had separated, they could still have elected representatives to Parliament.

This feel-good guff, however, has never stemmed from the terminology in the referendum questions. Neither the 1980 nor the 1995 query said anything about Canadian citizenship, free trade, monetary policy or the like. The former defined sovereignty as “the exclusive power to make [Quebec’s] laws, levy its taxes and establish relations abroad.” The latter asked whether “Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership” without explicitly defining the partnership itself. Neither referendum question conveyed the idea that Quebecers could have their cake and eat it, too. That conceit was spread by the indépendantistes on the referendum campaign trail, not by the words printed on the ballots. If this bamboozlement ultimately failed, it was thanks to the federalists’ rebuttals of these false prophecies and to the healthy skepticism of ordinary Quebecers themselves. 

If Mulcair’s latest effort is overeager on the subject of the referendum question, it is hopelessly naïve about the necessary margin of a Yes victory. The Dipper-in-Chief has assured us that a majority of 50% plus one is solid enough to break up Canada: “No one ever questioned the fact that the side that wins, wins…. No one questions this.” In reality, many people have cast plenty of doubt on the simple-majority formula. “You don’t break up a country because someone forgot his glasses at home,” Jean Chrétien memorably put it in the CBC’s 2005 documentary about the 1995 referendum, Breaking Point. 

The naysayers challenge the 50%+1 paradigm with very good reason. As Clarity Act mastermind Stéphane Dion has remarked, that approach would be a recipe for a destabilizing recount scenario. Any Yes vote would probably be very narrow, and the counting of the ballots might be bitterly contested. (It is also hypocritical for the NDP to accept the 50%+1 margin while requiring a two-thirds vote to change its own party constitution.) The most important factor, however, is the question of how long a hypothetical Yes majority would endure after referendum night.

Support for secession in Quebec has always been fickle, fluctuating according to changing political and economic conditions, the popularity of governments in Ottawa and Quebec City, etc. Many Quebecers who voted one way in the first referendum voted the opposite way the second time around. Former Quebec Cabinet minister Liza Frulla, for instance, reportedly voted “Yes” in 1980 but converted to federalism during Robert Bourassa’s second premiership. Current Quebec Liberal leadership hopeful Raymond Bachand vigorously campaigned for the Yes side in 1980. Quebec City lawyer Guy Bertrand, a founding member of the Parti Québécois, converted to federalism in the 1990s before reverting to his sovereignist roots since the turn of the century. These political Hamlets echo the ambivalence of ordinary Quebecers, who have never quite made up their minds about whether to stay put in Canada or pack it in for good. 

Given Quebecers’ enduring uncertainty, it is easy to imagine many voters changing their minds about independence once the inevitable political and economic turmoil sets in after a Yes vote. This is especially so given that many of the promises that the indépendantistes make to try to sell separation are almost certainly unattainable. No sane Canadian government would ever dare allow Quebecers to keep their Canadian citizenship after voting to secede. Canadians outside of Quebec, smarting from the sundering of their country, would scarcely forgive such a spineless move. Canada might have to allow Quebecers to continue using the Canadian dollar, if only because of the logistical difficulty of forcibly taking loonies out of circulation in Quebec. Even so, however, the Péquiste proposal for a sovereign Quebec to share control of monetary policy with Ottawa would surely be rejected. Such an arrangement would not serve Canada’s interests in the slightest, and Quebec would be powerless to force Canada to accept it against its will. Most ordinary Canadians would be in no mood to pave a yellow brick road out of Confederation for their former countrymen.

In the aftermath of a Yes vote, in short, most of the proposals that have made separatism politically viable in Quebec would be exposed as dead letters. Thus a pitifully skimpy majority of 50%+1 would probably not last long after Quebec declared independence. We can safely overlook such concerns in election votes, which come with built-in sunset periods of no more than 5 years. Such political vacillation, however, is unacceptable as the basis for a vote on a radical, highly disruptive and virtually irreversible measure like secession. Under these circumstances, the rest of Canada would not be morally—let alone legally—bound to respect Quebecers’ decision to secede. This may be why even former PQ Cabinet minister Joseph Facal has publicly admitted that sovereignty would require “a clear, stable and solid majority…that will not vary quantitatively from week to week, as the mood dictates.” 

The 50%+1 model, then, makes little sense; such a flimsy majority could not prove durable, almost by definition. Where, then, should Ottawa draw the line? Should it be 51%, perhaps, or 55%, or 60%? It is tempting to throw up one’s hands and say that no bright line can be drawn with mathematical precision. The Clarity Act presupposes that Ottawa would have to consider the totality of the circumstances surrounding a particular referendum vote before deciding whether to negotiate Quebec’s separation. Factors for consideration would include any possible electoral irregularities as well as voter turnout. Without knowing such facts on the ground, the argument goes, the federal government cannot determine how large a majority would be reasonable.

This approach, however, would violate the spirit of democracy, for it would enable Ottawa to move the goalposts of secession after the last whistle is blown. It is not only sovereignists who have a duty to inform Quebecers of what voting Yes would entail; federalists bear that burden as well. Quebecers have a right to know up front not only what sacrifices separation would require of them, but also what proportion of them would have to vote for sovereignty in order to make those challenges manifest. It would be unfair for Ottawa to decide, ad hoc, to disregard the vote of a majority of Quebecers without any forewarning of the basis for that decision. The added outrage that such a move would engender is the last thing Quebec or Canada would need after the stress, strain and division of a hard-fought referendum campaign. 

The federal government, then, should specify some concrete margin by which Quebecers would have to vote “Yes” in order to trigger secession negotiations. Admittedly, any line drawn higher than 50%+1 would be arbitrary to some extent, since only the 50%+1 margin would represent the threshold of an absolute majority. Nonetheless, for the above reasons, that standard is fatally flawed, and something higher than that is needed—a percentage that is likely to represent a durable majority. At the same time, Ottawa must avoid setting a margin that seems unattainably high; that would give the appearance of artificially stacking the deck against the Yes camp. A Yes vote of somewhere between 51% and 60% would probably do the trick. 

This, in my view, would be the right thing to do; but of course, cold, hard realpolitik has to be considered. However justified in principle, would this approach be naïve in its own right—an idealistic but unrealistic approach that might do more political harm than good? 

Actually, it would appear not. It might seem that drawing the line above 50%+1 would not only outrage Quebec separatists, but also offend soft nationalist voters as an affront to their right of self-determination. Fascinatingly, however, a recent Canadian Press Harris-Decima poll suggests the opposite. The survey found that 75% of Quebecers think the threshold should be higher than a bare majority—and they selected an average ideal margin of just under 60%. It would seem that Quebecers recognize the folly of breaking up a great country like Canada with a flimsy popular mandate. Perhaps Pierre Trudeau was right; perhaps Quebecers do know “that a country must choose to be or not to be.” As long as this remains true, requiring a referendum supermajority need not so antagonize Quebecers as to backfire.

So the Clarity Act is a sounder law than the NDP’s current conceit—but it, too, needs work. Its emphasis on the wording of the referendum question is misguided, for the main strands in the separatists’ web of deceit were never woven into the question itself. What needs clarifying is not the referendum ballot language, but the finish line that the sovereignist movement must cross in order to prevail. If Quebecers must choose whether to stay in Confederation or go, English Canadians must make up their minds about the conditions in which they will consent to the divorce. This means deciding—and announcing—in advance what proportion of Quebecers will have to vote “Yes” in order to get the independence train rolling. In every other exercise of democratic decision-making, voters know up front how well their preferred candidates and causes will need to perform in order to win. A referendum on secession from one of the finest countries in the world should be no exception.