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Secession again? Really? August 21, 2008

Posted by tomflesher in Canada.
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William Johnson this morning in the online Globe and Mail:

Ten years ago today, the court delivered its response to the reference on whether Quebec had the right to secede unilaterally. The court’s advisory opinion was complex but clear. Why, then, has it been constantly misrepresented across Canada and ignored in Quebec?

Johnson’s article makes the case that politicians have “misrepresented” the court’s opinion, [1998] 2 S.C.R. 217,  which lays out four criteria on which a secession must be judged: democracy (do citizens of Quebec want to secede?), rule of law (do they have the power to do so?), federalism (would secession be to the detriment of the other provinces?), and the protection of minorities (would secession harm language and ethnic minorities?). Johnson’s argument is that politicians and media ignore the last three criteria and treat the democratic criterion as the only valid one.

The problem with Johnson’s argument is that it ignores the fact that Quebec and Quebeckers are essentially in control of only the democratic criterion. That is, Johnson treats the criteria as being each of equal weight, when clearly they are not. Lamer noted:

Although the Constitution does not itself address the use of a referendum procedure, and the results of a referendum have no direct role or legal effect in our constitutional scheme, a referendum undoubtedly may provide a democratic method of ascertaining the views of the electorate on important political questions on a particular occasion.  The democratic principle identified above would demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada, even though a referendum, in itself and without more, has no direct legal effect, and could not in itself bring about unilateral secession.  Our political institutions are premised on the democratic principle, and so an expression of the democratic will of the people of a province carries weight, in that it would confer legitimacy on the efforts of the government of Quebec to initiate the Constitution’s amendment process in order to secede by constitutional means.  In this context, we refer to a “clear” majority as a qualitative evaluation.  The referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves. (at 87)

While it is true that the democratic criterion is not sufficient condition for secession, it would of course be necessary. Further, it is the only condition of the three that is relatively mutable. The federal consequences of a Quebec secession could change, of course, depending on the economic contributions of Quebec, but they would change much more slowly than it is possible for public opinion about secession to change. The same can be said for the effects on minority residents of Quebec. The rule of law, of course, is essentially fixed for the purposes of this discussion. Thus, it is entirely rational to focus on the democratic criterion.

In addition, from a pure realpolitik standpoint, Quebec weighs in at over 20%, nearly 25%, of the population of Canada. If the entire province of Quebec wanted to secede, it would prove extremely difficult to impose the federal will of one Canada upon them. (Of course, the separatist faction is at most roughly half of the population.)

Johnson’s article ignores enthymemic arguments. When he quotes Chretien and Dion as “reassur[ing] Quebeckers they could have separation on demand,” he does not seem to grasp that Chretien and Dion may simply believe that the federal, minority and legal principles do not weigh strongly enough in favor of keeping an angry Quebec in the Canadian fold.

In addition, it is disingenuous to lump the Dion/Chretien statements in with Bouchard and Parizeau’s assertion that the Court does not have jurisdiction over secession; whereas Dion and Chretien were making a political statement, Bouchard and Parizeau seem simply to have disagreed with the reference decision. To categorize the statements together would be somewhat like citing to this blog rather than to Johnson’s article in a research paper.

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