A Letter to Canadians: A study made for the Intellectuels pour la souveraineté (IPSO)
See also the longer French-language version of this letter: Lettre aux Canadiens et Canadiennes.
The main purpose of this letter is to draw the attention of English Canadian intellectuals and opinion leaders to the growing intolerance of a broad segment of Canada's political class, to appeal to their democratic sense and invite them to denounce the federal government's increasingly authoritarian attitude and, lastly, to call upon them to show a sense of good citizenship and distance themselves from the invective, slander and arrogance with which some Canadians are reacting to Quebec nationalism.
In Section 1, we begin by recalling what we feel is one of the central problems of the Canadian federation, its inability to recognize the existence of the Quebec nation. In Section 2, we then consider three of the most problematical aspects of what could well amount to an anti-democratic shift by the federal government. First, we examine its contention that a unilateral declaration of sovereignty is illegal (2.1). We then criticize some of the statements that have been made concerning the political problems that would allegedly be caused by sovereignty, focusing particularly on the issue of the potential partition of Quebec (2.2). Lastly, we look at certain insinuations that have been made about the so-called anti-democratic nature of the Quebec sovereignty movement (2.3). On this point, three subjects are carefully considered: the choice of the referendum question, the majority required to carry the referendum and, lastly, whether Quebec's referendum legislation should be amended.
In Section 3, after addressing the weaknesses of Plan B as presented by certain staunch federalists, we focus on the sovereigntist plan, highlighting an aspect that has been neglected by most Anglophone commentators: our proposal of political and economic partnership. We first describe this proposal in general terms, then address its most positive aspect: the benefits it represents for Canada, Aboriginal peoples, English-speaking Quebeckers and Francophones outside Quebec.
SECTION 1: A NATION WITHIN A NATION
Various Concepts of Nationhood
There are a number of irreducible concepts of what constitutes a nation. Under the purely civic concept, "nation" means "sovereign state". In this case, nationality is identical to citizenship. There is also the ethnic concept of the nation, which presupposes either the existence of a common ancestral origin or the belief in such an origin. On the other hand, the purely cultural conception of nationhood is based on a linguistic, cultural and historical homogeneity among individuals who may nevertheless have different ethnic origins. Then there is also the concept of the diaspora-nation, which can apply to any given cultural group that has been broken up into several subgroups and spread over a number of different territories, forming minority groups in all those territories.
Lastly, there is the socio-political concept, which views the nation as a kind of political community. In this respect, the socio-political nation is a civic nation. However, unlike the purely civic concept, the socio-political nation is not necessarily a sovereign state. More importantly, the political community in question must have certain specific sociological characteristics. Its territory must include a majority of individuals who share a particular language, culture and history. This majority must also constitute the largest concentration of people who share that language, culture and history in the world. Linguistic and cultural criteria are therefore important, just as they are for the purely cultural nation, but, unlike the latter, the socio-political nation may be multicultural as well as multiethnic. The socio-political nation is a civic nation which expressly recognizes its multicultural nature. It is, in short, a political community consisting in most cases of a national majority, national minorities and individuals of other national origins.
Tolerance a Necessary Principle
The second comment that must be made is that one need not attempt to name the essential characteristics of a nation. Nations are not perfectly objective phenomena, and it must be emphasized that there is a partly subjective characteristic in any definition of the term "nation". National communities do not exist without a national conscience. For a population to become a nation, a very large number of individuals must represent themselves as forming a nation. Every definition of "nation" in fact takes the form of a conception of nationhood, which is the manner in which a given population represents itself.
However, it must be admitted that different populations may represent themselves so differently as to give rise to different concepts of nationhood. This inevitably stems from the fact that there are a number of concepts of nationhood and from the fact that self-representation plays an important role in the make-up of a national identity. Nations do not exist in themselves. They are the result of a nation-building process. A population's representation of itself is not only a description of what it is, but also an expression of what it wants to be. These beliefs and desires must be acknowledged, and it is natural that they should vary from one population to the next. It is indeed normal for different populations to express desires and beliefs so different that they result in different concepts of nationhood.
One of the fundamental problems that must be solved by those considering the issue of nationalism is that of the harmonious coexistence of various nationalisms. In particular, we cannot avoid the difficult task of thinking through the conditions for harmonious coexistence between populations which, while living in the same territory, have different national consciences.
This issue is crucially important since it exactly relates to Canada's fundamental problem. Apart from the Acadian nation and the Aboriginal nations, the existence of the Canadian and Québécois nationalisms must be acknowledged. In the past 35 years, most Quebeckers have moved from a form of self-representation based on the existence of a purely cultural French Canadian nation to that of a socio-political Quebec nation. During that same period, most Canadians, first under the influence of Pierre Elliott Trudeau and now ever more resolutely, have undertaken to build a purely civic national identity and now view the Canadian nation as embracing Canada as a whole.
Can these two nationalisms coexist harmoniously? The answer in theory must be yes. For this to occur, however, both Quebeckers and Canadians must agree to consider the way in which the other group represents itself. Both communities must bring a fundamental principle of tolerance into play. Quebeckers must agree to view their nation as theoretically included in the purely civic Canadian nation, and Canadians must acknowledge that their purely civic nation includes a Quebec nation. It is possible for Quebeckers to allow a majority of Canadians to use a purely civic concept of nationhood and for Canadians to accept the existence of a socio-political Quebec nation.
In other words, both can admit the existence of a socio-political nation within a purely civic nation. To view the coexistence of these two nationalisms as possible, we must go back to Lester B. Pearson's concept of a nation within a nation, which was put forward just before Pierre Elliott Trudeau entered federal politics.
The Canadian Distemper
Since the Canadian federation's inception, Quebeckers have accepted the idea that they belong to Canada as well as to a French Canadian nation or, more recently, to a Quebec nation. They have always accepted multinationhood and acknowledged their multiple identity as Quebeckers and Canadians. The problem is that Canadians have always refused to acknowledge the existence of a Quebec nation. This is the essence of the Canadian distemper, to use André Brunelle's apt (or unfortunate?) expression.
The recognition of Quebec's nationhood should be entrenched in a formal clause in the Constitution and in an additional clause stating the Government of Quebec's obligation to promote and protect the French language. It should be reinforced by means of a veto over every constitutional amendment concerning Quebec and a right to opt out of any new programs with financial compensation. It should also be expressed by a clause guaranteeing a limit to the federal government's spending power. In addition, recognition of the Quebec people should include the principle of full control over culture and communications, as well as admission of the principle of the asymmetrical distribution of powers. It should also result in an actual distribution of powers in such areas as unemployment insurance, regional development, environment, and a greater international role.
In the past 30 years, however, Canadians have ever more expressly denied the existence of a Quebec nation. They refused to consider Canada's bicultural nature as described by the Royal Commission on Bilingualism and Biculturalism; denied Quebec additional powers at the Victoria Conference and objected to cultural sovereignty as proposed by Robert Bourassa; ignored the Pépin-Robarts Task Force's recommendation on the principle of asymmetrical federalism; repatriated the Constitution without Quebec's consent, thus treating Quebec like a province, not a people; and rejected the Meech Lake Agreement and affirmed the principle of the equality of the provinces in the first version of the Charlottetown Accord in July 1992. Lastly, despite the clear message sent on October 30, 1995, the provincial premiers have just recently sanctioned the principle of the equality of the provinces once again.
In this context, we can better appreciate the Quebec sovereigntist strategy, which provides for an offer of political and economic partnership. This is a rational option that Quebeckers must consider in view of the repeated constitutional failures of the past 35 years. Increasing numbers of Quebeckers have concluded that, if the Quebec nation cannot be recognized as such within Canada, it must secure that recognition by becoming sovereign. Canadians claim it is possible to be both Quebeckers and Canadians, but, by that, they mean it is possible to belong to both the Province of Quebec and to Canada. But Quebeckers are more than the inhabitants of a province: they form a people, a nation that must be recognized as such.
SECTION 2: PLAN B
Under its Plan B, the federal government is taking action on three main fronts: legal, political and democratic. First, it is attempting to have any unilateral declaration of sovereignty declared illegal so as scare Quebeckers into believing that any such declaration would be morally reprehensible. This is a dangerous task, but perhaps it understands the risk it runs in adopting a purely legal approach to Quebec sovereignty. To counter the sovereigntist movement, the federal government does not want to rely solely on a reference to the Supreme Court on the legality of a unilateral declaration of sovereignty, and it is clearly forced to admit that, in the end, this is an essentially political issue. This is why it is also attempting to bring its guns to bear on the political front, by drawing a dark picture of the political situation in which Quebec would find itself following a unilateral declaration. Attempts have thus been made to describe that situation as one of chaos and uncertainty involving the questioning of Quebec's territorial integrity, partitionist movements, difficult negotiations following a yes vote, rejection of partnership, absence of international recognition, disastrous consequences of a unilateral declaration, economic difficulties, flight of capital, to name only some of the consequences alleged by Ottawa. And yet, none of these events could possibly occur if the federal government agreed to recognize the Quebec people's democratic decision. Judging from its statements on the subject, one would say Ottawa did not have full moral responsibility in all these issues. It is as though the apprehended incidents would occur against the federal government's will, whereas, if they do in fact occur, it will be partly because it decides to provoke them.
If the federal government acts responsibly following a declaration of sovereignty and recognizes Quebec sovereignty following elections and consultations with the provinces and Aboriginal peoples, sovereignty will become legal. The federal government thus has a very great responsibility. If it does not question Quebec's territorial integrity, the problem of Quebec's borders will unlikely even arise. If it does not support any partitionist movement within Quebec, there will be no partition of Quebec's territory. If it recognizes Quebec's sovereignty, international recognition will be immediate and automatic. If the federal government agrees to discuss the issues with Quebec for the purpose of reaching an agreement on partnership, the Quebec government will not even need to resort to a unilateral declaration of sovereignty. Lastly, if the federal government agrees to the rapid negotiation of a political and economic partnership agreement, there will be no economic or political instability.
As may be seen, the federal government has a major role to play in the conduct of operations, and if it acts in a morally irreproachable way, the process of achieving sovereignty can come about in a calm and dignified manner. Consequently, it is partly to inhibit Quebeckers, or as a result of pressure from the west, that certain federalists describe dim prospects and paint a catastrophic picture of the situation. In fact, none of this will occur if the federal government accepts its responsibilities and acts in a morally proper way. Moreover, it would be in the interests of federalists to discuss the benefits and merits of Canadian federalism, rather than turn combative or make threatening remarks.
The federal government clearly suspects that morally responsible conduct would ultimately force it to acknowledge the outcome of a democratic process, and that is why it ultimately wants to focus the debate on the democratic quality of Quebec's proposed course of action. In addition to its legal and political efforts, there are the federal government's actions on the democratic front. Generally speaking, the federal government is indulging in a criticism of the quality of Quebec's democratic process, focusing on the ambiguous nature of the question, raising the issue of the majority required to carry the referendum, insisting on pan-Canadian consultation and criticizing Quebec's referendum legislation.
Would a Unilateral Declaration Be Illegal?
The federal government has asked the Supreme Court of Canada to rule as to whether a unilateral declaration of sovereignty following a yes vote in a referendum would be "illegal". In so doing, it is attempting to use an institution whose members are appointed by the federal government and to make it play a political role. Would a unilateral declaration of sovereignty be illegal? Many arguments can be advanced to rebut this claim.
According to the federal government's claim, Quebec sovereignty is consistent with Canada's Constitution only if seven of the 10 provinces agree to the necessary amendments to the Constitution in accordance with the amendment procedure introduced in 1982. However, that procedure was adopted without Quebec's consent, and a unilateral declaration would thus become "illegal" under a clause that was imposed on Quebec against its will. But peoples create constitutions, not the reverse, and the act of framing a new constitution must not be subject to the specific rules of an existing constitution, articularly where those rules have not been ratified by the people.
In 1982, a new constitutional order was imposed on Quebec limiting its powers over language and education. This constitution provides for no transfer of any new powers to the provinces, contrary to Quebec's historical demands for a new distribution of powers before it would authorize repatriation. It imposes an amending formula that, to all intents and purposes, prevents the reform of federalism since it requires the consent of all provinces in many cases. Lastly, the prime minister of the time, Pierre Elliott Trudeau, did not keep his word. His promise of change during the 1980 referendum resulted instead in a constitutional bid for power, endorsed by the Supreme Court, that denied Quebec's veto. In short, the constitutional order of 1982 disregards and violates Quebec's interests
The 1982 constitutional change occurred despite its virtually unanimous rejection by the members of the Quebec National Assembly. There was no referendum or popular consultation on the issue and Quebec's signature still does not appear on what is supposed to be the fundamental law of the land. The sovereigntist course of action is thus "clearly illegal" only under a legal order which is obviously illegitimate! When a constitution is imposed on a people against its will, that people can legitimately create another constitution. And for any action to be illegal, the legal order in which that action was taken must be legitimate. However, Canada's Constitution became illegitimate as a result of the constitutional bid for power of 1982. Consequently, the sovereigntist course of action is not illegal.
There is a constitutional convention permitting Quebec to exercise its moral right to self-determination. Successive Canadian prime ministers have expressly recognized the legitimacy of Quebec's course. Federal participation in the 1980 and 1995 referendums, the absence of any challenge to Bill 150 (passed by the Bourassa government recommending a referendum on sovereignty in 1992) and a number of statements by federal authorities are all examples of federal recognition of the Quebec people's right to self-determination. However, for some time now, the federal government has attempted to withdraw from this convention, which is nevertheless part of Canadian constitutional law, but it is now too late.
A unilateral declaration of sovereignty raises the question as to whether the state exists. Any such declaration arises within a relationship of power. At first glance, however, it may seem difficult to determine which of the two political options is the more just: preserving the Canadian constitutional order or Quebec sovereignty. However, in choosing to repatriate the Constitution without the consent of Quebec or its National Assembly, Canada in a way made it easier to resolve this dilemma. Although the political weight of a certain constitutional order could theoretically be set up against the political weight of certain moral arguments, the balance must tilt in favour of Quebec's arguments in view of the illegitimate nature of that constitutional order. Those who claim that Quebec cannot achieve sovereignty without Canada's consent must understand that Canada should not have imposed a new constitutional order without Quebec's consent. They must also understand that Quebec would never accept a constitutional order that would deny its right to decide on its own future.
While international law does not permit unilateral declarations of sovereignty, it does not prohibit them either. Of course, the Quebec nation cannot assert a full, formal right to self-determination relying on international law. However, according to the doctrine of effectivity, which moreover is part of Canadian constitutional law, international law recognizes sovereignty once it has been achieved. That is because, in most cases, the right to full self-determination is not governed by the rules of international law: it is not a legal right, but rather a moral and political right.
The process whereby Quebec attains sovereignty must be carried out in accordance with the rules of the constitutional state. The fundamental rights of citizens must be respected and there must be no legal void. Once sovereignty is achieved, the Government of Quebec must replace the old legal order with a new legal order that guarantees ongoing protection of the fundamental freedoms of all citizens. Otherwise, the tyranny of the community would be imposed on individuals, and that would obviously be unacceptable. However, it would be equally unacceptable for the Canadian state to impose its constitutional order against the wishes of the majority of Quebeckers. This would impose the tyranny of the Canadian majority on the Quebec nation.
These are the arguments that can be advanced against those who view a unilateral declaration of sovereignty as "illegal". Our answers demonstrate the vacuousness of the narrowly legal and legalistic perspective the federal government has adopted out of desperation, despite the constantly growing consensus in Quebec. The issues surrounding the Quebec question are first and foremost moral and political and must be treated as such by those who genuinely comply with the rules of democracy. No one, not even the highest court in the land, can deny Quebec's inalienable right to self-determination.
Partitionism in Question
The partition issue is a key component of the political aspect of Plan B. This argument must not be treated lightly, and that is why we are taking the trouble here to rebut it. After all, the federal government eagerly became very much involved in the partition debate and, without expressly approving it, nevertheless helped give it a certain credibility. Nothing illustrates this fact better than the statements by the Prime Minister and the Minister of Intergovernmental Affairs which helped fan the partitionist flames. This is a moral fault that must not be passed over in silence. Of course, it must be expected that the federal government will increasingly deploy this strategy in a discreet way, particularly if the Quebec consensus firms up against partition, but the federal government's insidious attempts will probably continue until Quebec has clearly made its voice heard.
The arguments against the partition of Quebec are very numerous indeed. However, before stating them, we should consider what is meant by the term "partition". The word simply refers to the fact that a subgroup within a given civic nation (a linguistic, national or ethnic minority) does not want the territory in which it lives to be associated with the territory of the secessionist nation at the time the latter forms a state. These groups may be moved by Irredentist, ethnic or loyalist reasons or they may simply wish to undermine the sovereignty process in a roundabout way. Their aims are of little importance in the present circumstances. What is important is that this kind of movement invariably springs up when a new state is created and it invariably involves the presence of third parties.
In addition, partitionist movements may be motivated by a desire to defend their territory's continued membership in the old state or to form a new state. This distinction is also of little importance in the circumstances. The essential point is that a portion of the population that does not constitute a civic nation as such and that refuses to associate with the newly-created state advocates the severing of its territory through the intervention of a third party.
The process whereby Quebec attains sovereignty must not be confused with the efforts of certain Anglophone or Francophone Quebeckers who seek to violate Quebec's territorial integrity in order to remain Canadian. The Minister of Intergovernmental Affairs is fond of confusing the two and of suggesting that they are one and the same thing, but this is not true. The Minister claims that sovereigntists are proposing nothing more or less than the "partition" of Canada and that their course of action is thus equivalent to the partition of Quebec by English-speaking Quebeckers. He thus fails to draw a distinction between a people's attainment of sovereignty and the partitionist conduct of certain Anglophone Quebeckers. And yet the right of peoples to self-determination has nothing to do with partitionism. Only peoples can exercise the right to full self-determination. By confusing the two courses of action, the Minister denies the existence of the Quebec people.
What arguments can be advanced against the partition of Quebec? We list 12 below.
All cases of partition in the twentieth century have occurred as a result of third states that became involved in a conflict between two local groups and that wanted to withdraw as quickly as possible to avoid being caught in an apparently irresolvable conflict. Partition then appeared to be a way to satisfy the various groups involved as quickly as possible without having to compromise themselves further in the conflict. Whether you consider the partitions of Ireland, Palestine, India, Cyprus or Bosnia, all these cases involved foreign powers (very often England) that wanted to withdraw as soon as possible. The principle at work was that of "divide and leave". However, as Radha Kumar states in an important article, partition has virtually always had the opposite effect. The rule actually followed has been "divide and stay". The British Army is still an Ireland, UN troops are still in Cyprus and UNPROFOR is still in Bosnia. Only India appears to have escaped this rule, but that is because, in that instance, the third party, England, was far removed from the scene of the conflict. Ultimately, from a historical standpoint, partition does not appear to be a good solution.
The best known argument against partition concerns the practical feasibility of the undertaking. Partition is very often based on the desire of certain individuals to join the territory where they live to the state of their choice. However, if we had to listen to the wishes of every individual, we would quickly find ourselves in utter chaos. Citizenships would differ from city to city, neighbourhood to neighbourhood, street to street and house to house. If the partitionist method were applied on a planetary scale, the Balkanization of nations would be a widespread phenomenon. All countries would be like divided territories, and this division would have every chance of continuing until every individual had his own allegiance. This would lead to absurd solutions.
The partitionism advocated by certain Anglophone Quebeckers appears, in every respect, to be a movement whose purpose is to separate individuals of different ethno-linguistic identities. What is the ethno-linguistic character of Anglo-Québécois partitionism? This form of partition is essentially based on Anglophone Quebeckers' tendency to distance themselves from the linguistic majority of Francophone Quebeckers, ostensibly because they form an ethnic group. In other words, although English-speaking Quebeckers do not form an ethnically homogeneous group, those among them who advocate partition follow an ethnically-based logic because they use ethno-linguistic categories to characterize the Quebec nationalist movement. However, it is not because certain Quebec Anglophones have an outdated idea of what Quebec nationalism is and therefore refuse to belong to the Quebec nation that Quebec nationalism has stopped being civic and inclusive. The absence in certain Anglophone Quebeckers of any sense of belonging to the Quebec nation is not indicative of the ethnic nature of Quebec nationalism, but on the contrary betrays their inability to recognize the existence of a civic Quebec nation within Quebec's borders. Anglo-québécois partitionism must therefore be fought and rejected for the same reason that ethno-linguistic movements in general must be fought and rejected. Both cases involve groups that view social reality in terms of ethnically-based categories. But Quebec society is eminently civic, liberal, multiethnic and multicultural; it is open to immigration and generous with the Quebec Anglophone national minority.
This argument is also well known. Democracy is based on the will of the people, and the people always speak through a majority of votes. However, partitionists refuse to abide by the majority decision. More precisely, they agree to play the game of democracy, but, to them, it is only game because, if they lose, they immediately claim they have won and that they need not feel bound by the majority decision. This reaction ultimately has nothing to do with the problem of whether a qualified majority or an absolute majority is required in a referendum because any logical partitionist refuses to feel bound by a decision that does not suit him. Partitionists thus have a problematical conception of democracy. They want to defend their interests, even if doing so goes against the democratically expressed will of the people. It is in this specific sense that partition proves to be anti-democratic.
If we were to side with the partitionists, Quebec would lose its economic centre. The Montreal region plays a fundamental role in Quebec's economic development, and it makes no sense to imagine a sovereign Quebec without any part of it. It can rightly be claimed that Quebec will become sovereign with the City of Montreal or will not become sovereign at all. Quebec's economic viability is at stake.
Case law confirms that Quebec should preserve its current borders at the time it becomes sovereign. The legal principle that applies is the principle of uti possidetis, which has the solid support of the international community, particularly since the dissolution of the USSR, Yugoslavia and Czechoslovakia. The rule of uti possidetis has universally prevailed as the standard rule, even though it has sometimes been violated, as was cruelly the case in Bosnia-Herzegovina. The opinion expressed in 1992 by the five international legal experts for the Commission on Sovereignty Issues was very clear on this point, and was based in particular on opinions expressed by the Badinter Commission, which was supposed to make recommendations concerning the territorial integrity of the former Yugoslavian republics.
Quebec secessionism cannot be likened to the partitionism of certain Anglophone Quebeckers, for one simple reason: by themselves, Anglophone Quebeckers do not form a nation. Since nationalism in Quebec has become "Québécois", and no longer "French Canadian", it must even be said that they are part of the Quebec nation and, as such, cannot legitimately divide up its territory. Some of them no doubt resist this idea because they see the Quebec nation as a cultural group consisting of "pure laine" Quebeckers. However, Quebeckers long ago evolved from a purely cultural French Canadian nationalism to a socio-political Québécois nationalism. Lastly, some Anglophone Quebeckers may also be reluctant to view themselves as full-fledged members of the Quebec nation because they believe they must then abandon their Canadian identity. But it is possible to have many identities and to consider oneself as both a Quebecker and a Canadian. Francophone Quebeckers have long assumed this double identity as Quebeckers and Canadians. If they are considering forming a sovereign state, it is because Canadians do not want to recognize part of their multiple identity, that is to say the existence of a Quebec nation.
Partitionism stems from a narrowly individualistic conception of life in society and must therefore be rejected. We must avoid an individualism that maintains the absolute primacy of individual rights over collective rights, just as we must abjure collectivism, the opposite doctrine, which promotes the absolute primacy of the community over the individual. As far as possible, there must be a fair balance between individual and collective rights. If the people as a whole chooses political sovereignty by majority vote, individuals remaining in the territory of the secessionist political community must bend to the people's will, and the people's right to self-determination, as a collective right, must take precedence over any individual's preference to attach the territory where he lives to any particular state. However, this must not be interpreted as affirming the absolute primacy of the community over individual rights, since the rights and freedoms of individuals must be preserved at all times. Individuals who so wish always have the option of leaving the territory. A fair balance between individual and collective rights requires that individuals, if they so wish, be able to choose freely the political community to which they wish to belong.
In its socio-political sense, the term "nation" presupposes the existence of a national majority, that is to say a group concentrated in a certain territory, which is the largest group of people with the same language, history and culture in the world. In its socio-political sense, the term "nation" connotes a political community most often consisting of this national majority and various minorities. A socio-political nation may be a minority within a multinational state, but minority nations are full-fledged nations and must not be confused with national minorities. A national minority is rather the extension of a neighbouring nation. Anglophone Quebeckers form a national minority, not a nation, and therefore cannot claim a right of secession similar to that held by the Quebec people.
The process whereby Quebec achieves sovereignty does not depend solely on the democratic expression of the people. Its outcome is the result of the Quebec people's exercise of the right to self-determination. The right to self-determination is in large part a moral and political right, not a legal right. Consequently, there is nothing preventing us from invoking a "right" to self-determination, provided the "right" in question is understood in a moral and political, not legal sense. If the matter is viewed from this perspective, it is possible to distance oneself from the argument that Quebec sovereignty is comparable to the partition of Quebec. Since sovereignty is not based solely on a democratic decision made by the citizens of a given region, it is possible to make a very clear distinction between partitionist behaviour and secessionist behaviour.
We must pay attention to the concern expressed by citizens who are tempted by partition. We must ignore the fanaticism of such leaders as Stephen Scott, William Johnson, Keith Henderson, Gerry Wiener, Brent Tyler and Guy Bertrand and listen instead to ordinary citizens who feel concerned by their remarks. What do they want? They want to remain Canadian. What are we to understand by that? That they want to preserve their cultural and linguistic identity. Can sovereigntists satisfy them on this issue? Beyond any doubt: they can guarantee their collective rights and grant them national minority status. That means that the constitution of a sovereign Quebec would include an express reference to the Anglophone national majority and would guarantee the continuation of its vested rights. Quebec could recognize not only its multiethnic character, but also its multicultural aspect, that is to say it would formally recognize the existence and contributions of the Francophone national majority, the Anglophone national minority and the citizens of all other national origins.
When they express their desire to remain Canadian, Anglophone Quebeckers also say they want to continue to belong to Canada. However, sovereigntists have always wanted to affirm their sovereignty, and they seek an economic association with Canada. Since June 11, 1995, they have even been proposed an economic and political partnership with Canada. What would happen if such an agreement were reached? Anglophone Quebeckers could then remain in Quebec and be part of a confederal union, thus maintaining ties with Canada. Consequently, there is no need to consider partition as a way of securing a corridor between Canada and the Maritimes after sovereignty or to preserve ties with Canada. One need only endorse a partnership. Partnership thus addresses the deepest concerns of Anglophone Quebeckers.
Here, then, in brief are some of the arguments that can be raised against the partition of Quebec by Anglophone Quebeckers. Partitionism must be rejected for historical reasons. It is an option that is not achievable in practical terms, which stems from an ethnically-based viewpoint and which is fundamentally anti-democratic. This doctrine goes against all economic logic and is rebutted by current international legal practice. It denies the fact that Anglophone Quebeckers are part of the Quebec people and promotes unrestrained individualism verging on a form of fundamentalism. In addition, it is based on a confusion between minority nations and national minorities and wrongly presupposes that the only support for the sovereigntist cause is a majority vote in one region. Lastly, the concerns that make partition a temptation may be addressed by granting Anglophone Quebeckers national minority status and preserving their vested collective rights. Their desire to remain Canadian may also be satisfied in part through a proposal of partnership that the sovereigntists will put forward.
Let it be understood that Anglophone Quebeckers will not be able to partition Quebec. The Canadian government will never dare support them in this option or dare send in the army to back them. If it did so, its international reputation would be permanently tarnished. And without the federal government's support, the partitionist movement appears to be the passing whim of a few isolated agitators who irresponsibly exploit the concerns of our Anglophone fellow citizens.
Federal Attacks on the Quebec Democratic Model
The federal government is very much tempted to adopt an intransigent and authoritarian attitude and to take the hard line against Quebec. However, it knows that it can do nothing against the democratically expressed will of the Quebec people and that an intransigent attitude toward Quebec cannot be maintained in view of the people's will. How then can it justify an authoritarian attitude toward the majority expression of the people's will? Only one course of action remains open to it. It must attempt at all costs to question the democratic nature of Quebec's approach. We will now consider three criticisms that are often made of Quebec's democratic process.
There are some who claim that the referendum question must be decided with the federal government's consent. On the contrary, we believe that the federal government cannot issue directives on its choice of question. If it did so or if the Supreme Court invited it to do so, that would be yet another attempt to violate Quebec's right to self-determination. The right of peoples to self-determination includes the right to write their own referendum question. The British were able to agree with the Scots on the question asked in the 1997 referendum on the establishment of a government authority in Scotland because the question did not have the potential consequence of calling Great Britain's borders into question. Furthermore, as the referendum concerned the creation of self-government in Scotland, there was no existing Scottish government to take independent charge of a referendum. It would be unrealistic to expect the question suggested by federal authorities to reflect the wishes of the population of Quebec. If federal authorities attempt to interfere in the referendum process by imposing their authority, that will constitute a fundamental change in the ground rules which will betray the federal government's inability to respect Quebec's right to self-determination.
It is sometimes said that the question asked in the 1995 referendum was ambiguous, but there was nothing ambiguous about it. It reflected a wish, which is more and more often expressed these days, that a happy balance should be maintained between political sovereignty and economic interdependence. Moreover, the 1995 referendum question was much simpler than the question put to European regarding the Maastricht proposals.
Furthermore, the claim is often made that a very large number of those who voted yes did not understand the question put to them and that some thought Quebec would still be able to send members to the House of Commons after sovereignty was declared. However, recent polls have shown that most of those who voted yes did in fact understand the meaning of the question. They were either referring in a confused way to the supranational structures that would be introduced in a sovereign Quebec or to the fact that a yes vote would have forced a thorough reform of the federation. In all cases, these people had a sufficient understanding of what the question meant and therefore must have understood the potential consequences of the action they were preparing to take.
We now take a closer look at another argument sometimes advanced against Quebec democracy. For some time now, the question has been openly asked as to whether the process through which Quebec is seeking to achieve sovereignty, and more particularly the referendum process, is democratic. There are a number of parts to this issue, and they must not be confused. Following is some food for thought.
There is considerable confusion over the percentage required to carry the referendum. Some feel there must be a qualified majority, but they base this view on procedures used where voters represent regions or states with significantly different numbers of inhabitants. The situation is completely different when all inhabitants vote. In this case, it is normal to require an absolute majority.
Examples abound of referendums in which narrow majorities were considered sufficient. France ratified the Maastricht Accords with a 51.4 per cent vote in 1991. Denmark voted no on the same subject with 50.7 per cent in 1992. With 50.3 per cent of the ballot, Switzerland voted not to join the European economic area, and Sweden voted in favour of joining Europe in 1994 with 52.2 per cent of votes cast. Can anyone claim that voting for or against joining a supranational entity such as that provided for by the Maastricht Accords cannot be compared with voting for or against sovereignty with an offer of partnership? What is the difference? Canada is a multinational federation, and sovereigntists are proposing a reorganization of relations with this supranational entity which could lead to an arrangement similar in certain respects to Maastricht.
Canada offers its own examples of referendum votes carried by an absolute majority. The procedure used by Newfoundland to enter Confederation, and that considered by Quebec to leave it should be similar. We cannot adopt a different procedure depending whether the answer is YES or NO. The process ultimately cannot be organized so as to let the minority win on the pretext that there is an insufficient majority.
Is Quebec alone in considering that the referendum decision must be taken on the basis of an absolute majority? Reference is sometimes made to the case of St. Kitts and Nevis, where secession can be authorized only if a two-thirds majority in either of its regions votes for it. However, the population of St. Kitts and Nevis is scarcely 40,000 inhabitants, and secession in that case could mean the federation would disintegrate. That is a good reason for an exceptional referendum procedure.
If Quebec democratically decides to endorse the sovereigntist plan, it will not destroy the Canadian federation. It will merely enable Quebec to withdraw from it. There is no risk that the Canadian federation will break up merely as a result of the sovereigntists, since they agree that a partnership should be introduced making it possible to preserve a common political area. In short, since there is no danger of disintegration caused by the sovereigntists, a qualified majority similar to that adopted for St. Kitts and Nevis cannot be required.
When anything other than an absolute majority is proposed, we are immediately faced with other people who have their own favourite percentages. To avoid subjecting democracy to subjective considerations of this kind, we will stick to an absolute majority. Beyond that, everything becomes a matter of political power relationships. We willingly admit that a narrow 50.5 per cent victory by sovereigntists would have made it virtually impracticable to attain sovereignty. However, a distinction must be drawn between the problem of implementing a victorious, narrow majority vote and the question as to what constitutes a victorious vote. It would be ridiculous to change the ground rules after two referendums.
Some argue that Quebec cannot withdraw from the Canadian federation without the consent of the other provinces. However, Canadians are morally bound to recognize Quebec's will in the event of a yes vote. From a moral standpoint, Canada's consent is necessary, but on that same basis, Canada must give its consent if Quebec democratically decides to leave the federation. Every effort must be made to avoid a unilateral decision on Quebec's part, but one way for Canada to force Quebec to make a unilateral declaration would be to withhold its consent.
Others claim that the democratic process is not legitimate if it is not carried out in accordance with Canada's Constitution. However, that depends to a very large extent on Canadians themselves. Following a yes vote, they could quickly agree (after a federal election) on appropriate amendments to their own constitution, deleting all occurrences of the word "Quebec" and adding a clause allowing the Province of Quebec to secede. The newly elected federal government could then agree with the nine provinces on a set of conditions that should apply for the purpose of authorizing secession, conditions which they would then negotiate together with Aboriginal and Quebec representatives. However, if the provinces use their constitution to block the process, it will be they who decide to submit their constitutional order to the logic of power politics and to substitute political authoritarianism for the rule of law.
Whatever the outcome of the next referendum, the Quebec government can undertake to act responsibly and not to take action that compromises the political and economic security of Quebeckers. It can undertake to resort to a declaration of sovereignty only if negotiations fail and circumstances are favourable to Quebec's accession to the status of a sovereign state. In its actions, the government's fundamental priority must be to defend Quebec's highest interests. By proceeding in this way, Quebeckers will be able to vote for the more suitable option with complete peace of mind. This will be the best way to obtain a decisive vote that will settle the question. With a significant majority of votes in favour of sovereignty, the federal government will have no choice but to submit to the people's will.
We now turn to the third and final problem: Quebec's referendum legislation. The Supreme Court judgment on that legislation renders null and void the section concerning the funding of independent committees, but does not sufficiently emphasize the obvious difficulties involved in merely repealing the section concerning the expenses of those committees. The Court appears to have no scruples when it comes to the danger that there may be an increase in the number of players who do not come under an umbrella committee. If no limit is placed on the number of committees, the forces involved may be completely unbalanced, thus favouring the power of money. The Court sings the praises of a statute that seeks to limit the power of money, but does not mind setting aside a section that plays an important role in controlling spending.
What should the Quebec government do about this judgment? Should it invoke the notwithstanding clause? We know what the political costs of this strategy would be in the context of a referendum on sovereignty. Should it comply with the Supreme Court judgment instead? In so doing, wouldn't it be dangerously submitting to the Court's authority as regards democracy? Doesn't it risk acknowledging the Supreme Court's jurisdiction to rule in future as to whether a unilateral declaration of sovereignty is legal? As may be seen, the second option appears to be equally risky and may compromise the quality of democratic life in Quebec to the same degree.
However, every statute is perfectible and the government may nevertheless thank the members of the Court for drawing its attention to one aspect of the legislation that could be improved. The act could thus be amended to include a new section providing that a court would be created to hear the requests of those not wishing to submit to either umbrella committee. That court would begin to receive requests as soon as the referendum question became known. Applications would have to state their political orientation and say which option they intended to work for (yes, no, abstention, spoiling ballots, etc.). They would then have to state the theme they intend to develop and show that that theme is part of a course of action consistent with their political orientation. Lastly, they would have to explain the reasons they did not want to come under either umbrella committee or join the ranks of the existing independentc ommittees. The court would study the various applications until the referendum campaign began.
The decisions made would have to meet the following criteria. The court would allow, for example, $1,000 for individuals and $3,000 for each committee (consisting of at least three individuals) which would answer the questions asked to its satisfaction. It could authorize an unlimited number of such applications from those wishing to abstain. However, it would have to try to preserve the balance between individuals or groups wishing to work for the YES side and those wishing to work for the NO side. As far as possible it would therefore not have to authorize a large number of independent committees in favour of a particular option. If all those choosing to work as independents demanded the same option, the court would have to limit their number. However, the court could intervene in a number of ways to balance the forces involved. It could deny the applications of some by showing that they could in fact work under one of the two umbrella committees permitted by law. The court could also ask certain applicants to join an individual or group belonging to an independent committee that has already been recognized. In this case, applicants would not be able to receive any amounts in addition to that already granted to the committee. The court could also review applications for the YES and NO sides alternately. Lastly, when the referendum campaign begins, those who have not been able to have their applications heard would be invited to join one of the independent committees already recognized.
This solution would offer a number of benefits. It would suit the fundamental purpose of the act, which is to limit the power of money as much as possible. As stated above, it would not permit a significant financial difference between the options defended within the independent committees and would enable independent individuals and groups to express themselves freely and maintain Quebec's international reputation. This solution would also enable abstainers to have a say in the matter and to speak out as much as they wished. It would also mean the government would not have to justify invoking the notwithstanding clause. In particular, however, it would have the benefit of extending to the amendment the spirit of justice and equity that characterizes the act as a whole. If the Supreme Court judges admire and respect the spirit of the act, they will only approve the proposed amendment.
The act thus amended would place fair and reasonable limits on the right of association. In our liberal societies, the right of association is a fundamental freedom that must be respected. However, it is fair and reasonable to impose a limit on that right, particularly where those who claim it refuse, without valid reason, to join an association that defends the ideas and strategies they themselves wish to defend. However, this solution may appear to open the door to many other challenges. As may be imagined, anyone whose application was denied or who was compelled to join an existing independent committee or had not had the opportunity to have his or her application considered might be tempted to challenge the act and to take his or her grievance to court. But if the new amendment resulted, for example, in the creation of a few hundred independent committees, it is hard to see how an individual could reasonably claim that his freedom of expression or association had been violated. Our right of association is not violated if we are required, in order to take lawful advantage of certain financial resources during a referendum, to associate with a committee that defends exactly the same ideas as we do. Unless we subscribe to a radically individualistic conception of life in society, it seems fair and reasonable to place these kinds of limits on the right of association of individuals who cannot justify refusing to join an existing committee, particularly where they have a number of committees from which to choose. Lastly, the more we invite the Supreme Court to interfere in the referendum process by invalidating the provisions of the amended statute, the more able we will be to denounce the political nature of all these manoeuvres.
SECTION 3: THE VIRTUES OF PARTNERSHIP
We now propose to examine a few of the reasons for a political partnership between Quebec and Canada once Quebec becomes sovereign. It is not our purpose here to provide arguments for or against Quebec sovereignty. For the sake of discussion, we will suppose that sovereignty has been achieved, without going into an evaluation of the sovereigntist option. Moreover, the scenario we want to consider may be seen from the perspective of a supporter of the federalist option. Sovereignty-partnership may be seen solely as an alternative solution, and thus compatible with the position of those who far prefer a reform of the federal system. One might feel that the best solution to the Canadian distemper, to use André Burelle's apt (or unfortunate?) expression, would be to transform present day Canada into a genuine multinational state, that is to say one that would reflect its multinational character in its institutions. This preference for a thorough reform of Canadian federalism may be justified in particular by a concern to take into account the interpenetration of the Anglophone and Francophone communities in Quebec and elsewhere in Canada. Those who feel this way will appreciate the following remarks. Sovereignty-partnership can thus be considered only as an alternative solution. Whatever the case may be, we wish to ask the following question: if Quebec becomes a sovereign country, what reasons can be advanced to justify maintaining political ties between Canada and Quebec, ties that would take the form of a partnership?
First, we should very briefly consider a specific partnership proposal. This will enable us to understand what is involved here. The purpose of the arrangement we want to describe briefly is to take into account the interests of all the parties involved. A framework must be proposed to manage the common interests of Canadians, Quebeckers and Aboriginal people. That framework could take the form of a ministerial council, which would have executive power and could have numerous responsibilities in this area. We are thinking in particular of issues pertaining to Union citizenship (if supranational citizenship is provided for) and of defence, borders, linguistic minorities and economic union, be it a monetary union, customs union or common market.
The cabinet would have to represent the Government of Canada, the Quebec state and the Aboriginal Assembly created pursuant to the recommendations by the Dussault-Erasmus Commission. Each representative on the ministerial council could have a veto for every proposal submitted for approval. Once a proposal had been approved by the council, it would then have to be submitted and approved in every case by a majority vote in the Canadian House of Commons, the Quebec National Assembly and the Assembly of First Nations.
This ministerial council would intervene mainly in matters pertaining to economic union and would not interfere in areas of national jurisdiction. Its main purpose would be to adopt measures to consolidate and strengthen the economic union. The treaty binding on the Canadian, Quebec and Aboriginal peoples would first entrench the status quo as regards economic union. Monetary union, customs union and the free movement of property, capital and labour would have to be maintained and expanded.
The ministerial council would be a key component in the union of Canada, Quebec and the Aboriginal peoples. It would crown the economic union and would have to be the subject of a treaty between the parties. Measures proposed by the ministerial council would have to be adopted in accordance with specific procedural rules. Generally speaking, to be adopted, every proposal would have to receive majority support within each of the assemblies: the Canadian House of Commons, the Quebec National Assembly and the Assembly of First Nations. The treaty amending formula would also require majorities in each of those three assemblies. For strictly economic matters, a majority vote in the legislatures of the country's five economic regions would also be necessary.
Consideration could also be given to the possibility of establishing a dispute settlement tribunal by adding five judges appointed by Quebec and three Aboriginal judges appointed by the Aboriginal peoples to seven judges of the Supreme Court appointed by Canada and the other four economic regions. To be valid, every decision by the tribunal would have to be approved by two of the three Aboriginal judges, three of the five Quebec judges and four of the seven Canadian judges.
These are some of the rules that could be adopted in the context of a Canada-Quebec-Aboriginal union, which would exist first and foremost to manage the economic union between Canadians, Quebeckers and Aboriginal peoples. The union could also have a social aspect and promote the adoption of identical labour and health standards throughout the union. It could also authorize bilateral agreements to be reached between the regions. Generally speaking, in everything except union matters, Quebec would be the only jurisdiction authorized to collect taxes, enact legislation and sign international agreements within its borders.
Improve the 1995 Offer
The merit of this arrangement is that it would address the criticisms that have often been aimed at the sovereigntists' 1995 partnership proposal. The new proposal features a low-cost and relatively uncomplicated political structure. It would not require an additional bureaucracy or the creation of another level of government since the Senate of Canada could be abolished, there would be no supranational assembly and the council would have a minimum number of members. The proposal would not suffer from any democratic deficit since it could ensure greater regional representation and the Canadian, Quebec and Aboriginal national assemblies would be called upon to approve all proposals. Furthermore, the members responsible for debating the ministerial council's proposals would all be elected by universal suffrage since they would be the members of the respective national assemblies. Under this partnership proposal, Quebec's legislature would be only one of the three legislative assemblies and Quebec would have only five of the 15 judges on the eventual supranational tribunal. With the presence of Aboriginal representatives, the structure would thus not be binational, as was the case in the first partnership proposal. The proposal would then respond to criticism that economic union must go together with political union and to the expectations of sovereigntists who mainly want a supranational government for the better management of the economic union.
Of course, this kind of arrangement could be complicated and impracticable if the economic union had to be built from scratch. However, the existing Canadian economic area is already very much involved in achieving economic union, and the presence of a council, tribunal and treaty would, to a large degree, maintain what progress has been made thus far. And as mentioned above, nothing should prevent the possibility of reaching local bilateral agreements where agreements across all regions cannot be secured.
Why a Partnership?
There are a great many reasons for accepting a political partnership of this kind should Quebec become sovereign. As noted above, the main purpose is to manage the economic union. An economic union entails a customs union, a monetary union and the free movement of capital and labour. To achieve this, the parties must remove protectionist barriers, enter into agreements for the free movement of goods, harmonize tax policies, endorse the same labour market standards and oversee the central bank's monetary policy. It would be very desirable to establish a ministerial council, a tribunal and a treaty to ensure the union is expanded at all these levels.
But there are other fundamental reasons for promoting a supranational entity of this kind. This solution would meet Quebec's aspirations since Quebec would be a sovereign state within this structure. It would also respond to the expectations of Quebeckers who wish to maintain special ties with Canada. However, it also accommodates the requirements and concerns of our Canadian partners, since it meets their need for unity. Political partnership meets that need since it enables us to avoid the Balkanization of Canada and to maintain a single political entity from sea to sea. Breaking up Canada into two separate entities could have a considerable psychological effect that must not be underestimated, and a partnership must be established in order to avoid this consequence in part. This is another benefit that reflects the legitimate aspirations of the Canadian people. The purpose of the partnership proposal is also to take into accommodate Canadians' desire to maintain a single economic and political area from the Atlantic to the Pacific. As Charles Taylor has so often said, if Quebeckers need political recognition, Canadians need unity. Sovereignty-partnership thus reflects the aspirations of both parties.
Furthermore, through the Canada-Quebec-Aboriginal ministerial council, the new proposal also responds to the aspirations of native peoples by giving them, once and for all, an established position within the decision-making authorities, thus putting an end to the apartheid of which they have been victim. At the same time, the presence of the various economic regions on the Council should be increased to accommodate Canada's regional diversity. The union would thus better reflect that diversity.
But there are more reasons for this kind of political attachment to Canada. The Francophone minority in Canada and the Anglophone minority in Quebec must also be considered. Canadian Francophones do not want to be abandoned to their fate. The partnership proposal is a generous response to this expectation. Anglophone Quebeckers, for their part, want to preserve their country and do not want to feel excluded in Quebec. Sovereigntists must listen to and understand their concerns, and union would help reassure them in this regard. In addition to seeing their collective rights entrenched in the constitution of a sovereign Quebec, Anglophone Quebeckers could acquire Union citizenship, regardless whether they kept their Canadian citizenship (it goes without saying that some Anglophone Quebeckers, like all other Quebec citizens, could theoretically request Canadian citizenship). Partnership could even allay some of the concerns of Anglophone Quebeckers who find partition appealing. Those who wish to remain both Quebeckers and Canadians can rightly see the offer of partnership as a way to meet this expectation. There is no need to partition Quebec in order to secure a corridor between western and eastern Canada. Partnership can serve this purpose. This fact could help defuse the partitionist ideas entertained by some. Since we are proposing to establish a union with Canada, this means that Anglophone Quebeckers will be able to maintain political ties with all Canadians.
Ultimately, the Canada-Quebec-Aboriginal union could also allay some of the concerns of the First Nations and Inuit who live in Quebec. The Aboriginal peoples have a moral right to self-determination. Just as Quebec feels compelled to violate Canada's territorial integrity because it is not recognized as a nation within the federal system, the First Nations and Inuit could theoretically be justified in doing the same to Quebec if they were not recognized by it. The Aboriginal nations can already exercise their right to self-determination to a certain extent. Every effort must be made to ensure they feel inclined to approve the new constitutional order that the Quebec government introduces. With a generous offer of partnership such as the one we are making, many of the reasons for their reluctance would disappear.
Federalists who propose that Canada should be thoroughly reformed and transformed into a multinational state and sovereigntists who are in favour of a partnership with Canada have much more in common than is generally believed. Both groups take a dim view of the traditional conception of the nation state. Both are opposed to the hard core federalists who have adopted a course of action that forces us to choose between Canadian nation-building and separation. Both accept the fact that nation states in our time are in the process of transforming from the top down, resulting in supranational partnership agreements, and from the bottom up, resulting in genuine multinational states. The sovereigntists must remain open to the possibility that our Canadian friends may make a substantial offer. On the other hand, however, the promoters of thorough reform acknowledge that, after 35 years of constitutional failure, sovereignty-partnership is a reasonable solution to the Canadian distemper. No one can reasonably claim to be prepared to recognize the existence of a Quebec nation and to obstinately deny its political sovereignty if all reform attempts fail. We must also beware of parallel agreements that may issue forth from forums of intellectuals and opinion leaders, particularly if the essential purpose of those agreements is, once again, to paint sovereigntists a glowing picture of illusory reforms and suggest that they not act on the strength of their convictions.
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