Oh, For a Little Clarity

Thomas MulcairNDP leader Thomas Mulcair is taking a fair amount of heat from political pundits today. They are accusing him of causing constitutional confusion, even treason. His crime? Trying to amend a government bill.

Maybe I should explain.

Following the 1996 Quebec referendum that almost broke up Canada, the Liberal government of Jean Chretien looked for ways to forestall any crisis in the future. One measure was the Clarity Act (which was authored by future Liberal leader Stephane Dion, with suggestions from the western-based Reform Party). This federal legislation required that before the right of Quebec to negotiate its departure from Canada was recognized, any referendum calling out that right had to be "clear". The question that was asked had to be clear, and the majority that passed it also had to be clear.

The ability of the federal government to police what Quebec puts into its referendums and takes from their results is somewhat suspect, but the Clarity Act became a powerful symbol of what the federal government at the time stood for. And, of course, separatists took it as another insult to Quebec (as they do). For the Bloc Quebecois, hatred of the Clarity Act was a litmus test of whether you were a Quebec nationalist or not.

Flash forward to today. The Bloc Quebecois was routed by an NDP surge in Quebec. They don't have enough members to be recognized as an official party in parliament, but they remain a force in Quebec. Opinion polls put them solidly in second place behind the NDP in that province. NDP leader Thomas Mulcair knows that the biggest threat to the NDP's Quebec seats is the BQ, not the Liberals or the Conservatives. At the same time, the BQ know that the NDP is their biggest obstacle to getting back party recognition in parliament.

So, in October, Bloc MP Andre Bellevance introduced a bill in parliament to repeal the Clarity Act. It has absolutely no hope of passing. But the governing Conservatives and the third party Liberals sat back a while and looked to see how the NDP, the official opposition, would react.

Mulcair's position was intriguing (at least, to me). Mulcair announced that the NDP would oppose the BQ bill as well, but that NDP MP Craig Scott would introduce his own private members bill that would amend the Clarity Act to make it conform with the NDP's "Sherbrooke Declaration". This declaration, much derided by the Conservatives and the Liberals, states that, among other things, a 50%+1 vote on a clear question is sufficient for the province of Quebec to take the first steps towards sovereignty.

The New Democrats are walking a fine line, here. By opposing the BQ's private members' bill, they are attempting to placate its federalist supporters. But by proposing their own bill, and assuring that the right of Quebec's self-determination by a 50%+1 vote, they refuse to give the BQ a bat with which to beat them.

This didn't stop the Liberals from rending their garments. They'd like their federalist seats back from the NDP, if you please. The Conservatives tut-tutted, and questioned Mulcair's commitment to Canada. Many pundits seem to believe that the NDP is threatening the stability of this country for its own partisan interests and that they should be punished for it.

But here's the thing: according to the NDP bill (which, again, has no hope of passing), the question that would be settled by a 50%+1 vote has to be crystal clear. Indeed, Mulcair specifies what the question should be: "Do you want Quebec to separate from Canada and become a sovereign nation?"

And frankly, that's a lot clearer than what the original Clarity Act requires. The Clarity Act never specifies what the referendum question should be, only that it should be "clear".

Honestly, I think Mulcair's move is a smart one. The biggest concern that I and others have had about previous Quebec referendums is how unclear the question put before voters has been, waffling about self-determination one moment, then talking about giving the government of Quebec a mandate to negotiate the next. It has been parodied as "Do you believe that Quebec should not not attempt to maybe negotiate and/or declare independence, maybe, but maybe not, with the government of Canada, yes or no?" but the reality is that the 1980 referendum question was over 100 words long and used semi colons (Seriously! Have a look for yourself).

But strangely enough, the critics of Mulcair have been focused on the electoral bar that the referendum is supposed to have before it passes. How dare Mulcair propose that 50%+1 should be enough to destroy a country?

To which I say, well, why not? 39% of 60% of the voters is enough to give a single party 100% control of our government. 

We have had very little experience with setting the democratic bar at anything other than "the majority of people who chose to vote says it's so, so it's so". The referendums on proportional representation in BC and Ontario required a complicated finish line requiring the approval of most voters, and most voters in most districts, but that's about it. In the United States, 60% majorities are required to break filibusters, and two-thirds majorities are required to break presidential vetos. In Canada, it takes the approval of the federal government and 7 out of 10 provinces comprising 50% of the population to make most constitutional amendments.

How do you translate this into a bar that any provincial referendum must pass, and what is your criteria for setting that bar (other than "I want to make it harder for the other side to win")?

I too could quibble. Personally, I would favour 50%+1 of all eligible voters being a minimum requirement for any major constitutional change. Not voting shouldn't be registered as consent to do. In this case, and perhaps others, staying home should be equivalent to a 'no' vote. And if you passed that bar, one simply could not dispute that you had the majority behind you.

And if we're honest with ourselves, we know that if 50%+1 had voted in favour of the unclear 1996 referendum, our country would have had some very interesting times. If 50%+1 put their mind to anything, there would be very little we could do to stop them. They would simply have the most votes, and that's a powerful mandate to do just about anything. In the end, having the most votes is what counts. Ask Steven Harper.

(Hat tip to Dr. Dawg for inspiring this post)

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