Bill C-20 was introduced to the House of Commons on December 13th, 1999.

In June of

2000 the Bill was passed, becoming known as the Clarity Act. The Clarity Act was a direct

response to the Supreme Court’s Quebec Secession Reference. The legislation aimed to “give

effect to the requirement of clarity set out in the opinion of the Supreme Court” (Clarity Act)

while also laying the legal framework of when the Federal government will enter into

negotiations with a province wishing to secede. The statute was undoubtedly a federal response

to the 1995 Quebec Referendum but it also sets out some ground rules for all future desires to

separate. We will first examine some major events leading up to the enactment of the legislation.

From there we will see how the Clarity Act addresses issues arising from those events. Although

some improvements are needed, we will find that the Clarity Act has been both an effective and

legitimate response to those events and the contemporary Quebec sovereignty movement.

The conflict between English and French is not unique to Canada; however, we will

begin our examination of events leading up to the Clarity Act in the 1960’s with what is known

as the ‘Quiet Revolution’. Throughout the 1950’s it appears that Quebecers were generally

satisfied with their place in the Constitution. However, the Quiet Revolution became a turning

point for the minds of many Quebecers (Ryan, 26). Quebecers began to see the disadvantages of

being French in an English federation. The French language, for example, was not regarded as an

official language and so many Quebecers were unable to work in their native tongue. People

began to realize that their language and culture were in danger of becoming assimilated into the

English majority. The identity of many Francophones in Quebec gradually began to shift from

Canadiens français to Québécois (Ibid.). René Lévesque, a key figure in the Quebec sovereignty

movement, entered politics in the early 1960’s. He entered not as a separatist, but as a Canadian

federalist. His transforming political career up until the late 60’s is a perfect illustration of how

many Francophones changed their perception of identity (Ryan, 26).

Under Prime Minister Lester Pearson and Quebec Premier Jean Lesage many of the

issues arising from the Quiet Revolution were addressed. Quebec was allowed to opt-out of
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several national programs such as health and social services with compensation. The

establishment of the Quebec Pension Plan was also an effective response to the Quiet

Revolution. While many Quebecers saw these efforts as proof of the adaptability of the federal

system, much of the rest of Canada was critical of allowing these privileges. They believed that

such actions from Ottawa weakened the sense of national unity (Ryan, 26).

In 1968 Pierre Elliot Trudeau was elected Prime Minister and with him came the end of

the cooperative era. Trudeau “put a stop to any further evolution toward special status for Quebec

and undertook to confront the sovereigntist idea directly” (Ryan, 26). Over the next decade the

Quiet Revolution not only saw a shift of how Quebecers perceived their identity, but the political

strategy of Quebec gradually shifted from defensive nationalism to aggressive nationalism

(McMenemy in Good, Slide 88).

In 1976 the Quebec sovereignty movement was supported by the majority of Quebecers

with the election of René Lévesque and the Parti Québécois (PQ). Until 1998 the PQ had a

strong presence in Quebec, winning four of six provincial elections. In 1980, under yet another

PQ government, Quebec held a referendum on sovereignty. Voters responding to the long-winded

and perhaps deceptive question came to deny the Quebec government its desired mandate.

However, 40 per cent of respondents voted ‘yes’, leaving many to question if that number would

continue to grow; inevitably it would. From there was the patriation of the Constitution:

Trudeau’s method for bringing the Constitution home. Ottawa’s original proposal was denied by

all provinces with the exception of Ontario and New Brunswick. After negotiation the federal

government compromised, putting forward a new proposal. This proposal did not include the

provincial opt-out option nor did it contain the veto Quebechad requested. The Gang of Eight,

with the exception of Levesque, accepted the proposal. These events are evidence of negativity

from Quebec to Trudeau’s approach of renewing federalism. Trudeau’s approach does not appear
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to have been well received by Quebec, and “[i]nstead of weakening during the Trudeau era, the

sovereigntist movement became an extremely important political force” (Ryan, 26).

In 1984 Brian Mulroney became Prime Minister of Canada and with him came a new

strategy for Quebec. Contrary to Trudeau, Mulroney adopted “Plan A” in hopes of wooing

Quebec into the Constitution. Then Quebec Premier, Robert Bourassa, had since put forward five

conditions that, if met, would bring Quebec into the federation. He demanded that Quebec be

given a veto on constitutional change, recognition as a distinct society, more control over

immigration, a role in selecting Supreme Court justices and finally tight restrictions on the

federal government’s spending powers in his province’s jurisdiction. In 1987 Mulroney put

forward the Meech Lake Accord, an attempt to address Bourassa’s demands in order to bring

Quebec into the Constitution once and for all. The Quebec National Assembly was the first

legislature to pass the accord, but the rest of Canada became divided on the issue. Three years

later, the accord died on June 23, 1990 because it had failed to pass through all of the provincial

legislatures. Another attempt to reconcile Quebec had failed. Mulroney’s government saw

political backlash during the life of the accord with the departure of federal Minister of the

Environment Lucien Bouchard.

In 1991 Bouchard, along with “six other...sovereigntists who were disappointed with the

failure of [Meech Lake]” (Introducing the Bloc Quebecois), formed the Bloc Quebecois.

Bouchard became the first leader of the new federal party, aiming to be the official voice for a

sovereign Quebec in Ottawa (Ibid.). In the 1993 federal election, a year after the defeat of the

Charlottetown Accord (another failed reconciliation attempt by the Mulroney government), the

Bloc Quebecois became the official opposition after winning a staggering fifty-four seats in

Quebec. By 1994 the Parti Quebecois and Jacques Parizeau returned to power in the Quebec

provincial election. The failed attempts of Trudeau and Mulroney appear to have profited the
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sovereignty movement (Ryan, 27). There was no longer any doubt about how Quebecers felt

about federal politics over the past three decades. The sovereignty movement had risen to an all-

time high.

Fifteen years after Levesque’s 1980 referendum failed, Quebec was once again engulfed

by the battle between sovereignty and federalism. Levesque’s promise that his failed referendum

would not be the last was kept under PQ leader and Premier Jacques Parizeau. A year after

coming to power in 1995, Parizeau put forward the referendum question to the people of Quebec.

With forty-three words—much of which pertained to a ‘partnership’—many critics argued that

this question was far from clear and may in fact be deceptive. Despite disagreements over the

question, even more attention was aimed at the potential results. Would 50% +1 of the vote be

enough for Quebec to secede? In the end the referendum failed with 50.4 per cent of respondents

voting ‘no’ and 49.6 voting ‘yes’. Parizeau blamed the result on “money and the ethnic vote”

(Money and the ethnic vote) and, following in the steps of Levesque, he promised this would not

be the last referendum. Parizeau resigned his leadership and was succeeded by Lucien Bouchard,

who left his position in the Bloc Quebecois to become leader of the Parti Quebecois and Premier

in 1996. The razor-thin margin of difference in the referendum marked the end of the sit-back-

and-wait approach of the federal government and was a surprise wake-up call to the rest of

Canada.

The federal government could no longer deny just how powerful the sovereignty

movement had become following the 1995 referendum. In response to the results, Ottawa

adopted Plan B. This “involved hardening their position towards Quebec...by discrediting [those

results]” (Lajoie in Quebec: State and Society, 152). Federalists argued that the 1995 referendum

question was unclear, and polls suggested that many respondents thought sovereignty implied

maintaining political ties with Canada (Ibid.). It became apparent in the debates to follow the
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referendum that the federal government had to establish some ground rules should a future

referendum for secession take place. This prospect seemed inevitable as Bouchard asserted he

would hold another referendum when the conditions were right.

On September 30th, 1996 Ottawa presented three questions to the Supreme Court in

reference. The first question asked that should the National Assembly of Quebec have a

successful referendum, could Quebec unilaterally secede from Canada under the Constitution?

Secondly, does international law give the National Assembly the right to effect secession

unilaterally? Finally, should there be conflict between the Constitution and international law,

which takes precedence in Canada? The Supreme Court responded to these questions in 1998

with what became known as the Secession Reference. The goal of the Secession Reference by the

federal government was to establish once and for all that any motion by the Quebec National

Assembly to unilaterally secede from Canada was illegal (Lajoie, 153). In this respect, the

federal government got what it was looking for as the Supreme Court answered negatively to the

first two questions, leaving the third unnecessary to answer.

The Court determined that Quebec could not unilaterally secede under the Constitution

(Secession Reference, section 2). The Court considered arguments that support unilateral

secession based on democratic principles but determined that “[d]emocracy...means more than

simple majority rule” (Ibid. s.2, para. 2). This determination put into question the power of 50%

+1. The Court went on to establish that should a clear majority of Quebecers vote yes to a clear

question for sovereignty, then the rest of Canada “would have no basis to deny the right” (ibid.

para. 4) of Quebec to negotiations. The negotiation process along with the definitions of what

constitutes ‘clear’ in terms of both a question and a majority were left to the “political actors to

determine” (Ibid. para. 6). The Court may have denied unilateral secession under the
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Constitution but what surprised federalists is that it clarified the legal framework of how Quebec

could come to negotiate with federal government (Ryan, 7).

International law, according to the Court, also did not allow for Quebec to secede

unilaterally. The common argument was that all peoples have the right to self-determination.

However, the Court found that Quebecers, although clearly “peoples”, did not meet the

requirements for secession in international law. It found that “Quebec does not meet the

threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers

have been denied meaningful access to government to pursue their...development” (Secession

Reference, section 3, para. 1).

This is effectively what the Secession Reference accomplished. However, “the key

element in the Supreme Court’s opinion is the recognition that the federal government would

have a constitutional duty to negotiate secession following a clear majority vote on a clear

question” (Monahan, 8). During the 1995 referendum the nature or even the existence of such

negotiations was debated. Although the Secession Reference effectively took away any hope of

unilateral secession, the Courts thrust the onus of negotiation on Ottawa should a seceding

province live up to the expectations of a clear majority on a clear question. Along with

negotiation guidelines, all that was left for Ottawa to decide was the criteria for judging a clear

question and what defines a clear majority. This marks the end of our examination of the events

leading up to the enactment of the Clarity Act. This is by no means a complete examination, but

it has high-lighted some of the key issues arising from those events. It was to respond to these

issues that the Clarity Act was put forward.

In 2000 the Clarity Act became law. The legislation was a necessary and logical follow-

up to the Supreme Court Secession Reference. The act effectively defines the circumstances

under which the federal government would enter into secession negotiations following a
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successful sovereignty referendum (Monohan, 2). The concepts of a ‘clear question’ and a ‘clear

majority’ discussed in the Secession Reference are further defined as the Supreme Court intended

they would be.

The first section of the Clarity Act determines that the federal government will not enter

into negotiations with a province wishing to secede if it does not put forward a ‘clear question’

(Clarity Act, 1(6)). Through the Clarity Act Parliament gave itself the power to assess the clarity

of a question (Lajoie, 158). To define a clear question is difficult, so instead the act gives some

particular criteria to consider when examining a question. Section 1(4) determines that questions

focusing on (a) a mandate to negotiate and (b) possible economic or political arrangements with

Canada instead of the separation of a province will not be considered clear. Given this criteria,

“[t]he obvious conclusion is that the 1995 referendum question did not satisfy the requirement of

clarity” (Ryan, 10).

The second section of the Clarity Act deals with the requirements for a ‘clear majority’.

Ottawa will not enter into negotiations unless “there has been a clear expression of a will by a

clear majority of the population of that province that the province cease to be part of Canada”

(Clarity Act 2(4)). The legislation does not define what a ‘clear majority’ is, but rather states that

(a) the size of the majority of votes cast in favour of secession, (b) percentage of eligible voters

voting in the referendum and (c) other relevant circumstances should be taken into account.

The third and final section recognizes that there is no right to effect secession under the

Constitution and that in order to do so the Constitution must be amended (Ibid. 3(1)). Such an

amendment would require negotiations with “at least the governments of all of the provinces and

the Government of Canada” (Ibid.).

The Clarity Act put into legislation the unwritten policies of the federal government

should Quebec attempt another secession. Unlike the 1995 referendum, Ottawa will be more
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prepared legally and politically for the future. The act is a direct response to the Supreme Court’s

reference, leaving the question of its legitimacy firmly established in Canada’s highest court. It

respects the Court’s decision to declare unilateral secession illegal while also embracing the

standard of clarity laid out in the reference.

Instead of fighting the onus to negotiate with a seceding province, the Clarity Act

recognizes that the federal government must respond should a province meet the criteria of a

clear majority on a clear question. This is fundamentally in line with the democratic principle

that should a province express a clear need to negotiate then they will be responded to. It does

not appear too many scholars are in disagreement about the Court’s and thus the Clarity Act’s

adoption of this obligation to negotiate. However, the criterion to invoke federal negotiations

seems to be a point of debate.

Negotiations only result from a province demonstrating its compliance with the Clarity

Act’s standard of a clear majority voting yes to a sovereignty referendum on a clear question.

Critics argue that the act does not live up to its name in providing clarity to either the question or

the majority mentioned. Many supporters of the act also agree that the act ought to be amended

to address this problem. How could such an act be said to give clarity when it appears to leave so

much ambiguity on what it was established to do?

In terms of a clear question, it seems that there is very little the federal government could

do to improve on what the act already provides. How can one define a clear question when the

possibility of questions is indeed limitless? The act does provide criteria in which a question

would be considered not clear in section 1(4). Perhaps it could also provide criteria in which the

question would be accepted (Monahan, 24). Regardless, the criterion already written in the act

seems necessary to avoid repeats of the unclear questions from the referendums in 1980 and

1995. However, it does not seem right to make the question “Sovereignty, yes or no?” when
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separation may entail numerous positive economic and political consequences. Perhaps

rendering section 1(4) as things to take into account instead of things to necessarily declare a

question unclear might resolve the issue (Monahan, 31).

In regards to a clear majority described in the second section of the Clarity Act, there is

certainly a need for the government to declare what exactly a clear majority is. Unlike the

limitation of defining a clear question above, a majority can clearly be defined in terms of a

percentage. It seems generally accepted that the clear majority of the Clarity Act is related to the

Secession Reference’s determination that democracy means more than simple majority rule

(Secession Reference, s.2, para. 2). It seems as though the standard democratic principle of 50%

+1 of votes is not enough. Ryan, a critic of the Clarity Act and Monahan, a supporter, both put

forward the same idea for how Ottawa should define a clear majority (Ryan, 12 & Monahan, 26).

To uphold both the democratic principle and the Court’s opinion, all sovereignty referendums

should require 50% +1 of eligible voters to vote ‘yes’ as opposed to 50% +1 of votes cast. Either

way the government needs to define what is a clear majority to improve the effectiveness of the

act. This is not to say that the act is not an effective response to sovereignty movements, but

simply that it can be improved. The Clarity Act still maintains itself as an effective response even

without a definition of what is a clear majority.

Finally, although most agree that negotiations must take place there is still disagreement

about who is involved. “Sovereigntists have traditionally maintained that negotiations would be

conducted bilaterally” (Monahan, 15) or exclusively between the federal government and

Quebec. The Secession Reference clearly rejected this notion (Ibid.), establishing that

negotiations would also include “other participants in Confederation” (Secession Reference, s. 2,

para. 2). The Clarity Act reflects the Court’s opinion in section 3(1), but does not mention if the

other provinces merely must be consulted or if they must consent (Monahan, 32). In order to
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improve its effectiveness, the act should be amended to include a more clearly defined

negotiating table. However, the Clarity Act remains effective in the fact that it establishes the

legal necessity for negotiations. As it stands, “[t]he requirement that all the provinces participate

in the constitutional negotiations does not necessarily lead to the conclusion that they must all

consent to an amendment” (Monahan, 33). The act simply has yet to define if all, the majority or

none of the other provinces have to consent to secession.

The Clarity Act is “a reasonable attempt to give expression to the principles identified by

the Supreme Court of Canada” (Monahan, 33) and is thus a legitimate response to the Quebec

sovereignty movement. Although there is some room for improvement, the Clarity Act is

effective in establishing the role of the federal government while also embracing provincial

interests in sovereignty. The act gives both sovereigntists and federalists a better idea of what to

expect in the case of future referendums. It also has left room for amendments which will

respond to social changes in Canada. From this it is clear that the Clarity Act has been highly

successful in its function and will continue to do so in years to come.