The Clarity Act (Bill C-20)

Historical Context

Bill C-20 came about in the aftermath of the 1995 Quebec referendum. The Supreme Court of Canada was faced with the question of whether Quebec could unilaterally decide to secede from Canada (see Separatism in Canada). The Court ruled that both Canadian constitutional law and international law would be violated by an independent secession; a constitutional amendment, however, could make it possible. (See also Reference re Secession of Quebec.)

On 13 December 1999, the Clarity Act was introduced in Parliament by the Liberal government of Prime Minister Jean Chrétien. Its purpose was to set guidelines for determining a “clear” question to be used if Quebec held a referendum and won a clear majority.

Description

Bill C-20 “gives effect to the requirement for clarity set out by the Supreme Court of Canada in the Quebec Secession Reference.” According to the Court’s interpretation on the matter, “political actors” are responsible of returning the right to determine what, among other things, constitutes a question and a clear majority after a referendum that one province or territory initiates in the context of secession from Canada (see Separatism in Canada; Repeal Movement).

The Clarity Act also defines, in article 3, under what prior conditions the federal government is subject to political obligation to negotiate secession resulting from a referendum that has satisfied the requirements for clarity as defined in articles 1 and 2 of the Act.

Opposition to the Clarity Act

Passed by the House of Commons in less than two weeks, the Clarity Act faced fierce opposition in the Senate, where it was debated for more than three months. Opposition to the bill, which was strong in both ranks of the government majority, sought to enshrine in law: the principle of the indivisibility of Canada; the right of the Canadian people to have their say before negotiations leading to the dismantling of the country are undertaken; the right of official language minorities to be consulted on the clarity of the question and the majority; the right of the Indigenous peoples concerned to participate in the negotiations; and the obligation to obtain the prior consent of a majority of provinces. These amendments were defeated following Prime Minister Jean Chrétien's hasty appointment of four new senators to fill vacant seats and discreet pressure on several senators from the government majority.

According to Bill C-20, only the House of Commons has the power to vote on the clarity of the question and the majority; yet the exclusion of the Senate's power to hold a vote on these issues calls into question the principle of the two-chamber system entrenched in the Constitution. In addition, the government's refusal to recognize the right of Indigenous peoples to participate in negotiations on territorial division directly affects ancestral rights and treaty issues that were recognized in the Constitution. Legal opposition could conclude the bill invalid. Concerned groups, including the Quebec Cree, had already expressed their intentions of bringing the debate before the courts.

The Quebec government also expressed strong and clear opposition to the Clarity Act, countering with their own Bill 99 to deny the legal and political impact of the federal bill. Public opinion in Quebec, however, did not respond to the rallying calls of the sovereignist forces.

Reception in Canada

The bill eventually passed through Parliament, receiving royal assent on 29 June 2000.

Bill C-20 was rather favourably received across the country. Nevertheless, the federal government chose to defend the country's integrity by making the conditions of a province's secession especially difficult, rather than affirming the unity and indivisibility of Canada through the constitutional route, like several Western democracies.

(See also Reference re Secession of Quebec.)