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In the context of the twentieth anniversary of the 1995 Quebec referendum, the Centre de recherche interdisciplinaire sur la diversité et la démocratie held a symposium on “Referendum democracy in multinational States” at Quebec City’s Laval University.
On October 29, 2015, at the symposium, I delivered a conference in which I argued that in Canada, referendums are devised as consultations, the results of which governments must evaluate in relation to their clarity, severity, degree of irreversibility, impact on the rights of Canadians and the complexity of the measures to be taken.
I concluded my presentation with a proposal regarding what I believe to be an unlikely but always possible hypothesis: a third referendum on the secession of Quebec.
As always, I’ll be very pleased to read any comments you might have. Enjoy your read!
The Canadian Distinctiveness Regarding Referendums: the Experience of Federal and Self-Determination Referendums
Notes for a conference delivered at a symposium entitled:
“Referendum Democracy in Plurinational States”, organized by the Centre de recherche interdisciplinaire sur la diversité et la démocratie (CRIDAQ) at Laval University, Quebec City, on October 29 and 30, 2015.
October 29, 2015
The Honourable Stéphane Dion, P.C., M.P.
Member of Parliament for Saint-Laurent
House of Commons, Ottawa
My take is that the referendum experience in Canada isn’t very different from that of other democratic States, except for one aspect. It is not very different, in that every one of the many referendums held in our country since Confederation, save three, was held by local or provincial governments. So far, there have been only three federal referendums, which is quite in line with the practice of democratic States, where national referendums are rather rare. The United States have never had one. Switzerland has held more national referendums than all other democracies put together.
What distinguishes Canada is its experience with self-determination referendums. Quebeckers might be the only population of a well established democracy to have lived through two external (meaning: centered on the possibility of secession) self-determination referendums. Add to these the two 1948 Newfoundland referendums, which brought the island into the Canadian Confederation. And it is worth mentioning the referendums that led to the creation of Nunavut – an interesting case of internal self-determination.
In my address, I would like to underline the original nature of these referendums – notably the two held in Quebec – and show how they are in line with the Canadian tradition of considering referendums as consultations on which governments act only after they have taken stock of their results.
I will conclude with a proposal regarding what I believe to be an unlikely but always possible hypothesis: a third referendum on the secession of Quebec.
Most external self-determination referendums have taken place in situations of decolonization or desintegration of authoritarian or totalitarian Empires. They have seldom taken place in well established democracies, for the simple reason that almost all of these States consider themselves as indivisible. They reject secession as a legal impossibility.
When the Supreme Court of Alaska twice rejected a citizen’s initiative to hold a referendum on the State’s secession, in 2006 and 2010, the Court acted as most democratic States would under their Rule of Law. No referendum on secession can be held in those States because the desired result would be deemed unconstitutional.
The principle underlying the indivisibility of the State in a democracy is the right to citizenship. All citizens are entitled to full membership in the State and have the right to transmit that citizenship to their offspring. No group of citizens, even when claiming to form a people or a nation, may take it upon itself to take the country away from other citizens. Thus Article 2 of the Spanish Constitution makes it clear that Spain is an indivisible country, making it legally impossible for any Catalan to take Spain away from another Catalan.
In Canada, the United Kingdom and a few other democracies, the thinking is different: it is considered that national unity should be based on mutual consent. Canada is one of a very few democracies that recognize their divisibility in law. Secession is legally possible in Canada – but not just anyhow. Secession may only happen based on a clear expression of support for secession and after due negotiation within the constitutional framework. A unilateral secession would have no legal basis in law, making it illegal for a separatist government to take it upon itself to take Canada away from those Quebeckers who wish to keep it. The Quebec Government has no legal basis to compel anybody – including the Canadian government, foreign governments and Quebeckers themselves – to recognize it as the government of an independent State.
In its August 20, 1998 unanimous Opinion on Quebec secession, the Supreme Court of Canada clarified the manner in which a self-determination referendum should be considered under Canadian law. In essence, the Court reminded us that in and by themselves, “The results of a referendum have no direct role or legal effect in our constitutional scheme”. However, referendums have a political weight that can be significant when the results are clear. It is for the political players to evaluate how clear those results are and to decide how to react to them.
The Supreme Court confirmed that an obligation to enter into negotiation on secession could be precipitated only by “a decision of a clear majority of the population of Quebec on a clear question to pursue secession […]”. Such obligation does not exist ” […] if the expression of the democratic will is itself fraught with ambiguities. Only the political actors would have the information and expertise to make the appropriate judgment as to the point at which, and the circumstances in which, those ambiguities are resolved one way or the other”.
However, the Supreme Court urged us not to determine in advance what would constitute a clear majority: “it will be for the political actors to determine what constitutes ‘a clear majority on a clear question’ in the circumstances under which a future referendum vote may be taken”. This is very wise advice. There is a qualitative dimension to assessing clarity, which begs for a political assessment to be done in full understanding of the actual circumstances.
Negotiating secession would inevitably touch upon “many issues of great complexity and difficulty”, and would have to lead to changes in the Canadian Constitution for secession to be compliant with the law.
By pointing out that the result of a referendum must be interpreted not as a decision per se but as a consultation, the consequences of which must be evaluated by governments, the Supreme Court Opinion – and the Clarity Act that gives it effect –adhere to the Canadian legal tradition regarding referendums, including Quebec’s.
In the white paper that led up to Quebec’s Referendum Act, it is noted that because of the consultative – rather than deciding – nature of referendums, “it would be pointless to include in the law special provisions requiring a certain majority of votes or participation rate”. When the Bill was tabled on April 5, 1978, its sponsor, Robert Burns, spoke of “the moral weight” of a referendum won on the basis of “a popular will that is clearly and broadly expressed.”
I will now review, chronologically, the three national referendums and the self-determination referendums pertaining to Canada, to show that the Canadian Government treated them all as consultations, the consequences of which need to be evaluated in light of their results.
Canada’s first national referendum was held on September 29, 1898. It dealt with the prohibition of alcohol. A majority of voters – meaning, at the time, male British subjects aged 21 and over – voted for prohibition, but Wilfrid Laurier’s government decided not to implement the measure, leaving it up to the provinces to go ahead with it or not. The advocates of prohibition were obviously very disappointed but to justify its decision, the government argued that support was too weak for such a complex measure as banning alcohol to be implemented in the field. The national majority for the Yes was a mere 51.3 percent and the participation rate 44 percent, the strongest opposition coming from Quebec with 81.2 percent voting No. It should be noted that during the referendum campaign, Laurier carefully avoided committing to ban alcohol if the Yes won a majority.
In the following years, the provinces held various consultations which, apart from wartime exceptions, led to prohibition only in Prince Edward Island. In a 1902 Ontario referendum, a majority voted for prohibition, but there again, the provincial government decided that the majority was too slim for such a measure to be imposed.
The second national referendum took place on April 27, 1942, under Mackenzie King’s government. The issue was conscription. More specifically, voters were asked to absolve the Prime Minister of his promise, made during the 1940 elections, not to impose conscription, while giving the government the latitude to proceed or not with conscription based on the referendum result and evolution of the military situation. In King’s words: “Not necessarily conscription but conscription if necessary”. Support came in at 64.5 percent but 72 percent of Quebecers voted against. Based on the result, King did everything to defer the implementation of the measure. It was not until early 1945 that under pressure from the Allies, a few thousand conscripts were sent to the European front.
Then came the case of Newfoundland, which in 1948 held two referendums on its political future, at the insistence of the British government. The first one (on June 3, 1948) gave voters, in essence, three choices: either remain a British dominion, become an independent country or ask to join the Canadian Confederation. That referendum having resulted in a clear repudiation of the status quo, a second referendum was held to choose between the two possibilities for change. On July 22, supporters of Confederation prevailed, with a majority of 52.3 percent.
Before the referendum, the Canadian government had promised to pay off a large part of Newfoundland’s debt and offered other benefits for joining Confederation. However, the federal government had also said it would not feel bound by the referendum results; and having wished for a clear and unambiguous result, the slim majority made the federal government hesitant to go ahead. At the same time, it did not want the island to turn to the US, and the British government was pushing Canada to bring Newfoundland into its bosom, so the Canadian government began negotiations that resulted in the formation of a tenth Canadian province on March 30, 1949.
And we now come to the Quebec referendum of May 20, 1980, which resulted in a majority of 59.6 percent of voters refusing to give the Quebec government a mandate to negotiate sovereignty-association. It is well known that during the campaign, the Prime Minister of Canada, Pierre Elliott Trudeau, had repeated that a Yes would lead to a dead end, not to the negotiation of sovereignty-partnership. “It takes at least one other person to associate with,” he said in French, adding that the Quebec referendum would not be binding on the other provinces any more than a Newfoundland referendum, with a majority of 100% for renegotiating the Churchill Falls electricity contract, would bind Quebec.
The October 26,1992 referendum on the constitutional Charlottetown Accord was framed by legislation that made it clear that the consultation was an opportunity to get the views of Canadians, but that governments would not be legally bound by the result. During the campaign, the federal government did not clearly specify exactly what majority would be required for the Accord to be ratified. Although the Minister of Intergovernmental Affairs, Joe Clark, had said that a majority would be required in all provinces in addition to a nationwide majority, Prime Minister Brian Mulroney was more evasive. He might have wanted to retain the possibility, in case there was a national majority for the Yes, to pressure the premiers of the provinces that would have voted No.
Finally, as we know, the referendum resulted in a 54.3 percent majority for the No. It is generally accepted today, I believe, that Joe Clark was right, and that a referendum on a constitutional issue must obtain a majority not only nationally but also in the constituent entities whose consent is required by the Constitutional amendment process.
Regarding the Quebec referendum of October 30, 1995, which resulted in 50.6 percent of Quebeckers voting against sovereignty with an offer of partnership, we remember that although Prime Minister Jean Chrétien had strongly emphasized the serious consequences of a Yes vote during the campaign, he also refused to commit to negotiate separation from Canada based on a question he considered unclear and confusing, and pointed out that he had a Constitution to enforce. In the aftermath of the referendum, the leader of the Official Opposition in the House of Commons and leader of the Bloc Québécois, Lucien Bouchard, roundly criticized Jean Chrétien for not committing to consent to secession in the case of a narrow majority for the Yes: “We will recall that [the Prime Minister of Canada] said in this House he reserved the right not to honour a narrow yes majority in favour of sovereignty”.
During the two Quebec referendums of 1980 and 1995, Aboriginal referendums were held in parallel. In 1980, the Inuit of Northern Quebec voted No with a 94 percent majority. On October 29, 1995, the Inuit and on October 24, the Cree (with respective majorities of 96 percent and 96.3 percent and respective turnouts of 75 percent and 77 percent) voted to keep their populations, and claimed territories, in Canada. The Quebec government, while claiming a right to unilateral secession, refused to recognize the Aboriginal right to refuse to be part of that secession. A discordant voice in the independence movement, constitutionalist Daniel Turp, said he was of the view that indigenous peoples have the right to secede.
To conclude this overview of federal and self-determination referendums, let us look at the process that led to the creation of Nunavut. In 1982, the voters of the Northwest Territories approved Territorial division with a 56.5 percent majority. The Government of the Northwest Territories accepted the result, but the federal government set some conditions: continued support by the population, an agreement on the delimitation of the two territories, an agreement on the sharing of responsibilities between levels of government, and the resolution of land claims. In May 1992, the Inuit held a referendum on the demarcation of ancestral lands; and in a November 5, 1992, referendum, 69 percent of participating Nunavut voters declared themselves in favour of the creation of the new territory. Nunavut officially became a territory on April 1, 1999.
I have shown that the federal approach to referendums has held steady since Confederation: a referendum is not in itself a decision, it is a consultation, the results of which governments must evaluate, weighing the clarity of the result in terms of the complexity of the measure to be taken, its severity, its effect on the rights of Canadians, and its irreversibility. If this approach to referendums is valid for the prohibition of alcohol, it is even more so for a measure as serious and irreversible as secession.
The leaders of the independence movement in Quebec argue instead that a referendum on the secession of Quebec would be a decision in itself, allowing the Quebec government to take Quebec out of Canada, and thus take Canada away from those Quebecers who want to keep it. This claim is not only unrealistic, irresponsible and contrary to law, it is also contrary to the Canadian referendum practice.
Quebec separatist leaders would be hard pressed to explain why, in their logic, Aboriginal referendums in favour of remaining in Canada would not also be decisions. They would also have to justify why the PQ government refused to act on the referendums that, in the early 2000s, resulted in large majorities against forced municipal mergers.
But the best would probably be to stick to the very wise principles that inspired Quebec’s Referendum Act, which I will quote again in closing: the consultative nature of referendums makes it “pointless to include in the law special provisions requiring a certain majority of votes or participation rate”; referendums have “moral weight” when won by “a popular will that is clearly and broadly expressed.”
Those principles should guide us on the way ahead. In the latest Quebec provincial election, Mme Pauline Marois was blamed, from all quarters, for her refusal to clarify whether, if reelected, she would hold a referendum or not. In response to her critics, she rightly said that it would be irresponsible for her to hold a referendum with no reasonable assurance of success. So the issue is how to dispel the vagueness regarding holding another referendum without irresponsibly rolling the dice on the future of Quebec.
So here is my proposal, which I must say is very personal and mine alone. Although I have no illusions regarding my popularity among separatist circles, I do believe that this proposal could still be judged on its own merits.
The current leader of the Parti Québécois, Mr. Pierre-Karl Péladeau, should say that should his party win the next election, he would abstain from holding a referendum and instead, expend taxpayer money and much energy to convince Quebeckers of the need for independence. And he should add that should opinion polls show the existence of stable and convincing majorities in support of independence – with the support of groups from many quarters – he would, in the subsequent election, ask for a mandate to hold a referendum to confirm the existence of a consensus on the secession of Quebec.
A clear expression of support for secession would trigger negotiations – within the Canadian constitutional framework – to reach a separation agreement that is fair for all.
That is a clear, democratic and legally sound process, which only one factor might make seem demanding: the deep attachment so many Quebeckers feel towards Canada.
 David Butler and Austin Ranney (Editors), Referendums around the World. The Growing Use of Direct Democracy, the AEI Press, Washington DC, 1994
 Kohlhaas v. State (2006) – http://touchngo.com/sp/html/sp-6072.htm; also: Kohlhaas v. Alaska (2010) http://caselaw.findlaw.com/ak-supreme-court/1497483.html.
 Supreme Court of Canada, Reference re: Secession of Quebec,  2 RCS 217, 161 DLR (4e) 385 [Reference].
 ibid, par. 87.
 ibid, par. 93.
 ibid, par. 100.
 ibid, par. 153.
 ibid, par. 96.
 ibid, par. 97.
 Benoit Dostie and Ruth Dupré, “The people’s will”: Canadians and the 1898 referendum on alcohol prohibition, Exploration in Economic History, 49 (2012) 498–515; also: Patrick Boyer, Direct Democracy in Canada. The History and Future of Referendums, Dundurn Press, Toronto and Oxford, 1992, pp. 19-25.
 Patrick Boyer, Direct Democracy in Canada. The History and Future of Referendums, Dundurn Press, Toronto and Oxford, 1992, pp. 36-42.
 ibid, pp. 119-123.
 Pierre Elliott Trudeau, speech delivered at Montreal’s Paul-Sauvé Arena on May 14, 1980, https://www.collectionscanada.gc.ca/primeministers/h4-4083-e.html.
 Stéphanie Boutin, Les lois provinciales sur les référendums constitutionnels obligatoires. Un outil juridiquement possible, mais dont les effets compliquent la modification de la Constitution canadienne, Thesis for a Master’s degree in Law, 2015.
 “Canada, Business of the House of Commons, 1st Sess., 35th Parl., 1st November 1995″ referendum “, p. 16063 (Lucien Bouchard). http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=35&Ses=1&DocId=2332511#16063
 Jill Wherrett, Les peuples autochtones et le référendum de 1995 au Québec : les questions qui se posent, Bibliothèque du Parlement, February 1996.
 Daniel Turp, Quebec’s Democratic Right to Self-Determination, in: Stanley Hartt et al., Tangle Web: Legal Aspects of Deconfederation, C.D. Howe Institute, 1992.
On July 8, 2015, I published on my website a text entitled “Prosperity, Social Justice and Taxation: Trudeau Plan vs Harper Plan“, in which I argue that Justin Trudeau’s plan for the middle class is fairer and more effective than Stephen Harper’s, from the standpoint of economic growth as well as social justice.
I wrote a summarized version of that text, which the Huffington Post published in both official languages on July 22, 2015. You can find it here. As always, I’ll be very pleased to read any comments you might have.
Enjoy your read!
Strengthening the Economy by Strengthening the Middle Class: the Trudeau Plan
Member of Parliament for St-Laurent – Cartierville
When casting their ballot in the next Federal elections, there is a fact Canadians should bear in mind: there exists a direct correlation between high rates of income equality and strong, sustained economic growth.
Many studies have proven this link between social equality and prosperity. The International Monetary Fund itself recently insisted on the economic return a country can expect from narrowing its income gap. The Toronto Dominion Bank said that the Government should redouble its efforts to reduce inequality: “Canada could do more in terms of redistribution of income (…) Canada’s tax system is not as progressive as many might think”. The CD Howe Institute proposed a plan to increase the progressivity of the tax system. Despite all this, the Harper government is stubbornly going the opposite way.
1. The regressive Harper plan
Stephen Harper’s fiscal plan includes three measures that will increase inequality in Canada.
First, the Conservative government wants to postpone access to federal Old Age Security and the Guaranteed Income Supplement benefits from age 65 to 67. This measure will almost triple the low-income rate in this age group, from 6 percent to 17 percent, thus throwing some 100,000 Canadians more per year into poverty.
Yet, the Office of the Chief Actuary of Canada, the Parliamentary Budget Officer, the OECD and the Department of Finance itself have proved that keeping the access age at 65 would not put the government’s finances at risk.
Second, the Harper government raised from $5,500 to $10,000 the annual contribution ceiling of the tax-free savings account (TFSA). The Parliamentary Budget Officer says that this measure is regressive, that it mostly benefits higher-income households and that “the contribution limit increases proposed in Budget 2015 would accentuate these distributional disparities”.
The third Conservative regressive measure is income splitting for families with children. According to the Parliamentary Budget Officer, this measure will benefit only 15 percent of households, particularly the ones who are wealthier than the average. Low-income families will get almost nothing. The Harper Government is bent on widening the income gap, willing to give a $2,000 tax relief to the wealthiest but nothing to single mothers.
2. The progressive Trudeau plan
Justin Trudeau’s plan, “Fairness for the middle class”, consists of two measures that will promote both social justice and economic growth: an allowance for families and a tax cut for the middle class.
The first measure is the “Canada Child Benefit”. Compared to the current system, it sets significantly higher basic annual allowances for low-income families . They decrease in step as family income increases (but more slowly than in the current system) and cease to be paid to the highest income groups. The Canada Child Benefit is fully indexed to the cost of living and completely non-taxable, which is not the case of all Conservative measures. In total, the Canada Child Benefit will ensure that 90 percent of families will receive larger monthly payments than those received today under the current system.
Bringing together in a single program the current complex system of benefits and tax breaks, the Canada Child Benefit represents an annual 22 billion dollar investment, eighteen billion of which are funded through the replacement of existing programs and two billion through the cancellation of regressive income splitting for households with children. This leaves a new investment of two billion dollars, the source of which will be identified in the Liberal election platform.
The second Trudeau Plan measure is a lower tax rate for the middle class: 20.5 percent instead of the current 22.0 percent. Earned income between $44,700 and $89,401 will receive a tax break of up to $670 per year per person – $1,340 per year for a two-income household. This tax cut will be funded through the introduction of a new 33 percent tax bracket for taxpayers who earn more than $200,000 per year. Only 1 percent of Canadian taxpayers would pay more taxes under the Trudeau Plan than under the current Harper Plan.
This Trudeau measure for the middle class has been generally welcomed, despite the misgivings of those who believe that beyond a 50 percent “psychological” threshold, the tax could become “confiscatory” and kill the tax. For want of authoritative arguments, the Conservative Finance Minister went so far as to evoke the NDP leader: “The leader of the NDP party, Thomas Mulcair, has said: ‘When you get taxes over 50 per percent, it’s no longer taxation – it’s confiscatory’. It’s a good line”.
But studies have failed to verify the existence of that alleged 50 percent threshold effect. Presently, the marginal rate exceeds 50 percent in some US States and large cities, including New York and San Francisco.
Paradoxically, Thomas Mulcair who bristles at the idea of making the income tax more progressive also wishes to finance his many election promises through a significant increase in the corporate tax rate. Not only would a higher tax on the companies’ profits affect their competitiveness, but their richest shareholders would surely not foot the whole bill, leaving small shareholders, suppliers, clients, employees and consumers to absorb the extra costs. For economic prosperity and social justice, the Trudeau plan trumps both the Mulcair and Harper plans.
Reducing inequalities, if well done as per the progressive Trudeau Plan, will benefit our economy; increasing inequality – the regressive Harper or Mulcair way – will only harm it. The Trudeau plan is the fairest and most effective, both socially and economically. It is simple, transparent, inexpensive to administer and almost fully funded through better handling of current measures.
A strong economy, a just society, a healthy environment: why should we have to choose? If we make the right decisions, we can better achieve all of these goals, precisely because we will not have given up on any of them. Trudeau’s plan for fairness to the middle class is one of those good decisions Canadians have to make, in the interest of all.
Here is a text in which I outline the superiority of Justin Trudeau’s tax plan over Stephen Harper’s, from the standpoint of economic growth as well as social justice: Prospérité justice sociale et fiscalité ENG.
A first version of the text was used in a speech I delivered at the Quebec Citadel on June 18, 2015. The many comments I have received since have helped me write this new version. Many thanks to the people who took the time to share their thoughts and suggestions.
Now I would be happy to get your own comments. My demonstration is both empirical and philosophical. It is based on a simple realization: the countries with a high level of social equality and a growing middle class are also those where economic growth is the most constant and sustained. This is why Justin Trudeau’s plan for fairness for the middle class is what Canada needs.
Enjoy your read!
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