In last week’s leaders debate, there was a lively exchange between Justin Trudeau and Tom Mulcair over the federal government’s response to a future Quebec referendum. They sparred over the level of support the ‘Yes’ side would require in order for Ottawa to recognize the will of Quebecers to secede from Confederation.

Mr. Trudeau’s statements on this subject raise questions about his grasp of constitutional issues, as well as his judgment on the issue of Quebec sovereignty.

First, he claimed that the Supreme Court, in its decision in the secession reference, held that “one vote is not enough to break up the country.” Second, Mr. Trudeau insisted that the Clarity Act reflects the view of “nine Supreme Court justices” and that Mr. Mulcair is instead “choosing to side with the separatist movement in Quebec”. Third, he suggested that Mr. Mulcair’s promise to repeal the Clarity Act, passed by Parliament under the Chrétien Liberals in response to the 1995 Quebec referendum, would “make it easier” for Quebec to secede.

Each of these statements are, at best, misleading; at worst, they show a misunderstanding of basic constitutional principles. With respect to the first statement, Mr. Trudeau is correct that a 50 per cent plus 1 ‘Yes’ vote would not be sufficient to “break up the country” — but neither would a 100 per cent vote in favour of secession.

The Supreme Court clearly stated that a victory for the ‘Yes’ side would merely trigger an obligation on the part of Parliament and the other provincial legislatures to enter into negotiations — which would result in secession only if they could agree on a constitutional amendment. This is because the will of the majority in one province must be reconciled with other constitutional principles, including the interests of the other parties to Confederation.

The Clarity Act’s heavy-handed approach is more likely to embolden sovereigntists than thwart their efforts. The Clarity Act’s heavy-handed approach is more likely to embolden sovereigntists than thwart their efforts.

In other words, a ‘Yes’ vote is only the first step in a lengthy process; in no way does it determine the outcome. In suggesting that some majority ‘Yes’ vote could result in the “break up” of Canada, Mr. Trudeau came dangerously close to the position that Quebec has a unilateral right to secede — something the Supreme Court expressly rejected. Nothing would make things easier for Quebec sovereigntists than this.

The NDP’s position is spelled out in the 2005 Sherbrooke Declaration, which states that the party “would recognize a majority decision (50 per cent +1) of the Québec people.” But the Declaration goes on to say that an NDP government would determine its own response to such a ‘Yes’ vote “in the spirit of the Supreme Court ruling and under international law.”

This suggests that while Mr. Mulcair’s party would acknowledge its obligation to negotiate the terms of a proposed secession following a simple majority vote, this result would have to be based on a clear question and a fair vote — and it would not compel Ottawa to accept Quebec’s demands.

This is entirely consistent with the Supreme Court’s judgment, which refused to define what it meant by a “clear majority”; the court considers that a political issue, not a legal one. Therefore, from a constitutional standpoint, the NDP’s adoption of 50 per cent plus 1 is at least as legitimate as Mr. Trudeau’s desire for something more.

But this does not mean that the Clarity Act — and especially the Liberal rhetoric surrounding it — is consistent with the Supreme Court’s judgment, as Mr. Trudeau indicated. The Clarity Act is controversial because it purports to give Parliament the power to decide the circumstances that would trigger its obligation to negotiate the terms of a province’s secession.

This is arguably at odds with the Supreme Court’s view that the obligation to negotiate must be interpreted in light of federalism, meaning that it cannot be based on the legislative act of one government alone. In the words of the Supreme Court, “the federal government cannot deny the right of the government of Quebec to pursue secession …”

As a result, the Clarity Act’s heavy-handed approach is more likely to embolden sovereigntists than thwart their efforts. The Act itself is probably unenforceable because the Supreme Court stated that a government’s response to a ‘Yes’ vote is not a legal issue. At the same time, it warned that Ottawa’s “intransigence” in wake of a legitimate outcome in favour of secession could result in international recognition of a sovereign Quebec state.

So it’s actually Mr. Trudeau’s full-throated endorsement of the Clarity Act that plays into the hands of sovereigntists — not Mr. Mulcair’s proposal to repeal a pointless and inflammatory law.

Michael Marin is an assistant professor in the University of Ottawa’s Faculty of Law.

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