Here's how the Clarity Act could still apply to Alberta Premier Danielle Smith's referendum

OTTAWA — Prime Minister Mark Carney has said on multiple occasions a referendum on separation in any province has to be consistent with the principles of the Clarity Act.

While the mere mention of the act makes separatists in Quebec roll their eyes, many Canadians have never heard of the federal legislation which could be used for the first time should Alberta eventually hold a binding provincial referendum to separate from Canada.

The Clarity Act ensures that Parliament will have a role in making a judgment about the referendum question but also on what constitutes a clear majority for separation.

It was passed years after Canada’s near-death experience during the 1995 referendum on Quebec independence which saw a razor-thin majority vote “No” to separation.

So, what exactly does the act say? And how did it come about? And will it apply to Alberta’s vote this fall?

Following the 1995 referendum, Prime Minister Jean Chrétien, on the advice of his late wife Aline, recruited Stéphane Dion, an influential academic in federalist circles, to his cabinet.

Dion was appointed minister of intergovernmental affairs in January 1996. In that role, he went on to make the federal government’s case that unilateral secession by Quebec would be illegal if it took place without a clear set of pre-conditions.

A few months later, the Governor in Council would refer three questions to the Supreme Court of Canada to ask if the constitution of Canada or the principle of self-determination under international law can give Quebec the right to secede from the rest of the country.

The opinion, rendered in 1998, became the legal basis on which Dion would eventually draft his bill.

“Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own,” it read.

“Nor, however, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.”

The court came to the conclusion that “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.”

Dion tabled in 1999 “An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference” — which is better known as the Clarity Act.

In essence, the legislation sets pre-conditions for the federal government before it recognizes the results of a secession referendum and before it starts negotiating.

Firstly, it calls on the House of Commons to consider the referendum question and determine whether it is clear. The law establishes it is to happen within 30 days after the government of a province has officially released the question that it intends to submit to its voters relating to the secession of the province from Canada, but it can be extended.

“In considering the clarity of a referendum question, the House of Commons shall consider whether the question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state,” it reads.

It would not be deemed a clear expression of the will of the people if it considers other possibilities to secession, such as “economic or political arrangements with Canada.”

Secondly, the House of Commons will also have to determine, following the referendum on secession, if there has been “a clear expression of a will by a clear majority of the population of that province” for them to cease to be part of Canada.

The legislation calls on MPs to take into account the size of the majority of valid votes cast in favour of separation, the percentage of eligible voters voting in the referendum and other political views and statements inside the province, including from Indigenous peoples.

One of the longstanding criticisms about the Clarity Act is that it leaves the interpretation of the “clear majority” to politicians and does not necessarily mean 50 per cent plus one.

The legislation was quickly adopted in the House of Commons, but it faced opposition in the Senate, where it was debated for more than three months. Chrétien quickly appointed new senators to fill vacant seats and get it to pass. The bill became law in June 2000.

A few months later, the Parti Québécois passed its own legislation as a response to the federal Clarity Act: “An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State.”

Alberta Premier Danielle Smith announced on Thursday that she would add a question to this fall’s referendum that could eventually lead to a future referendum on secession.

The question goes as follows: “Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

Even if, at first glance, the Clarity Act does not seem to apply to this question because it is not asking if Albertans want their province to secede from Canada right away, the House of Commons could still technically want to make its voice heard in this debate, suggested Patrick Taillon, professor of constitutional law at Université Laval in Quebec City.

Taillon said MPs could still pass a motion in the House of Commons on whether the question posed to Albertans on wanting to remain in Canada is clear and, after the referendum, whether there was a clear majority. But he said those votes are non-binding and symbolic, and therefore, would essentially hold no real weight.

For the moment, the federal government is saying it is too early to give a definitive answer as to whether the Clarity Act will apply to Smith’s question this fall.

The real test will be if Albertans decide to choose the second option.

In that case, Ottawa would enact the Clarity Act for the first time in its history.

National Post calevesque@postmedia.com

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