OP-ED: Too clever by half—The Clarity Act could backfire on Ottawa
George Koch and Jim Mason write, "The Clarity Act was never designed to provide a workable path to provincial independence, it was designed to prevent one. And therein lies the danger."
By: George Koch and Jim Mason
Jim Mason holds a BSc in engineering physics and a PhD in experimental nuclear physics; he lived and worked in Alberta for 17 years and is currently retired and living near Lakefield, Ontario.
George Koch is Editor-in-Chief of C2C Journal.
The federal Clarity Act is widely assumed to be Canada’s safeguard against provincial secession. As we discussed in our previous column, many Albertans who favour independence believe it provides a roadmap to leaving Confederation, while many federalists regard it as a constitutional firewall that makes separation all but impossible.
Both sides are ultimately mistaken. The Clarity Act was never designed to provide a workable path to provincial independence, it was designed to prevent one. And therein lies the danger.
Passed in 2000 by Jean Chrétien’s Liberal government, the Act emerged from Quebec’s 1995 referendum, when the country came within roughly 50,000 votes of breaking apart. Ottawa’s objective was understandable. Federalists wanted to ensure that any future vote on secession would be based on a clear question, a clear mandate and a deliberate process rather than ambiguity, confusion or political gamesmanship.
That goal was reasonable. The legislation that followed was not.
The Supreme Court of Canada’s 1998 Secession Reference established a basic constitutional principle: although a unilateral declaration of independence was unconstitutional as well as illegal under international law, if a province’s voters expressed a clear desire to leave Canada through a clear majority voting “Yes” on a clear question, all parties would have a reciprocal obligation to negotiate that province’s possible exit from Canada.
The Court deliberately assigned all of the implementation details to the political process. It did not proclaim a unilateral right to secession, but neither did it affirm an unambiguous authority by Ottawa to refuse negotiations or to operate in bad faith.
The Clarity Act purported to implement that ruling. Instead, it created a system in which almost every important decision rests with the federal government – enabling endless mischief and sabotage. The Act, for example, does not define what constitutes a “clear majority.” It does not specify what level of voter turnout would be sufficient. It does not establish a detailed process for negotiations. It does not explain how negotiations would conclude. It does not identify a final threshold for constitutional approval. Instead, it grants broad discretion to the House of Commons to determine whether a referendum question is acceptable and whether a referendum majority is sufficiently large to move forward.
In practice, this means Ottawa decides. And for Ottawa, unsuccessful negotiations are the objective; the status quo is victory. Paradoxically, that reality should concern federalists as much as separatists.
A constitutional process gains legitimacy when participants believe it is fair. People are more likely to accept outcomes they dislike when they believe the rules are transparent and consistently applied. The Clarity Act achieves the opposite. Its ambiguity creates the impression that the rules can be changed as circumstances require.
Consider how the process would likely unfold following a future provincial referendum on independence. First, the referendum question would face scrutiny. Then the result would be examined to determine whether the majority was sufficiently “clear.” If negotiations began, every stage would involve multiple governments, competing interests, constitutional disputes and political pressure campaigns. Any breakdown along the way would preserve the status quo.
From Ottawa’s perspective, this may seem like a feature rather than a flaw.
But politics does not operate solely through legal mechanisms. It also operates through public legitimacy. Suppose a province produced a strong majority in favour of independence and Ottawa nevertheless found reasons to delay, obstruct or reject the result. Suppose voters concluded that no realistic democratic mandate would ever satisfy the federal government.
What lesson would they draw? Many would conclude that the Constitutional process is not a genuine process at all. That is the Clarity Act’s Achilles’ Heel.
The legislation was intended to reduce support for secession by demonstrating the seriousness and complexity of leaving Canada. Yet if citizens come to believe the outcome has been predetermined, the Act may produce the opposite effect. Rather than strengthening federalism, it could fuel resentment. Rather than reinforcing Constitutional legitimacy, it could undermine confidence in Constitutional institutions.
The irony is striking. A law designed to discourage separatism may ultimately strengthen it.
This is not an argument for Alberta independence. Nor is it an argument that secession should be easy. The breakup of a country is among the most consequential political acts imaginable. Any such process should be deliberate, transparent and subject to rigorous democratic safeguards.
But a credible process must also be achievable. Canadians should be able to answer basic questions. What constitutes a clear majority? What obligations arise after such a vote? When do negotiations begin? How are disputes resolved? What conditions bring the process to an end?
The Clarity Act answers none of this. For a quarter-century, that ambiguity was politically convenient because no province came close to triggering the Act. Alberta’s growing separatist movement, however, has revived questions that many Canadians assumed had been settled long ago.
If Ottawa’s answer to those questions is simply that separation will never be permitted regardless of the circumstances, then the Clarity Act ceases to be a framework for democratic conflict resolution. It becomes an instrument of permanent Constitutional denial.
That may satisfy some federalists. But it risks achieving the very outcome the Act was intended to prevent – which is the subject of our next column.