BrieflyNotBriefly, the deal with all that referendum talk last night

You could have been forgiven for tuning in to last night’s debate and being bewildered by the exchange between Justin Trudeau and Tom Mulcair about the threshold for accepting a yes vote in a sovereignty referendum. So, as briefly as possible, here’s what’s up with that.

• In the 1995 Quebec referendum, the No side eked out a bare win with 50.58 per cent of the vote. The question set by the Parti Quebecois government was widely considered confusing and unclear. There were rampant reports of voter fraud by the Yes side. A younger Tom Mulcair called for an inquiry. “This was an orchestrated, manipulated electoral fraud,” Mulcair said

• The Liberal government of Jean Chretien recruited Stephane Dion to cabinet and responded in two major ways. The first was a reference to the Supreme Court of Canada that asked the court to answer three questions: can the government of any province separate unilaterally, would that be allowed by international law, and in a  conflict between domestic and international law, which would take precedence?

• Nine of 10 justices ruled that unilateral succession is not legal, but the Government of Canada would have to negotiate with the provincial government if a clear will to separate was expressed by the populace. The court confirmed the Federal Government could decide if the question was fair or not, and it opted to not state the vote threshold necessary, simply requiring a “clear majority.”

• Chretien and Dion followed up the Court reference by introducing The Clarity Act, which formalized the terms under which a province could seek to separate in the future. It stated the Government of Canada would only open negotiations on separation following a clear majority staying a desire to do so on a clear question, and the Government of Canada would decide what is a clear question, and what is a clear majority following the results.

• The bill was popular in English Canada, scared by the near referendum loss and wanting, well, clarity. It was deeply unpopular in much of Quebec, obviously with sovereigntists, but also with the federalist political elite that favoured more of an appeasement approach.

OK, so that’s the background. But, you say, support for sovereignty is at all-time lows in Quebec, so why are we talking about this? Fair question. Here’s why.

• In 2005, NDP members passed the Sherbrooke Declaration as its official policy on a sovereignty referendum. It repudiated the Clarity Act, saying it is up to the legislative assembly alone to set the question and an NDP government will accept a vote of 50 per cent plus one. That position, which would require the Clarity Act to be repealed, went largely unnoticed and unchallenged as, at the time, the NDP wasn’t seen as a likely candidate for government.

• This position was regularly affirmed as official NDP over the next decade, including by Mulcair several times in the last few months, including in Quebec in June on the eve of Fête Nationale. And in 2013, NDP MP Craig Scott introduced a private member’s bill that sought to repeal the Clarity Act and legalize 50 plus one as the threshold for a sovereignty referendum. 

• So we’re talking about this because it is part of the NDP platform, because the NDP is talking about it, because the NDP wants a mandate to do this if they form a government, and because the polls show that’s a realistic proposition.

Alright, fair enough you say, but why are they both so eager to whack each other over it?

• Mulcair has a Quebec base to protect, and keeping it means keeping all those soft nationalist voters that abandoned the Bloc Quebecois. His position on the Clarity Act is decidedly in the mainstream in Quebec. Outside of what I’ll call the Dion federalists, most Quebecers agree with Mulcair and the NDP on this.

• Trudeau and the Liberals have always viewed themselves as the champions of a united Canada. And Trudeau’s position is very popular everywhere but Quebec. The Clarity Act just makes sense to most Canadians. And in Quebec, frankly, the Liberal vote has been limited for many years, and those Dion federalists are not an insubstantial voting block – Liberals increased their seat count there with Dion in 2008.

• Will this issue actually move votes though, in Quebec or anywhere else? Who can say. 

OK you say, I get it now, but I gotta ask, why didn’t the Court just spell out a number? And why wouldn’t Trudeau last night?

• The Court didn’t forget to set a number; it very deliberately decided to use the phrase clear majority. The NDP has contended 50 per cent + 1 is a clear majority. Liberals counter if the court meant a majority, they’d have said majority, but they said clear majority, and if 50+1 is a clear majority, what’s an unclear majority?

• A number wasn’t set because a clear majority depends on a number of factors. What was the turnout? Was there voter fraud that could put the margin in question, as Mulcair raised the warning about in 1995? What was the geographic distribution? These are just a few of the questions I’d want to consider in determining if it was a clear majority or not. And you can’t put a number on that in advance; it’s impossible and would be irresponsible. In short, to channel Chretien, a clear majority is a clear majority, and when you have a clear majority it will be clear.

Alright, enough, this is no longer a brief explanation you complain. But lastly, what about Harper? He stayed above the fray last night. Where is he on all this?

• As exasperated as the rest of us that the NDP has left us no choice but to be talking about this. But his position on the Clarity Act is clear and on the record: he supports it, and Reformers have often claimed the idea was stolen from their policy chief – one Stephen Harper.

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