it's kind of...
the supreme court reference did say that you need a clear majority to a clear question. but, it was only a part of the ruling. understanding the ruling is really an excellent exercise in critical legal theory.
it also said that separation was unconstitutional, unless it was done with such a force that required unconstitutional means to suppress. meaning, they can separate if they can separate; and, they can't separate if they can't. it resorted to the blunt realism of projected force. then it covered it up with ruling class language.
the clarity act helps the federal government maintain a facade of control, but it's really a facade. it seems almost extra-legal. but, the supreme court is bluntly accurate - if quebec decides it's going to separate, then it's going to separate. clarity act or not. constitution or not. a federal law saying you need an undefined majority is not going to stop it from happening if it's going to happen. and, on that note, what's more important about the ruling is that it says we can't stop it with force.
but, here's another blunt reality: the americans will have no such qualms and will instantly stop it with force. clinton was a phone call away from invading quebec in 1995. they had fighter jets stacked on the border.
it seems crass. it is - it's empty politics with no real ramification. but the clarity act is as well. this isn't even a serious issue in quebec, it's just abstract political rhetoric. but we'll see what quebeckers decide it is that they want.
because, in the end, it can only be quebeckers that decide what they want.
ipolitics.ca/2015/07/26/ndp-not-just-the-party-of-change-its-throw-the-bums-out/
LoggerheadShrike
I'm not a big fan of the Clarity Act myself, but there are vast problems with this critique. The Clarity Act doesn't regulate a separation at all. It only regulates how a separation referendum - in any province IN Canada, which is the jurisdiction of the federal government - is to be conducted, and whether or not the Canadian government will view it as legitimate. The latter is most certainly a question that Canada gets to decide - as does the rest of the world. Every nation is entitled to a foreign policy, including the power to decide what nations it recognizes.
You seem to feel that it's not necessary to define a legal separation, on the grounds that a separation can also be defacto, and therefore, nothing really matters. "if quebec decides it's going to separate, then it's going to separate. clarity act or not." This is much like saying if X is going to do an illegal act he's going to do an illegal act, law or no law, therefore there is no need for laws! In reality, it's very important whether the separation is seen as legitimate - not only by the people of Quebec, not only by Canada, but internationally. The presence or lack of legitimacy would define almost everything about the new state - its foreign relations, its economy, its domestic stability, pretty much everything.
deathtokoalas
see, the way i see it is that the reference case is a sort of non-ruling. it doesn't really state anything of value, it just runs through the possible outcomes and states them as tautologies. the clarity act does indeed state what you're saying, but it's not an entirely accurate reflection of the reference case.
if you drop the legal abstractions and focus on reality, you're left with a much more stark set of options. canada can decide what it feels is legitimate. but what is more important is if quebec decides whether canada's perception of what is legitimate is legitimate - because quebec is the actor, here. iraq can argue all day that the bombing happened in contravention of the security council resolutions; they still got bombed.
the harsh truth is that if quebec decides it's going to separate whether ottawa likes it or not then canada has two choices:
1) accept it, perhaps grudgingly, and perhaps with economic sanctions.
2) invade.
that seems overly simplified. but, it really is entirely true. if they have enough resolve, then they can only be stopped with force.
so, when the reference case points out that unilateral succession is illegal under the constitution, it's not really ruling on anything that makes any difference in the actual real world. it's really just making a political statement. that's why it's a useful exercise in critical legal theory.
what is more important is that the reference case *also* points out that it would be illegal for canada to suppress a clear democratic intention.
it's less like saying that there's no need for laws. it's more like saying that criminals break the law, whether there's a law or not. but, in this case the moral legitimacy of the law is not clear cut.
if quebec can manage to set up a budget, control a tax base and conduct it's affairs while ignoring the federal government (this is unlikely...), and it declares itself sovereign, de facto, then this may be illegal under canadian law. but that merely demonstrates the irrelevance of canadian law, in the circumstance.
the idea that quebec needs a clear majority to separate is obviously true. tautologically.
and, canada can write a law that states that. and even decide what a clear majority means.
but, at the end of the day it is only quebec that can *actually* decide what a clear majority is.
consider the following scenario.
canada writes a law that says that 60% is a clear majority. quebec passes a resolution that decides that 51% is a clear majority. they win a referendum with 55% and decide to go ahead with separation. who is going to stop them?
see, and this is where the ignored part of the reference case becomes important. because, despite stating that they need a clear majority (which is tautological; they could not succeed without one), it also states that we can't stop them if they go ahead with it.
that's the point i'm making: it ultimately doesn't matter what the feds decide a majority is. they obviously need one, or they can't do it. but, what it means can only ever be their choice.
so, the debate reduces to politics.
i'm actually not opposed to the clarity act. and i don't have any impetus to push for 51% in canadian legislation. in the abstract, i agree with the liberals. but it's just an abstract position - i know it doesn't matter. and it's not going to change how i vote.
and, it's not like my analysis is unprecedented, either.
consider the language laws in quebec. clearly unconstitutional. nobody debates this. but, there's a clause in the constitution that allows them to keep doing it. it's a blatant abuse of power; the clause is not meant for this purpose. but, who is going to stop them?
i'd say the same thing about senate reform, in terms of abstractly agreeing with the liberals, but not seeing it as a vote changer.
in all honesty, i do like the idea of a chamber of "sober second thought". our system of government really doesn't have a lot of checks and balances.
but, if that was ever an accurate description of the senate, it sure isn't an accurate description of it at any point in my lifetime. there is clearly a need to reform the appointment process so that it can accomplish it's stated purpose.
the value of the institution is that it remains unelected - i would certainly oppose an elected senate. and, continuing on with the historical approach of learning from the mistakes made in the american system, i think the gridlock they get down there is reason enough to avoid emulating their system of government.
but, in a practical sense? the ndp can promise to abolish the senate all they want, although they seem to have retreated from that position. they're never going to get the premiers to agree. it's a non-issue in a practical sense.
it's consequently not really rational to take the position of not voting ndp because they want to abolish the senate, because they're never going to succeed in abolishing the senate.