What a contrast between that memorable May 20, 1980, when federalism triumphed in Quebec's first referendum, and federalism's fallen state now, 25 years later. Then, Canada was headed by Quebec's most admired son, Pierre Trudeau, who, in elections just three months before, had received 68.2 per cent of the Quebec vote and 74 of the 75 seats. Last June, Paul Martin's Liberals took 21 seats, with 33.9 per cent of the vote. The coming elections promise a collapse of the Martin Liberals in Quebec, followed two years later by a crushing defeat for Jean Charest's Quebec Liberals. The separatists will control almost all of Quebec's political space in time for the next referendum. We are in for the perfect storm.
Pierre Trudeau was admired by Quebeckers for passing the Official Languages Act, for promoting "French power" in Ottawa, for defending the right to French schooling across Canada and the right to use French as well as English in air traffic control at Quebec airports. He gave French a new prestige and French immersion spread across the country. Today, it's the Liberal Party's stench of corruption that rivets attention.
The 1980 referendum followed the historic postwar era of decolonization. Colonies, half the Earth's population, acquired independence. Their right became recognized internationally. Prominent intellectuals defined Quebec as a colony because, conquered by 1763, it had been incorporated into Confederation without giving its consent in a preceding referendum or elections. Even Canada had a quasi-colonial status, with its Constitution still enacted and amended at Westminster. And so, not only separatists such as René Lévesque, but federalists such as Jean Lesage, Daniel Johnson Sr. and Claude Ryan assumed that remaining in a restructured federation or seceding was up to Quebec's free choice.
The 1980 referendum destroyed the only recognized argument for Quebec's right to secede. By voting for Canada, Quebeckers repudiated claims to colonial status. Mr. Trudeau followed up by Canadianizing the Constitution. When René Lévesque challenged it, the Supreme Court of Canada upheld it unanimously: "The Constitution Act, 1982, is now in force. Its legality is neither challenged nor assailable. It contains a new procedure for amending the Constitution of Canada which entirely replaces the old one in its legal as well as in its conventional aspects. Even assuming therefore that there was a conventional requirement for the consent of Quebec under the old system, it would no longer have any object or force."
So the legality of secession was clarified: Quebec had no right to secede under international law and, under Canadian law, such a change to the legal order could only be accomplished under the terms of the Constitution, as Section 52 made clear: "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."
But Quebec's political class maintained the dangerous fiction that Quebeckers were still free to choose any constitutional status that was ratified in a referendum held in Quebec, under rules set unilaterally by Quebec's government. Federal politicians, out of opportunism -- and most journalists, out of ignorance -- supported the illusion.
The 1980 referendum's lessons were misrepresented. It supposedly created a precedent recognizing Quebec's right to secede. Untrue: Mr. Lévesque asked merely for a "mandate to negotiate" sovereignty-association, not for secession. And he recognized Canada's veto by promising there would be no sovereignty if Canada refused an association. Secession itself, if Canada agreed, would be the subject of a second referendum.
Pierre Trudeau had supposedly recognized the right to secede if the referendum carried with 50 per cent plus one vote. Doubly untrue: Mr. Trudeau, in his great speech of May 14, 1980, warned Mr. Lévesque, "If you knock on the sovereignty-association door, there is no negotiation possible." He also repudiated the referendum, whatever the result, as binding on the country: "The wishes of Quebeckers may be expressed through a democratic process, but that cannot bind others -- those in other provinces who did not vote -- to act as Quebec decides."
Moreover, Mr. Lévesque's white paper, La Consultation populaire, announcing the Referendum Act, stated that the referendum could only be consultative and there was therefore no point in defining a threshold of victory. Nor did the Referendum Act establish one.
Conservative leader Brian Mulroney, in a 1984 campaign speech written by Lucien Bouchard, described Quebeckers as traumatized by the 1980 referendum results. As prime minister, Mr. Mulroney would later describe the patriation of the Constitution -- which he had supported -- as a betrayal of Mr. Trudeau's prereferendum solemn promise of constitutional change to accommodate Quebec. Instead of its fulfilment, Quebec, Mr. Mulroney said, had been mocked, humiliated and isolated, and was now outside the Constitution, which was "not worth the paper it was written on." By implication, Quebec was free to secede. (Mr. Mulroney's own Meech Lake initiative was supposedly intended "to bring Quebec back in" to the Constitution.)
Quebec premier Robert Bourassa passed Bill 150 in 1991, asserting that "Quebeckers are free to choose their own destiny, to determine their political status and to ensure their economic, social and cultural development." It proposed a referendum on sovereignty the following year. Mr. Mulroney's response: His party passed a resolution at its next convention declaring "Quebec's right to self-determination."
Jean Chrétien wrote in his 1985 memoirs that "I would have let them go," had Quebec voted for secession in 1980. To the 1991 Bélanger-Campeau commission on Quebec's constitutional future, he stated: "It seems obvious to us that the Québécois will have to decide whether they become independent or they remain in Canada." As prime minister, when Quebec premier Jacques Parizeau prepared for a unilateral declaration of independence, Mr. Chrétien insisted only that the referendum question refer clearly to separation. When lawyer Guy Bertrand went to court to challenge the legality of Mr. Parizeau's draft bill on sovereignty, Mr. Chrétien refused to take part and wrote: "The real question is not how separation could eventually come about, but whether Quebeckers still want to be part of Canada." When Mr. Justice Robert Lesage then ruled that the draft bill "constitutes a grave threat to the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms," is "manifestly illegal" and "The court cannot condone a violation of the constitutional order," Mr. Chrétien lay low and refused to comment, saying that it was "hypothetical."
Mr. Chrétien, after the 1995 referendum, finally sent a reference to the Supreme Court on the legality of secession. The court replied that secession was not a right, but it could be carried out legally by amending the Constitution, following a negotiated agreement in which the rights of all were respected and which would establish the frontiers of ex-Quebec. If the negotiations failed, Quebec would not be legally authorized to secede.
The court's opinion made obvious that secession, legally enacted, would be most unlikely. No Quebec government would accept a negotiated agreement that gave aboriginals the choice to go with Quebec or remain with Canada. Yet, any agreement without that clause would betray Ottawa's fiduciary responsibility for aboriginals and their lands. So, from the start, the government of premier Lucien Bouchard asserted it would not be bound by the Supreme Court's terms, reserving the option to separate unilaterally, just as Mr. Parizeau had done before and Bernard Landry did this very month.
The Chrétien government passed the Clarity Act, which set conditions for Ottawa to negotiate secession. But the act failed to deal with the most likely scenario: a unilateral declaration of independence. And both the Chrétien and Martin governments refused ever after to defend the act in Quebec, where all the debate is carried out, as if the Supreme Court had not spoken and the Clarity Act did not exist.
This month, the Parti Québécois published a study of the supposed financial situation of an independent Quebec -- which hypothesizes that Quebec will become independent following a referendum as easily as it changes government following elections. The only difference will be that Quebec is independent and richer than before.
The country's best newspapers misrepresent the court as saying that Quebec has a right to secede if the question is clear and the answer also clear. And so public opinion is grievously misled on an issue that threatens Canada's very existence, as well as its peace, order and good government. Jean Charest defends before the Quebec Court of Appeal Quebec's Bill 99, which asserts Quebec's right to secede unilaterally, with its territory intact. And the federal government is too nice, too Canadian, to say out loud that it will defend the constitutional order, that a unilateral declaration of independence would violate the rule of law and is out of the question.
Where is Pierre Trudeau when we need him?
William Johnson, political analyst for CPAC, was president of Alliance Quebec from 1998-2000. He covered the 1980 referendum for The Globe and Mail, and is author of A Canadian Myth: Between Canada and the Illusion of Utopia.