In January the NDP leadership candidates held a debate in Montreal in which every one of them refused to support the federal government's Clarity Act. Furthermore, they made known their support for their party's official policy, called the Sherbrooke Declaration, which mandates a 50% plus one vote in a separation referendum as sufficient for Quebec to declare independence. As the NDP states in the very first paragraph of the Declaration, the NDP aspires to one day form the government of Canada and this is the document that the NDP has put forward to dictate their actions in response to a "yes" win.
It is important to note that independence by Quebec in such circumstances would not only fly in the face of the Clarity Act but stand in opposition to the amending formula of the Canadian Constitution which would require at the very least agreement to separation by the parliament of Canada and, at most, all provinces. There is also the question of adhering to international law as well.
However, the most critical part of the Sherbrooke Declaration (from page 8) which, taken with the rest of the document, enables a unilateral declaration of independence by Quebec, was never brought up. It reads:
""According to its values, the NDP rejects also any use of -- or threat of -- force against Quebec at any stage. Our vision is one of trust toward democracy, good faith and values of peace."
It is often uncomfortable to discuss in polite company but the use -- and threat -- of force by the state is the ultimate factor upon which rests our ability to uphold the rule of law. In the absence of any challenging authority, Quebec would be free to declare independence unilaterally. Indeed, the NDP policy renders impotent the powers the Prime Minister's office has at its disposal. I refer specifically to the provisions of the National Defense Act which provides the Prime Minister with the power, at his discretion, to deploy the Canadian armed forces within Canada for "emergency", "the defense of Canada" and "the national interest".
One must ask whether a Prime Minister Thomas Mulcair would, in upholding his party's policy, violate his oath of office which reads as follows:
"I, Thomas Mulcair, do solemnly and sincerely promise and swear that I will truly and faithfully, and to the best of my skill and knowledge, execute the powers and trust reposed in me as Prime Minister, so help me God."
What exactly is the "trust" that the Prime Minister vows to truly and faithfully execute to the best of his skill and knowledge?
Above all else, I believe that trust is to uphold the Constitution of Canada and the rule of law. It is also clear from the Supreme Court Reference case, the Clarity Act, and the constitution's amending formula (not to mention international law) that a UDI by Quebec would be unconstitutional and outside the rule of law. This is particularly true for a UDI following a referendum result close to a 50% outcome.
Is it not reasonable to assume that the Prime Minister must, as the Oath stipulates, use all of the powers reposed in him to uphold the constitution? I believe it is incumbent upon any person aspiring to become Leader of the NDP to clarify his or her position vis a vis the use of force by the Canadian Government in the event of a UDI and, if different from the Sherbrooke Declaration, to state that differing position.
As the NDP leadership race winds down, I urge all candidates to rethink their positions on this most vital issue of national interest. I invite all the candidates to visit the Facebook page I have set up specifically for this purpose and to register their positions so that all Canadians may know where they stand.
Tony Kondaks is the author of Why Canada Must End which can be read in its entirety online.