DE LA CLARTÉ À L’ARBITRAIRE : LE CONTRÔLE DE LA QUESTION ET DES RÉSULTATS RÉFÉRENDAIRES PAR LE PARLEMENT CANADIEN

Abstract

The Clarity Act poses significant problems, both in terms of content (its devices are imprecise, excessive, arbitrary, possibly against the political equality of each voter…), and in terms of how it was adopted. Enacted unilaterally by the federal Parliament, the act is encroaching, in some respects, on the power of provincial legislatures to organize elections and referendums held on a provincial scale and, in some other respects, on the exclusive power of the constituent to amend, in compliance with Part V of the Constitution Act, 1982, the supralegislative norms – written or unwritten – that make up the Canadian constitutional law. While several authors have criticized or praised the adoption of the Clarity Act, this study aims to challenge, not so much the political opportunity of this law, but its constitutionality. In examining the gap between the requirements mentioned by the Supreme Court of Canada in the Reference re Secession of Quebec of 1998 and those set by the Clarity Act, our purpose is to demonstrate that the amendment of the supralegislative norms set out by the Supreme Court reference belongs to the constituent power rather than the federal Parliament.