New Democrat MP Craig Scott tabled Monday what his party is dubbing the "unity bill."
The bill would repeal the Clarity Act — introduced by former Liberal prime minister Jean Chretien after Quebecers came within a hair of voting to secede in 1995 — and replace it with legislation which Mulcair maintained would provide more certainty and be more respectful of Quebecers.
Its introduction Monday was designed to counter a Bloc Quebecois motion calling for a total repeal of the Clarity Act.
"Instead of playing the games that the Liberals have always sought to play with this file and dropping us into the void as the Bloc would do, we're proposing something constructive that is a positive way forward," Mulcair said.
Based on advice sought from the Supreme Court, the Clarity Act spells out that a clear majority of Quebecers would have to vote Yes on a clear referendum question before the federal government would agree to negotiate terms of a divorce.
The act, passed in 2000, does not specify what would constitute a clear majority.
At the time, Chretien and his intergovernmental affairs minister, Stephane Dion, argued that the imprecision was necessary, giving parliamentarians the flexibility to take into account all the factors surrounding the referendum, including voter turnout and whether there had been any irregularities in the vote.
Moreover, they maintained that something as fundamental as the breakup of the country should require more than a simple majority.
By contrast, the NDP's unity bill specifies that Parliament must be satisfied the referendum question was clear and that there were no "determinative irregularities" in the vote, including in the balloting, counting of votes, transmission of results and spending limits.
Provided those conditions were met, the bill says a vote of 50 per cent plus one would enough to trigger negotiations.
The NDP bill goes further than the Clarity Act in spelling out what would constitute a clear question, offering two examples: "Should Quebec become a sovereign country" or "Should Quebec separate from Canada and become a sovereign country." Wording agreed upon by both the federal and provincial government would also be acceptable.
Should the question be deemed insufficiently clear, the bill would require the federal government to refer the matter immediately to the Quebec Court of Appeal, which would have the final say.
Mulcair argued that 50-plus-one is a widely accepted threshold for victory, used in both the 1980 and 1995 referendums on Quebec independence and adopted by the United Kingdom for the upcoming vote on Scottish independence.
"No one ever questioned the fact that the side that wins, wins.... No one questions this."
He said the Clarity Act's failure to nail down a threshold reflected a "fairy tale told by Liberals, who almost lost the country in '95 who were trying to convince Canadians somehow that they can just throw out any result that they don't like without ever putting in a number."
In its advice to the government, the Supreme Court said both the referendum question and the result must be "free of ambiguity." It did not specify an appropriate threshold, leaving that to the political actors, but the justices did indicate repeatedly that they had something more than a bare majority in mind.
At one point, they noted: "Canadians have never accepted that ours is a system of simple majority rule."
Clarity author Dion called the NDP's bill "half-baked," arguing that it's inconsistent with both the top court's advice and with the party's own Sherbrooke Declaration, which until now has been the NDP bible on the national unity question.
Whereas Sherbrooke leaves the impression that it's entirely up to the Quebec government to decide the referendum question, Dion said the bill goes much further than the Clarity Act in dictating what the question should be.
And, in allowing the Quebec appeal court to have the final say on the question, Dion said the bill contradicts the Supreme Court, which said that is strictly a political matter. It also ignores the top court's recommendation that politicians should wait until after a referendum vote to pass judgment on the clarity of the result, he said.
Dion said the NDP — which requires a two-thirds vote to change its own party constitution while deeming 50-plus-one sufficient to break up the country — would make Canada's future dependent on a judicial recount.
In any vote, there's simply no way to ensure that every ballot cast is done so legitimately or counted correctly, Dion argued. While that isn't the end of the world when it comes to electing an MP, who will sit for only four years, he said it's "absurd" to apply the same standard to a vote on the fate of the country.