An election is to be held in Quebec this October, and in 2019 there will be a Canadian federal election. While many may have thought that the question of Quebec's political status within Canada is settled, a recent judgment of the Quebec Superior Court, which is under appeal, has brought the whole issue back to the forefront.
Let's first of all recap some of the facts. On August 20, 1998, following a reference by the Governor in Council in the aftermath of the 1995 Quebec referendum, the Supreme Court of Canada rendered an Advisory Opinion1 on the issues associated with the possible secession of Quebec from Canada. The Court found that in a referendum, a clear majority vote by Quebecers on a clear question in favour of secession would confer democratic legitimacy on the secession initiative. The federal government and the other Canadian provinces would then be obliged to enter into good-faith negotiations with Quebec.
On June 29, 2000, a statute entitled An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference2, also known as Bill C-20, was assented to. Bill C-20 gives the federal Parliament the right to review the clarity of the referendum question proposed to the Quebec electorate, and to decide on its legitimacy, even before its adoption by Quebec's National Assembly. It also gives Parliament the power to determine, after the fact and as it sees fit, the required threshold for the requisite majority, since "democracy means more than simple majority rule"3.
On December 7, 2000, in response to what it termed an unacceptable intrusion by the federal government into Quebec affairs, Quebec's government proceeded to adopt a declaratory statute, i.e. the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State4, commonly referred to as Bill 99. On that date, in a speech before the National Assembly, then-premier Lucien Bouchard stated: "I would feel I was betraying the memory and actions of my predecessors if this government were to submit to the yoke of Bill C-20"5.
On April 18, 2018, Madam Justice Claude Dallaire of the Quebec Superior Court rendered a lengthy judgment on the constitutional validity of Bill 996, 17 years after proceedings were instituted. For it was only after six years of procedural delays that the applicant for a declaratory judgment obtained, in 2007, a decision of the Quebec Court of Appeal referring his motion back to the Superior Court after having struck out six of the conclusions it sought7.
The applicant, Keith Owen Henderson, former head of the Equality Party, challenged the constitutional validity of Bill 99. He alleged that by adopting Bill 99, the Quebec government sought to give itself the unilateral right to secede without having to negotiate with the rest of Canada, and overrode the amending formula provided for in the Canadian Constitution. He also sought to have the adoption of Bill 99 declared ultra vires the National Assembly, as the statute had effects beyond Quebec, while a province only have the power to amend its own internal constitution.
Following a detailed analysis of the context and of the legislative intent of the Quebec government in adopting Bill 99, Justice Dallaire rejected all of the conclusions sought in the applicant's motion for declaratory judgment. She concluded that Bill 99 was entirely valid constitutionally, as the National Assembly had the constitutional jurisdiction to adopt it8. Nor, she found, did Bill 99 infringe any provisions of the Canadian Charter of Rights and Freedoms9.
Justice Dallaire repeatedly stated that Bill 99 is merely a declaratory law aimed at reaffirming what is already extant and known. The ultimate goal of the law is to consolidate the principles underlying Quebec's democracy in a single statute intended to send a clear message to the federal government, i.e. we are "Maîtres chez nous – masters of our own destiny"10.
She affirmed that the fact that nowhere in the statute is there a reference to a "unilateral" secession or one "without prior negotiations" clearly indicates that these were not the objectives sought by the Quebec legislature. And since "parliament does not legislate in vain" the judge stresses that the contrary certainly cannot be inferred11. The use of robust terms such as "the Quebec State" or the "Quebec people" merely reflects a policy priority of the Quebec government and in any event, they are far from being novel in Quebec legislation12.
She adds that certain provisions of the statute, such as section 1, may give a reader pause when read individually13. However, when they are considered in the context of the parliamentary debates, the act's preamble and its other provisions as a whole, it cannot be concluded that Bill 99 is intended to achieve the objective imputed to it by the applicant14.
As the judge herself notes15, this momentous decision will almost certainly be appealed, and this was confirmed recently by the applicant. It is interesting to note however that the federal government has indicated it is satisfied with the judgment of the Superior Court and does not intend to support Mr. Henderson's appeal.
Quebec's ability to retain freedom of choice regarding its future political status thus remains highly topical.
Written in collaboration with articling student Laurence Angers-Routhier.
Footnotes
1 Reference re secession of Quebec, [1998] 2 S.C.R. 217
2 S.C. 2000, c. 26
3 Ibid.
4 CQLR c. E-20.2
5 Journal des débats (Hansard) of the National Assembly of Québec, 1st session, vol.36, no.149, Thursday December 7, 2000
6 Henderson v. Procureure générale du Québec, 2018 QCCS 1586
7 Henderson v. Québec (Procureur général), 2007 QCCA 1138
8 Supra, note 5, paras 518, 547 and 599
9 Ibid., para. 581
10 Ibid., para. 564
11 Ibid., paras. 567 to 569
12 Ibid, paras. 335, 340 and 386
13 Ibid, para. 422 to 425
14 Ibid., para. 567
15 Ibid., para. 135
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