Court upholds Quebec law on self-determination

But can’t be used to unilaterally secede, court says

MONTREAL • With Bill 99, an “Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the Quebec State,” the Parti Québécois government of the day set out to show Ottawa who was boss.

Then-premier Lucien Bouchard likened it to “a bill of rights for Quebecers” when it was adopted in 2000, and the lofty preamble was longer than the body of the law.

Bill 99 declared that the Quebec people alone would decide how to choose the province’s political regime and legal status. A majority of 50 per cent plus one would suffice for victory in a referendum, it said. No other government could “impose constraint on the democratic will of the Quebec people to determine its own future.”

Coming five years after the narrow federalist referendum victory in 1995, and just months after Ottawa’s Clarity Act had set ground rules for future referendums and secession negotiations, Bill 99 was seen by critics as affirming a unilateral right to secede.

Keith Henderson, leader of the anglophone-rights Equality Party, advised the government during hearings on the bill that it would see him in court, and in 2001 he followed through on his threat.

On Thursday, 17 years later, the Quebec Superior Court rejected Henderson’s bid to have Bill 99 declared unconstitutional. In a 101-page decision, Justice Claude Dallaire ruled that Henderson’s concerns were reasonable; his mistake was to take the legislation’s rhetoric literally.

Combined with the “sovereigntist” undertones of the preamble, the law’s assertion of “the right of the Quebec people to self-determination” leaves the impression “that this law could a priori lead to a unilateral secession of Quebec from the rest of Canada, based on a simple declaration without other formalities,” Dallaire writes.

“Swallowed whole, it is exciting for the sovereigntists but hard to digest for those who wish to remain within the Canadian federation.”

The judge quickly points out there is plenty of reason not to take Bill 99 that seriously. For one thing, the text never refers directly to secession, so it cannot be seen to establish a right to secede.

More importantly, Quebec remains subject to the Canadian Constitution and the final word on the matter remains the 1998 Supreme Court reference, which said a province could not secede unilaterally. Quebec lawmakers’ assertion in Bill 99 of a right to self-determination “founded in fact and in law” does not create a unilateral right to secede, Dallaire writes.

The ruling swats down any hardline sovereigntist hopes of being able to separate without negotiating with the rest of the federation, but it will likely comfort those in Quebec who viewed the Clarity Act as an attack. The federal bill said Ottawa would only negotiate following a Yes vote that received a clear majority on a clear question.

Dallaire says a majority of 50 per cent plus one has been the norm in previous referendums in Canada, so “there is nothing new under the sun” in Bill 99’s affirmation that a simple majority would suffice for a future sovereignty vote.

She notes that the Supreme Court specified that it would be up to “political actors” and not the courts to decide what constitutes a clear question and a clear majority. But she says there is nothing unconstitutional about Quebec not wanting “anyone looking over its shoulder or holding its hand and telling it how it will hold the provincial referendum on the next secession project ...”

Henderson, whose Equality Party no longer exists, said he will take time to analyze the decision before responding. Requests for comment from the federal Justice Department and the provincial Minister of Canadian Relations were not immediately returned.

Ottawa had intervened in the case in 2013. In its arguments before the court, the federal Attorney General said Bill 99 “does not and can never provide the legal basis for a unilateral declaration of independence.” The Quebec Attorney General defended Bill 99, arguing that it was never intended to allow a unilateral declaration of independence.

The case has dragged on so long because it went to the Court of Appeal three times on preliminary matters.