COURT LOSS IS A WIN
Keith Henderson may have lost his court challenge against Bill 99, but Justice Claude Dallaire’s nuanced decision Thursday in the long-running case ultimately leaves him a winner. It allows just about everyone else to declare victory, too.
The law, enacted in 2000 by the Parti Québécois government of the day, asserted Quebecers’ right to determine their future. Underpinning Henderson’s challenge was the concern that certain articles might be used as a springboard to a unilateral declaration of independence (UDI).
Dallaire basically ruled that the law was constitutional because it does not serve as any such thing, nor was it intended to. Rather, she noted, it merely affirmed Quebec’s existing rights and jurisdictions in response to what was perceived as an encroachment by the federal Clarity Act; it was a political cry of “Maîtres chez nous.” As was made clear by the Supreme Court of Canada’s 1998 reference opinion, a referendum victory (with a clear majority and clear question) could be only a first step toward secession, and a UDI without prior negotiations with Quebec’s partners in Confederation on the terms of secession would be illegal.
Indeed, while not itself heading into any such discussion, the judgment serves as a reminder that any such negotiations would almost certainly be complex and acrimonious.
Fortunately, however, support for secession is low these days. Quebec governs its own affairs in a broad range of areas and is flourishing within Confederation. If the court had seen fit to strike down Bill 99, sovereignists would no doubt have set about fanning flames of outrage. Happily, we are spared that trip to the dentist.
For their part, nationalists seem to feel vindicated by the court’s upholding of Quebec’s law. The head of the Société Saint-Jean-Baptiste de Montréal declared victory and called it a historic decision on the right of self-determination of the Quebec people. The decision in fact declines to answer the question of whether Quebecers constitute a people in the legal sense, something that could be used to argue a right to self-determination in international law. And while it accepts a 50 per cent plus one vote as the normal way of deciding referendums, it makes clear that such a win would not be sufficient legally to bring about independence — or even require the Quebec government to move in that direction.
Bottom line is that Thursday’s judgment changes nothing: Bill 99 stands, as do the Clarity Act and Supreme Court opinion, which of course were not at issue here. Still, it provides a welcome reminder that a UDI in the absence of prior negotiations would be illegal.