Court upholds Quebec law on self-determination

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 ...”

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. With support for sovereignty well below 40 per cent in polls, and the opposition Parti Québécois ruling out another referendum should it win the October election, the court ruling will not generate the same excitement in Quebec it once would have.

But the nationalist Société Saint-Jean-Baptiste, which intervened in the case in defence of Bill 99, was quick to seize on even the faintest glimmer of hope.

“In the history of this country, our victories have been rare,” Maxime Laporte, the organization’s president, said. “Today, we the Quebec people have won, in a certain way.” A woman proudly holds a Quebec flag during the annual Saint-Jean-Baptiste Day parade in Montreal.