PM applauded for taking on Bill 99

Finally, someone is defending the constitution, writes William Johnson,

At last. A prime minister of Canada defends the constitutional order against Quebec’s revolutionary claim that it can secede unilaterally, on its own terms. Unheard of since Pierre Trudeau left the scene.

Friday, the news filtered out that the federal government had, Wednesday, intervened in a court challenge launched by private citizens against Bill 99, passed by former premier Lucien Bouchard, decreeing that Quebec can secede at will, its present territory intact, with just 50 per cent of the votes plus one, in a referendum where Quebec alone sets the rules.

As Maclean’s columnist Paul Wells revealed, the federal government argues in a submission to Quebec Superior Court that Bill 99 is unconstitutional. As the news spread, all of Quebec’s political party leaders circled the wagons, indignantly defending the indefensible.

Intergovernmental Affairs Minister Alexandre Cloutier called it “a hypocritical affront” and summoned Ottawa to withdraw the challenge. He hopes to have the National Assembly pass an all-party unanimous resolution defending Bill 99 and denouncing the federal government.

Coalition Avenir Québec leader François Legault denounced “the federal government’s intrusion into Quebec’s democratic process.” Françoise David, co-leader of Québec Solidaire, summoned Stephen Harper to butt out of Quebec’s “inalienable right to self-determination.”

Quebec Liberal Leader Philippe Couillard insisted that “the future of our people will always be decided by the Québécoises and Québécois.” That echoes Jean Charest’s constant position that secession is entirely Quebec’s business. During the 1998 Quebec elections he declared: “I remind you that, in the House of Commons, I rose with the MPs of my caucus to vote for a resolution moved by the Bloc Québécois which said that Quebec alone has the right to decide its future. I said that, out of conviction, because that’s what I believe.”

As premier, Charest defended Bill 99 before Quebec Superior Court when it was challenged by former Equality Party leader Keith Henderson, McGill law professor Stephen Scott and lawyer Brent Tyler. Bill 99 manifestly repudiated the Supreme Court of Canada’s ruling, in the secession reference, that Quebec could only secede legally via an amendment to the Constitution, itself requiring the consent of Parliament and at least seven provinces.

But Jean Chrétien and Stéphane Dion subverted the court’s statement by diverting attention from constitutionality to focus on “clarity:” what do Quebecers really want?

On the day of the court ruling, Dion issued a ministerial statement that contradicted what the court had said: “The citizens of Quebec … have obtained the assurance that they will not be held in Canada against their clearly expressed will.”

That had been Dion’s position before and after he joined the federal cabinet. He maintained it after the court had shown it to be constitutionally untenable. The court had, indeed, said that a referendum on secession must entail a clear question and a clear answer. But that wasn’t the heart of the matter, just the condition for democratic legitimacy to kick in. It did not supplant the rule of law or the rights of other members of the federation.

Chrétien, even while sending the reference to the Supreme Court, reassured his ministers and the public that Quebecers could secede if they really wanted to. As he recalled in his memoirs, My Years as Prime Minister, he told his cabinet: “Our message has to indicate that if a clear majority of Quebecers vote on a clear question to leave Canada, the country will not be held together by force.” By force? No, by law.

Their equivocation undermined the Supreme Court’s ruling. Quebec’s leaders have never recognized it because Chrétien and Dion assured Quebecers that they can separate at will. The Clarity Act is also spurned as mere wishful thinking. That’s the Chrétien-Dion legacy.

In 1996, the Commons gave first reading to Bill C-341, the Quebec Contingency Act (Referendum Conditions), introduced by then-Reform MP Stephen Harper. Section 8 stated in part: “A unilateral declaration of independence by the government of Quebec or the legislature of Quebec, or the refusal of either to submit to any Canadian law that applies in Quebec is unlawful and of no force and effect with respect to the Constitution of Canada and the general laws of Canada …”

That bill, never passed, mirrored more closely the Supreme Court’s 1998 ruling than would the Clarity Act. In 1995-96, Harper, unlike Jean Chrétien or Preston Manning, already understood that a modern liberal society can stand only on the rule of law. Populist votes in one part of the country cannot overthrow the Constitution or remake the country.

In 2013, Harper, now prime minister, understands the reckless irresponsibility of Quebec’s consensus on Bill 99. It stands on two myths: that Quebec has a right to secede unilaterally, and that the Government of Canada would never dare to uphold the Constitution. By attacking Bill 99 in court, Harper is about to prove that both assumptions are wrong. At last.