«« Loi 99

Turning a blind eye to treason

Hey, Canada, wake up. Hey, federal Justice Minister Martin Cauchon, mayday! M'aider!

Last week, Mr. Justice Michel Côté of Quebec Superior Court delivered a judgment that should trigger alarm across the country and arouse the guardians of peace, order and good government.

His judgment was widely taken as upholding the constitutionality of Quebec's Bill 99. That law, passed in 2000, claimed the right of Quebec to secede unilaterally after a referendum "won" with 50 per cent plus one vote, on a question and by a process set by Quebec alone.

Then premier Lucien Bouchard passed the law to counter the Supreme Court of Canada's advisory decision of 1998 that Quebec does not have a right to secede unilaterally, under neither Canadian nor international law. Quebec could only secede legally by an amendment to the Constitution. The federal government followed up with the Clarity Act, which set the conditions for Ottawa to be authorized to negotiate a deal on secession.

The Quebec law flatly counters both the Supreme Court's conclusions and the Clarity Act, consistent with its government's repeated insistence that it will not be bound by the court's decision, but only by a referendum.

Lawyer Brent Tyler, acting for the Equality Party and its leader, Keith Henderson, challenged the constitutionality of Bill 99 in Superior Court. Quebec countered with a motion to dismiss the challenge on several grounds. Judge Côté agreed with the government and threw out the case.

What is of concern is that his decision has been broadly taken to assert the constitutionality of Bill 99 and to confirm that Quebec's secession is a political issue only, one of no concern to the courts. In other words, both the Supreme Court's decision and the Clarity Act are taken to be repudiated.

This was the interpretation of Quebec Justice Minister Paul Bégin. He insisted the judgment meant that secession was not subject to the court's scrutiny. "We have a judgment which says that, indeed, this question is not justiciable. These are questions which belong to the political arena." He also dismissed the significance of the Clarity Act: "It's the expression of political opinions of the federal government."

A similar interpretation was conveyed last Wednesday by the news report in The Globe and Mail: "Quebec sovereignty and the right of its citizens to determine their political future are not matters for the courts to decide, according to a landmark ruling by Quebec Superior Court," wrote Rhéal Séguin.

Before the 1995 referendum on secession, Prime Minister Jean Chrétien and then justice minister Allan Rock put the country in jeopardy by refusing to defend the constitutional order, threatened by then premier Jacques Parizeau's determination to secede unilaterally if he "won" the referendum by a single vote. Only luck saved us from a ruinous crisis.

Quebec's Bill 99 is a land mine waiting to explode. Again, the Prime Minister shows the same complacency, the same reluctance to defend the constitutional order.

He can protect Canada and his own legacy by following one of two courses: refer Quebec's seditious law to the Supreme Court of Canada, or actively join and fund appeals of Judge Côté's judgment all the way to the Supreme Court. Private citizens have done what they can.

To do nothing would be turning a blind eye to treason.
wjohnson@globeandmail.ca