Bill 99: secession on trial

By WILLIAM JOHNSON
G&M Thursday, March 21, 2002 – Page A17

Courtroom drama? Hardly. Rather a ponderous trial the press didn't cover. Yet no event in Canada last week matched its importance.

On Wednesday, Thursday and Friday, lawyers attacked and defended in Quebec Superior Court the Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Quebec People and the Quebec State. Or, as I call it, Quebec's blank cheque for secession.

This was Lucien Bouchard's riposte in opposing Ottawa's Clarity Act, which set conditions to negotiate if Quebec held a referendum on secession. Mr. Bouchard called on the province to rise in protest against the presumption that Canada had a voice in whether and how Quebec seceded. But, despite flamboyant oratory and paid campaigns, the fuse fizzled. Mr. Bouchard, disheartened, especially when the offending Liberals actually picked up Quebec seats and votes in the election that year, soon abandoned public life.

But the law is on the books. It enshrines such claims as these: "The Quebec people has the inalienable right to freely decide the political regime and legal status of Quebec. The Quebec people, acting through its own political institutions, shall determine alone the mode of exercise of its right to choose the political regime and legal status of Quebec."

On behalf of the Equality Party and its leader, Keith Henderson, lawyer Brent Tyler argued that the law violated the Constitution and that there was no "Quebec people" to found the rights claimed by the law. "My client [Mr. Henderson] asserts membership in the Canadian people. He denies the existence of a Quebec people for the purposes of self-determination. There are many peoples inhabiting the territory of Quebec and all of them enjoy the right to self-determination. And as a matter of fact, they exercise the right to self-determination in Canada as a whole."

Lawyers for the Quebec government argued that Mr. Henderson and his party had no standing to challenge the law and that the action was politically inspired rather than juridically founded. Their claim to be damaged by the act was only theoretical since there was no secession referendum on the horizon.

The government lawyers defended the act as a legitimate exercise of Quebec's jurisdiction under Section 45 of the Constitutional Act, which says that, subject to the restrictions for amending the Constitution, "the legislature of each province may exclusively make laws amending the constitution of the province." They moved that the court throw out the action to have the act declared unconstitutional.

Interestingly, Ottawa sent two top Department of Justice lawyers to oppose Quebec's motion to have the action declared "non-justiciable." The federal government had been cited by Mr. Tyler as a third-party defendant in the case, and lawyer Warren Newman told the court that the federal government appeared not to attack the act but to attack the claim that the act was beyond the purview and jurisdiction of Quebec Superior Court.

In fact, though, he delivered a full-scale attack on the constitutionality of the act itself. He also quoted Joseph Facal, the minister who had piloted the bill through the National Assembly, who had said the bill must not be subordinated to the judgment of the Supreme Court, to the Constitution or to its amending formula.

The trial lacks sex appeal. But if the attack on the act succeeds, it could destroy once and for all the easy illusion that Quebec could separate without the consent of Canada. wjohnson