Defending Quebec Against the Federal Government on Rules for Secession (Bill 99)

Instead of calling a fall election, the Parti Québécois government has decided, among other things, to devote resources to fighting the federal government over a court challenge to An Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the Quebec State (commonly called Bill 99), the provincial law that outlines Quebec’s rules for secession from Canada.

In October 2013, the federal government decided to intervene in Keith Henderson’s (former leader of the former English-language rights Equality Party) 12-year challenge to Quebec’s Bill 99, which sets the bar to achieve sovereignty at a simple 50-percent-plus-one majority referendum vote. Henderson claims that Bill 99, which was enacted on December 13, 2000, by Lucien Bouchard’s PQ government in response to the federal Clarity Act (which states that clear majority support on a clear referendum question would be required to trigger negotiations on secession), is invalid under the Canada Constitution Act, 1982. The Quebec Superior Court will finally hear this case on its merits on December 19, 2013.

All three opposition parties represented in Quebec’s national assembly—the Liberal Party, Coalition Avenir Québec and Québec solidaire—support the PQ position that a referendum approved by a 50-percent-plus-one vote would be valid, and further support the PQ’s decision to defend Bill 99.

Both the Clarity Act and then Bill 99 came about after the Supreme Court of Canada ruled in 1998 that Quebec could only secede legally via an amendment to the Constitution of Canada. Following the close referendum result in 1995, the government of Canada initiated a reference to the Supreme Court to question the legal issues surrounding unilateral secession. The Court ruled that a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize. However, it will be for the political actors to determine what constitutes “a clear majority on a clear question” in the circumstances under which a future referendum vote may be taken.

Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. Quebec cannot, despite a clear referendum result, invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The vote would have no legal effect on its own and could not push aside the unwritten principles in the other provinces or in Canada as a whole. Any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order.

The Court did not address the complex procedures of eventual negotiations. It did specify, however, that the negotiation process would require the reconciliation of various rights and obligations “by the representatives of two legitimate majorities, namely, the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be.”

Despite the Supreme Court decision, the government of Quebec claims that international law would prevail over Canadian law in the event of a unilateral declaration of independence, thus stripping the Canadian government of its ability to conduct its own evaluation of Quebecers’ preferences.

A year after Bill 99 came into force, Henderson began his attempts to show that the Quebec national assembly and the people of Quebec do not have the authority to change the regime and legal status of Quebec by themselves. Henderson argues in particular that sections 1, 2, 3, 4, 5 and 13 of Bill 99 are contrary to the procedures for amending the Constitution of Canada as provided in the Constitution Act, and the government may not rely on a 50-percent-plus-one-vote to declare Quebec’s independence from Canada.

The federal government submitted in Henderson’s case that Bill 99 does not provide the legal basis for a “unilateral declaration of independence by the [Quebec] government.” The federal government’s position supports Henderson’s argument that “the contested provisions in Bill 99 should be declared invalid or, alternatively, understood in such a way as to be consistent with the Constitution.”

Thus, the government of Quebec is certainly free to use its parliamentary majority to have the national assembly adopt a referendum question drafted by the government, and then to put that question to Quebec voters. But the government of Canada also has the duty to perform its own evaluation of the clarity of the question and the majority, before concluding that it is bound to negotiate the break-up of Canada.

The federal government’s duty is much broader than that, however. The government must uphold the Constitution, and as a result, had no choice but to intervene in Henderson’s constitutional challenge of Bill 99. At the same time, the federal government’s legal opinion is not necessarily the same as the Supreme Court’s opinion, and this case will almost certainly head to the top court eventually. It might even take another 12 years.

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