This article was originally published in Maclean's Magazine on March 2, 1998
Quebec Strategy Suffers Setback
It was the moment when a bad week for the Liberal government's Quebec strategy got worse. After three days of hearing dry legal arguments, Chief Justice Antonio Lamer began Day 4 by injecting some tough political considerations into the Supreme Court of Canada's hearings on the so-called Quebec reference case. What would happen, he asked, if after a vote to separate, Quebec and the rest of Canada came to an impasse over the terms of secession? Or what if Ottawa and the other provinces refused to negotiate at all? What about the rights of Quebec aboriginals? These and other hard questions knocked the federal legal strategy off the rails. In asking the court to rule on whether Quebec can secede unilaterally, the government had hoped for a decision based only on legal principles. Lamer's queries served notice that the court plans to consider political realities, too. "The judges seem to be justifiably frustrated with some of the narrowness in the way the federal government has put the case," said University of Toronto law professor Robert Howse.
While the federal lawyers faced strong-willed judges at the Supreme Court, their political bosses were under a different sort of pressure two blocks east along Wellington Street on Parliament Hill. Not since the darkest days of the 1995 referendum campaign has Prime Minister Jean Chrétien's strategy for keeping his home province in Canada come under such sustained attack. Chrétien's tacticians already knew some leading Quebec federalists opposed their decision to seek a court ruling that Quebec cannot secede unilaterally. But bitter criticisms from Quebec Liberal Leader Daniel Johnson and federal Tory Leader Jean Charest took them by surprise. The Bloc Québécois exploited the discord in the federalist camp by pouncing. In the House, a grim-faced Stéphane Dion, minister for intergovernmental affairs and Chrétien's point man on the Quebec question, could only hope the legal substance of the case would outlast the political uproar. "After the sound and fury of the Bloc has died down, the arguments will still be there," Dion said. "And Quebecers will hear them."
But they will not hear exactly the arguments Dion had in mind. The government's lead lawyer, Yves Fortier, pleaded with the court to assert simply that the Constitution of Canada would continue to apply even if Quebecers voted to separate. Under the Constitution's amending formulas, for instance, that could mean unanimous provincial consent is needed for legal secession. Lamer's questions, however, pushed beyond the government's narrow requests to broader political questions - including aboriginal rights and even the possible partition of Quebec. "The court is almost certainly not going to decide this case on the basis of technicalities," Howse said. On the other hand, there is little chance the court will accept the Quebec government's view that separation is a matter of pure populist politics in which the courts have no say. Beyond that, a wide range of nuances are possible in the judgment, expected to be rendered no earlier than June.
Still, Liberal officials say they are confident almost any decision will ultimately strengthen their hand - by showing that the result of voting to separate could involve complex and potentially divisive matters such as negotiations with minorities, or an impasse with the federal government over the financial terms of secession. "We never believed the impact of the reference was going to be in the week the court was hearing the case," said a senior official in the Prime Minister's Office. "But during the next referendum campaign, when Quebecers go to vote, they are going to know the consequences of a Yes vote. And that will cause them to think twice." For now, though, it may be federal Liberals who are rethinking their approach. One aide to a federal cabinet minister from Quebec, who asked not to be named, said the government should have come up with a more aggressive strategy for explaining to Quebecers its reasons for making the reference to the court.
In the province, pundits were heaping criticism on Ottawa's strategy. "The Supreme Court isn't the place to resolve these purely political problems," declared Alain Dubuc, the editor-in-chief of Montreal's La Presse, who accused the Chrétien government of tossing the court a "ticking time bomb." Other critics said the case will only help Bouchard build momentum in a run-up to a provincial election later this year. "Quebecers see the Supreme Court reference not as an opportunity to clear up the legal consequences, but as a play by the federal government to use the court politically to block those who want to allow people in Quebec to choose their own future," said Charest. "That's the hot button Lucien Bouchard is hitting."
Making the political case for referring the issue to the court is no easy task. At the start of his presentation, Fortier took pains to emphasize that the federal government was not challenging Quebecers' right to pronounce on their future or hold a referendum. All Ottawa wants the court to decide, Fortier said, is that any political choice must be exercised within the existing constitutional rules. But that is a subtle point compared to Bouchard's fiery rhetoric about Ottawa attempting to undermine Quebecers' freedom to choose. According to Desmond Morton, the director of McGill University's Institute for the Study of Canada, Bouchard's appeal to the democratic will of Quebecers over the fine points of constitutional law is bound to find a ready audience. "Quebecers hate the message that they have no right to decide their own future," says Morton.
How long Bouchard can ride the wave of indignation generated by the case remains to be seen. His government showed more signs last week of trying to consolidate its support in anticipation of an election, widely expected by fall at the latest, which would be four years into its mandate. Among other moves, it injected $15 million into the health-care system after an outcry over hospital overcrowding. But with the court not expected to rule for several months, and some observers predicting a nuanced decision that will quell at least some of the outrage in Quebec, Bouchard's best opportunity for maximum impact from the issue may be a spring vote, before the decision is rendered. So far, the Parti Québécois appears to have public opinion on its side. A recent poll showed 70 per cent of respondents thought Quebecers' referendum votes should prevail over a Supreme Court ruling. Still, the case did not dominate Quebec's popular radio call-in shows or nightly newscasts. In fact, much of the noise generated against the reference likely came straight from voters already committed to the separatist parties. The PQ staged a protest rally last Friday night in Montreal before its weekend meeting, and the Bloc held a flag-waving demonstration in front of the Supreme Court last Monday.
On the federal scene, the Quebec reference has already had what looks like a lasting impact. With the Reform party supporting the government's decision to put the secession issue before the court and the Conservatives staunchly opposed, the question has put another nail in the coffin of the "unite the right" movement. But the most bitter personal exchange on the issue was between Chrétien and Charest. "Someone who believes in Canada should not vote with those who want to break up Canada," Chrétien said after Charest's Tories voted in favor of a Bloc motion asserting the right of Quebec to decide its own future. Yet Charest insisted that when it comes to another referendum, federalist leaders will close ranks, as they did in 1995. He even claimed that debate is a sign of strength on the pro-Canada side. "I think it is a very healthy situation that there are people who have different perspectives on this," Charest said.
For now, the most closely watched debate - the one among the country's top judges - is taking place in the absolute privacy of the Supreme Court's conference room. While the political bent of their questions last week suggested they will not stick to Ottawa's script for a narrow, legalistic ruling, the judges also gave the separatist side cause for concern. For instance, Quebec City lawyer André Joli-Coeur - who was appointed by the court to argue the sovereigntist point of view when the Quebec government refused to participate - faced uncomfortable questions on divisions within Quebec. Seizing on remarks from Joli-Coeur that seemed to suggest Quebec's population could be divided into various "peoples," Lamer asked: "In other words, are we talking about French-Canadian people who live in Quebec to the exclusion of all others?" Joli-Coeur promised to deliver a written argument that the right of secession belongs to the Quebec people as a whole, but that the rights of minorities in the province stop short of the right to secede. With the court plunging into such contentious issues, the political turmoil surrounding last week's hearings may merely have lit the fuse for a bigger explosion when the final judgment is delivered.
Maclean's March 2, 1998