Quebec's UDI and the Supreme Court

In the determinedly dry language of the Supreme Court of Canada, it is simply the "reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada.

Quebec's UDI and the Supreme Court

In the determinedly dry language of the Supreme Court of Canada, it is simply the "reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada." But when the nine judges hear that case next week, wading through hotly competing assertions and highly selective citations from 16 parties, they will be pondering the partial dissolution of the very nation. An overview of this extraordinary case and its implications for all Canadians:

THE ISSUES

In September, 1996, the federal government asked the Supreme Court for its opinion on three narrow questions:

Can the Quebec government, its assembly or its legislature secede unilaterally from Canada under the Constitution?

Does it have the right to secede unilaterally under international law? Does international law include a right to self-determination that would permit Quebec's unilateral secession?

If there is a conflict between international and Canadian law over Quebec's right to secede unilaterally, which takes precedence in Canada?

Those deceptively simple questions have provoked explosive debates within Quebec and across the nation. Quebec nationalists have maintained for decades that the province can declare independence unilaterally following a simple majority vote in a referendum - because Quebecers are a people who have the right to self-determination that, in turn, includes the right to leave the federation. After two disruptive but unsuccessful referendums, in 1980 and 1995, the federal government finally asked the Supreme Court to ponder the legality of those cherished assumptions. It is important to note, however, that the key word in every question is "unilaterally": Ottawa has not asked if Quebec can secede or how it can secede - it simply wants to know if unilateral secession is legal.

THE PLAYERS

As the leader of the federalist offensive, Ottawa tabled an 85-page brief last February, arguing that Quebec has no domestic or international right to unilateral secession. Throughout the spring, 14 additional parties jumped into the fray. Twelve intervenors, including the two territorial governments, four aboriginal groups and Montreal lawyer Guy Bertrand, maintained that Quebec cannot secede unilaterally. Two other intervenors, Montreal lawyer Vincent Pouliot and former Quebec diplomat Yves Michaud, stoutly supported Quebec's contention that it can secede unilaterally - but their arguments largely dealt with Quebec's longstanding political complaints against English Canada.

The Supreme Court was in a quandary. The Quebec government has refused to participate in the case, arguing that the judiciary cannot determine the political future of the province. To compensate for Quebec's absence, Chief Justice Antonio Lamer appointed a so-called friend of the court - separatist lawyer André Joli-Coeur - who tabled detailed legal arguments supporting Quebec's contentions last December. Seven of the intervenors, including Ottawa and Bertrand, tabled their replies to his brief last month. Joli-Coeur, in turn, replied to their replies last week with a 34-page brief that also featured a startling supplement: a supportive 13-page submission from former provincial Liberal leader Claude Ryan. In effect, the major players have held a complex debate before the case has even commenced.

THE BACKGROUND

Ottawa only resorted to the courts after the federalist forces won the Oct. 30, 1995, referendum by a whisker: 50.58 per cent to 49.42 per cent. That brush with disaster prompted federal politicians to rethink their unity strategy: many asked why Ottawa had allowed Quebec to set the rules, devise the referendum question and pronounce on the legality of its actions without any reference to the highest law in the land, the Constitution, or to international norms. Federal ministers slowly cobbled together their so-called Plan B approach: that is, they decided to outline the legal ramifications and the horrendous complications of attempted secession before it happened.

That decision followed in the footsteps of an unlikely federalist crusader, former separatist politician Bertrand. On Aug. 10, 1995, Bertrand asked the Quebec Superior Court for its opinion on proposed legislation that would allow the Quebec national assembly to proclaim unilateral independence after a successful referendum vote. He also asked for an injunction against the Oct. 30 referendum. Although Justice Robert Lesage refused the injunction, he declared that the bill was a "repudiation of the Constitution of Canada." In the wake of the referendum, Bertrand asked for a permanent injunction against any future votes on unilateral secession. Before his case could proceed to trial, Ottawa posed its queries. As a result, his case has been adjourned pending the Supreme Court's decision.

THE RISKS

The federal government has tugged the Supreme Court into a volatile and hazardous debate where each word is highly charged with emotional meaning. The situation is perhaps most perilous within Quebec, where many politicians, both sovereigntist and federalist, have long maintained that Quebecers constitute a "people" - and that each "people" has the democratic right to "self-determination," including the right to secession. In that climate, where potent words are wielded like weapons, it may be impossible to get across Ottawa's contention that it is not challenging Quebec's ability to secede: it is simply upholding the rule of law when it disputes the legality of unilateral action.

Almost every intervenor has heaped more controversy on the court's plate, posing additional, explosive questions. Aboriginal groups, for example, maintain that Quebec cannot secede without their consent - and they have urged the court to clarify their rights and their role in any future discussions. Human rights groups have pushed the court to state that if French-Canadians have the right to secede, minority groups have the right to secede from an independent Quebec.

It is easy to imagine the uproar if the Supreme Court responds with detailed pronouncements. At the very least, it could provoke charges that Ottawa - and its instrument, the Supreme Court - are blocking the democratic will of French Quebecers. It could also create impossible constitutional hurdles to legal secession, requiring the consent of so many parties that unilateral secession will be the only way to achieve change. "The federal government is looking for a way of establishing authoritatively that a unilateral declaration of independence is not legitimate and there are practical consequences that are highly undesirable," notes University of Toronto political scientist David Cameron. "It thinks it knows the answers to its questions. But judges don't just answer Yes or No: they write opinions. And those opinions can often be vexacious and difficult, enormously complicating the government's life."

THE FEDERAL ARGUMENT

Question One.

Ottawa first outlines the basic premises behind its contention that the Constitution does not permit unilateral secession: Canada is a federal state based on constitutional government - and subject to the rule of law. The courts have a duty to uphold that Constitution - and to ensure that no level of government exceeds its powers. Secession would affect the structure and scope of that Constitution - so it would require constitutional amendments.

That conclusion leads to a quandary: which amending formula from the Constitution Act, 1982, would apply? There is a general formula which requires the consent of the House of Commons, the Senate and the assemblies of two-thirds of the provinces representing at least 50 per cent of the population. Amendments concerning five key areas, such as the office of the provincial lieutenant-governor and the use of the French and English language, require unanimity. Ottawa concentrates on another formula, Section 45, which allows each province to amend its own constitution as long as those amendments do not affect the five areas requiring unanimity.

That section poses a minor problem: there is no official definition within the Constitution of what constitutes a provincial constitution. Ottawa cites copious Supreme Court rulings which indicate that Section 45 only applies to internal provincial institutions such as the civil service or any upper house. It argues that provinces cannot possibly invoke Section 45 to give themselves the exclusive power to pass all laws, levy all taxes and sign all treaties. So, it concludes, unilateral secession is unconstitutional: secession requires the consent of other governments. To the dismay of many parties, Ottawa adds that there is no need for the court to choose the formula that does apply.

THE INTERVENORS

1. Both Manitoba and Saskatchewan contend that Quebec cannot invoke Section 45 to secede, citing extensive precedents to prove that each province's right to amend its own constitution is highly restricted.

2. The Yukon Territory tartly notes that if the so-called will of the people can supersede the rule of law, no citizen will ever "know the true limits of governmental power" - because the people could decide to do just about anything in defiance of any law.

3. The Northwest Territories points out, with considerable alarm, that Quebec's proposed 1995 legislation on secession included its offshore islands in an independent Quebec. It demands that the court states clearly that Quebec cannot grab parts of other provinces and territories.

4. Four aboriginal groups with territorial interests in Quebec - the Chiefs of Ontario, the Makivik Corporation (Nunavik Inuit), the Grand Council of the Crees and the Kitigan Zibi Anishinabeg (an Algonquin Indian band) - forcefully assert their constitutional, treaty and inherent aboriginal rights to the land. Their bottom lines are clear: Quebec cannot legally secede without their consent; Ottawa has a constitutional obligation to aboriginal peoples which it must maintain even if Quebec secedes; Quebec cannot remove aboriginal lands from Canada. As the Grand Council stipulates: "The Crees reserve the right to claim a right to secede should the Cree people and Cree territory be forcibly included in a sovereign Quebec."

5. Three intervenors intercede on behalf of Quebec minority groups. Five representatives of the Montreal-based Special Committee on Canadian Unity, including federalist activist Dr. Roopnarine Singh, maintain: "It is not possible to insist that there is necessarily one, single, French-speaking people in Canada, nor even in Quebec alone." Even if there is such a group, it shares its territory with other distinct ethnic groups. As a result, it concludes: "If, in international law, Canada is divisible, Quebec is also divisible." The Ad Hoc Committee of Canadian Women on the Constitution insists that any court interpretation of the right to self-determination must explicitly affirm the right of women to participate equally in the exercise of such rights. And the Minority Advocacy and Rights Council maintains that unilateral secession would violate minority rights under the Canadian Charter of Rights and Freedoms. It could also deprive minorities of their status under such federal laws as the Immigration Act: refugee claimants, for one, could lose their legal position. As a result, if the court decides that Quebec can secede unilaterally, the council asks for a declaration that the secession of "anglophone and other linguistic or religious minorities" is also permissible.

6. Bertrand pushes the court to go well beyond the narrow legalistic confines of the federal questions. He asks which specific amending formula should be used to secede. He demands a declaration that Ottawa has the constitutional duty to oppose unilateral secession - and if it decides to recognize an independent Quebec without constitutional amendment, Canadians would have the right to challenge that recognition, asking Ottawa to prove to the court that it did everything in its power to prevent unilateral secession before granting recognition. Finally, Bertrand asks the court to stipulate that Quebec forfeits constitutional protection of its boundaries if it secedes unilaterally: that is, it could only keep territory over which it exercises "effective control." As Bertrand's lawyer Patrick Monahan told Maclean's: "We are saying that these legal issues do matter - the rule of law is important - and it is important to clarify the considerable uncertainty."

7. From the separatist perspective, lawyer Pouliot argues that Ottawa has violated the basic principles of federalism since Confederation, intruding in such areas of exclusive provincial jurisdiction as social programs. So the bond between Ottawa and the province has already snapped. Diplomat Michaud, a longtime separatist, makes four powerful political points on behalf of Quebec sovereigntists: it is not necessary for the court to rule now because there is no legislation to secede before the Quebec assembly; the court itself is a federal creation - so it has a conflict of interest; the Constitution is biased in favor of federal control and illegitimate because it was patriated from Great Britain in 1982 without Quebec's consent; if the court accepts Ottawa's views, it will simply become a discredited accomplice in Plan B.

THE FRIEND OF THE COURT

Joli-Coeur first challenges the very authority of the Supreme Court to hear reference cases, arguing that its constitutional mandate to act as a "General Court of Appeal" means that it can only hear appeals from lower courts. He then argues that the judges should refuse to answer the questions: they deal with issues that are fundamentally political; they are theoretical and hypothetical - because there is no legislation on the table; and they infringe on the privileges of the Quebec assembly.

Then Joli-Coeur cuts to the realpolitik heart of his argument. The world community, he maintains, has adopted a stark approach to secession: seceding nations are recognized by the international community when they exercise "effective control" over their territory. In effect, it does not matter what the Constitution says about secession - international law, not domestic law, will govern the relations between Canada and an independent Quebec. Under that law, he says, Quebecers are a people with the right to self-determination. And even if "the right to self-determination is not strictly synonymous with the right to secession," Quebec will exercise effective control - so Canada will be forced to recognize its legal existence. Joli-Coeur adds, almost mischievously, that since the Constitution does not mention secession, the court should look to British precedent to fill in the gaps: in 1689, the British Parliament recognized the "Glorious Revolution" of William and Mary because they had seized "effective control" from King James II.

THE REPLIES

1. Ottawa notes that the court has heard reference cases since its creation in 1875. Then, it counters Joli-Coeur's argument that the court should abstain, maintaining that the questions are straightforward and essentially legal in character. Finally, it insists that the Constitution, not international law, must govern Quebec's actions because it is still part of Canada - and the Constitution contains amending formulas for any eventuality. In fact, Ottawa adds tartly, Quebec cannot cite the principle of "effective control" to secede: not only is it not an unwritten constitutional principle, it would displace the Constitution itself, contrary to the rule of law.

2. The Ad Hoc Committee notes that effective control is not the only criterion for statehood: emerging nations must also respect the rights of minorities. Manitoba, the Northwest Territories and Saskatchewan buttress Ottawa's points with additional precedents. The Kitigan band, meanwhile, argues that Quebec cannot exercise "effective control" over aboriginal land. And in his bid to drive home the consequences of unilateral secession, Bertrand notes that citizens would be justified in resisting an illegal action. Quebec would be required to use force to maintain effective control, jeopardizing its recognition by the international community.

THE REPLY TO THE REPLIES

Joli-Coeur forcefully invokes three principles: the governments of Quebec and Canada must respect the democratic will of the Quebec people; the rule of law forbids the use of the Constitution to create "chaos and insecurity"; and the principle of effective control establishes the legality of the measures employed to found a sovereign Quebec. Ryan, the leader of the federalist forces in the 1980 referendum, notes that Quebec has never accepted the 1982 constitutional package that included the current amending procedures. If the court concludes that these formulas apply, he adds, it would be asserting that "the right of Quebecers to freely decide their future is subject to a veto by the federal Parliament and at least a majority of provinces."

WHAT HAPPENS NEXT

As the late Supreme Court justice John Sopinka once observed, parties who appear before the court deserve a "hot bench": that is, the judges should be up to speed on every point in every document - before the parties walk through the courthouse door. His declaration still holds true: when the nine judges file into court at 9:45 a.m. on Feb. 16, they will require no basic explanations. The federal government has the entire first day to emphasize its key points - and to respond to the judges' questions. Joli-Coeur also has an entire day - although he will likely appear after all of his fellow intervenors have spoken. The remaining parties have been allotted times ranging from 30 minutes to two hours. Ottawa will then offer a brief response to Joli-Coeur. The case will almost certainly conclude within four to five days. A judgment is expected within six months.

It could go in any direction. The judges may decide that they will not answer some or even all of the questions - and toss them back to the politicians. If they opt for detailed answers, they must work their way painstakingly through each specific query. And they must consider each intervenor's demands: although the judges usually limit the scope of their rulings to the initial questions, they do go beyond those self-imposed boundaries if it appears necessary to resolve an additional issue which they have created in the course of their ruling. The only certainty is their judgment will be painfully difficult - and the need for wisdom in whatever course they choose has never been greater.

Maclean's February 16, 1998


Question One.

Ottawa first outlines the basic premises behind its contention that the Constitution does not permit unilateral secession: Canada is a federal state based on constitutional government - and subject to the rule of law. The courts have a duty to uphold that Constitution - and to ensure that no level of government exceeds its powers. Secession would affect the structure and scope of that Constitution - so it would require constitutional amendments.

That conclusion leads to a quandary: which amending formula from the Constitution Act, 1982, would apply? There is a general formula which requires the consent of the House of Commons, the Senate and the assemblies of two-thirds of the provinces representing at least 50 per cent of the population. Amendments concerning five key areas, such as the office of the provincial lieutenant-governor and the use of the French and English language, require unanimity. Ottawa concentrates on another formula, Section 45, which allows each province to amend its own constitution as long as those amendments do not affect the five areas requiring unanimity.

That section poses a minor problem: there is no official definition within the Constitution of what constitutes a provincial constitution. Ottawa cites copious Supreme Court rulings which indicate that Section 45 only applies to internal provincial institutions such as the civil service or any upper house. It argues that provinces cannot possibly invoke Section 45 to give themselves the exclusive power to pass all laws, levy all taxes and sign all treaties. So, it concludes, unilateral secession is unconstitutional: secession requires the consent of other governments. To the dismay of many parties, Ottawa adds that there is no need for the court to choose the formula that does apply.

Question Two.

Before it examines international law on self-determination and unilateral secession, Ottawa summarizes the situation: there is no international legislature and no international court with universal compulsory jurisdiction. So international law is a hodgepodge of conventions, customs, general principles and scholarly writings. Although the principle of self-determination of peoples has played a major role in political thought since the First World War, it did not appear as a legal concept until the United Nations Charter of 1945. And it has cropped up in such subsequent documents as the 1966 International Covenant on Civil and Political Rights. But Ottawa insists that the international right to self-determination is specifically limited by the repeated stipulation that each nation's territorial integrity must be respected and preserved: that is, the right to self-determination does not include the right to secede unilaterally. Only colonies have the right to secede. "There is no right to unilateral secession from independent states with a government representing the whole people without distinction," Ottawa says. "The world is composed of myriad social, ethnic and linguistic groups. To recognize for each of these groups a right to unilateral secession would be a recipe for fragmentation."

Question Three.

Ottawa maintains that there is no conflict between domestic and international law: Quebec cannot unilaterally secede. If there is a conflict, it maintains that international law is applicable in Canada only "to the extent that it does not conflict with existing Canadian law."