This article was originally published in Maclean's Magazine on August 31, 1998
Supreme Court Rules on UDI
His public rhetoric aside, Lucien Bouchard never expected to get much long-term political mileage from last week's Supreme Court of Canada ruling on whether Quebec has the right to unilaterally become sovereign. To be sure, the Quebec premier saw some good opportunities to score points when the case was heard last February. After all, nine judges appointed by the federal government were going to offer an opinion on Quebec's legal right to separate. That would include passing judgment on whether the Canadian Constitution took precedence over the long-asserted claim of both federalist and sovereigntist Quebecers that the province has a right to choose its own destiny. Over four days of hearings, Bouchard swatted away publicly at the federalist case, stoking outrage in Quebec at Ottawa's nerve in asking the court for help. Over dinner with friends in his Outremont home one night soon after, Bouchard snickered at Ottawa's ineptitude, and boasted at how he could exploit those openings at will.
But while other political observers then - and since - expected the final ruling to eventually become a full-blown election issue inside Quebec, Bouchard, even then, was having none of it. "I don't expect any more from it," he also told his dinner guests that winter night. "There's no more juice left in this one."
Last week, Bouchard played a different tune publicly - but in the end, his private remarks may prove to be the most prescient. The 78-page, unanimous ruling released by the nine Supreme Court judges contains plenty of food for thought - but little to sate the appetite of sovereigntists looking for a ready-made election issue. The court's key findings, in fact, contain something to please almost everyone - as was evident from the haste with which both federalists and sovereigntists cited different sections. Prime Minister Jean Chrétien praised the court for providing "an important reminder of some basic elements of democratic life and civil order." Bouchard suggested the overall ruling only buttresses his argument that the province needs only the majority approval of its voters in order to become sovereign.
But even as the two sides exchange volleys of contradictory rhetoric, it is clear that the court's historic judgment sets new ground rules - and debunks some old arguments - in the ongoing battle for the future of the country. It marks, in fact, what is believed to be the first time that a democratic, advanced country has set guidelines for its own breakup - in advance of such an event happening. Among the key points in the unanimous judgment of the court, which is led by Chief Justice Antonio Lamer, a native Montrealer:
It would be illegal under both Canadian and international law for Quebec to declare independence unilaterally.
Despite that, a referendum is a legitimate way to measure the public's desire for constitutional change. As a result, if Quebecers indicated they wanted out of Canada in a referendum, said the court, the rest of the country would be obliged to negotiate in good faith to find a way to make it happen.
In order for such a process to occur, the referendum would require a "clear majority" voting Yes in response to a "clear question."
The second of those three points is the one that sovereigntists, led by Bouchard, emphasized in the wake of the release of the ruling. At a news conference in Quebec City, the premier declared: "The next time, men and women will be able to vote Yes without worrying about a smooth transition to sovereignty." The Supreme Court, he said, "has shaken the basis of the federalist strategy and undermined their arguments based on fear." He has some justification for that claim: successive prime ministers, beginning with Pierre Trudeau, have always insisted that they do not have a mandate to negotiate the dismantlement of the country - and therefore, there could be no assurance of negotiations in the case of a Yes vote. For sovereigntists, the promise that such negotiations would have to take place has always been the principle form of reassurance that they offered up to prospective Yes voters who were unsettled by the prospect of a complete cutting of ties with the rest of Canada. The Supreme Court's apparent support of that claim is certain to play a key role in sovereigntist strategy in the event of another referendum.
Another item of appeal to sovereigntists lay in the court's language as to what would happen if there was an impasse at the negotiating table between Quebec and Ottawa following a majority Yes vote. The new state's legitimacy, the opinion suggested, could depend on whether it was judged by other members of the international community to have behaved honorably and in good faith during negotiations. Péquiste governments have always been confident they could muster enough international recognition, led by France, to join the family of nations - and, in fact, former premier Jacques Parizeau had prepared an elaborate strategy before the last referendum campaign in 1995 that focused on winning support from potentially sympathetic countries. In effect, the court said that while there are rules and steps to follow to achieve legal separation, the ultimate outcome will extend beyond strict legal interpretations. "The court distinguished between the political and the judicial," said Benoît Pelletier, a constitutional law professor at the University of Ottawa. "It's a very balanced judgment."
For all that, the opinion landed in Quebec with more of a dull thud than a spectacular crash. "Illegal but legitimate" was the headline in Le Journal de Montréal, the province's biggest newspaper. Although a Quebec election is still likely this fall, it almost certainly will not be fought on constitutional grounds.
And for federalists wanting to declare victory, there was no shortage of evidence to seize on. Guy Bertrand, the firebrand lawyer and former separatist who initiated the court challenge, called the result "a victory on all counts." He, and others, pointed to both the court's judgments and its sometimes blunt and unequivocal language. Secession would require "a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada," the judges wrote, and the Chrétien government quickly seized on the phrase. The Liberals remain scarred by the memory of the days before the 1995 referendum, when they encountered a substantial bloc of voters who believed they could vote Yes to separation - yet still retain all the benefits of being Canadian, including citizenship. Now, Ottawa has legal grounds for arguing that the next referendum, if it comes, must ask an unambiguous question. "No more of those winning questions, no more sovereignty-association nonsense," said one Chrétien adviser. "Speaking for this government," said Intergovernmental Affairs Minister Stéphane Dion, "we will never negotiate if the question is not crystal clear."
There was even a silver lining for Ottawa in the court's instruction to negotiate following a clear Yes vote in a referendum - if they could ever overcome Bouchard's positive spin on the finding. The Chrétien government's hardline strategy, known popularly as Plan B, is based on demonstrating to Quebecers that separating from Canada will be a difficult, acrimonious and costly process. The court made that point for them, declaring that everyone - including Ottawa, the other nine provinces, aboriginal and other minority groups - has a stake in any changes to the Canadian federation. Native leaders quickly embraced that part of the judgment. "It is clear that the secession of Quebec cannot be effected without the consent of our people," said Assembly of First Nations Chief Phil Fontaine. That assertion will make many sovereigntists jittery - particularly coming, as it does, at the end of a summer that has seen more native militancy in the form of Micmac protests who barricaded a provincial highway in the Gaspé region.
Ultimately, the challenge for federalists was to show, without sounding threatening, that secession remains a trouble-fraught process. Dion tried that tack, arguing that the ruling showed the "Constitution can accommodate secession, but it is going to be difficult." Yet Dion has become a much-reviled figure in Quebec for his cerebral, relentless attacks on sovereignty. He absorbs much of the Quebec nationalist anger that until recently was reserved solely for Chrétien.
Now, as the unity debate gathers new steam, the irony is that the federal Liberals may have to rely heavily on help from someone who did not even approve of taking the case to court - Quebec Liberal Leader Jean Charest. He was a vigorous critic of the federal efforts, arguing that the move only lent legitimacy to the sovereigntist cause by acknowledging the possibility that they could win a referendum on the issue. As well, Charest dislikes the negative tone of Plan B's tough message to Quebec. But the core of his campaign to unseat Bouchard will concern the need to avoid the nasty problems a Yes vote would create. "The words they chose speak to the uncertainty, the difficulty of what would occur," Charest said about the ruling at a news conference in Montreal. Overall, he downplayed the decision, saying it is "taking us back to Square 1."
In all, there was a depressing familiarity to the politicking that followed the ruling. The court said it was up to politicians to work out such devilish details as what constitutes a "clear question" or a "clear majority." Not surprisingly, there was no consensus. Every major poll ever taken in the province on the issue has shown that if Quebecers were asked to vote on independence alone unaccompanied by any association with Canada, the prospect would be a resounding defeat. Péquistes insist the question asked in October, 1995, meets the definition of clarity - despite it including the promise of an economic association with the rest of Canada, which is something they cannot guarantee.
Similarly, the question on the ballot in the first referendum in 1980 ran more than 100 words when the preamble is included, and asked voters to give the government nothing more specific than "a mandate to negotiate the proposed agreement between Quebec and Canada." Federalists have always mocked the sovereigntists' choice of wording in both cases, calling it everything from fuzzy to dishonest. And while the Parti Québécois agreed that any interested party could theoretically have a say in formulating the question in a third referendum, Quebec's national assembly would decide the final wording by a simple majority vote.
Arriving at a mutually acceptable definition of "clear majority" will be just as tough. Péquiste leaders stuck to the party's mantra that a simple majority is enough. "You would hope for a higher number," said Intergovernmental Affairs Minister Jacques Brassard. "But the necessary condition is 50 per cent plus one." That opinion got a somewhat surprising endorsement from Charest. But Ottawa was scornful of that notion, with Chrétien pointing out the judges took pains to insist the definition of majority should be "free of ambiguity."
Overall, political leaders on the federalist side took a low-key approach. Saskatchewan Premier Roy Romanow, one of the few premiers to publicly discuss the ruling, welcomed its substance, but added, "to get into details at this stage would not be desirable." And Chrétien was careful not to sound provocative, avoiding any gloating over the favorable legal elements of the ruling. But by calling a news conference on the same day as Bouchard, the Prime Minister broke a self-imposed rule not to engage in one-on-one exchanges with Bouchard.
One reason is that Bouchard is far more highly regarded than Chrétien, whose unpopularity in his own province sits in direct contrast to his continued high poll ratings in the rest of the country. Another is that any disagreement between Quebec's two leading politicians leaves the more popular Charest buried on the back pages of newspapers. And the federal Liberals know that their first, best hope for ending the sovereignty threat is for Charest to beat Bouchard in the coming provincial election. That vote is still expected this fall, and recent opinion polls show that the PQ has effectively pulled even with the Liberals after falling behind when Charest first jumped from federal politics. Bouchard has promised, if elected, to stage a third referendum.
With both sides declaring victory, the much-awaited Supreme Court ruling may indeed turn out to be a wash. Each side claimed the other's myths had been debunked, its shibboleths demolished. And after Bouchard's embrace of the judgment, future Quebec governments may have more difficulty painting the Supreme Court as a "Tower of Pisa" that always leans in the federal direction - the phrase coined by premier Maurice Duplessis almost half a century ago. The court also stated unequivocally that Quebecers were not a colonized or oppressed people in the Canadian federation, as hardline nationalists so often contend.
But, as Bouchard predicted back in February, the ruling did not contain the seeds of another full-fledged constitutional crisis. "People in Quebec don't want to hear any more about this issue," said Jean Lapierre, a former Liberal and Bloc Québécois MP who now hosts a popular radio phone-in show in Montreal: "It will vanish from their minds in less than a week." That was also the reaction in much of the rest of Canada, as many people preferred to focus on the final weeks of summer. "No one wants to hear about this," said Bill Carroll, a talk-show host with CFRB in Toronto after his phone lines drew only a handful of callers during a 90-minute show devoted to the issue. But a crucial Quebec elections awaits. And with a ruling that shapes the future debate over Canada, the nine judges of the Supreme Court have left a new and definitive imprint on an age-old argument.
Where the Court Ruling Ends, the Debate Begins
Last week's Supreme Court of Canada judgment was supposed to clarify whether Quebec could secede from Confederation - and, if so, how. But while the ruling laid down basic ground rules for governments to follow, it avoided specifics on other contentious questions. Among them:
What constitutes a "clear majority" of voters?
The court did not say, so federalists and separatists each offered their own definitions. Lucien Bouchard insisted 50 per cent plus one is a historically accepted benchmark. He noted that Newfoundland entered Confederation based on 52-per-cent support in its 1948 referendum and that simple majorities were sufficient for countries that joined the European Union. Jean Chrétien argued that if such a majority was enough, the court would have said so. But he did not offer his own threshold. He suggested that the final formula might also require a certain level of support within Quebec's minority communities. Referendums in other countries have also used different formulas, such as a recent vote in Saint Kitts and Nevis: voters in Nevis fell short of the two-thirds mark needed for independence.
Some constitutionalists say that a "clear majority" means a majority of all of the population that is eligible to vote - rather than only those who actually cast a ballot.
What is a "clear question"?
Chrétien says the rest of Canada is only required to negotiate if Quebecers answer yes to a clear choice between remaining Canadian or becoming independent. The 1995 referendum would not meet that criterion, since it also promised a partnership deal with Canada. Bouchard countered that since 94 per cent of eligible Quebecers voted in 1995, they must have understood what they were being asked. He said any future referendum question will be approved by a simple majority in the province's national assembly.
What happens to Quebec's borders?
The judges did not say whether Quebec could leave with its current territory. But they noted that it was unlikely Canada could be "effortlessly separated along what are now the provincial boundaries of Quebec."
What happens to Quebec's aboriginal peoples?
The ruling did not go into detail, but said "aboriginal interests would have to be taken into account." Native leaders immediately interpreted that as an invitation to take their place at the table in any negotiation.
How many provinces are needed to approve secession?
The judges said secession requires an amendment to the Constitution. But they refused to suggest an amending formula: unanimous consent of other provinces, approval of seven provinces containing 50 per cent of the population (which is the case now in the Constitution), or some other combination. They would decide whether it met the test only when the time came.
How is it determined whether the parties negotiated in good faith?
While they insisted any negotiations must be governed by the principles of democracy, minority rights and the rule of law, the court set no time limit or any other criteria for how they should be conducted. Ultimately, they said, the international community would judge who had bargained in good faith.
Maclean's August 31, 1998