Moment of DECISION

BRUCE WALLACE August 24 1998

Moment of DECISION

BRUCE WALLACE August 24 1998

Moment of DECISION



For those who either marvel or grit their teeth at Prime Minister Jean Chrétien’s ability to rise above political flak, this week may include a crucial day of reckoning. On Aug. 20—at least three months before they were expected to do so—the nine judges of the Supreme Court of Canada will rule on a case that Chrétien’s Liberals first did not like—and then made a key element of their national unity strategy. The issue at hand: does Quebec have the right to unilaterally declare sovereignty? The answer, in whatever form, could alter the rules of the national unity debate— and do so in a way the Liberals and other federalists do not like.

In dry legalese, the case is known as a “Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada.” The argument that federal lawyers made before the judges when the case was heard in February was straightforward: a unilateral declaration of independence would be illegal— even if a majority of Quebecers voted to leave Canada—because there are no rules governing such a process, and the rest of Canada would not have expressed its agreement. But in asking nine judges to decide

on such a politically charged matter, Chrétien partly surrendered control of the country’s most volatile issue.

The unpredictability of the situation was driven home last week when the court announced the ruling would come this week. It was widely expected in political and legal circles that a judgment would not be delivered before late autumn—in part, because the judges themselves were aware of the political implications of their ruling, and did not want the issue to become part of a Quebec election campaign that could come this fall. But many observers believe that the timing increases the likelihood that Quebec Premier Lucien Bouchard— who need not call an election before September of next year—may use the issue as a reason to go to the polls within months. In a preview of what would become a key theme, Bouchard insisted last week that the ruling will make no difference to Parti Québécois plans to hold a third referendum. “It is not up to the Supreme Court to determine the legitimacy of Quebecers’ right to decide their future,” he declared.

On the federal front, the surprise timing sent politicians scrambling. Justice Minister Anne McLellan, who had been planning to stay in her Edmonton riding, said she will return to Ottawa to respond. So will Intergovernmental Affairs Minister Stéphane Dion, who was a driving force behind the court reference. The Prime Minister offered no comment.

The uncertainty on the federalist side illustrates how much sentiments have shifted over time. The issue first surfaced in early 1996 when former sovereigntist Guy Bertrand decided to ask the Supreme Court to rule on Quebec’s right to declare itself sovereign. At first, the federal Liberals distanced themselves from the issue. But as support for the legal challenge grew outside Quebec, the Liberals became more enthusiastic. A Maclean’s poll in November, 1997, showed that more than two-thirds of Canadians outside Quebec believed that the court case, and related hardline efforts, made it more likely that Canada would remain united. By that point, the government had added its name to the challenge.

When the government decided to do so, it was aiming for two things. After the hair’s-breadth 1995 referendum victory, Chrétien wanted to eliminate any confusion over what constitutes a mandate to leave the federation. He also wanted to show that Canadian and international laws applied to secession, in order to make so-called soft Quebec nationalists aware that separation would not be painless.

And polls in Quebec before the case was heard showed that strategy was apparently working, as support for sovereignty fell. The Quebec government refused to even plead the case—although an ardent sovereigntist and respected lawyer, André Joli-Coeur, agreed to argue the province’s case in a role known formally as a “friend of the court.” Now, the Liberals may get the decision they want—but accompanied by a lesson about trying to use the court for political ends. When the judges heard arguments last winter, they peppered federal lawyers with unanticipated questions. What about the rights of minorities in Quebec, including natives determined to stay in Canada? What if, after a Yes vote in a referendum, the rest of Canada refused to negotiate the terms of a split? Would the Canadian people have to be consulted through a national plebiscite? The queries served notice that the judges viewed secession as more than a legal question. “They will not be writing the equivalent of the tax code on secession,” said University of Toronto law professor Robert Howse. “They will probably establish important general principles, like the idea of a degree of consent, of protecting certain minority rights, of protecting the rule of law.”

Most observers expect the judges to uphold the basic thrust of the federal position—that even after a vote to separate, the Constitution

A historic ruling could reshape the sovereignty debate

would apply. A senior official in the Prime Minister’s Office said that would be enough for Ottawa to consider the case a political success. If the court does not uphold that principle, of course, sovereigntists will score an enormous moral victory. One such option is for the court to rule that while Quebec has no right in strict legal terms to a unilateral declaration of independence, the fundamental issue is political—which makes it inappropriate for the court to be involved.

As well, there is no way to predict how the court will answer a range of other contentious questions. And the more variables the court tries to pronounce on, the more room there will be for separatists to argue that federal judges are meddling with Quebec’s destiny.

That possibility alarmed some federalists from the outset—including Jean Charest, even when he was leader of the federal Progressive Conservatives. For their part, federal Liberals maintain that Bouchard would not be able to turn the court ruling to his advantage. “Quebecers don’t want to talk about separation and referendums,” said one senior adviser. Quebec provincial Liberals also say the PQ may have difficulty exploiting the issue. “They’ll probably find some elements that will give them fodder,” acknowledged Liberal MNA Christos Sirros, “but I don’t know in the balance that it will change things.”

Others offer qualified agreement with that view. Jean Lapierre, a Montreal radio host and former Liberal and Bloc Québécois MP,

suggested that Montreal-born Chief Justice Antonio Lamer, who in February described the reference as “the most important case ever to come before the court,” will do all he can to avoid putting his court “in the middle of political turmoil.” And Lapierre suggested that many Quebecers may be indifferent to the issue. “It’s lawyers’ talk,” he said. “As of now, it hasn’t registered at all in public opinion.” Some key players disagree. Bertrand, who heads a federalist group called Citizens for a Democratic Nation, says a pro-federalist ruling would mean “we can get away from the mythology in Quebec [that] the right to self-determination means the right to separate regardless of what others think.” And the judges involved seem aware that they are playing to a much larger audience. Justice Claire L’Heureux-Dubé seemed to indicate as much when she spoke at Harvard University in April about the need for clear, lay language in the ruling. The idea, she suggested, would be to let Canadians make up their own minds about what the judgment means—and to prevent politicians from twisting the verdict for other ends. Perhaps the court will establish some clear rules: then, at least one—or perhaps both—sides will try their hardest to muddy them.

With MARYJANIGAN in Toronto, JOHN GEDDES in Ottawa and BRENDA BRAN SWELL in Montreal