Chief justice Antonio Lamer considered it the most important decision in the history of the Supreme Court of Canada. For this country, it could mean the difference between life and death.
Ten years ago today, the court delivered its response to the reference on whether Quebec had the right to secede unilaterally. The court's advisory opinion was complex but clear. Why, then, has it been constantly misrepresented across Canada and ignored in Quebec?
The court rejected the pretension by Quebec's politicians that the province had the unconditional right to secede with its current territory intact if it won the merest majority on a referendum question chosen by Quebec alone.
The court did recognize that the vote – the democratic principle – must be treated with respect if the referendum question was clear and produced a clear answer revealing the will of Quebeckers to secede. But a vote, the court insisted, was not decisive. Three other principles had equal importance: the rule of law, meaning that secession must be enacted in accordance with the Constitution; the federal principle, meaning respect for the rights of the federal government and the other provinces in negotiating the breakup of Canada; and the rights of minorities, especially aboriginals and official language communities.
“The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced from constitutional obligations.”
The court displaced the focal point from the referendum to the subsequent conclusion of an agreement as a prelude to the constitutional amendment allowing Quebec to secede.
Not surprisingly, the Parti Québécois rejected the constraints enunciated by the highest court. Jacques Parizeau and Lucien Bouchard had both denied that the courts had jurisdiction over secession. When the Clarity Act was passed in 2000, Mr. Bouchard countered with Bill 99 reaffirming Quebec's constant unilateral claims.
More surprising was the reaction of Jean Chrétien, who had initiated the court reference after the near death of the 1995 referendum. He had instructed his cabinet in 1996: “Our message has to indicate that if a clear majority of Quebeckers vote on a clear question to leave Canada, the country will not be held together by force.” In other words, the vote alone was decisive, regardless of what the court would eventually rule.
So what did Mr. Chrétien say in his memoirs last October, long after the court had determined that the vote was not enough? “Should they ever win a clear majority on a clear question … I would say, ‘OK, the people have spoken clearly. It's a crying shame and will set us back 20 years, but it's not the end of the world.'”
Stéphane Dion, as minister for national unity, had also reassured Quebeckers they could have separation on demand. On Sept. 18, 1996, on the RDI television program Maisonneuve à l'écoute, he said: “If the Québécois, very clearly, in accordance with a procedure that is very clear, decide to leave Canada, we cannot retain them against their will.” Then, on Sept. 29, interviewed on Radio-Canada's Point de presse, he went further. “No one challenges the right of the Québécois to stay in Canada or to leave it. … A Canada-wide referendum cannot block the clearly expressed will of the Québécois.”
So did Mr. Dion change his attitude after the court's decision, after the Clarity Act? On June 16, 2007, he addressed his party's general council in Drummondville: “If, some day, we Quebeckers no longer want to be Canadians, and it is clear that we no longer want to be Canadians, well, then, we will be able to commit the future generations to this fundamental choice and it will happen, there is no one who will hold us in Canada against our will.”
On Sept. 9, 2007, Brian Mulroney was interviewed by TVA's Paul Arcand: “If the Québécois should some day vote for sovereignty, how will you react?” The former prime minister replied: “If it is a decision freely consented, being a democrat, profoundly a democrat, I accept it.” Only the vote counts.
Jean Charest, as leader of the federal Progressive Conservatives in the 1997 election campaign, opposed the reference to the court and promised to rescind it if he became prime minister. In the House of Commons, on Feb. 2, 1998, he voted for this Bloc Québécois motion: “That the House recognize the Québécois consensus according to which it belongs to the Quebec people alone to freely decide its future.” He repeated that commitment after the court had spoken, as leader of the Quebec Liberal Party during the leaders' televised debate during the election campaign.
He has maintained that position ever since. He now defends before the Quebec Court of Appeal Mr. Bouchard's Bill 99, which rejects all the conditions for secession imposed by the Supreme Court.
Only one major political leader has defended the true sense of the Supreme Court's ruling: “Any act of secession on the part of any part of the country must be done within the confines of the current Constitution, which includes the rule of law and clear democratic consent.” That was Stephen Harper in January of 2002 – four years before he became prime minister.