Chantier Politique

March 22, 2017

English Edition, No. 8

Court Challenge Begins Against Bill 99

The Very Constitution Which Negates Quebec's Fundamental Rights Cannot Be Used to Decide Whether or Not Quebec Can Exercise Those Rights

On Monday March 20, the Superior Court of Québec, whose judges are nominated by the government of Canada, began its hearing in the case Henderson vs. Attorney General of Quebec in Montreal. The proceedings are scheduled to run until March 28.

In 2001, Keith Henderson, a former leader of the Equality Party, asked the court to rule that Bill 99, An Act respecting the exercise of the fundamental rights and prerogatives of the Quebec People and the Quebec State, be declared "unlawful, invalid, and of no force or effect." He argued that it violates the Canadian Constitution and hinders his "continued enjoyment of all the rights and privileges attached to Canadian citizenship by the Constitution and the laws of Canada."

Bill 99 was adopted by the Quebec National Assembly in December 2000 in response to the Clarity Act enacted by the Canadian House of Commons under the Liberal government of Jean Chrétien. The Clarity Act was an attempt of the Chrétien government to "put an end" to the national question in Quebec by imposing the status quo through any means possible. This followed the referendum on sovereignty in 1995 when the NO won by a very small majority. Chrétien first submitted to the Supreme Court of Canada three questions to determine whether or not the Canadian Contsitution permitted Quebec to unilaterally secede. He then mandated former Minister of Intergovernmental Affairs Stéphane Dion to draft the Clarity Act. The Act dictated the terms of Quebec secession, stating that the federal government would not negotiate with Quebec following a referendum if it considered that the question and the referendum results were not "clear."

Besides empowering the Canadian state to determine if the question put forward by the Quebec National Assembly is clear, it stipulates that the Canadian state can determine if the question would result in a clear expression of the will of the population to become an independent state, taking into account "(a) the size of the majority of valid votes cast in favour of the secessionist option; (b) the percentage of eligible voters voting in the referendum; and (c) any other matters or circumstances it considers to be relevant."

The Quebec government responded a few months later by adopting Bill 99 which states, among other things: "The right of the Quebec people to self-determination is founded in fact and in law. The Quebec people is the holder of rights that are universally recognized under the principle of equal rights and self-determination of peoples. The Quebec people has the inalienable right to freely decide the political regime and legal status of Quebec. The Quebec people, acting through its own political institutions, shall determine alone the mode of exercise of its right to choose the political regime and legal status of Quebec...When the Quebec people is consulted by way of a referendum under the Referendum Act, the winning option is the option that obtains a majority of the valid votes cast, namely fifty percent of the valid votes cast plus one."

Those are amongst the provisions that are being challenged by Henderson's motion and the intervention of the Attorney General of Canada.

Henderson's motion had already been brought before the courts on two prior occasions, but had been declared partially inadmissible for various reasons. In 2012 Henderson filed a re-amended version of the Motion of declaratory judgment, which is the one that the Superior Court of Québec is now considering. In 2013, the Attorney General of Canada, during the time that the Harper government was in power, sought and obtained intervenor status in the case.

At the initiative of the Société Saint-Jean-Baptiste, a petition is underway to demand that the Trudeau government withdraw from this judicial file, but the Trudeau government continues to assert its status as intervenor and has not even reacted to the request to withdraw.

Henderson's motion is a provocative one. Far from "putting an end" to the Quebec issue, it asserts Canadian hegemony over Quebec. This is precisely what the Quebec movement which upholds Quebec's right to self-determination contests. Quebec is not a "province" like the other dominions that joined confederation and it had an effective veto at the time as a condition of joining. This veto was never written into the constitution but but the constitutional arrangements in effect at that time implicitly contained a veto.

Henderson's motion states: "The impugned provisions of the Act purport, -- by their own immediate, direct, and unilateral authority, -- to confer on the political institutions of Quebec, including the Legislature of Quebec, acting alone, the authority to alter the political regime and legal status of Quebec without following the amending formula set out in Part V of the Constitution Act, 1982."

It sets out to reiterate that Quebec institutions including the Quebec National Assembly have been established under the Constitution of Canada; therefore any attempt of Quebec to get out of this framework by exercising its rights as a nation amounts to "assertion, on behalf of the now-existing Legislature of Quebec (established under the Constitution of Canada), of a total, absolute, and unfettered power of constitutional change."

It asserts that "the Constitution attributes to the electorate and the institutions of a province no right or power save to govern its territory within the Constitution and as a Canadian province" and equates any move by Quebec to exercise its right to self-determination "with Canada agreeing to its own overthrow, including revolution."

It states: "This Court, like all other Quebec courts, sits under the Constitution of Canada and by its authority; accordingly, the Court can accept no justification which may be offered for any exercise (or attempted exercise) of public authority, save only such as is legitimate under that Constitution; the Constitution of Canada neither authorizes nor acquiesces in its own overthrow under any circumstances whatsoever; in sum, the Court, even in the very face of revolutionary acts, cannot entertain any attempt by any litigant to justify revolution against Canada, even revolution undertaken under pretext of international law."

The Attorney General's Declaration of intervention is based on the same premises. It argues that the provisions for Bill 99 that are being challenged "should be read down so that their potential scope of operation is brought within the limits of the legislative power of Quebec authorized by the constitution of Canada."

It affirms that the Court should declare that under the Constitution of Canada, Quebec is established as a province of Canada and that Bill 99 cannot constitute a legal basis for a unilateral declaration of independence by the government or the National Assembly. Therefore, it asks the Court, if it cannot read down the impugned provisions of the Act, to "declare them beyond the powers of the legislature of Quebec (ultra vires) and of no force or effect."

The Marxist-Leninist Party of Quebec stands for the modernization of the Constitution of Canada so that it recognizes the right of Quebec to self-determination, establishes nation-to-nation relations with the Indigenous peoples and recognizes citizenship rights on a modern basis. To use the very Constitution which negates Quebec's right to self-determination to decide whether or not Quebec can exercise that right is ludicrous. Neither the Superior Court of Québec, nominated by the government of Canada, nor the government of Canada, have any business intervening in matters which are up to the people of Quebec to decide.

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