Unofficial English Translation of the Judgment of the Court Henderson c. Procureur général du Québec 2021 QCCA 565 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-027501-188 (500-05-065031-013) DATE: 9 avril 2021 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. ROBERT M. MAINVILLE, J.A. STÉPHANE SANSFAÇON, J.A. KEITH OWEN HENDERSON APPELLANT – Petitioner v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Respondent and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded Party and SOCIÉTÉ SAINT-JEAN-BAPTISTE DE MONTRÉAL INTERVENER – Intervener JUDGMENT [ 1 ] The appellant appeals against the April 18, 2018 judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Claude Dallaire), which dismissed his motion for a declaratory judgment seeking to have sections 1 , 2 , 3 , 4 , 5 and 13 of the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State declared unconstitutional.

The judgment under appeal, instead, concluded as follows: [ translation ] [602] REJECTS the conclusions of the motion for a declaratory judgment, as drafted; [603] AND FOR GREATER CERTAINTY, DECLARES that sections 1 , 2 , 3 , 4 , 5 , and 13 of the Act respecting the exercise of the [ fundamental rights and ] prerogatives of the Québec people and the Québec State , which the petitioner challenges, respect the Constitution as well as the [ Canadian ] Charter of Rights and Freedoms ; [604] Each party paying its own costs, including the costs of experts, given the nature of the dispute. [ 2 ] For the reasons of Mainville, J.A., with which Hilton and Sansfaçon, JJ.A. concur; THE COURT: [ 3 ] ALLOWS the appeal for the sole purpose of STRIKING paragraph [603] of the trial judgment; [ 4 ] CONFIRMS paragraph [602] of the said judgment; [ 5 ] THE WHOLE without legal costs.

ALLAN R. HILTON, J.A.

ROBERT M. MAINVILLE, J.A. STÉPHANE SANSFAÇON, J.A. Mtre Stephen A. Scott Mtre Charles O’Brien CHARLES O’BRIEN For the appellant Mtre Jean-Yves Bernard MINISTÈRE DE LA JUSTICE (DGAJ) Mtre Réal A.

Forest BLAKE, CASSELS & GRAYDON For the respondent Mtre Ian Demers Mtre Claude Joyal Mtre Warren Newman DEPARTMENT OF JUSTICE OF CANADA For the impleaded party Mtre Maxime St-Laurent Laporte MICHAUD SANTORIELLO AVOCATS For the intervener Date of hearing: November 24 and 25, 2020 REASONS OF MAINVILLE, J.A. [ 6 ] The appellant appeals against the April 18, 2018 judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Claude Dallaire) ( 2018 QCCS 1586 ), which dismissed his motion for declaratory relief [paragraph [602] of the judgment] and, for greater certainty, declared that sections 1 , 2 , 3 , 4 , 5 and 13 of the A ct respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State [1] (the “ Act respecting the prerogatives of Québec ”, the “ Act ” or “ Bill 99 ”) respect the Canadian Constitution, including the Canadian Charter of Rights and Freedoms (the “ Canadian Charter ”) [paragraph [603] of the judgment]. [ 7 ] The proceedings initiated by the appellant have been ongoing for nearly 20 years.

In essence, the appeal pertains to questions the Supreme Court of Canada refused to answer in the Reference re Secession of Quebec [2] (the “ Secession Reference ”).

The appellant seeks to draw the Court into essentially hypothetical and theoretical politico-legal debates on the definition of the Quebec people, on its right to internal and external self-determination and on the mechanisms for referendums, negotiations and constitutional amendments in order to achieve such self-determination. [ 8 ] Despite this Court’s intervention in 2007 in order to define the legal issues, [3] the appellant is still attempting to obtain judicial declarations on appeal pertaining to questions the Supreme Court previously answered or refused to answer due to their political or hypothetical nature, or on a pragmatic basis.

By challenging the constitutionality of certain provisions of the Act respecting the prerogatives of Québec , the appellant’s grounds of appeal do not make these questions any more justiciable at this stage nor do they shed new light that would allow the Court to set out the legal and constitutional framework applicable to the secession of Quebec beyond what the Supreme Court opined on in the Secession Reference . [ 9 ] The Act respecting the prerogatives of Québec , assented to on December 13, 2000, was the Quebec National Assembly’s legislative response to the political questions that went unanswered in the Secession Reference .

In fact, the Act was enacted as a direct reaction to the Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference [4] (the “ Clarity Act ” or “ Bill C-20 ”), which was assented to on June 29, 2000 and was itself enacted by the Canadian Parliament as a legislative response to the same questions. Indeed, depending on what may happen in the future, the implementation of some of the provisions of the Act respecting the prerogatives of Québec could contradict those of the Clarity Act .

The impugned provisions of the Act respecting the prerogatives of Québec deal, among other things, with the political process leading to Quebec’s independence, the right to initiate such a process having been recognized in the Secession Reference and being the prerogative of the “democratically elected representatives of the people”. [5] [ 10 ] The Act respecting the prerogatives of Québec can be seen and construed as affirming the National Assembly’s endorsement of the principles that have marked the evolution of Canadian constitutional arrangements applicable to a proposed change of Quebec’s constitutional status leading to secession.

In this sense, these provisions may be perceived as being constitutional, as the Attorney General of Canada in fact acknowledges. Thus, the impugned provisions of the Act respecting the prerogatives of Québec establish certain internal norms regarding the means for arriving at and expressing a legitimate democratic will to propose an amendment to

Quebec’s political regime or Quebec’s legal status within the framework of the currently applicable Canadian constitutional arrangements. [ 11 ] The impugned provisions, however, also use vocabulary specific to international law, which some associate with the assertion of a right to unilateral secession. That being said, the ordinary meaning of their words does not lead to a clear and absolute conclusion that they create the basis for such a right in violation of the applicable Canadian constitutional framework for the secession of a province.

All would depend on the concrete factual context in which these legislative provisions were to be invoked and used. Thus, the scope of the Act respecting the prerogatives of Québec is potentially much broader than the existing Canadian constitutional framework.

The Act respecting the prerogatives of Québec could effectively serve as the basis for a new Quebec constitution in the event of a change in its constitutional status, including its attainment of independent statehood, with or without a formal amendment to the Canadian Constitution. [ 12 ] There is no need, at this time or in the foreseeable future, to analyze the lawfulness or adequacy of these legislative provisions in the specific context of Quebec’s attainment of independent statehood, because the fundamental change in Quebec’s legal status required for this potential scope of application of the Act respecting the prerogatives of Québec to arise , within the framework of a constitutional legal system different from Canada’s, depends on events and political decisions that are highly conjectural. [ 13 ] In the present case, it is appropriate for this Court to confirm paragraph [602] of the trial judgment’s conclusions, which [ translation ] “rejects the conclusions of the motion for a declaratory judgment, as drafted”, [6] and thus confirm the dismissal of the appellant’s proceedings seeking a declaratory judgment. [ 14 ] However, since the scope of the Act respecting the prerogatives of Québec is potentially much broader than the existing Canadian constitutional framework, in certain contexts and depending on the circumstances in which they were to be invoked, it is possible that some provisions of this statute would, at that time, be inapplicable or inoperative in light of then existing Canadian law.

It is therefore appropriate to strike paragraph [603] of the trial judgment’s conclusions which, [ translation ] “for greater certainty”, formally declares the validity of sections 1, 2, 3, 4, 5 and 13 of the Act respecting the prerogatives of Québec . [7] Indeed, this detail, which is unnecessary from a legal standpoint, could give rise to confusion and misunderstandings regarding the true scope of the trial judgment.

GENERAL BACKGROUND [ 15 ] In order to understand the context in which this case arose, it is useful to present a brief overview of the most recent decades’ key events related to Quebec’s independence movement. [ 16 ] The Parti québécois was established in 1968 and proposed a form of “sovereignty-association” with the rest of Canada. On November 15, 1976, the elected representatives from that party formed Quebec’s majority government and its leader, René Lévesque, in turn became Premier of Quebec.

On May 20, 1980, the Parti québécois-led government held a referendum among Quebec’s population on “sovereignty-association”, in which the “no” vote won with nearly 60%. [ 17 ] During this referendum, Canada’s Prime Minister, Pierre-E. Trudeau, made a formal political commitment to “patriate” the Canadian Constitution and amend it so as to meet the expectations of Canadians, including those of the majority of Quebecers.

This led to constitutional negotiations that resulted in the enactment of the Constitution Act, 1982 , which comprised a number of major constitutional amendments, including the coming into force of the Canadian Charter (

Part I ), the constitutional recognition of aboriginal peoples’ aboriginal and treaty rights (Part II), arrangements addressing equalization and regional disparities (Part III) and procedures for amending the Constitution of Canada (Part V). The enactment of the Constitution Act, 1982 , however, was accomplished without the formal approval of Quebec’s National Assembly or government and contrary to their strong opposition.

This significant constitutional dispute continues to this day and is still a contentious and bitter subject. [ 18 ] There followed the so-called “ beau risque ” era with Brian Mulroney as the new Prime Minister of Canada, during which the aim was to have Quebec support the new Canadian constitutional structure. Several rounds of constitutional negotiations were held to secure the Government of Quebec’s support for the new constitutional regime.

These included negotiations that led to the Meech Lake Accord, which ultimately fell through, when, among other things, the Legislative Assembly of Newfoundland and Labrador failed to vote in time to ratify its terms. Subsequent negotiations resulted in the Charlottetown Accord, which was ultimately rejected in a Canada-wide referendum. [ 19 ] After the failure of the Charlottetown Accord, the Parti québécois was once again elected to form the majority government of Quebec under Premier Jacques Parizeau. Premier Parizeau made a political commitment to hold a new referendum on the sovereignty of Quebec.

The political and legal debates surrounding this referendum and its aftermath form the backdrop of the present case. [ 20 ] On December 6, 1994, Quebec’s Premier tabled the draft bill entitled

An Act respecting the sovereignty of Quebec , which described the process for Quebec to attain the status of sovereign country, a step favoured by the Quebec government of the day. [ 21 ] On December 9, 1994, the Special Committee for Canadian Unity, a group of citizens of which the appellant was an active member, sent a letter to Jean Chrétien, the Prime Minister of Canada, urging him to submit a reference to the Supreme Court in order to challenge the constitutional basis for the draft bill prior to its coming into force. The letter asserted that the draft bill, in contrast to

Part V of the Constitution Act, 1982 , which deals with the constitutional amending formulas, “attempts to throw an aura of normalcy, legitimacy, and even specious legality, over a revolutionary action, the overthrow of the Canadian state”. [8] Canada’s Prime Minister refused to initiate a reference, on the ground that the main issue at stake was the will of the citizens of Quebec to remain in Canada rather than the mechanisms for achieving secession. [ 22 ] On July 31, 1995, Guy Bertrand, a Quebec City lawyer and former active member of the Parti québécois, sent a similar request to Mr.

Chrétien and to the Attorney General of Canada. He asked the Government of Canada to proceed by way of reference to the Supreme Court of Canada in order to assess the constitutionality of the referendum process initiated by the Government of Quebec. On August 9 and 14, 1995, Maître Bertrand met with the same refusal from the Attorney General of Canada and the Prime Minister of

Canada. [9] [ 23 ] On August 10, 1995, Maître Bertrand instituted proceedings before the Quebec Superior Court seeking a number of judicial declarations as well as injunctions against various political actors and entities within the context of the sovereignty process initiated in accordance with the draft bill. [10] [ 24 ] On September 7, 1995, the Premier of Quebec tabled Bill 1, entitled

An Act respecting the future of Québec , which, had it come into force, would have authorized the National Assembly to proclaim Quebec a sovereign country, thereby giving it the exclusive power to adopt all laws applicable within its territory. [11] This bill would have been enacted as law only if a referendum were to confirm the support of the population of Quebec.

The referendum question was tabled the same day. [ 25 ] On September 8, 1995, in an interlocutory decision rendered within the scope of Maître Bertrand’s proceedings, Lesage, J.S.C. refused to issue an injunction against the holding of the proposed referendum which, given its consultative nature, [ translation ] “does not offend the legal or constitutional order”. [12] Lesage, J.S.C. added that [ translation ] “the people want to be heard”. [13] That being said, he nevertheless made the following judicial declaration, which upset the Government of Quebec: [14] [ translation ] Declares that Bill 1, entitled

An Act respecting the future of Québec , presented by Premier Jacques Parizeau to the National Assembly on September 7, 1995, whose purpose is to grant Quebec’s National Assembly the power to proclaim Quebec a sovereign country without having to follow the amending procedure set out in

Part V (ss. 38 to 49) of the Constitution Act, 1982 , represents a serious threat to the petitioner’s rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms , particularly those in sections 2, 3, 6 , 7 , 15 and 24(1) . [ 26 ] Shortly thereafter, on September 15, 1995, the appellant and his colleagues on the Special Committee for Canadian Unity asked the Attorney General of Quebec to seek the opinion of our Court on the constitutionality of the Act respecting the future of Québec and on the constitutional framework applicable to the secession of a province.

Faced with a refusal or lack of response to this request, on October 23, 1995, they instituted proceedings for a declaratory judgment (the “ Singh ” proceedings) in which they sought various judicial declarations to the effect that the Act respecting the future of Québec , and any other legislative or executive measure aimed at modifying Quebec’s status as a Canadian province, is ultra vires the National Assembly’s jurisdiction and infringes the rights of Quebec citizens under the Canadian Charter , unless the Canadian Constitution is amended in accordance with

Part V of the Constitution Act, 1982 . [15] The Singh proceedings were not heard in court before the referendum was held. [ 27 ] On October 30, 1995, 93.52% of registered electors voted in the referendum. The “no” option won with a majority of 50.58% of the votes that were declared valid, namely, 1.16% more votes than the “yes” option.

Of the ballots cast, 1.82% were rejected. [16] The Act respecting the future of Québec therefore died on the order paper and was never passed. [ 28 ] On May 13, 1996, the new Premier of Quebec, Lucien Bouchard, stated his: [17] [ translation ] […] intention to put before the National Assembly, for the first time in its history, a solemn motion . In the coming days, the representatives of the Quebec people, gathered in their National Assembly, will be called upon to reaffirm Quebecers’ fundamental right to self-determination .

Through this act carried out within the parliamentary chamber, we will bring the law back to where it belongs: in the hands of Quebec’s democratic will . (Emphasis added) [ 29 ] This solemn motion was indeed presented the next day in the National Assembly. [18] The parliamentary debate that followed reveals that the solemn motion was motivated, in particular, by the intervention of the Attorney General of Canada in Maître Bertrand’s judicial proceedings and by certain statements made by the Prime Minister of Canada which were perceived by some elected representatives of the National Assembly as an attack on Quebec democracy and on the ability of the National Assembly to hold legitimate referendums.

On May 22, 1996, the solemn motion was passed in the National Assembly by a majority vote of 66 to 39. [19] [ 30 ] It should be noted that shortly before, on January 3, 1996, Maître Bertrand had amended the proceedings already instituted in order to launch a broader attack against the [ translation ] “governmental strategy of proceeding unilaterally with Quebec’s separation from the rest of Canada by bypassing the Canadian Constitution”. [20] In his amended proceedings, he claimed that this strategy was designed to lead to Canada’s destruction and that it seriously threatened his rights and freedoms guaranteed under the Canadian Charter . [ 31 ] On April 12, 1996, the Attorney General of Quebec filed a motion to dismiss Maître Bertrand’s proceedings, alleging, in particular, that [ translation ] “the process for achieving Quebec’s sovereignty is essentially a fundamental democratic undertaking sanctioned by public international law” [21] and is non-justiciable.

On April 30, 1996, the Attorney General of Quebec also filed a similar motion against the proceedings of the appellant and the other petitioners in Singh . [22] [ 32 ] On August 30, 1996, Pidgeon, J.S.C. dismissed the Attorney General of Quebec’s motion to dismiss, referring, among other things, to the solemn motion passed by the National Assembly on May 22, 1996: [23] [ translation ] [T]he adoption by the National Assembly, while the hearing was underway, of a resolution […] reaffirming that the Quebec people is free to choose its own destiny and determine its political status without hindrance, supports his contention that the project is still alive.

[ 33 ] Pidgeon, J.S.C. underscored, in particular, the controversy surrounding the right to unilateral secession under international law of which Quebec might avail itself and he concluded that Quebec’s situation in that regard was far from clear and defined.

In his view, the following questions deserved to be answered by a court: [24] [ translation ] - Is the right to self-determination synonymous with secession? - Can Quebec secede unilaterally from Canada? - Does international law support the process for achieving Quebec’s sovereignty? - Does international law take precedence over domestic law? [ 34 ] The Government of Quebec did not react well to this judgment. On September 4, 1996, the Attorney General of Quebec held a press conference during which he announced his intention not to take

part in the court proceedings pertaining to the process for arriving at Quebec’s sovereignty. [25] [ 35 ] As for the federal government, Pidgeon, J.S.C.’s judgment prompted it to submit a reference to the Supreme Court of Canada.

Thus, on September 26, 1996, the Attorney General of Canada wrote a letter to the Attorney General of Quebec in which he asserted that it would be appropriate to have the Supreme Court rule on the legal aspects of the secession process that had been identified by Pidgeon, J.S.C. and on which there was disagreement among politicians and the public. [26] That same day, the Attorney General of Quebec held a press conference in which he expressed his intention not to participate in the Supreme Court proceedings and reiterated his position that the process leading to Quebec’s secession is essentially a political matter. [27] [ 36 ] The following reference questions were submitted to the Supreme Court of Canada on September 30, 1996 by an Order in Council of the Privy Council to that effect: [28] 1.

Under the Constitution of Canada , can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? 2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? 3.

In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada? [ 37 ] A number of interveners participated in the proceedings, including the appellant. I note that the Supreme Court rejected several of the positions submitted to it by the appellant. These positions are fundamentally the same as those the appellant is presenting to this Court in the matter at hand.

I will come back to this later. [ 38 ] The Supreme Court of Canada appointed an amicus curiae in order to compensate for the Attorney General of Quebec’s absence in the reference proceedings. It held hearings on the reference questions in February 1998 and rendered its opinion by way of judgment dated August 20, 1998.

I will also come back to this later. [ 39 ] Following the Secession Reference , neither the Bertrand nor Singh cases proceeded on the merits, and they have remained in a [ translation ] “semi-comatose state” [29] for several decades. [ 40 ] On December 13, 1999, in response to the Secession Reference , the federal government submitted the Clarity Act to Parliament and it was assented to on June 29, 2000. In that statute, Parliament adopted its answers to the questions that the Supreme Court had identified in the reference as being essentially political issues.

In particular, Parliament expressed its intention to play an “important role” in identifying what constitutes a sufficiently clear question and clear majority for the Government of Canada to enter into negotiations in relation to the secession of a province from Canada. [30] [ 41 ] The following provisions of the Clarity Act indicate the essence of the federal government’s answers to the “political” questions identified in the Secession Reference : 1

(1) The House of Commons shall, within thirty days after the government of a province tables in its legislative assembly or otherwise officially releases the question that it intends to submit to its voters in a referendum relating to the proposed secession of the province from Canada, consider the question and, by resolution, set out its determination on whether the question is clear. 1

(1) Dans les trente jours suivant le dépôt à l’assemblée législative d’une province, ou toute autre communication officielle, par le gouvernement de cette province, du texte de la question qu’il entend soumettre à ses électeurs dans le cadre d’un référendum sur un projet de sécession de la province du Canada, la Chambre des communes examine la question et détermine, par résolution, si la question est claire. (…) […]

(3) In considering the clarity of a referendum question, the House of Commons shall consider whether the question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state.

(3) Dans le cadre de l’examen de la clarté de la question référendaire, la Chambre des communes détermine si la question permettrait à la population de la province de déclarer clairement si elle veut ou non que celle-ci cesse de faire

partie du Canada et devienne un État indépendant.

(4) For the purpose of subsection (3), a clear expression of the will of the population of a province that the province cease to be part of Canada could not result from

(4) Pour l’application du paragraphe (3), la question référendaire ne permettrait pas à la population de la province de déclarer clairement qu’elle veut que celle-ci cesse de faire

partie du Canada dans les cas suivants : (

a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that province on whether the province should cease to be part of Canada; or

a) elle porte essentiellement sur un mandat de négocier sans requérir de la population de la province qu’elle déclare sans détour si elle veut que la province cesse de faire

partie du Canada; (

b) a referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada.

b) elle offre, en plus de la sécession de la province du Canada, d’autres possibilités, notamment un accord politique ou économique avec le Canada, qui rendent ambiguë l’expression de la volonté de la population de la province quant à savoir si celle-ci devrait cesser de faire

partie du Canada. (…) […]

(6) The Government of Canada shall not enter into negotiations on the terms on which a province might cease to be part of Canada if the House of Commons determines, pursuant to this section, that a referendum question is not clear and, for that reason, would not result in a clear expression of the will of the population of that province on whether the province should cease to be part of Canada.

(6) Le gouvernement du Canada n’engage aucune négociation sur les conditions auxquelles une province pourrait cesser de faire

partie du Canada si la Chambre des communes conclut, conformément au présent article, que la question référendaire n’est pas claire et, par conséquent, ne permettrait pas à la population de la province de déclarer clairement si elle veut ou non que celle-ci cesse de faire

partie du Canada. 2

(1) Where the government of a province, following a referendum relating to the secession of the province from Canada, seeks to enter into negotiations on the terms on which that province might cease to be part of Canada, the House of Commons shall, except where it has determined pursuant to

section 1 that a referendum question is not clear, consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada. 2

(1) Dans le cas où le gouvernement d’une province, après la tenue d’un référendum sur un projet de sécession de celle-ci du Canada, cherche à engager des négociations sur les conditions auxquelles la province pourrait cesser de faire

partie du Canada, la Chambre des communes, sauf si elle a conclu conformément à l’article 1 que la question référendaire n’était pas claire, procède à un examen et, par résolution, détermine si, dans les circonstances, une majorité claire de la population de la province a déclaré clairement qu’elle veut que celle-ci cesse de faire

partie du Canada.

(2) In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account

(2) Dans le cadre de l’examen en vue de déterminer si une majorité claire de la population de la province a déclaré clairement qu’elle voulait que celle-ci cesse de faire

partie du Canada, la Chambre des communes prend en considération : (

a) the size of the majority of valid votes cast in favour of the secessionist option;

a) l’importance de la majorité des voix validement exprimées en faveur de la proposition de sécession; (

b) the percentage of eligible voters voting in the referendum; and

b) le pourcentage des électeurs admissibles ayant voté au référendum; (

c) any other matters or circumstances it considers to be relevant.

c) tous autres facteurs ou circonstances qu’elle estime pertinents. (…) […]

(4) The Government of Canada shall not enter into negotiations on the terms on which a province might cease to be part of Canada unless the House of Commons determines, pursuant to this section, that there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada.

(4) Le gouvernement du Canada n’engage aucune négociation sur les conditions auxquelles la province pourrait cesser de faire

partie du Canada, à moins que la Chambre des communes ne conclue, conformément au présent article, qu’une majorité claire de la population de cette province a déclaré clairement qu’elle veut que celle-ci cesse de faire

partie du Canada.

(1) It is recognized that there is no right under the Constitution of Canada to effect the secession of a province from Canada unilaterally and that, therefore, an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces and the Government of Canada. 3

(1) Il est entendu qu’il n’existe aucun droit, au

titre de la Constitution du Canada, d’effectuer unilatéralement la sécession d’une province du Canada et que, par conséquent, la sécession d’une province du Canada requerrait la modification de la Constitution du Canada, à l’issue de négociations auxquelles participeraient notamment les gouvernements de l’ensemble des provinces et du Canada.

(2) No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in its negotiations, the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights.

(2) Aucun ministre ne peut proposer de modification constitutionnelle portant sécession d’une province du Canada, à moins que le gouvernement du Canada n’ait traité, dans le cadre de négociations, des conditions de sécession applicables dans les circonstances, notamment la répartition de l’actif et du passif, toute modification des frontières de la province, les droits, intérêts et revendications territoriales des peuples autochtones du Canada et la protection des droits des minorités. [ 42 ] The Clarity Act was very poorly received by nearly all of the National Assembly’s members of all political stripes. [31] Nonetheless, to date, it has never been challenged in court.

The judge described the strong criticism levelled from the National Assembly, where [ translation ] “[a]ll political parties […] stood together to denounce the federal government’s intrusion into Quebec’s affairs”. [32] There was a consensus among members of the National Assembly on the importance of responding. [33] [ 43 ] In the Government of Quebec’s view, a legislative response was necessary so it could [ translation ] “arm itself with a shield to counter the federal strategy, which undermined a number of democratic rights and principles of the Quebec population and of its legitimate institutions” [34] and, in particular, so as [ translation ] “not to leave the Quebec people with the false impression that its vote in favour of a […] secessionist project might have no effect” [35] and to [ translation ] “more precisely target” what it considered to be a [ translation ] “gross distortion” and [ translation ] “completely deformed rewriting of the Supreme Court’s opinion”. [36] It also provided an opportunity to establish [ translation ] “in a single legislative text, an internal constitution that would reaffirm several fundamental rights and principles that had always governed the Quebec people and its democratic institutions”. [37] As the trial judge noted, the components of the Clarity Act are what [ translation ] “provoked reactions that were not unrelated to the enactment of the [ Act respecting the prerogatives of Québec ] and particularly to its content”. [38] [ 44 ] That said, although nearly all of the members of the National Assembly opposed the Clarity Act , contrary to what the trial judgment might intimate there was no consensus among them on how to respond and, more specifically, on the Act respecting the prerogatives of Québec . [ 45 ] The Act respecting the prerogatives of Québec was introduced in the National Assembly by the Minister of Intergovernmental Affairs, Joseph Facal, on December 15, 1999.

It passed on its third reading, on December 7, 2000, by a vote of 69 to 41. [39] It was assented to on December 13, 2000 and came into force on February 28, 2001. [40] [ 46 ] This statute stood in stark contrast to the Clarity Act . It was manifestly enacted as a direct reaction to this federal legislation and as the Quebec National Assembly’s answers to the political questions identified by the Supreme Court in the Secession Reference . Sections 1, 2, 3, 4, 5 and 13 of the Act respecting the prerogatives of Québec , which are the subject of this appeal, read as follows: 1.

The right of the Québec people to self- determination is founded in fact and in law. The Québec people is the holder of rights that are universally recognized under the principle of equal rights and self-determination of peoples. 1. Le peuple québécois peut, en fait et en droit, disposer de lui-même. Il est titulaire des droits universellement reconnus en vertu du principe de l’égalité de droits des peuples et de leur droit à disposer d’eux-mêmes. 2. The Québec people has the inalienable right to freely decide the political regime and legal status of Québec. 2.

Le peuple québécois a le droit inaliénable de choisir librement le régime politique et le statut juridique du Québec. 3. The Québec 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 Québec. 3. Le peuple québécois détermine seul, par l’entremise des institutions politiques qui lui appartiennent en propre, les modalités de l’exercice de son droit de choisir le régime politique et le statut juridique du Québec.

No condition or mode of exercise of that right, in particular the consultation of the Québec people by way of a referendum, shall have effect unless determined in accordance with the first paragraph. Toute condition ou modalité d’exercice de ce droit, notamment la consultation du peuple québécois par un référendum, n’a d’effet que si elle est déterminée suivant le premier alinéa.

4. When the Québec people is consulted by way of a referendum under the Referendum Act (chapter C - 64.1 ), the winning option is the option that obtains a majority of the valid votes cast, namely 50% of the valid votes cast plus one. 4. Lorsque le peuple québécois est consulté par un référendum tenu en vertu de la

Loi sur la consultation populaire (chapitre C - 64.1 ), l’option gagnante est celle qui obtient la majorité des votes déclarés valides, soit 50% de ces votes plus un vote. 5. The Québec State derives its legitimacy from the will of the people inhabiting its territory. 5. L’État du Québec tient sa légitimité de la volonté du peuple qui habite son territoire.

The will of the people is expressed through the election of Members to the National Assembly by universal suffrage, by secret ballot under the one person, one vote system pursuant to the Election Act (chapter E - 3.3 ), and through referendums held pursuant to the Referendum Act (chapter C - 64.1 ). Cette volonté s’exprime par l’élection au suffrage universel de députés à l’Assemblée nationale, à vote égal et au scrutin secret en vertu de la Loi électorale (chapitre E - 3.3 ) ou lors de référendums tenus en vertu de la

Loi sur la consultation populaire (chapitre C - 64.1 ). Qualification as an elector is governed by the provisions of the Election Act . La qualité d’électeur est établie selon les dispositions de la Loi électorale . (…) […] 13 . No other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Québec people to determine its own future. 13.

Aucun autre parlement ou gouvernement ne peut réduire les pouvoirs, l’autorité, la souveraineté et la légitimité de l’Assemblée nationale ni contraindre la volonté démocratique du peuple québécois à disposer lui-même de son avenir. [ 47 ] A few months after the Act respecting the prerogatives of Québec came into force, the appellant and the political party of which he was an executive, the Equality Party, filed a motion for a declaratory judgment in the Superior Court, in which they sought the following conclusions: [41]

(1) DECLARE that sections 1 , 2 , 3 , 4 , 5 and 13 of the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State and la

Loi sur l’exercice des droits fondamentaux et des prérogatives du peuple québécois et de l’État du Québec , being Bill 99 of the First Session of the Thirty-sixth Legislature of Quebec, adopted on December 7, 2000 and assented to on December 13, 2000 and being

chapter 46 of the Statutes of Quebec for 2000, are ultra vires , absolutely null and void, and of no force or effect;

(2) DECLARE that, with or without the approval of the electors of Quebec by referendum, there can be no change in the political regime and legal status of Quebec, as they are established under the Constitution of Canada, except by an amendment to the Constitution of Canada made in accordance with the Constitution of Canada itself, and more particularly in accordance with

Part V, sections 38 to 43 of the Constitution Act, 1982 ;

(3) DECLARE that Petitioners have the right to be governed only in accordance with the Constitution of Canada itself and by laws validly made or continued under that Constitution, until such time as that Constitution, and those laws, are altered by lawful means; that is to say, altered in accordance with the Constitution of Canada itself, and not otherwise;

(4) DECLARE that sections 1, 2, 3, 4, 5 and 13 of the said Act and any other legislative or executive measure (otherwise than as provided by sections 38 to 43 of the Constitution Act, 1982 ) purporting to confer the authority to establish Quebec as a sovereign state, or otherwise to alter the political regime and legal status of Quebec as a province of Canada, constitutes an infringement and denial of Petitioners’ rights under the Canadian Charter of Rights and Freedoms , and is accordingly unlawful, invalid, and of no force or effect;

(5) DECLARE that no officer, agent, or employee of the Government of Quebec, nor any person acting at its direction or with its acquiescence, nor any other person whatsoever, has any right, power, or authority, to do any act or thing whatsoever to enforce or give effect to sections 1, 2, 3, 4, 5 and 13 of the said Act ;

(6) DECLARE the judgment to intervene herein opposable to the Mises-en-Cause, whether or not they appear in these proceedings. [ 48 ] The Attorney General of Quebec submitted a preliminary exception to dismiss the proceedings by raising arguments pertaining to the issue of lis pendens with respect to the Singh proceedings, the interest and standing of the petitioners, and the non-justiciability of the issues raised in the motion. On September 18, 2001, in a judgment from the bench, Tellier, J.S.C. referred this exception to dismiss to the judge seized of the merits of the dispute.

On November 9, 2001, this Court reversed that judgment and returned the file to the Superior Court so a judge could rule preliminarily on the exception to dismiss. [42] [ 49 ] On August 16, 2002, Côté, J.S.C. granted the Attorney General of Quebec’s exception to dismiss and dismissed the appellant’s motion for a declaratory judgment on the grounds that (1) the Equality Party did not have standing to take legal action; (2) the appellant’s proceedings were inadmissible due to lis pendens with respect to the Singh proceedings; (3) the appellant did not have the required interest to pursue the proceedings in question; (4) a declaratory judgment is not the appropriate remedy where there is no genuine and immediate problem; and (5) the issues raised were not justiciable. [43] [ 50 ] On August 30, 2007, our Court reversed Côté, J.S.C.’s judgment in part, declaring that conclusions (2), (3), (5) and (6) of the appellant’s original motion were inadmissible, but declaring that conclusions (1) and (4) were admissible with certain modifications: [44] [ translation ]

DECLARES that only conclusions (1) and (4), the latter after the words “and any other legislative or executive measure (otherwise than as provided by sections 38 to 43 of the Constitution Act, 1982 )” have been struck, and conclusion (7) of the May 9, 2001 motion for a declaratory judgment of the petitioner, Keith Owen Henderson, are admissible, which conclusions now read as follows:

(1) DECLARE that sections 1 , 2 , 3 , 4 , 5 and 13 of the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State and la

Loi sur l’exercice des droits fondamentaux et des prérogatives du peuple québécois et de l’État du Québec , being Bill 99 of the First Session of the Thirty-sixth Legislature of Quebec, adopted on December 7, 2000 and assented to on December 13, 2000 and being

chapter 46 of the Statutes of Quebec for 2000, are ultra vires , absolutely null and void, and of no force or effect;

(4) DECLARE that sections 1, 2, 3, 4, 5 and 13 of the said Act purporting to confer the authority to establish Quebec as a sovereign state, or otherwise to alter the political regime and legal status of Quebec as a province of Canada, constitutes an infringement and denial of Petitioners’ rights under the Canadian Charter of Rights and Freedoms , and is accordingly unlawful, invalid, and of no force or effect;

(7) THE WHOLE with costs. [ 51 ] Several years later, faced with the imminent hearing of the appellant’s proceedings in the Superior Court, the Société Saint-Jean- Baptiste de Montréal (the “SSJBM”) applied for permission to intervene in order, among other things, to argue the legitimacy of Quebec’s independence project under international law.

On September 1, 2016, in a judgment from the bench, Corriveau, J.S.C. dismissed this application, notably, on the grounds that the perspective the SSJBM sought to put forward was merely another means of stating the point of view of the other parties and that its desire to highlight international law risked expanding the debate beyond its defined scope [45] [ 52 ] On January 27, 2017, this Court reversed that judgment and authorized the SSJBM’s intervention as a friend of the court. [46] The Court found that the SSJBM’s position differed from that of the other parties to the dispute and would provide a different perspective on the issues raised.

The Court agreed, however, that the SSJBM’s proposed arguments seeking to highlight public international law were not likely to assist the court in rendering a decision.

This facet of the intervention was liable to broaden the dispute between the parties and would, in all likelihood, require additional evidence. [47] Thus, the Court limited the SSJBM’s intervention to the issues as already defined and solely with respect to Canadian domestic law. [48] [ 53 ] The Court’s 2007 and 2017 judgments indicate its willingness to allow the Act respecting the prerogatives of Québec to be the subject of judicial debate while attempting to prevent this debate from drifting towards political, hypothetical or non-justiciable questions or questions already decided by the Supreme Court, thereby reflecting the duty of judicial restraint required in such cases. [ 54 ] The hearing took place in the Superior Court during the month of March 2017 and a judgment was rendered more than one year later, on April 18, 2018.

THE TRIAL JUDGMENT [ 55 ] It should be noted that, from the outset, in setting the framework for her analysis, the judge excluded both the question of Quebec’s unilateral secession and that of Quebec’s failure to follow the parameters determined by the Supreme Court of Canada in the Secession Reference , unless the appellant was able to establish otherwise: [49] [ translation ] [226] To succeed, the petitioner must show that, by reason of the drafting of Bill 99 and the purpose it seeks to achieve, its sections 1 to 5(1) and 13 expressly, or by necessary implication, authorize Quebec to secede unilaterally from Canada without first complying with the constitutional obligations that require it to negotiate such a secession with the other members of the Canadian federation, and that it allows for a violation of the Charter . [ 56 ] After a lengthy review, she concluded that the appellant had not met this burden.

The judge therefore analyzed the statute as if the questions of unilateral secession and failure to follow the parameters determined by the Supreme Court were not at issue, which led her to conclude that the Act respecting the prerogatives of Québec is not unconstitutional, but, rather, forms part of an internal initiative on the part of Quebec within the Canadian Constitution. [50] [ 57 ] What was the judge’s reasoning in arriving at that conclusion? [ 58 ] After detailing at length the political and legal context surrounding the Act respecting the prerogatives of Québec and describing the parties’ respective positions, she reviewed the principles applicable to constitutional disputes.

She then examined the impugned Act . [ 59 ] In her view, the unusually lengthy

preamble to the Act is an indication of the importance of the context that gave rise to it. [51] She completed her examination of the Act ’s title, explanatory note and structure by concluding that the Act only pertains to the internal sovereignty of Quebec: [52] [ translation ] [329] All of this therefore defines the framework within which the guidelines for the exercise of internal sovereignty necessary for the management of Quebec’s affairs are reaffirmed , provided for or established , as the case may be, and is intended to set the record straight after the divergent message sent by the federal government to the provincial government via Bill C-20, as we will see from an analysis of the Act ’s lengthy

preamble.

(Emphasis added) [ 60 ] She expressed the message conveyed by the Act respecting the prerogatives of Québec in her own words, relying heavily on the use of the indefinite “we”: [53] [ translation ] [330] If we had to use plain language to express the message that emerges from the legal terminology used in all the paragraphs of the

preamble, we would do so as follows: We have existed for a long time, our characteristics make us a people and we have historic and inalienable rights and powers. Our democratic institutions, which derive their legitimacy from the people living in our territory, are there to defend us against any initiative that might infringe on or end our rights.

Even though we are part of the Canadian federation and we know full well that this comes with obligations found in the Constitution and we intend to respect it, you should know that the National Assembly will defend our rights and privileges against any attempt by the federal government to hinder the proper functioning of our institutions. Bill C-20 is the best example of this and is unacceptable in the context of our rights as recognized by the Supreme Court.

It is therefore out of the question that others should interfere in our affairs, that they should try to prevent us from freely choosing how we shape our future, that, in addition, they should dictate to us how we will do so and that they should take or attempt to take the place of the institutions that govern us. [331] To us, this is the message, even if somewhat muted, that resonates loud and clear and stems from what is found in the internal constitution of a member state of a federation. [ 61 ] The judge then commented on two designations found throughout the Act respecting the prerogatives of Québec , namely, the “Quebec people” and the “Quebec State”. [ 62 ] In her opinion, the recurring use of the designation “Quebec people” reveals a major concern, but she rejected the assertion that the National Assembly [ translation ] “had attempted to set the stage to unilaterally separate from Canada” by using this designation. [54] She explained her conclusion by stating that [ translation ] “this is not a unique use of this designation in Quebec legislation”. [55] That being said, she specified that the designation merely reaffirms the Government of Quebec’s assertions in this regard [56] and that the Act [ translation ] “therefore does not create said Quebec people and in no way allows it to secede without first negotiating”. [57] She refused to rule on the existence, in fact, of such a people, relying, in this regard, on the Supreme Court’s refusal to rule on this question in the Secession Reference and her duty of restraint. [58] [ 63 ] Similarly, the judge noted that the designation “Quebec State” was not new and could also be found in other legislation. [59] According to the judge, [ translation ] “context is everything”. [60] She was therefore of the view that the designations “Quebec State” and “national state” did not warrant a declaration that the sections of the Act in which they are found are unconstitutional, because they must be understood within the Canadian constitutional context within which Quebec exists and not as a prelude to a unilateral declaration of independence. [61] [ 64 ] This analysis, as well as her analysis of the Act ’s entire

preamble, led the judge to [ translation ] “conclude, preliminarily, that the Act was not intended to arm Quebec with the tools for becoming an independent state, at all costs, in a cavalier manner, and without following the formula the Supreme Court set out in its Advisory opinion”. [62] [ 65 ] Through her analysis of each of the impugned sections of the Act respecting the prerogatives of Québec she was able to validate her preliminary conclusion. [ 66 ] In considering

section 1 , the judge highlighted the appellant’s error – which she characterized as justifiable – in having the [ translation ] “impression that this Act could a priori lead to a unilateral secession by Quebec”. [63] This error was caused by a strict reading that analyzed only the impugned provisions [64] in combination with the previously discussed [ translation ] “sovereignist designations”. [65] The judge gave a two-fold explanation.

First, she stated that [ translation ] “the intrinsic evidence in no way refers to unilateral secession; it does not do so directly or by necessary implication”. [66] Such a secession is therefore necessarily [ translation ] “a mere possibility [or] a vague hypothesis”. [67] She added that

section 1 [ translation ] “might therefore be alarming”, but did not change the scope of the Secession Reference in any way and was therefore [ translation ] “insufficient to create a direct or indirect right to unilateral secession as defined by the Supreme Court”. [68] [ 67 ] As for

section 2 , the judge was of the view that the idea it expresses – that is, the inalienable right of the Quebec people to freely decide the political regime and legal status of Quebec – is not new and is illustrated, in particular, by Quebec’s decision to join the Canadian confederation. [69] The judge distinguished the concept of choosing a “political regime” from that of choosing a “legal status”. [70] She explained that with respect to secession or a change of legal status, it is important to properly understand our [ translation ] “political and legal system”, [71] particularly in light of the legal framework established by the Supreme Court in the Secession Reference.

Thus, she saw [ translation ] “nothing more than the right of the population living in Quebec to be consulted, in order to vote in the first phase of a sovereignist project”, [72] which, according to her, [ translation ] “forms part of Quebec’s internal affairs and sends the message that the population’s freedom to choose will not be altered by any third party’s intervention”, [73] such freedom having [ translation ] “always existed”. [74] [ 68 ] According to her,

section 3 is but a variation on the same theme set out in the first two sections. [75] The judge, however, acknowledged that this

section might suggest that its scope could extend to a possible declaration of secession. [76] Nonetheless, she dismissed this hypothesis [ translation ] “because the

section does not express ideas that would lead directly to a unilateral declaration of

independence without negotiation or because this idea does not follow from the words used or the intention sought”. [77] She stated that, in any event, if she were wrong in that regard, in her opinion [ translation ] “the technique of reading down would save this

section and it could be declared constitutional by limiting its scope to the exercise of Quebec’s internal sovereignty, within the more specific framework of a referendum, which, as the Supreme Court stated, does not play a decision-making role”. [78] [ 69 ] The judge was of the view that

section 4 of the Act , which deals directly with the referendum process, merely reiterates what, according to her analysis, has always been the rule when referendums are held in Quebec or elsewhere in Canada. [79] This

section therefore did not add anything new. [80] She noted that the rule set out in that

section is the rule that also applies at the international level. Thus, according to the judge, the intention behind

section 4 was to provide Quebec’s response to the enactment of the federal Clarity Act , which sought to question these rules. [81] She noted that the wording of this

section is not unlike the wording of other referendum legislation that is found in the other provinces and whose constitutionality is indisputable. [82] She determined that the referendum referred to in

section 4 cannot rationally lead to the conclusion that the National Assembly sought a direct or even roundabout way to declare a unilateral secession that would allow it to violate the precepts set out by the Supreme Court with respect to the issue of clarity in referendums. [83] [ 70 ] The judge noted that the appellant had withdrawn his challenge of the second paragraph of

section 5 of the Act . As for the other paragraphs of

section 5, she noted that they were merely a restatement of existing rules in the Quebec democratic system and were in no way constitutionally objectionable. [84] There was nothing in these provisions that would open the door to Quebec’s unilateral secession following a referendum. [85] [ 71 ] Lastly, the judge was of the view that

section 13 of the Act was merely a [ translation ] “repetition, a sort of final conclusion, which underscores the legislature’s intention to reassert the fundamental concepts” set out in the Act respecting the prerogatives of Québec ”. [86] This repetition can be explained by the fact that the National Assembly was highly vexed by the Clarity Act and considered it important [ translation ] “to take a belt and suspenders approach so as to properly get its message across”. [87] [ 72 ] The judge therefore concluded that the appellant’s motion should be dismissed. [88] However, she also decided, [ translation ] “for greater certainty”, [89] to declare that sections 1, 2, 3, 4, 5 and 13 of the Act respecting the prerogatives of Québec respect the Canadian Constitution as well as the Canadian Charter .

GROUNDS OF APPEAL [ 73 ] The appellant’s main assertion is based on the constitutional amending formulas. He is of the view that the impugned provisions of the Act respecting the prerogatives of Québec , individually or as a whole, are ultra vires the legislative jurisdiction of Quebec in that they grant Quebec’s institutions and voters an unlimited constitutional amending power contrary to the provisions of

Part V of the Constitution Act, 1982 , particularly because they create a legal basis authorizing Quebec’s unilateral secession in violation of the teachings of the Supreme Court in the Secession Reference , which infringes his rights and freedoms as a Canadian citizen by making the protection afforded to those rights and freedoms under the Canadian Charter conditional on the will of Quebec’s institutions and voters. [ 74 ] The judgment under appeal is therefore incorrect because it fails to acknowledge the unlimited constitutional amending power conferred by the impugned provisions on their very face and as confirmed by the extrinsic evidence.

Consequently, by ruling that the provisions are constitutional and that they do not infringe the Canadian Charter , the trial judge erred in her application of the principles of legislative

interpretation and in her assessment of the extrinsic evidence . [ 75 ] The appellant summarizes the central elements of his principal grounds of appeal as follows: [90] (…) the central elements of Appellant’s case, (…), in

summary, are these: (

i) the indispensable necessity that any constitutional change. – secession in particular, - must comply strictly with the amending procedures prescribed by

Part V of the Constitution Act, 1982 (…); the Canada-wide procedure specifically; (ii) that on their face, and on their literal meaning, supported by the

Preamble, the contested sections do assert a right and power of Quebec’s people, either by referendum or through their legislative institutions, to make any constitutional change they wish without complying with those prescribed procedures; (iii) that this

interpretation is supported by the extrinsic material cited by Appellant (…) - legislative debates; party programmes; resolutions; constitutional history (of 1995 in particular); and now also by the Assembly’s Resolution of 28 March 2019 (…) [ 76 ] The appellant also alleges that the impugned provisions support the secessionist plan with respect to the right of peoples to self- determination in international law, specifically by absorbing Quebec’s minorities within its French-speaking majority, without reason or right, so as to create a single “Quebec people”.

The purpose is to bind these minorities on fundamental issues, including Quebec’s secession from Canada, through the majority vote of the French-speaking population. He summarizes his position regarding this ground of appeal as follows: [91] 7 . (The Quebec people). Conflating the linguistic and cultural “people” with the heterogeneous civic “people”. Appellant can perhaps clarify his position (…) with this

summary: The contested sections conflate Quebec’s majority, French speaking, linguistic and cultural “people”, - which has the right of internal self-determination under s. 1 of the Act, - with Quebec’s entire heterogeneous civic “people”, - or citizenry, - or population, - or electorate, which, for example, votes in the elections or referendums referred to in s. 5.

Appellant’s concrete concern is that a referendum majority of the civic “people” contemplated by s.5 could be invoked as an expression of the will of the linguistic and cultural “people” under s. 1 and thereby found claims of rights to self-determination, - binding on the whole citizenry of Quebec as having spoken as one “people” under s. 1. 8 . Ibid. Dual concept of people. The term “people” in the sections of the Act seeks to accomplish two different things simultaneously.

It must refer to a linguistic and culturally identified people so that it can meet the conditions for self-determination in international law

( Act, s. 1 ). But it must also include the whole population of the province to ensure that all may vote in a referendum, and will be bound by the referendum result (ss. 2 to 5 ). These two purposes can only be accomplished together, - with a single meaning of the word “people” throughout the Act, - by legislatively absorbing into the French-speaking linguistic and cultural “people” all those in the Province of other languages and ethnicities. It is this construction by statute of an artificial “people” that informs the contested sections, and which Appellant submits is constitutionally objectionable.

This arises because both categories are embraced in the one word “people”. (Bold and italics in the original) [ 77 ] The appellant therefore asks the Court to declare that the impugned provisions are (1) ultra vires the legislative jurisdiction of Quebec and invalid; and (2) that they unjustifiably infringe his rights and freedoms under the Canadian Charter .

Subsidiarily, he asks the Court to restate the impugned provisions or make various declarations so as to explicitly circumscribe their meaning, scope or effect, as proposed by the Attorney General of Canada. [ 78 ] In the opinion of the respondent, the Attorney General of Quebec, the trial judge correctly applied a contextual approach to interpret the impugned provisions, thereby concluding that they merely codify, in a single document, fundamental rights and prerogatives of the Quebec people and the Quebec State that have always formed an integral part of its democratic system, the whole within the Canadian constitutional framework.

He argues that the appellant did not discharge his burden to prove that these provisions do not fall within Quebec’s legislative jurisdiction or that they contravene any rule of law set out in the Canadian Constitution. The Attorney General of Quebec reiterates that the dispute arose within the specific context of the enactment of the Act respecting the prerogatives of Québec , and within no other factual context, and that the dispute does not involve any concrete application of the Act ’s provisions.

He points out that, on two occasions, the Court limited the scope of the dispute, by striking certain conclusions from the appellant’s original motion and limiting the SSJBM’s intervention. He cautions the Court against the appellant’s attempt to broaden the scope of the dispute via this appeal. [ 79 ] The impleaded party, the Attorney General of Canada, argues that the meaning and scope of the impugned provisions of the Act respecting the prerogatives of Québec are ambiguous.

These provisions can be interpreted either as (1) providing a legal underpinning for an eventual declaration of unilateral secession; or (2) merely restating the legislative powers of Quebec to modify the province’s internal constitution. Under the first

interpretation, the impugned provisions are invalid. The second

interpretation requires that the provisions of the Act be read down. He suggests that the Court should read down the impugned provisions.

By applying this method, the impugned provisions would be constitutionally valid, subject to the following declarations: (1) under the Canadian Constitution, Quebec is a province of Canada; and (2) the impugned provisions can never provide a legal basis for a unilateral declaration of independence by the government, the National Assembly, the legislature of Quebec or the “Quebec State”. [ 80 ] According to the intervener, the SSJBM, it is abundantly clear from the impugned provisions and from the extrinsic evidence that the National Assembly intended to expressly codify the right of the Quebec people to its existence and internal self-determination, a right it already possesses naturally.

It submits that the impugned provisions are constitutionally valid and echoes the Attorney General of Quebec’s warning against an attempt to broaden the debate, while arguing against any rewriting, reading down or other form of

interpretation that would strip these provisions of their substance or reduce them to a mere statement of principles.

The SSJBM’s arguments differ from those of the other parties in that they [ translation ] “focus more on the Court’s consideration of the interests of the Quebec people as having collective rights ”, said [ translation ] “ Quebec people evidently being the key element” of the Act respecting the prerogatives of Québec . [92] The SSJBM therefore strongly disputes the appellant’s denial of the very existence of the Quebec people as defined in the Act , [ translation ] “that is, as a ‘civic’ or sociopolitical people”. [93] ANALYSIS [ 81 ] I note once again that the appellant’s grounds in this appeal largely reflect his submissions as an intervener before the Supreme Court of Canada in the Secession Reference . [94] The Supreme Court did not accept his submissions, either dismissing them, finding that they fell within the political rather than the legal arena or determining, on a pragmatic basis, that it was not appropriate to answer them.

The grounds raised by the appellant before the Court seem to indicate that he is dissatisfied with the Supreme Court of Canada’s answers and that he is trying to obtain a second advisory opinion on the same questions, without, however, the context having changed substantially since then. In order to demonstrate this, it is therefore appropriate to examine the Secession Reference . [ 82 ] In the Secession Reference , the Supreme Court was careful to circumscribe the limited advisory role conferred on it in order to answer the questions submitted with respect to the possible secession of Quebec.

It began by characterizing its task, specifying that the reference “combines legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity”. [95] It then considered the scope of its jurisdiction with regard to the reference questions and addressed the arguments raised against their justiciability.

Given its specific jurisdiction in the context of a reference, as opposed to litigation, it rejected the arguments that the questions were theoretical, speculative or of a political nature or that they were not ripe for judicial decision, specifying, nonetheless, that “the Court should not, even in the context of a reference, entertain questions that would be inappropriate to answer”. [96] [ 83 ] The Supreme Court was very careful to avoid slipping into the highly charged political arena of secession and insisted on limiting the debate to legal issues, citing, in that regard, the following passage from the Reference Re Canada Assistance Plan : [97] […] In exercising its discretion whether to determine a matter that is alleged to be non-justiciable, the Court’s primary concern is to retain its proper role within the constitutional framework of our democratic form of government . [. . .] In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch . (Emphasis in the original) [ 84 ] The Supreme Court therefore concluded that it could decline to answer a reference question on the basis of “non-justiciability” in

the following circumstances: [98] (

i) if to do so would take the Court beyond its own assessment of its proper role in the constitutional framework of our democratic form of government or (ii) if the Court could not give an answer that lies within its area of expertise: the

interpretation of law. [ 85 ] It thereby ensured that it would interpret only the legal and justiciable aspects of the reference questions, being careful to apply judicial restraint to refuse to answer questions that, while otherwise of a legal nature, were more a matter for political decision-making within the established legal framework. It described the legal aspects of a province’s secession under Canadian constitutional law as follows: [99] [84] The secession of a province from Canada must be considered, in legal terms, to require an amendment to the Constitution, which perforce requires negotiation .

The amendments necessary to achieve a secession could be radical and extensive. […] It is of course true that the Constitution is silent as to the ability of a province to secede from Confederation but, although the Constitution neither expressly authorizes nor prohibits secession,

an act of secession […] undoubtedly is inconsistent with our current constitutional arrangements.

The fact that those changes would be profound […] does not negate their nature as amendments to the Constitution of Canada […]. (Emphasis added) [ 86 ] Even though the Canadian Constitution is silent as to the ability of a province to secede, the Supreme Court stated that: [100] It lies within the power of the people of Canada , acting through their various governments duly elected and recognized under the Constitution, to effect whatever constitutional arrangements are desired within Canadian territory, including , should it be so desired, the secession of Quebec from Canada. (Emphasis added) [ 87 ] Under Canadian law, the secession of a province therefore requires a constitutional amendment, which necessarily implies the negotiation of the amendment. [101] A referendum whose results are “free of ambiguity both in terms of the question asked and in terms of the support it achieves” [102] could trigger the negotiation process with a view to secession.

Indeed, faced with such a referendum result, the other parties to the Canadian confederation would have the obligation to negotiate constitutional amendments in order to respond to the expressed desire: [103] The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table.

The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed . (Emphasis added) [ 88 ] The conduct of the parties during such negotiations would be governed by the principles of federalism, democracy, constitutionalism and the rule of law, and the protection of minorities. [104] These principles would not oblige the other provinces and the federal government to accede to the secession, subject only to negotiation of the logistical details for secession, but, rather, would impose the obligation to negotiate so as to address the interests of the federal government, of Quebec and the other provinces, and of other participants, as well as the rights of all Canadians both within and outside Quebec. [105] The negotiations would undoubtedly be difficult and complex and there is a possibility they could reach an impasse. [106] [ 89 ] However, determining what constitutes a “clear” question and a “clear” majority in a referendum, thereby triggering the negotiation process, as well as what the content or conduct of such negotiations should be and the ramifications of a breakdown in negotiations are primarily, if not exclusively, political issues: [107] [100] The role of the Court in this Reference is limited to the identification of the relevant aspects of the Constitution in their broadest sense.

We have interpreted the questions as relating to the constitutional framework within which political decisions may ultimately be made. Within that framework, the workings of the political process are complex and can only be resolved by means of political judgments and evaluations. The Court has no supervisory role over the political aspects of constitutional negotiations. Equally, the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so.

A right and a corresponding duty to negotiate secession cannot be built on an alleged expression of democratic will if the expression of democratic will is itself fraught with ambiguities.

Only the political actors would have the information and expertise to make the appropriate judgment as to the point at which, and the circumstances in which, those ambiguities are resolved one way or the other. [101] If the circumstances giving rise to the duty to negotiate were to arise, the distinction between the strong defence of legitimate interests and the taking of positions which, in fact, ignore the legitimate interests of others is one that also defies legal analysis .

The Court would not have access to all of the information available to the political actors, and the methods appropriate for the search for truth in a court of law are ill-suited to getting to the bottom of constitutional negotiations. To the extent that the questions are political in nature, it is not the role of the judiciary to interpose its own views on the different negotiating positions of the parties, even were it invited to do so.

Rather, it is the obligation of the elected representatives to give concrete form to the discharge of their constitutional obligations which only they and their electors can ultimately assess. The reconciliation of the various legitimate constitutional interests outlined above is necessarily committed to the political rather than the judicial realm, precisely because that reconciliation can only be achieved through the give and take of the negotiation process. Having established the legal framework, it would be for the democratically elected leadership of the various participants to resolve their differences.

[102] The non-justiciability of political issues that lack a legal component does not deprive the surrounding constitutional framework of its binding status, nor does this mean that constitutional obligations could be breached without incurring serious legal repercussions.

Where there are legal rights there are remedies, but as we explained in the Auditor General ’s case, supra , at p. 90, and New Brunswick Broadcasting , supra , the appropriate recourse in some circumstances lies through the workings of the political process rather than the courts. [103] To the extent that a breach of the constitutional duty to negotiate in accordance with the principles described above undermines the legitimacy of a party’s actions, it may have important ramifications at the international level .

Thus, a failure of the duty to undertake negotiations and pursue them according to constitutional principles may undermine that government’s claim to legitimacy which is generally a precondition for recognition by the international community. Conversely, violations of those principles by the federal or other provincial governments responding to the request for secession may undermine their legitimacy.

Thus, a Quebec that had negotiated in conformity with constitutional principles and values in the face of unreasonable intransigence on the part of other participants at the federal or provincial level would be more likely to be recognized than a Quebec which did not itself act according to constitutional principles in the negotiation process. Both the legality of the acts of the parties to the negotiation process under Canadian law, and the perceived legitimacy of such action, would be important considerations in the recognition process.

In this way, the adherence of the parties to the obligation to negotiate would be evaluated in an indirect manner on the international plane. (Emphasis added) [ 90 ] In this regard, with respect to the constitutional procedure that must be followed in order for Quebec to secede, including the application of the constitutional amending formulas set out in

Part V of the Constitution Act, 1982 , although the issue was broached in the course of the reference, the Supreme Court refused to rule on it: [108] [105] It will be noted that Question 1 does not ask how secession could be achieved in a constitutional manner, but addresses one form of secession only, namely unilateral secession. Although the applicability of various procedures to achieve lawful secession was raised in argument, each option would require us to assume the existence of facts that at this stage are unknown.

In accordance with the usual rule of prudence in constitutional cases, we refrain from pronouncing on the applicability of any particular constitutional procedure to effect secession unless and until sufficiently clear facts exist to squarely raise an issue for judicial determination. (Emphasis added) [ 91 ] Indeed, the Secession Reference does not mention

Part V of the Constitution Act, 1982 , which deals with the constitutional amending formulas, precisely because the Supreme Court did not rule on the required formula, stating, instead, that “the Constitution is not a straitjacket” and can evolve. [109] [ 92 ] The Secession Reference also addressed the issue of the “Quebec people” and its right to self-determination.

The Supreme Court concluded that it was not necessary to explore the legal characterization of the “Quebec people” or to determine whether, should a “Quebec people” exist within the definition of public international law, such a people encompasses the entirety of the provincial population or just a portion thereof. [110] Indeed, regardless of the answer to these questions, the Quebec population, however defined, does not have the right, under international law, to secede unilaterally from Canada, because the conditions required under international law to do so – namely, colonization, oppression or exclusion – have not been satisfied: [111] [138] In

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