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Supreme Court of Canada Delivers Another Political Judgment


Supreme Court justices are forsaking the law to impose their preferences in the issue of Quebec secession.

This essay was previously published in The Ottawa Citizen, August 27, 1998


Rory Leishman

 Author Notes

Freelance journalist, author of a weekly national affairs column for The London Free Press and Sun Media Newspapers in London, Ontario. Mr. Leishman's work also appears in various other journals, and he operates his own web site where others of his essays can be viewed. He can be reached via e-mail at rleishman@home.com.

 Essay - 8/27/1998

With last week's ruling on secession by Quebec, the Supreme Court of Canada flouted the rule of law, encroached upon the legislative authority of Parliament and played straight into the hands of the Quebec separatists.

On Friday, Quebec Premier Lucien Bouchard could hardly contain his enthusiasm. "The court," he crowed, "has undermined the foundations of the federalist strategy."

In support of this viewpoint, Bouchard noted the court's declaration that: "A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognise."

Bouchard is no less delighted by the court's holding that both parties in the aftermath of such a vote would be constitutionally obligated to negotiate the terms of Quebec secession in good faith and that failure to do so could have serious consequences. In what could turn out to be a self-fulfilling prophecy, the court has warned that the international community would be more likely to recognise the independence of, "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."

On this basis, Bouchard contends that, "Quebecers today find themselves reassured: their Yes will force Canada to negotiate. More and more women and men in Quebec will conclude that the time will soon arrive to decide, once and for all, to put an end to the insoluble quarrels with Canada, to build the Quebec homeland here, and to negotiate a mutually beneficial and equal-to-equal partnership with our neighbours."

Bouchard is not alone in thinking that the court's ruling represents a triumph for separatism. Robert Martin, a professor of constitutional law at the University of Western Ontario, says, "The separatist cause was dead and I fear that the Supreme Court of Canada may have brought it back to life."

What also irks Martin is the lack of any legal basis for the court's ruling. "It's preposterous," he fumes. "It's all made up. The judges are treating the Constitution as if it were their own possession."

The legal issues in this case were straightforward. The federal government simply asked the court to rule on whether Quebec has a right under the Constitution of Canada or international law to secede from Canada unilaterally.

Early in its judgment, the court stated: "It is of course true that the Constitution is silent as to the ability of a province to secede from Confederation." That consideration alone, insists Martin, should have settled the question of domestic law. Given the lack of any provision on secession in the text of the Constitution, the court should simply have concluded that neither Quebec nor any other province can have any constitutional right to secede from Canada.

Granted, Bouchard would also have exploited such a ruling for his separatist ends. However, that risk should not have been of any concern to the court: judges have a responsibility to uphold the law and the Constitution as originally enacted and intended, regardless of the political consequences.

Instead, the Supreme Court of Canada abandoned the strict letter of the law and contrived to find an unstated, but supposedly implicit, principle of democracy in the Constitution that purportedly gives Quebecers a constitutional right to secede from Canada, if a majority should chose to do so.

Such a farfetched legal theory would have confounded the Fathers of Confederation. As the court noted, most of them resolutely opposed an attempt by premier Joseph Howe of Nova Scotia to have his province secede from Canada, although he and his anti-Confederation allies won 18 of 19 federal seats and 36 of 38 provincial seats in elections held in September, 1867.

In strict legal terms, there is not now and there never has been any democratic right to secession enshrined in the Constitution of Canada. Under the pretence of interpreting the Constitution, the court has actually forsaken the law in favour of imposing its political preferences from the bench.

That's typical of the courts in the Charter era. How much longer will Canadians put up with such judicial arrogance? What will it take finally to convince our robed dictators that political decisions in a democracy should be made by elected representatives of the people, not nine appointed judges?

Martin has good reason to be upset by this potentially disastrous secession ruling. "From every point of view," he says, "it is deplorable. I find it very disturbing."

And so should every other Canadian who cherishes national unity and still understands the meaning of freedom under law.

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