The Financial Post
Friday, October 10, 1997

Supreme Court judgement puts Parti Québécois in a bind

Referendum Act declared null and void because it violates freedom of expression

by William Johnson

Make no mistake, it's been a brutal week for Quebec's separatists. On Monday, their nemesis, Guy Bertrand, announced he was asking Quebec Superior Court for a declaratory judgement that he would not have to pay taxes to a Quebec government seceding illegally. That raised the spectre of financial chaos if ever Quebec tries to separate without the consent of all Canada.

Then, yesterday, the Supreme Court of Canada struck down Quebec's 1978 Referendum Act as violating freedom of speech and freedom of association. Moreover, the judgement of the court was unanimous. And the nine judges declared Quebec's law for holding a referendum unconstitutional, not only under the Canadian Charter of Rights & Freedoms, but even under Quebec's own Charter of Human Rights & Freedom.

A double whammy. Part of the separatists' soft sell over the years has been that independence would follow directly after a majority Yes vote in a referendum. Never mind the question asked, never mind the size of the majority, never mind the Constitution of Canada. All that mattered was the tally: were there more Yes votes than No votes? That was it. Game over. Quebec was in the United Nations.

Federalists did little to question that rosy scenario, especially such political leaders as Brian Mulroney or Robert Bourassa, Jean Chrétien or Daniel Johnson. But now, from many directions, the separatist mythology is under attack.

Bertrand, the former arch-separatist, has been a leader of the "partitionist" movement: He has asked the Supreme Court not only to declare that unilateral secession is unconstitutional, but that federalist regions of Quebec would have the right to remain in Canada if secession did occur.

This week's legal initiative, if it succeeds, would grant the right to every individual tax-payer, to every employer in Quebec, to turn over provincially owed taxes to a trustee, to be held until the Quebec government returned to the rule of law. If Quebec Superior Court ever recognized such a right for millions of Quebecers, federalists could bring an outlaw Quebec government to its knees. Its credit rating would collapse, money would flee the province and only the International Monetary Fund could keep Quebec from bankruptcy.

Even if Bertrand's latest legal attack should fail or be inconclusive, it will bring home to ordinary people here the mess that will be triggered by a unilateral declaration of independence. Already, a number of Quebecers (including myself) have declared they will never pay taxes to a Quebec government that overthrows the Constitution.

Yesterday's Supreme Court judgement puts the Parti Québécois in a bind. It has always maintained a referendum on sovereignty, run strictly under its own rules, would justify unilateral secession. But the court has declared that Referendum Act null and void because of its violations of freedom of expression and association.

The court bent over backward in its reasons for judgement to try to accommodate as far as possible the objectives and the structures established by the Referendum Act. But it knocked a hole into it by attacking its almost total prohibition for individuals or groups to campaign outside the two umbrella committees required by the act. The court said individuals and groups must be allowed to campaign in any way they want, spending a limited amount of money. If the National Assembly rewrites the law to allow anyone to spend a couple of thousand dollars in a referendum campaign, that would destroy the logic of the former law, which was to make sure both sides in a referendum campaign spent the same amount of money, and spent it under the control of the politicians running the umbrella committees.

What is Bouchard to do now? As of yesterday, there is no referendum law. He could rewrite it and invoke the notwithstanding clause to restore the previous restrictions on freedom of speech and association. But such a law would have been declared unacceptable in a free and democratic society. It would be illegitimate in the eyes of all Canadians and in the eyes of the world -- hardly the instrument to legitimate a unilateral declaration of independence.

The PQ's castle of cards is crumbling at last.

Copyright © 1997 by The Financial Post. All Rights Reserved. Reprinted with permission.