OTTAWA -- The Supreme Court of Canada did more yesterday than rip the heart out of Quebec's Referendum Act, when it granted the appeal of Robert Libman, defended by Julius Grey, and financed by Howard Galganov's Quebec Political Action Committee. Implicitly, the court passed judgment on Quebec's political class and on the authoritarianism that makes Quebec a distinct society.
The highest court, unanimously, found that the referendum law's almost total ban on independent spending by individuals or groups during a referendum campaign violated Quebecers' freedom of expression and freedom of association, and was unjustifiable in a free and democratic society, not only under the Canadian Charter of Rights and Freedoms, but also under the Quebec Charter of Human Rights and Freedoms.
Remember, this is a law passed by the Parti Québécois government in 1978, applied by that same government for its referendum in 1980, a law kept by the Quebec Liberal Party after it came to power in 1985 and applied in its Charlottetown Referendum in 1992. It is a law that was upheld by a judge of the Quebec Superior Court in 1992, and by the Quebec Court of Appeal in 1995.
Politicians and pundits sang the law's praises. Even yesterday, after the judgment of the highest court, PQ government ministers were claiming there was a "consensus" in favour of this law in Quebec, and that it was the finest expression of "Quebec democracy" as usual, the word "Quebec" qualified and diminished the word "democracy."
The same restrictive law was applied in the 1995 Quebec referendum. Again, there was no outcry in the news media about the violation of the citizens' right to freedom of expression and freedom of association. Even when the Special Committee on Canadian Unity, including Guy Bertrand, Brent Tyler, Keith Henderson, and others, was prevented by the No Committee from campaigning as an affiliated group, there was no outcry in the press. The Gazette treated it as an amusing colour story. CJAD's Jim Duff tore a strip off the Special committee because it appealed to the Conseil du Référendum to have the right to speak. It then won the right to talk about the importance of the constitution and the rule of law but only in the last week of the campaign, when it was too late.
Almost everything was different, except the existence in both of two umbrella committees, recipients of government grants. But in Britain, a country that believes in democracy rather than "Quebec democracy," citizens were allowed to campaign at will outside the umbrella committees, and there was no attempt to force the two committees to spend exactly the same amount, as Quebec enacted.
The Supreme Court bent over backward to accommodate Quebec as much as it possibly could. But its judgment created a loophole that restores freedom to the citizens and makes the act, as it was, unenforceable.
The PQ can use the "notwithstanding" clause to suppress freedom again and re-enact a scandalous referendum law. But if it does so, what credibility will the referendum enjoy, what legitimacy will attach to its results when the whole world will know that the rules of the referendum campaign are unworthy of a free and democratic society?
Quebec has yet to assimilate the culture of liberal democracy.