The Ottawa Citizen
Friday, October 10, 1997

Supreme Court strikes blow to Quebec referendum law

Decision will affect charges against rally supporters, lawyers say

by Jack Aubry

The Supreme Court of Canada has struck down a major section of Quebec's referendum law, throwing a wrench in Quebec Premier Lucien Bouchard's plans for another vote on sovereignty.

Invoking the ghost of Rene Levesque who brought in the law as premier, the Quebec government called yesterday's ruling "an attack on democracy" and threatened to use the notwithstanding clause to circumvent the decision.

With an eye on next February's reference to the Supreme Court on Quebec's right to declare independence unilaterally, Natural Resources Minister Guy Chevrette dismissed the high court.

"We will not get down in front of a Supreme Court where the judges are only named by political alliance" -- a veiled reference to the appointment of Justice Michel Bastarache, a former legal colleague of the prime minister.

While praising the main objective of the almost 20-year-old referendum law, the high court unanimously struck down the sections of the legislation that limit campaign spending by third parties.

The court suggested restrictions such as $1,000 per group or individual may be reasonable, upholding a federal law struck down by courts in Alberta.

The decision is yet another blow to Mr. Bouchard. The sovereignty movement has been dropping in support in recent polls and the Quebec premier's recent trip to France to shore up support there was panned at home.

Lawyers also said the court decision will likely lead the Quebec electoral office to drop charges against 18 people and organizations who participated in the Montreal rally during the 1995 referendum, including four Ontario individuals and groups.

There are four Ottawa-area defendants in the case: The Algonquin College Students' Association, former SHL Systemhouse executive Ken Sinclair, local businessman Claude Gingras, and Aurele Gervais, the communications director for the federal Liberal party.

The lawyer representing the local groups is optimistic the charges against his clients will be dropped.

"My first reading of the decision is that it should be over for all the ones that were prosecuted by the Chief Electoral Officer for participating in the referendum", says Marc-Andre Fabien. "The only logical decision that can be reached is that the charges should be dropped against those who were prosecuted. It's an excellent day for my clients."

One of Mr. Fabien's clients, Mr. Gingras, is not only thrilled by the Supreme Court decision, but unrepentant. After 50 of his employees asked for the day off to attend the unity rally, he spent $650 to rent a bus to take them to Montreal and was charged with violating Quebec electoral law.

"I would do it again tomorrow", says Mr. Gingras. "This is a fantastic day because of that decision. It only makes me believe more that what I did in 1995 was the right thing."

Quebec Intergovernmental Affairs Minister Jacques Brassard said the separatist government is considering using the notwithstanding clause to over-ride the Supreme Court decision. He also did not dismiss the possibility of amending the law.

"The law, we know it was respected. It was used on three occasions and inspired other legislation outside of Quebec. It is a law that is very democratic -- to such an extent that its credibility is very strong in Quebec society", said Mr. Brassard.

"The part of the law that ensures balanced spending will be maintained to ensure that one side is not allowed to spend more than the other."

Justice Minister Anne McLellan told reporters outside the House of Commons that Quebec can't have it both ways, one day respecting the Supreme Court and the next day denouncing it.

Quebec sent its top lawyers to argue the Libman case before the Supreme Court. The same government has refused to participate in the federal government's reference case to the same court on the right to make a unilateral declaration of independence.

Mr. Bouchard has said Quebec will not respect the decision because it is a political question that should be settled by the Quebec people.

Robert Libman, the former leader of the Equality party in Quebec, took the case to court following the 1992 referendum on the Charlottetown accord. He argued that the law unfairly restricted his options in the referendum because he didn't want to join either the Yes or No sides.

The referendum law restricts people in Mr. Libman's position from advertising and only allows the holding of meetings that cost no more than $600. The Quebec Court of Appeal upheld a lower court decision that ruled the referendum did infringe on freedom of expression but that it was justifiable because spending controls are needed to ensure a free and fair vote.

The court recognized its decision has a major impact on the Quebec law: "Since practically all the provisions concerning referendum spending are based on the concept of 'regulated expenses', they become pointless owing to the declaration that the impugned provisions are of no force or effect."

Copyright © 1997 by All Rights Reserved. Reprinted with permission.