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Constitutionally speaking: Quebec and the Supremes

Abbie Bakan

November 23, 2011

The claim that “constitution fatigue” is a “problem” in Canadian politics serves to silence a key aspect of the oppression of Quebec within the federal system of capitalist rule. In a Supreme Court decision pronounced in August 1998, the highest law of the land ruled that Quebec does not have the right to unilaterally declare its independence from Canada according to the Constitution, nor does it have such a right according to international law.

But even this decision did not go far enough to satisfy the cacophony of bigotry that characterized the Constitutional debates in the 1990s.

The same decision ruled that if a majority of Québécois vote in a referendum to secede, Ottawa and the rest of the provinces would be obliged to negotiate the terms.

The ruling followed the referendum of October of 1995, which came within a hair’s breadth of success for the sovereigntists. Before that outcome, the legality of the referendum process was not questioned.

In fact, one of the main arguments used by the federalists during the referendum was that a “Oui” vote could only mean immediate separation without negotiation. But Quebec, apparently, only had the right to self-determination if it would not be asserted.

“Plan B”

The legal challenge was part of the federal government’s package of threats known as “Plan B.” It included the threat to partition Canada and maintain a system of militarized borders in the event of another referendum.

“Plan A” was much less developed. It was based on the aim to win over a majority of Québécois to the benefits of federalism voluntarily.

But with the failure to win an unconditional Supreme Court decision against any road to independence, many commentators at the time thought that Plan B had backfired.

The get-tough strategy for the federalists won the legal battle against Quebec sovereignty, after a fashion. The unrequested compulsion to negotiate in the event of a successful referendum took away the government’s ideological ground, virtually negating the legal victory.

Lucien Bouchard, at the time Premier of Quebec and leader of the pro-sovereigntist Parti Québécois, refused to recognize the entire process.

And fair enough.

The nine judges were appointed by the federal government. And they were ruling according to a Constitution to which no elected government in Quebec had ever consented. True to form, the judges ruled against Quebec’s right to self-determination. And what’s more, the ruling expressly denied that Quebec is an oppressed nation within the federation.

But the entire history of Quebec belies such legalisms. And the mere fact that the Supreme Court was even debating Quebec’s right to secede indicates that there is an issue of national oppression to discuss, despite the interpretation of the judges.


Importantly, however, the legal ruling did not reduce the political debate to a matter of law, which was what then-Prime Minister Jean Chrétien and his supporters had hoped. Instead, the judges threw the issue of negotiating sovereignty back into the court of the politicians.

In the months after the ruling, political debate about Quebec’s right to self-determination intensified.

The Supreme Court’s ruling against Quebec’s right to self-determination was a clear expression of the oppressive character of the federal state.

The leaders of the Parti Québécois and Bloc Québécois were and remain committed to the capitalist system without apology, including all the cuts, union-busting and exploitation that goes with it. But no genuine unity between workers in Quebec and English Canada is possible if it based on threats and coercion.

And the ruling came along with a caveat that reveals a deep divide within the federalist section of the Canadian ruling class about how to address the sentiment for independence within Quebec.

The bigots in English Canada, including those in the federal Liberals and the then Opposition Reform Party (read: Stephen’s Harper’s alma mater), were cringing about part of the Supreme Court ruling. They had unleashed a process that ruled that negotiation in good faith was to be followed should a clear majority in Quebec choose to secede on the basis of winning a clear referendum question.

The national question in Canada was hardly settled by the Supreme Court ruling. Stéphane Dion, the Liberals’ Minister of Intergovernmental Affairs, had already renewed the threats against Quebec. Chrétien had suggested that “a clear majority” to secede would be at least 67 per cent, despite his insistence that the federalists won in the October 1995 referendum by only 0.6 per cent above 50. This was the background to the Clarity Act, ultimately passed into law in 2000.

But the fact that the federalists did not fully have the outcome they hoped for indicated that in one sense the Supreme Court judges were right. It is politics that would determine the outcome of Quebec’s relationship with the rest of Canada in the future.

But what type of politics remains an open question to this day. The growth of Québec solidaire in Quebec, which advances a new type of sovereignty and solidarity with progressive forces in English Canada, poses a challenge. It is not, as the judges perceived, the politics of the elite, but the politics of mass struggle among workers in common cause in Quebec and English Canada that will be decisive.

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