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DECLARATIONS BY THE HONOURABLE
ANNE MCLELLAN AND THE HONOURABLE
STÉPHANE DION
OTTAWA, ONTARIO, August 20, 1998 – In response to the ruling of the
Supreme Court of Canada, please find attached the declaration made today by the
Honourable Anne McLellan, Minister of Justice and Attorney General of Canada,
and the declaration made today by the Honourable Stéphane Dion, President of
the Privy Council and Minister of Intergovernmental Affairs.
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For information:
Pierre Gratton
Press Secretary to the Honourable Anne McLellan
(613) 992-4621
André Lamarre
Press Secretary
(613) 943-1838
STATEMENT BY THE MINISTER
OF JUSTICE AND ATTORNEY GENERAL OF CANADA, THE
HONOURABLE ANNE McLELLAN IN RESPONSE
TO THE RULING OF THE SUPREME COURT
The opinion of the Supreme Court of Canada today shows wisdom, and it merits the
respect of all Canadians. Not only does the ruling clarify important points of
law, but it also reminds us of the basic principles that should guide us all in
dealing with such an issue as secession.
1. Why we took the Reference
The Government of Canada submitted the Reference to the Supreme Court of Canada
as a result of the position taken by the Government of Quebec, which asserted
that international law gives the Quebec Government the right to take Quebec out
of Canada unilaterally; to effect secession without regard to the Canadian legal
order. It claimed that under international law it could remove from Quebecers
their right to participate in the advantages of being Canadians as well. The
Government of Canada believes it had a duty, on behalf of all Canadians, to
obtain clarity on these fundamental legal issues.
2. The Supreme Court Opinion
The Supreme Court of Canada is an impartial body of independent jurists that is
highly respected in Canada and abroad. It has produced a balanced and carefully
considered decision. The Government of Canada will respect and follow its
opinion. We expect that all governments and citizens in Canada will do the same.
We asked the Supreme Court to rule on three precise legal questions relating to
possible unilateral action by the Government of Quebec. We now have the Court's
opinion on those questions. The Court has ruled that the Canadian Constitution
applies to any secession process and that international law does not create any
right to secede unilaterally from a democratic country such as Canada.
We are pleased that the Court has recognized the clear legal nature of the
questions posed. The Court acknowledged that the questions raise issues of
fundamental public importance. Most importantly, the Court has underlined the
importance of the rule of law as an essential underpinning of democracy. The
Court has emphasized the importance and interdependence of the constitutional
principles of federalism, democracy, constitutionalism and the rule of law, and
respect for minorities.
The Reference decision in no way interferes with the democratic right of
Quebecers to express themselves with respect to their future. The ruling
enhances the democratic rights of all Canadians by providing clarity on certain
fundamental legal issues.
The Court's emphasis on the need for constitutional negotiations to achieve
secession is also consistent with the Government of Canada's long-standing
position. Under the Constitution, secession requires that an amendment be
negotiated.
The Court has stated that: "Any attempt to effect the secession of a
province from Canada must be undertaken pursuant to the Constitution of Canada,
or else violate the Canadian legal order." This triggers a constitutional
duty to negotiate in accordance with the constitutional principles described by
the Court.
The Court has confirmed a key element of the Government of Canada's position,
that international law does not confer any right on the Government of Quebec to
secede unilaterally. The Court indicated that unilateral secession is unlikely
to be accepted internationally where it is incompatible with the domestic
constitution, as in Canada. The Court concluded that: "A state whose
government represents the whole of the people or peoples resident within its
territory, on a basis of equality and without discrimination, and respects the
principles of self-determination in its own internal arrangements, is entitled
to the protection under international law of its territorial integrity."
With respect to minorities, including the Aboriginal peoples, we welcome the
Court's statement that the protection of their rights reflects an important
underlying constitutional value.
Before turning to my colleague, the Honourable Stéphane Dion, I would like to
emphasize, as the Supreme Court has, that the rule of law is the framework
within which democracy operates. There is no conflict between the rule of law
and democracy. Democracy and the rule of law support and sustain each other. We,
all of us, are democrats who respect and support the rule of law. As the Court
has stated, democracy in any real sense of the word cannot exist without the
rule of law. It is the law that creates the framework within which the
"sovereign will" is to be ascertained and implemented.
STATEMENT BY THE
HONOURABLE STÉPHANE DION
IN RESPONSE TO THE RULING OF
THE SUPREME COURT
There are few decisions in a
democracy that are more grave than the decision to divide a country--to
establish an international border between fellow citizens who then cease to be
fellow citizens. Such a decision must not be based on false information,
especially when individual rights are at stake.
1. Why this reference to the Supreme Court?
Separation based on mutual agreement is accepted by Canada as a possibility,
even though it is not accepted in most democracies. In the highly unlikely event
that Quebecers clearly indicate that they want to renounce Canada, secession
would be negotiated in accordance with the rule of law and democracy for all.
However, the current Government of Quebec has argued that international law
gives it the right to effect independence unilaterally - to separate while
ignoring the Canadian legal order. It has claimed that under international law
it could take from us, Quebecers, our right to also be Canadians and to enjoy
the full benefits that come from being Canadians in Quebec, throughout Canada
and throughout the world. That is what it intended to do, after consulting us in
its own fashion.
The Attorney General of Quebec made this argument in the Bertrand vs. Bégin
case in the Quebec Superior Court on April 16, 1996, declaring that the
process of attaining independence [Translation]"is sanctioned by
international law, and the Superior Court has no jurisdiction in this
respect." The federal government disagreed with this extraordinary claim
and had no choice but to challenge it by intervening before the Quebec Superior
Court. After the Superior Court determined that the case could proceed and the
Attorney General of Quebec decided to withdraw, the Government of Canada
referred the issue to the Supreme Court.
The Government of Canada maintained that the Government of Quebec could not rely
on
international law as a basis to unilaterally put an end to the obligations and
responsibilities of the federal government toward Quebecers. It was convinced
that, on moral as well as legal grounds, it could never give up its
constitutional responsibilities to Quebecers unless it was persuaded that this
was clearly their wish. And from a strictly practical point of view, separation
without agreement seemed impossible.
The Government of Canada was convinced that its responsibility toward all
Canadians compelled it to defend the interests of all Canadians under all
circumstances, even the extremely painful circumstances of a separation.
Thus, there were two opposing legal views: one giving the Government of Quebec a
unilateral right to effect independence, and the other holding that no such
right existed.
In a democracy, in the event of disagreement over a legal issue, it is usual to
seek the necessary clarifications from the courts. That is what the Government
of Canada has done.
Despite what may have been suggested, the Government of Canada has clearly not
asked the court to usurp the will of the people. That is not its role. But it
has provided us with fundamental legal clarifications on the unilateral act of
secession contemplated by the current Government of Quebec.
This opinion of the Supreme Court of Canada creates no new barriers to Quebec`s
independence. If a government attempted unilaterally to effect independence,
many resulting issues would inevitably have come before the courts. Are we to
believe that no Quebecer would have gone to court to challenge a unilateral act
designed to deprive him of his rights as a Canadian? It is much better to
clarify these issues now, in an atmosphere of calm, rather than in the turbulent
environment of a possible attempt at secession.
2. The consequences of this reference
The Court has given its opinion today. This confirms that our constitution as
well as international law permit the independence of Quebec, but that the
Government of Quebec does not have the constitutional power nor the right in
international law to effect independence unilaterally. This means that the
Government of Quebec is not in a position on its own to impose the process and
terms of the break-up of Canada. It does not have the right, by itself, to take
away from we Quebecers our full membership in Canada. The ruling of the Court in
this regard could not be clearer.
At the same time, the Court established, as the Government of Canada has always
maintained, there is an obligation to negotiate secession in the case of a
"clear repudiation by the people of Quebec of the existing constitutional
order." These negotiations, the Court has clarified, would deal with much
more than just the logistical details of secession. "Negotiations would
need to address the interests of the other provinces, the federal government,
Quebec and indeed the rights of all Canadians both within and outside Quebec,
and specifically the rights of minorities." This is exactly the position
that the Government of Canada argued before the Court. It is the position I
presented as well in my letters to Premier Bouchard and his Ministers.
Our citizens are the big winners. The citizens of Quebec have had their right to
remain part of Canada confirmed so long as they have not clearly indicated their
desire to leave. In addition, they have obtained the assurance that they will
not be held in Canada against their clearly expressed will.
The current Government of Quebec should respect the Court's ruling and
consequently reject a unilateral declaration as a means to effect independence.
To act otherwise would be irresponsible on its part. It must accept the fact
that unilateral secession is obviously impractical as well as illegal. Such an
act would confront Quebecers with impossible choices and could plunge us into
disorder.
We now know that if the Government of Quebec, after a public consultation
process determined and interpreted by it alone, unilaterally proclaimed itself
the government of an independent state, citizens and other governments would be
entitled not to treat it as such. This would create a serious problem between
the Government of Quebec and Canada as a whole, but--above all--a much more
serious problem between the Government of Quebec and many Quebecers.
The current Government of Quebec should be asked how it could, contrary to the
law, take Canada away from millions of Quebecers who would still consider
themselves Canadian. In what court would it take legal action against citizens
who refused to comply with certain of its laws on the grounds that they breached
the Constitution of Canada? There are few things more dangerous in a democracy
than a government that places itself above the law but continues to demand
obedience of its citizens.
We must bear in mind past statements by the PQ government concerning the need to
respect the law in all circumstances. For example, former Premier Jacques
Parizeau said:
[Translation] "We are a state governed by the rule of law. Canada and
Quebec are not banana republics. There is the law. There is the Constitution.
There is international law. And we were all elected to uphold the law. It is
said that our role as legislators is to uphold the law as it exists and amend it
if it is considered appropriate to do so. But we are members of a state governed
by the rule of law."(National Assembly Debates, May 19, 1994)
Or, as current Premier Lucien Bouchard said :
[Translation]"I believe that in a society based on the rule of law,
particularly for a Premier, it is quite inconceivable to allow the threat of
brutal intervention against the law." (Press briefing, September 21, 1996)
Nor would a unilateral secession be supported by the international community,
which has always been extremely reluctant to endorse such a destabilizing act.
It is clear: unilateral separation is unworkable. Even when contemplated within
a legal framework, separation is an extreme act involving endless uncertainties.
The Government of Canada is convinced that Quebecers will never give up Canada.
But whatever happens, we must all respect the Court's judgement in pursuing this
debate. We should all agree on this in Canada, including in Quebec, whether we
are for Canadian unity or for the independence of Quebec.
The opinion that the Supreme Court has just rendered is pro-democracy. It should
be respected by everyone who has the interests of Quebecers at heart.
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