Washington Courts: Judicial News Report Detail

The Quebec Reference

Justices from six state Supreme Courts got a glimpse into the inner workings of Canada's highest federal court, when Madame Justice Claire L'Heureux-Dubé described her court's recent efforts to make what may turn out to be its most important decision ever: the right of citizens of the French-speaking Quebec province to secede--with federal consent--from the rest of English-speaking Canada. The decision on the case, known as the "Quebec Reference," was handed down August 20.

Held in Seattle August 27-29, the Pacific Northwest Judicial Conference gathered Supreme Court justices from Alaska, Hawaii, Idaho, Montana, Oregon and Washington to hear presentations based on the conference theme: "Vision 2020: Leadership into the 21^st Century." Organized by Washington Supreme Court Justice Richard P. Guy, the event, held in several locations in Seattle, was covered by TVW, Washington's public affairs network. Dubé's presentation was one of twelve educational programs featured at the three-day event.

The Quebec Reference

In opening remarks, Dubé provided a brief, historical look at the long-time conflict between English and French speaking Canadians.

"Comprehending how the Quebec Reference came to be heard by our court
requires an understanding of the political and social development of what is now Canada," Dubé said. "It must begin not in the 20^th century, but the 18^th century."

It began, she said, with the British takeover of Canada in 1759-60. "So immediately it sets a little bit of the stage. I don't think there are very many countries where the conquered likes the conqueror."

British soldiers suppressed armed rebellion by French-Canadian protesters in 1837, and Canada's modern government was formed. In 1987, the exclusion of French-Canadian rights again boiled to the surface, leading to discussions of constitutional accommodation. As opposition by the English-speaking population grew, the French separatist movement gained momentum.

An attempt to solve the issue by referendum failed in 1992. The separatist Quebec government was re-elected in 1994, with a promise to hold another election. In 1995, a national referendum was defeated by a scant few thousand votes. When the election dust had cleared, 50.58% of voting Canadians had voted "no" against separation and 49.42% voted "yes."

An "advisory" with controversies

Unlike the United States charter, Canada's constitution allows the federal attorney general to put legal questions before the Court. The Court then issues an advisory opinion in the form of a judgment. The government is bound by such decisions.

"Many important questions in Canada constitutional law have been decided through references," Dubé explained. Since 1892, the Canadian court has handled 75 federal references, she said.

In this case, the government asked three questions relating to the secession of Quebec:

1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the succession of Quebec from Canada unilaterally?
3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

The reference itself was controversial. Many Canadians questioned whether the issue should be raised with the Supreme Court at all. According to Washington Post writer Howard Schneider, the Court's hearings sparked strong feelings in each direction. "They are described as either a high-minded exercise in constitutional democracy or a base ploy by the Canadian government to convince Quebecers that they would be breaking the law if they tried to secede." The four days of oral arguments were televised nationwide, gavel to gavel, on CPAC, Canada's version of C-SPAN.

Historical case

The enormity the task before them was not lost on Dubé and her colleagues.

"The Chief Justice of Canada described this as the most important case he had worked on in his entire career, more than 25 years and beyond," said Dubé. "In addition, public attention was focused on our court in a way that rarely, if ever, occurs."

A historic decision

Due to the widespread significance of the case, Dubé said she and her bench mates decided early on to try for unanimity. The opinion would be issued per curiam--without identifying a particular author. But Canadian law requires three of the Court's nine members be French-Canadians. The possibility for dissent was great.

Some members felt it was also important, Dubé said, that the opinion heal, rather than divide a nation already torn by the secession issue. That meant it had to give comfort to both sides.

When the opinion was issued August 20^th , it was unanimous. The court declared Quebec did not have the right to unilaterally declare its independence from the rest of Canada. But the advisory also provided that if Quebecers voted for secession, the Canadian constitution and international law required the federal government to negotiate in good faith on the split.

"A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize," said the opinion.

"So yes, Quebec has a right to self-determine, but it does not have the right to secede," explained Dubé.

After a hard copy was posted in court, the decision was available within five minutes to the entire world via the Internet. A reader-friendly summary--something the Court often writes when issuing a complicated opinion--was also posted, mainly for the benefit of the news media, Dubé said.

"Quebec has won and the Federalists have won, and that is a result that we are not unhappy with, to tell you the truth," said Dubé. Overall, she said she was very proud of the decision. "The principal objective was not to put fuel on the fire, and I think we succeeded."