Canada

A war of words and shadows

A legal bid to constrain separatists raises the stakes on the unity front

BARRY CAME May 27 1996
Canada

A war of words and shadows

A legal bid to constrain separatists raises the stakes on the unity front

BARRY CAME May 27 1996

A war of words and shadows

Canada

A legal bid to constrain separatists raises the stakes on the unity front

BARRY CAME

In the courtroom off the top-floor atrium of Quebec City’s ultramodern Palais de Justice, the atmosphere is serene, almost soporific. Amidst all the blond wood and beige carpeting, there are only two splashes of brighter color. On the bench, Quebec Superior Court Justice Robert Pidgeon wears the black-and-scarlet robes of his office while, facing him at the plaintiff's table, lawyer Guy Bertrand is dressed in an impeccably tailored suit that is a shade darker than emerald green. Throughout the entire morning, there is only one moment of drama. It occurs when Réal Forest, lead lawyer in a team of eight representing the Quebec government, spills a glass of water over the brief he has been reading—an extremely detailed judicial discussion of the finer points of constitutional law regarding Newfoundland. “Even I’m bored,” Bertrand murmurs in an aside during the mild flurry of activity prompted by Forest’s toppled glass. “It’s probably a little hard to believe that what’s happening in here is the cause of all that excitement out there.”

It was, indeed. Nevertheless, those dry, deliberate legal proceedings inside Quebec Superior Court last week did ignite a whitehot war of words among the usual cast of characters in the country’s never-ending

national unity melodrama. At immediate issue in this latest episode was the application by Quebec City lawyer and near-legendary political maverick Bertrand for a permanent injunction to prevent any future Quebec referendums on sovereignty that would allow the province to unilaterally declare independence from Canada. In a broader context, however, there was another reason for the battles. It involved a perception—probably correct—by Quebec’s leadership that the federal government is skirmishing, moving towards defining in legal terms the rules of engagement for the next referendum.

Whatever the causes, last week’s rhetorical wars were largely waged in the fashion that has become traditional—by means of organized news conference and disorganized media scrum, on the floor of the House of Commons in Ottawa and the national assembly in Quebec City. In one new twist, however, this time the leading combatants managed to draw the United States into the fray as both Prime Minister Jean Chrétien and Quebec Premier Lucien Bouchard won the opportunity to state their respective cases before a live television audience of 30 million, probably baffled, Americans. Neither Chrétien nor Bouchard wasted the chance.

The Prime Minister, hinting at a new and tougher approach to Quebec separatists, told ABC television’s Good Morning America on Wednesday that the province could leave Canada only “with a clear mandate, not with a 50 [per cent] plus one vote.” “I can’t believe he said that,” Quebec’s premier replied the following day on the same program, going on to display either a deliberate ignorance or a blithe unawareness of U.S. constitutional voting provisions—requiring a two-thirds majority in Congress—by adding, “All over the world, democracy is 50 per cent plus something.”

Off camera, Bouchard complained later that only “total disarray” in the Chrétien government could have prompted the Prime Minister to utter such “awful” remarks, in front of an American audience yet. On the evidence, however, it was not at all clear whether the disarray lay at Chrétien’s doorstep or Bouchard’s. It was certainly Bouchard’s government that first escalated the

Bertrand case by sending a platoon of lawyers plus a constitutional expert in an attempt to have the application for an injunction thrown out of court on the grounds that Canadian law—and the Canadian Constitution—have no bearing on Quebec’s rights to independence. And once again, it was Bouchard’s government that reacted with unrestrained fury when Ottawa, reacting to Quebec’s legal position, chose to jump into the court action last week. “When the attorney general of Quebec states flatly that the accession of Quebec to sovereignty is a matter which has nothing to do with our Constitution or the court or the rule of law, I’m afraid we have to take a position,” federal Justice Minister Allan Rock declared as he dispatched a three-member team of lawyers to Quebec City to represent Ottawa’s interests.

That move set in motion a frantic chain of events, once again largely initiated by Bouchard and his government. Early last week, the premier summoned his cabinet into an “emergency” session in Montreal amid a swirl of rumors. Bouchard was contemplating a snap provincial election to clear the way for a new referendum. At the very least, the premier would certainly boycott the upcoming federal-provincial First Ministers’ conference scheduled for June 20 to 21 and would, in all probability, undertake a massive review of ongoing departmental relationships between Ottawa and Quebec City. But when Bouchard finally emerged from the daylong meeting with his cabinet, he had almost nothing specific to announce. “I believe the Prime Minister is involved in an effort to destabilize my government,” he gravely stated. There would, however, be no snap election, no boycott of the First Ministers’ meeting, and no governmental review. The only measure announced was cancellation of a face-to-face encounter between Chrétien and Bouchard tentatively scheduled for early June.

All week long, there were similar stuttering manoeuvres, boldly launched, lamely shelved. Bouchard, hoping to send a

strong message to Ottawa over the Bertrand case as well as exploit latent divisions within the Opposition provincial liberal party, attempted to persuade the national assembly to unanimously endorse a “solemn” declaration—with no legal weight—affirming Quebecers’ right to determine their own future. It failed as a result of a procedural wrangle engineered by the liberals. In a like vein, less than a day after Chrétien told the House of Commons that Canada would never allow Quebec to unilaterally declare independence, the Quebec government’s lawyers in the Bertrand case unveiled a surprise in court. They put forward a hitherto unused argument claiming that Canada’s Constitution is invalid because the federal government had never formally adopted French versions of some sections of it. The claim was derided by independent constitutional authorities and, in any case, denied by Ottawa.

There was even a thinly veiled attempt to throw doubt on the credibility of the judge in the Bertrand case, Justice Robert Pidgeon. Radio-Canada suddenly discovered Pidgeon’s past, reporting that the judge, a former mayor of the town of Gaspé, had not only mounted an unsuccessful bid to win federal office as a Liberal candidate but had also signed up as a member of the local No committee in Gaspé during the 1980 referendum. That gambit fizzled, however, when Pidgeon cheerfully acknowledged his past Liberal connections, vowed they played no role in his independence as a judge, invited the lawyers in the case to register any objections and, when none were forthcoming, announced his intention to proceed.

Behind all of the manoeuvring by the Quebec authorities was a genuine concern that the federal government is engaged in the opening round of a new, tough policy towards Quebec—the unstated program sometimes referred to as Plan B. Certainly, much of the noise emanating from Ottawa last week did seem to signal a more muscular approach. Chrétien’s message has been mixed, signalling as he did on both U.S. television and in the Commons that the government might be willing to contemplate Quebec secession, but only if the vote in favor is decisively more than a simple majority. But the Prime Minister, once again in the House, indicated, as well, that his government may seek to influence the phrasing of future referendum questions. “I want to see the government of Quebec respect the Quebec people by putting a clear, honest question, acceptable to everybody,” Chrétien told the Commons late last week.

For Quebec’s separatists, those were fighting words. “Political terrorism,” shot back Quebec Intergovernmental Affairs Minister Jacques Brassard. “Mr. Chrétien likes to play the despot and say he’ll come to Quebec and interfere in the process, dictate the question, increase the voting level, permit partition,” Brassard told the Quebec legislature. “I think we have to say again, this is not the way it will happen.” Bouchard, too, betrayed no hint that he was preparing soon to abandon the belligerent rhetoric sparked by the Bertrand case. In fact, the Quebec premier suggested that more manoeuvres might be coming in court. “This is the kind of catch Ottawa exposes itself to when they transform a political problem into a judicial one,” he said.

On that score, Bouchard may be in for a surprise. Bertrand, ever the maverick, unveiled some tactics of his own. In the event of a unilateral Quebec declaration of independence, he said, Quebecers who wished to remain in Canada could launch a class-action suit because their rights had been violated. “If there is secession someone has to pay the damages,” he said. “What is the price? I think it’s at least $100,000 for every Canadian [who lives in Quebec].” Bertrand also announced his intention to subpoena the Quebec premier and his predecessor, Jacques Parizeau. If that comes to pass, proceedings in the courtroom on the top floor of the Palais de Justice might suddenly become much more gripping.

MARK CARDWELL