The Supreme Court prepares to hear a historic case
Sometimes in politics, as the saying goes, you have to be good to be lucky, and lucky to be good. For a lot of people, the question about Prime Minister Jean Chrétien has always been whether he is both—or sometimes just remarkably fortunate. Supporters of the latter view might cite the manner in which the Chrétien government appears to be reaping the benefits of an initiative that it neither thought of nor initially supported. Almost two years ago, maverick onetime sovereigntist Guy Bertrand decided to ask the Supreme Court of Canada to rule on Quebec’s self-professed right to unilaterally declare itself independent from the rest of Canada. When Bertrand announced his plan to mount such a challenge, Chrétien’s Liberals treated him—and it—with marked coolness. But on Feb. 16, when the Supreme Court is scheduled to begin considering the legality of unilateral secession, it will do so at the request of that same Liberal government. Moreover, the case now forms the centrepiece of the Liberals’ reborn—and so-far revitalized—unity strategy. Says an adviser to Chrétien: “We are feeling better about this issue than we have in a long, long time.” And with good reason. Although opposition to the Supreme Court initiative runs high among both sovereigntists and federalists in Quebec, the Liberals have, so far, basked in the glow of favorable public opinion polls and widespread praise in English Canada for what is known in political circles as Plan B: the relatively new get-tough approach towards the sovereignty debate. Even Reform party Leader Preston Manning has offered qualified praise, saying: “It is certainly a welcome step towards clarifying this debate, and we applaud that.” Manning adds: ‘We like it—because it was our idea in the first place.” Others seem favorably inclined as well. In the annual Maclean’s/CBC poll conducted by The Strategic Counsel polling firm last November, 67 per cent of respondents outside Quebec said they believe that the court case and related efforts—such as Intergovernmental Affairs Minister Stéphane Dion’s hardline talk on the possibility of a partitioned Quebec—make it more likely that the country will remain united. Even in Quebec, 55 per cent of respondents agreed with that assertion.
In legal circles, most observers consider there is one extremely likely verdict in the Supreme Court case: since the Constitution does not specifically provide for the secession of any province, such an act cannot take place without agreement on all sides. ‘We obviously would not take this step if we were not quite confident about the result,” says the Chrétien adviser. Perhaps for the same reason, the Quebec government has distanced itself from the case and is not formally involved. Instead, Quebec’s position will be argued by a lawyer appointed by the Supreme Court, known formally as a “friend of the court.” However, André JoliCoeur, named by the court in July against the wishes of the Quebec government, is both a hardline sovereigntist and a highly respected lawyer, so his presence lends an added air of legitimacy to the case.
But the federal strategy could be risky. Despite their lack of direct involvement, officials of Premier Lucien Bouchard’s Parti Québécois government acknowledge they are observing the case with intense interest. Within the province’s intergovernmental affairs department, some experts nourish the hope that the court will deliver what they call a “favorably nuanced” decision. That could mean, for example, a ruling that, while Quebec has no right to a unilateral declaration of independence under strict legal terms, the fundamental issue is political—and therefore it is not appropriate for the court to be involved.
Such a ruling would constitute an important moral victory for the sovereigntist side—but none of their political strategists are banking on that. Instead, Péquistes and their supporters have conducted a two-pronged public relations strategy that, so far, has enjoyed some success. The first step has been to question the legitimacy of the Supreme Court to rule on political issues: they note pointedly that only three of the nine court judges are from Quebec—and all nine have been appointed by Ottawa. Jacques-Yvan Morin, a former PQ cabinet minister who is now a professor emeritus of public law at the University of Montreal, began an article on the topic in the newspaper Le Devoir recently by asking the rhetorical question: “How have we arrived in this situation by which nine judges are called,
within the framework of a majority anglophone federal state, to settle the lot of a majority francophone people?”
Another step has been to subtly spin a different description of the federal government’s goals in the case. Chrétien and other senior Liberals have repeatedly emphasized that they are not denying Quebec’s right to self-determination—if a clear majority voted Yes to an unambiguous referendum question. But Bouchard and other prominent sovereigntists, in repeated public statements, frame the issue as a challenge to Quebecers’ right to decide their own constitutional future under any terms. As a result, some prominent federalists within the province either criticize Ottawa’s efforts—or are watching from the sidelines. “Even among staunch federalists, it would be hard to find many who would argue against Quebec’s right to decide its future for itself,” says Gilbert Lavoie, editor of the Quebec City newspaper Le Soleil and a former press secretary to Prime Minister Brian Mulroney. That was one reason why the federal Liberals were initially slow to take up the idea of a court challenge—with many of their Quebec caucus members arguing against it.
Quebec Liberal Leader Daniel Johnson, meanwhile, has said he would prefer “a more positive approach” from Ottawa to the unity issue that would concentrate on offering new powers to the province. Last week, he and former provincial liberal leader Claude Ryan—who 3 led the federalist forces in the 1980 referendum campaign—appeared 3 at a news conference to criticize Ottawa’s initiative. Progressive Con■ servative Leader Jean Charest—the most popular federalist politician in Quebec, according to polls—has taken a similar approach. That has enhanced his standing within the province—although it runs the risk of further marginalizing him and his party elsewhere.
At one point, Bouchard said he might call a snap election if the court ruled against Quebec. Later, PQ officials discussed staging another response: a “pre-referendum referendum” that would ask Quebecers whether they consider themselves “a people”—and thereby entitled to decide their own future. But Bouchard has tamped down his initially incendiary rhetoric—in part, some Péquistes privately concede, because the PQ is not confident that the court challenge will spark any great public outcry (a spring election remains a possibility, but largely because the government’s popularity has been greatly enhanced by Bouchard’s handling of the recent ice storm crisis). “There is no appetite now for any discussion of the Constitution,” says Christian Bourque, a Montreal-based pollster with the Angus Reid Group. “The shared reaction of most Quebecers when the Supreme Court debate starts will be to reach for the zapper to change the television station.” That opinion is supported by a poll that Angus Reid released in December: it said 61 per cent of all Quebecers—and 40 per cent of sovereigntists—do not want the PQ to hold another referendum even if the party wins the next election.
Still, a ruling that favors the federalist side may generate more sympathy for the PQ—which now leads the opposition Liberals in opinion polls 49.1 per cent to 41.5 per cent. ‘The issue,” says one source with close ties to the PQ leadership, “is not whether they can win, but when is the best time to do so in terms of referendum timing.” In PQ circles, Bouchard has won wide support for his belief that a balanced budget would be a powerful tool for Quebec sovereignty by demonstrating the province’s apparent self-sufficiency. That goal is expected to be achieved in the spring of 1999. As a result, Bouchard is considered likely to call an election this fall—with the promise of a balanced budget—or immediately after the 1999 budget, when that goal is reached. In either event, that could lead to a sovereignty referendum in the fall of 1999.
No matter when another referendum takes place, a Supreme Court ruling favoring the federalist side would carry other risks. Some federalists outside Quebec might interpret the judgment to mean that the province cannot hold another referendum—which would result in an unpleasant backlash if Quebec does so. And efforts within Quebec to discredit the Supreme Court might enjoy some success—throwing into disrepute the legitimacy of a key institution binding Quebec with the rest of the country. Chrétien, concedes an aide, “has to be especially careful that Quebecers don’t feel too isolated.” A prime minister who achieves that goal needs to be lucky—and also very good. □
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