Amicus Tells (Supreme) Court: Butt out, It's Up to Quebecers to Decide

Article excerpt

ANDRE JOLI-COEUR

Amicus Curiae at the Supreme Court hearing

The message of the amicus curiae to the Supreme Court of Canada on the Quebec secession issue is, in effect, butt out. Appointed to represent a different point of view, the friend of the court advised the court not to answer the three questions posed by the federal government for a number of claimed reasons. The court doesn't have the constitutional authority to consider this type of reference. The questions are hypothetical. Secession is subject to international law, not Canadian law. The questions are an attack on the rights and privileges of the Quebec National Assembly and democratic prinples. Secession is a matter to be determined by the people of Quebec, who have a right to secede unilaterally. Effective control of its territory would make a sovereign Quebec a political reality to which Canada would have to adapt. Excerpts from argument presented to the Supreme Court of Canada February 18, 199. Translated from French and edited for publication.

On July 11, 1997, your court conferred a mandate upon me to submit argument defending positions different from those advanced by the other parties in response to the questions contained in the executive order of the federal government, going back to September 30, 1996, and to bring to the attention of the court any other relevant items.

I would like to underscore a few important elements that are involved in this whole reference question.

First of all, the vast majority of the people of Quebec, whether they feel some attachment for Canada or not, believe that they alone have the right to collectively and democratically choose their future. This right is, according to them, inalienable.

And secondly, the people of Quebec and its institutions have always made known their concerns for the legitimate rights of the native people and the other minorities. This concern found materiality in the adoption of a charter of rights well before 1982, a charter that consecrates the fundamental values that concern a number of intervenors.

I would remind us all that on June 22, 1990, following the failure of the Meech Lake accord when certain provincial legislative assemblies, other than that of Quebec, had not recognized that the people of Quebec formed a distinct society, the very federalist premier of the time, Mr. Bourasa, rose in the National Assembly to proclaim very clearly what follows:

"English Canada must understand in a very clear manner that whatever is said or done, Quebec is today and for all times a distinct society, free, capable of assuming its destiny and its development."

And even before, in 1965, another of our premiers, Daniel Johnson, father of a sovereignist premier and father also of a federalist premier, underscored this same reality in different words.

"With time," he said, "the world has changed. What used to be the fight for survival has become the fight for self-determination. But the reality remains the same. Today, as in 1763, we set aside the possibility of assimilation and affirm our right to remain ourselves and to develop freely on this North American continent where history and destiny have placed us."

Last Thursday, February 12, our premier reminded us that "a democracy is the basis of the choice to be taken in Quebec. According to all Quebec democrats and a growing number of Canadian democrats, the final word does not belong to one man, to one government, not to a legal text, but according to us, the final word belongs to the Quebec democracy, to the people of Quebec."

Finally, quite outside considerations of democratic principles, this reference brings about a number of concerns as to its very usefulness. In this regard, while reaffirming the weight of democracy, our cardinal, the archbishop of Montreal, Jean-Claude Turcotte, expressed his concern with respect to this reference. He said:

"The fear that I share with others remains simply that the recourse to this means, and I recognize that it is at once legitimate and respectable, I fear that this will only serve to harden positions that are already exacerbated. …