Through the ingenuity of lawyer Brent Tyler, an issue the federalist governments in Quebec City and Ottawa might have thought was dead and safely buried has been dug up again.
The issue is whether Quebecers alone have the right to determine this province's political status.
[->archives/ds-souv/index-99.html]The question appeared to have been made hypothetical by first the defeat of the Parti Québécois government in 2003, then the PQ's further decline to third-party status in the general election last March.
But it's been raised from the dead by a court judgment obtained by Tyler this week, which will force Jean Charest's government, and perhaps that of Stephen Harper as well, to take positions they might prefer not to have to take.
On Thursday, three judges of the Quebec Court of Appeal ruled unanimously that [Tyler's client, Keith Henderson, former leader of the English-rights Equality Party->archives/00-4/99-henderson.html], has legal standing to challenge the constitutionality of Bill 99.
That's the legislation adopted by the former Parti Québécois government in 2000 in response to the federal Clarity Act, which sets the conditions under which Ottawa would negotiate the secession of a province.
Bill 99 claims that only the Quebec people have the right to determine this province's status. In other words, Quebec has the right to secede unilaterally from Canada.
Tyler said yesterday the Quebec government, which argued that his client does not have legal status to challenge Bill 99, can ask the Supreme Court of Canada to hear an appeal of this week's judgment. But he didn't expect such a request to be granted.
So he expected that "within a year," hearings in Superior Court would begin on the constitutionality question itself. That would force the Quebec government of the day to decide whether to defend Bill 99, and with it, this province's right to secede unilaterally.
For both the PQ and Action démocratique du Québec, whose leader Mario Dumont sided with the PQ government in voting for Bill 99 in 2000, the decision would be easy.
But it might not be so easy for the Liberals, who while they were in the opposition voted against the legislation. Among the Liberals voting against Bill 99 were the present premier and his ministers of justice and Canadian intergovernmental affairs, Jacques Dupuis and Benoît Pelletier, respectively.
It's not that the Liberals denied that Quebec has the right to secede unilaterally. On the contrary, they had previously introduced a motion in the National Assembly affirming such a right.
(Charest, however, seemed to contradict that position in the debate on Bill 99. He argued that Quebec's right to self-determination did not include the right to secede without conforming to "the laws and the constitutional or international conventions and principles applicable to Quebec's territory.")
Presciently, it turns out, the Liberals argued that Bill 99 would turn a political question into a legal one and, unlike a motion of the Assembly, would be vulnerable to a legal challenge. If such a challenge were upheld, they argued, it might weaken Quebec's powers.
It might be that the only way to avoid such a risk, if Henderson's challenge proceeds as Tyler expects, would be to repeal Bill 99 and replace it with a motion instead. But the PQ and the ADQ, which together hold a majority in the Assembly, might oppose the repeal of a law for which they had voted.
The Liberals might not want to appear to francophones to be weak in the defence of Quebec's rights. But affirming a right to unilateral secession might further alienate their non-francophone supporters.
And if the challenge proceeds, Tyler said he would force the federal Conservative government to decide whether to enter the case in defence not only of the constitution but also of the Clarity Act.
That is, a government that has recognized "les Québécois" as a nation would have to decide whether to take sides with [an English-rights advocate, possibly against the Quebec government->archives/ds-souv/99/02-8-29-wjohnson.html], to defend a law associated with federal Liberal leader Stéphane Dion.
Bill 99 ruling puts stick in hornets' nest
Court allows challenge of Quebec response to federal Clarity Act