MICHAEL N. BERGMAN, Freelance - During the 13 years that I have been the lawyer on the 1995 referendum ballots case, the question I am most frequently asked is, "Why bother? The referendum is history, isn't it time to forget about it?" The answer I always give is, "The referendum is not about the past, it is about the future." Let me explain.
The events of the 1995 referendum are taboo. With the exception of Tom Mulcair, former Liberal MNA and now NDP MP, no politician at any level of government of any party wants to touch it. The courts in reasoned judicial findings have studiously avoided the merits of any inquiry. In 2006, when considering whether or not the courts even had the authority to entertain the issue, the Court of Appeal of Quebec ruled that yes it could, but in an exceptional commentary strongly advised the lawyers that the case was hopeless and the file should be closed.
The entire referendum campaign was chockablock with gross irregularities, focused in ridings of obvious federalist, non-francophone voters. It is difficult to imagine how multiple incidents including line-ups, voter-registration problems, rejected ballots and the like, could simply be the acts of random and partisan zealotry. So many incidents in so many places strongly suggest a concerted, controlled attempt to thwart the federalist vote. These acts represent the worst in Quebec nationalism.
In the last 40 years, federalists have permitted Quebec nationalists to seize the lexicon of the discussion and define the terminology, themes and concepts of the debate. There are no more separatists, only sovereignists. There are no more French Canadians only Québécois. There are no more Canadians, only federalists.
The 1995 referendum campaign is one of the culminating benchmarks in the revision of who we are in Quebec. Quebec nationalism is generally considered to be acting in the best interest of most Quebecers. Quebec nationalism is a marginalizing force for those who do not agree with its themes, means and credos.
Take for example the universally accepted idea that in the sea of English North America, Quebec is chronically on the defensive and weak.
This credo is accepted by all participants in Canadian politics. Even the Supreme Court of Canada, in various judgments, pays service to this concept. No amount of historical fact that demonstrates the vibrancy and dynamism of Quebec's society can dislodge this idea.
The opponents in the 1995 referendum campaigned on two ideas: Quebec was too weak to leave Canada and Quebec was too weak to stay in Canada. Societies that define themselves as chronically weak justify all manner of responses in the face of a perceived onslaught. In Quebec, a polite, civilized and hospitable society, the response to perceived weakness is to blame the federal system, colouring federalism as being an inadequate and restraining hierarchy of interests in progressive confrontation with the interests of Quebec.
In this type of atmosphere, which the 1995 referendum testifies to, the federal authorities can do no right. Federal advertising, unity marches, expressions of federal commitment are evidence of intrusive and manipulative behaviour designed to thwart the will of Quebec. However, any number of shenanigans perpetuated by the nationalist cause areunderstood as a justifiable response to the overbearing federal presence.
These attitudes are precisely why it is imperative that there be a full public investigation into the 1995 referendum, especially, but not only the spoiled ballots. The investigation conducted at the time was made in private, under a constraining and limited mandate, performed in a fragmentary manner without calling witnesses or hearing any testimony.
Such an investigation could not possibly determine whether or not there was a controlled and widespread co-ordinated effort to thwart the federal vote by improper means. In the annals of Quebec and Canadian scandals, none have been so poorly examined as the 1995 referendum. If the Gomery Commission on the sponsorship scandal had been conducted in the same manner as the spoiled ballots investigation, Gomery would have found no sponsorship wrong-doing.
Since the 2006 Court of Appeal decision in the referendum matter, any possibility that a court would grant access to the referendum materials has been virtually nil. The hope remained that by delaying any further court proceedings, time could be bought to persuade political leaders to put the materials into archives for future research. These efforts failed. Considering the seriousness of the matter and the principles involved, I could not, as a lawyer and Canadian, recommend to the plaintiffs that they accede to the request by the authorities to consent to the destruction of the ballots. This was left to the court on April 30.
The failure to examine the reality of the 1995 referendum will haunt us in the future. The 1995 referendum legitimized for the future a partisan and biased process for which pointed questions are not permitted.
Michael N. Bergman is the lawyer for plaintiffs in the referendum ballots access case.
Trois raisons de la colère
Michel Vastel 7 mai 2008
La campagne d’une petite minorité anglophone et de leur journal communautaire - The Gazette - pour tenter de ressasser encore l’affaire des bulletins rejetés au référendum d’octobre 1995 commence à me chauffer les oreilles.
Hey! Il y a treize ans! Peut-on classer cette soi-disant affaire qui a été examinée par le directeur des Élections, puis par un juge, et classée? De toutes manières, les gens sérieux admettent que cela n’aurait rien changé au résultat final. Et je soumets qu’il y a sûrement eu fraude ou tentative de fraude dans le camp du NON aussi. A-t-on oublié les circonscriptions ou les bureaux de scrutin où il n’y avait quasiment pas de OUI?
Et surtout, vous rabâche-t-on les oreilles avec l’argent des commandites, avec les certificats de citoyenneté distribués à la hâte - tellement à la hâte que même un terroriste d’Al Qaïda s’est qualifié? Moi je soumets que le gouvernement du Canada, dirigé par le Très Honorable Jean Chrétien, a tout fait, quand il s’est rendu compte qu’il allait perdre, pour fausser le résultat.
Le gouvernement du Québec, dirigé par l’Honorable Lucien Bouchard, a eu la classe d’accepter le résultat, lui. On est démocrate ou on l’est pas…
Referendum-ballots case is about the future, not the past
The 1995 campaign legitimized the biased, partisan way of conducting a vote