Both sides declare a win after appeal ruling on Bill 99 and Quebec self-determination
MONTREAL -- A new final word has come down over Bill 99, the twenty-year-old law meant to enshrine Quebec’s right to self-determination and, potentially, separation.
But the appeal court ruling on Friday stepped away from allowing any present-day judge to give a final word at all, saying politics is too unpredictable.
In short, Quebec Court of Appeal judge Robert Mainville wrote that Bill 99 is just fine—unless it’s used in the future in some unforseeable way, such as unilaterally separating from Canada, in which case the courts of the future will need to deal with that for themselves.
It's illegal under federal law for a province to unilaterally separate. What’s unclear is if Quebec will always respect that federal law.
“Although the courts must reconcile the [federal] Clarity Act and [Bill 99] with one another” right now, as both are the law of the land, “circumstances could arise where such reconciliation is impossible,” Justice Mainville wrote.
Under Friday’s ruling, Bill 99 “continues to be in force and have effect without, however, it being possible to rely on the doctrine of [legal precedent] if, some day, its provisions are invoked in a context other than” what the courts have envisioned, he wrote.
SEPARATISM IS 'A SLEEPING VOLCANO'
Keith Henderson, the former leader of the Equality Party, who has made it his mission to fight Bill 99 for the last two decades, told CTV he considers it a “major victory.”
Separatism is like “a sleeping volcano,” no matter how dormant the question seems, and the ruling is still important, he said.
“Absolutely I think it's relevant, because this isn't a decision for tomorrow or five years from now, this is a decision for... 50 years or a 100 years from now,” he said.
If a referendum happens generations from now, “this decision will be on the table and cited.”
Meanwhile, those supporting Bill 99, including the Société Saint-Jean Baptiste, also called it a win, with their lawyer saying that "without doubt, Quebec democracy can afford today to breathe a certain sigh of relief.”
In fact, such “relentless attacks by Canada and its minions” also suggest that it’s time to fight for independence again, said lawyer Maxime Laporte.
The two groups’ alternate views of reality come down to the single change Justice Mainville made. He mostly rejected Henderson’s arguments and sided with the previous 2018 decision that upheld the law.
But he struck out a single paragraph that went out of its way to declare, “for greater certainty,” that Bill 99 does, in fact, respect federal law and the Canadian Constitution.
In doing so, he set the stage to take away some of Bill 99’s teeth when it comes to separation.
Under federal law—the Clarity Act—Quebec can’t legally secede from Canada on its own. It first has to finish negotiations and the federal constitution must be changed.
Bill 99 was a rebuttal to the Clarity Act, saying that in fact, Quebecers have "the inalienable right to freely decide the political regime and legal status of Québec."
The bill also laid out that a majority of 50 per cent plus one is enough to win a referendum.
Henderson said that in his view, a Yes vote in some future referendum is meaningless on its own under the Friday ruling.
“Even if [Quebec leaders] proceed to negotiations and the... negotiations collapse, they still cannot issue a unilateral declaration of independence,” he said.
“This law cannot be used to break up the country,” he said.
“They can hold a referendum… they’re just big opinion polls anyway—they don't have any legal consequences.”
The ruling wasn’t actually as cut and dried as that, simply saying future courts will need to decide legality based on the facts at the time if, for example, Quebec tries to split up Canada solely using Bill 99.
'GET UP AND FIND THE ROAD TO FREEDOM'
In its statement, the Société Saint-Jean-Baptiste didn’t address that part of the ruling at all. In fact, it said the court rejected “all the claims” of the appeal, which isn’t true.
The appeal court upheld Quebecers’ right to self-determination, they said, urging Quebec politicians to test out their rights by stretching some separatist muscles.
The group is “insisting on the need for the Quebec political class to take its responsibilities on the constitutional front,” it said.
“Instead of allowing itself to be entangled in the Canadian straitjacket, Quebec must immediately get up and find the road to freedom and independence,” said the society’s president, Marie-Anne Alepin.