Court rejects Henderson’s appeal of Bill 99 ruling but he cries victory anyway

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QUEBEC — Keith Henderson, the man who lead the charge in a court challenge against the law on Quebec’s right to self-determination, says there’s a silver lining in the rejection of his appeal of a lower court ruling saying the bill is constitutional.

But the Coalition Avenir Québec government and Quebec nationalists Friday were also crying victory, describing the ruling as a historic win for Quebec democracy.

Handed down Friday, the Quebec Court of Appeal rejected an attempt by Henderson, the former leader of the now-defunct Equality Party, to have a lower court ruling saying Bill 99 was constitutional quashed.

Henderson launched the appeal after Superior Court justice Claude Dallaire sided with the Quebec government and upheld the law, Bill 99, which was adopted in 2000 by Premier Lucien Bouchard’s Parti Québécois government.

A reaction to Ottawa’s Clarity Act setting out the rules for an independence referendum process, Bill 99 argued the people of Quebec have a right to self-determination and a majority of 50 per cent plus one is enough for a victory.

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In a 101-page decision handed down in 2018, Dallaire ruled while Henderson’s concerns about the bill were reasonable, his mistake was to take the legislation’s rhetoric literally. For one thing, the text of Bill 99 never refers directly to secession, so it cannot be seen to establish a right to secede.

PQ, Liberal and Coalition Avenir Québec governments have, nevertheless, defended the law in the courts tooth-and-nail for the last 20 years.

On Friday, Quebec Justice Minister Simon Jolin-Barrette welcomed the ruling.

“The law respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State is one of Quebec’s most fundamental laws,” Jolin-Barrette said in a statement sent to the Montreal Gazette.

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“It constitutes the foundation of Quebec’s democracy and entrenches the right of Quebecers to choose their future and to decide their political status themselves.

“The Quebec government has a duty to defend this right and we will continue to do so.”

But Henderson pointed to a clause in the appeal court’s ruling that he says effectively strikes down the lower court’s decision to declare valid Sections 1,2,3,4,5 and 13 of the act that sets out Quebec’s prerogatives such as the 50 plus one vote.

Henderson’s concerns about those clauses were they could be used one day by a pro-sovereignty Quebec government to unilaterally declare independence.

The appeals court says “one cannot exclude that possibility” exists in Bill 99.

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“Although the trail judge’s analysis led her to conclude this would not be the case, with all due respect, this, too, is a hypothesis on her part which does not fully consider the context within which the act was enacted, that is following a referendum on Quebec’s independence, the Supreme Court’s advisory opinion in the Secession reference and Parliament’s enactment of the Clarity Act,” the appeal court says.

“It is appropriate to strike paragraph (603) of the trial judgement’s conclusions which for greater certainty formally declares the validity of the impugned sections.”

“It’s like you lose the battle, but win the war,” Henderson said in an interview Friday. “The little paragraph seems inconsequential, but it isn’t. It’s huge. Dallaire had given constitutional approval to all the portions of the act that we were attacking. The court of appeal revoked it.

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“In brief, as long as Bill 99 remains within the confines of provincial competency, the law is constitutional. However, should Bill 99 be used to justify acts outside provincial competency (such as a unilateral declaration of independence or a referendum deciding Quebec has control over the army), the law cannot be considered constitutional.

“Professor Stephen Scott and I just wanted the thing (Bill 99) declared unconstitutional. We did not win that, but what we won, I think, was just as good. The law could be used to justify things which are not constitutional.

“They (the court of appeal) basically says you’re out on a limb here, Claude Dallaire, because you don’t really know if it will be used for that purpose or not.

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“This is very sneaky of them because it looks like we lost. But we didn’t. This is what we wanted all along. What they said is we’re watching you. If you misused this law, we’re going to declare it unconstitutional

“Bill 99 is not holus-bolus constitutional. Its constitutionality depends on its use.”

Under the circumstances, Henderson announced he has no intention of taking the case further, which would mean the Supreme Court, because he considers what he got satisfactory.

But in a statement, Maxime Laporte, the lawyer acting on behalf Société Saint-Jean Baptiste which intervened in the case alongside the Quebec government, also spoke of a win. He said “Quebec democracy can breath a sigh of relief,” today because of the court ruling.

“But for me, this sigh of relief is above all a sigh of exasperation. It is absolutely not normal for a people to have to battle and battle constantly; if only only to defend its right to exist.

“Faced with these incessant attacks from Canada and its minions against our most precious common denominators, the time has come to put national independence back on the agenda; to resume the path to normalcy, exactly.”

pauthier@postmedia.com

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