Talk:Reference Re Secession of Quebec

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Someone raised the following question about the paragraph which follows:

"Is is this paragraph really in the court's opinion? I will have to double-check. It seems unlikely that the court would have used such fallacious arguments in its reference."

For close to 40 of the last 50 years, the Prime Minister of Canada has been a Quebecer. During this period, Quebecers have held from time to time all the most important positions in the federal Cabinet. During the 8 years prior to June 1997, the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Prime Minister of Canada, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of the United Nations, are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad.

Yes, that is really in there (see paragraph 135)[1]

The court's argument was that there was only a right to unilateral secession if a people:

was under colonial rule;
was under foreign occupation; or
was denied meaningful political participation.

It is obvious that neither of the first two apply to Quebec (it is neither a colony nor occupied by foreigners) so that leaves the third one to be dealt with, which is what the court was doing in that section.

Jacob1207 02:08, 2 Apr 2004 (UTC)

Colonial rule

Thanks Jacob. I read the part. In my opinion, that is just awful. That individuals of French-Canadian origin collaborated to the neocolonial political regime of British Canada does nothing to prove whatever it is the Supreme Court is trying to prove. In a system of indirect rule, collaboration of the "aboriginal" elite is essential. It was the same thing in so many other former British colonies. In Quebec, it started at the time of the Union regime with Lafontaine, Cartier and company.

Quebec is technically not under colonial rule since federal Canada is a sovereign state. London indeed does not rule over Canada anymore. However the supranational power only moved from London to Ottawa. In reality, Quebec is still not self-governing. Worst, after the "Quebec is a nation within the nation" of Lester B. Pearson, Ottawa now denies our very existence as a political nation to the face of the world. But of course international law is not concerned with such details.
Quebec was taken over by a foreign power in 1760. When did they leave again? Oh no wait, they made themselves at home right in our country, renamed the place and made us a minority in a political system they now control.
Finally, we are getting to the main course. Since some in Ottawa deny that we exist as a people, as a group, they answer no. In order to do that, they need to close their eyes on 400 years of history. Must be difficult. I know I can't do that.

Ah well, what can you do. I think the Supreme Court still did a good job under the circumstances. The best part of the whole document is the following euphemism:

" While much of the Quebec population certainly shares many of the characteristics (such as a common language and culture) that would be considered in determining whether a specific group is a "people" ".

Come on. Is it so hard to say that Quebecers are a nation in every sense of the word? Mathieugp 18:30, 2 Apr 2004 (UTC)

Intro

Quoting from the article: "As expected by all jurists familiar with the subject, the Supreme court answered "No" to the first two questions"

Unless somebody asked them all, we had better change that to "many", and even that could benefit with some textual support. Blatant POV

Klanda | Talk 03:14, Aug 21, 2004 (UTC)

POV removal

User E Pluribus Anthony has removed the following paragraph stating that it was POV as it was according to him "addressed in paragraph 84 of the Supreme Court of Canada ruling" :

"It was soon pointed out by international observers that if it is true that there is no law allowing Quebec to unilaterally secede, it is also true that there is nothing specifically denying it and there is a widespread recognition of a right to self determination by groups other than nation states, such as a people. This right is found in the United Nations Charter, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, among other places."

First, it should be pointed out that the Supreme Court of Canada did not produce a "ruling" on the matter but an "opinion". It should also be reminded that removing an entire paragraph without first discussing it in the talk page is not the recommended behaviour.

Regarding the removal on the account of a POV, I believe this is a mistake. This paragraph is in fact there to try to bring about a certain balance in the dabate. The article dealing with the opinion of the court, leaving the opinion of the court alone would be POV. However, stating the opinion of various international observers on the matter helps the reader to see the other side of the medal. Upon request, I can try to find example of opinions by various individuals who have expressed their opinion on the subject.

I suggest the paragraph be reintroduced in the article.

-- Mathieugp 05:13, 10 July 2005 (UTC)[reply]

Quebec isn't a people, it's a province. Fishhead64 05:11, 26 April 2006 (UTC)[reply]

I removed the following paragraph again after it was reinserted without providing facts to support it:

"It was soon pointed out by international observers that if it is true that there is no law allowing Quebec to unilaterally secede, it is also true that there is nothing specifically denying it and there is a widespread recognition of a right to self determination by groups other than nation states, such as a people. This right is found in the United Nations Charter, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, among other places."

Virtually all Court rulings state that "it is the opinion of this court", including the Superior Court of Quebec some of whose rulings can be found on their website. This is both unsubstantiated and incorrect. These alleged "internationa observers" need to be identified and their alleged assertions documented along with the other alleged statements. The UN policy was part of the Court reference, the Right to Self-determination applies to colonial possessions. A. Lafontaine 15:31, 19 July 2005 (UTC)[reply]

I will search and find the international observers. I remember only one name, Alain Pellet (former President of the Internationa Law Commission at the UN), who acted as a consultant on the question of the territorial integrity of Quebec during the Belanger-Campeau commission in 1991. His opinion as a jurist was again sought for the drafting of Quebec's Bill 99. His opinion on the Clarity Act can be read (in French ) here:

http://www.vigile.net/9912/pelletclarte.html

-- Mathieugp 19:34, 19 July 2005 (UTC)[reply]

You are mistaken on the ruling vs opinion question. There is a huge difference between a court ruling on a case and a an opinion (or a reference). In Reference re Secession of Quebec, nobody is accused of anything, nor is anyone being defended or taking its own defense. The Governor in Council asked the opinion of the Supreme Court on three questions. The Government of Canada gives a good explanation of what a reference is on its website:

http://canada.justice.gc.ca/en/news/nr/2003/doc_30946.html

Quote: "What is a Reference to the Supreme Court of Canada?

A reference is a procedure by which the Government of Canada refers important legal or factual questions to the Supreme Court of Canada and asks the Court to give the Government its opinion."

-- Mathieugp 02:19, 20 July 2005 (UTC)[reply]

Legal opinions

I have found three legal opinions on the subject:

1. Alain Pellet => http://www.action-nationale.qc.ca/00-2/pelletclarte.html
2. Henri Brun => http://daniel.turp.qc.ca/meteo/actualite_politique/ap_1711.htm
3. Andrée Lajoie => http://www.action-nationale.qc.ca/00-1/lajoie.html

Only the first one is international, the two others being jurists from Quebec. I also read a newspaper article on an English Canadian who denounced the Clarity Act, but I do not think he produced a legal advice on the issue. Then there is the Open Letter in Support of the Democratic Right to self-determination for Quebec signed by a great number of intellectuals, but they are mostly from Canada and Quebec:

http://pages.infinit.net/mseymour/apage/ap_openletter.html

The three legal opinions were sought by the National Assembly of Quebec in order to draft Bill 99, which was an attempt by the Lucien Bouchard government to give Quebec a "Charter of collective rights".

-- Mathieugp 15:53, 20 July 2005 (UTC)[reply]

Court judgments are opinions - and when rendered are law. A reference receives an opinion which is what the Court will declare as law if formally requested.

However, Legal opinions are minor to the matter at hand. Someone's personal opinion means nothing. I can give dozens of varying opinions. But, Wikipedia:No original research applies. What is at issue is that you (User:Mathieugp) stated:

It was soon pointed out by international observers that if it is true that there is no law allowing Quebec to unilaterally secede, it is also true that there is nothing specifically denying it and there is a widespread recognition of a right to self determination by groups other than nation states, such as a people. This right is found in the United Nations Charter, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, among other places.

You made the absolute claim in the article that the United Nations Charter and relative bodies says that. These are all false. However, if you disagree with my statement, please give article number and precise contents for all three UN references in order to verify your assertion. Thank you. A. Lafontaine 16:08, 27 July 2005 (UTC)[reply]

There it is:

Right to self-determination

Preamble of the Charter of the United Nations

"to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,"

The preamble makes it clear that human rights include the individual rights of men and women and that of national groups, large and small.

Chapter 1, Article 1, the purposes of the United Nations:

"To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;"

the principal of self-determination of peoples, along with that of equal rights are made explicit in article 1.

International Covenant on Civil and Political Rights

Article 1:

"

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. "

International Covenant on Economic, Social and Cultural Rights

States the exact same thing in Article 1.

-- Mathieugp 16:45, 28 July 2005 (UTC)[reply]

This in fact has nothing to do with a Province of Canada, or a State of the United States. This is about the conduct/rights of nation states and the people within supposedly to protect citizens from the likes of Mungabe. The United Nations position on Quebec or other such parts of a nation to separate was clearly detailed in the Suprememe Court ruling. A. Lafontaine 14:45, 29 July 2005 (UTC)[reply]

Only sovereign States can join the United Nations. Some sovereign States are federations and, like Canada, have a population which is made out of many peoples. This is precisely why point 3 mentions the case of "Non-Self-Governing territories". Canada is responsible to promote the realization of the right to self-determination of peoples within its borders. Prior to the Clarity Act, Canada was doing just that, respecting international law, since the federal state had taken no clearly illegal steps to stop Quebecers from enjoing their "right to freely determine their political status and freely pursue their economic, social and cultural development." The Clarity Act is clearly trying to prevent Quebec from freely determining its political status, hence the existence of an Open Letter in Support of the Democratic Right to self-determination for Quebec signed by numerous university professors all accross the Canadian federation. -- Mathieugp 18:32, 29 July 2005 (UTC)[reply]

The notion that Quebec has no self-government is a P of V that exists (as evidenced by Mathieu's comments here), but one that will be opposed vehemently by the majority of Quebecers. We must pay careful attention to neutrality when discussing this notion in the article. Indefatigable 20:38, 29 July 2005 (UTC)[reply]

I am extremely confused here. What makes you assert that 1) the notion that Quebec has no self-government is one of my opinions and 2) that the majority Quebecers will vehemently (beautiful word isn't it? ;-) oppose this?

I do not believe that we are dealing with a POV here at all. Quebec has a self-government. It has a parliamentary system through which representatives of the people of Quebec are able to draft and conduct policies, enforce laws and levy taxes. Quantity of non self-governing peoples (for example all aboriginal peoples in Canada) would not hesitate to trade places with the majority of Quebecers who have control over the state of Quebec. Yes, Quebec has a government of it own. It really seems like this should be listed as a fact. Also a fact is that Quebec does not have complete self-government. The parliament of Quebec is not sovereign. This should also be listed as a fact. I fail to see how this is a matter of opinion.

As for the majority of Quebecers vehemently opposing such an obvious fact, I sure hope you are wrong. :-)

Prior to the Clarity Act, even the federal government recognized that Quebecers could freely decide to change their political status through negociations with the rest of Canada. This is what just changed, and this is why this act is getting an article of it own unlike God knows how many other acts which obtain and deserve no special attention from the public. -- Mathieugp 22:14, 29 July 2005 (UTC)[reply]

I just saw where Indefatigable got that my opinion is that Quebec is "not self-governing". It is right at the top of this talk page, silly me. I should have re-read myself. :-) Although it could be argued against just for the sake or arguing, I think it is generally understood that when we are talking about self-government, we tend to think of complete self-government, just as when talking about sovereignty we usually mean complete sovereignty, not "sovereignty within certain jurisdictions". -- Mathieugp 22:23, 29 July 2005 (UTC)[reply]

Sorry I went a bit overboard there: it's just that the idea of Canadian provinces as non-self-governing territories seems ridiculous to me. But let's not argue about it -- neither of us is going to convice the other, and it wouldn't help the article. But let me just point out two things. (1) If Quebec is not sovereign because there are some areas it can't legislate in, then neither is Canada, because there are areas Parliament can't legislate in. (2) Quebec sends a disproportionately large number of legislators to Parliament. Quebec might not control federal policy, but it certainly has a large influence on it, including the Clarity Act. Indefatigable 15:14, 30 July 2005 (UTC)[reply]

I don't think we can convince each other either. However, I can't resist replying to you again. I guess I am indéfatigable too. ;-)

(1) In the original constitution, Parliamentary sovereignty was in Great Britain. The 1867 BNAA defined 16 exclusively provincial jurisdictions, 29 exclusive federal jurisdictions, and residual powers which were to go automatically to the federal state. Over the course of history, the Parliament of Canada came to unilaterally give itself numerous powers it didn't originally have, plus the power to spend and legislate in the 16 exclusively provincial jurisdictions. In 1931, Great Britain unilaterally gave the Parliament of Canada almost complete sovereignty. In 1982, the Parliament of Canada unilaterally modified its own constitution, finally becoming sovereign. Today, Canada is definitely sovereign, and the legislative and fiscal powers of its federal state are in no way comparable to those that were once exclusively that of the provinces.

(2) Proportionality could be calculated in terms of population, tax income or others. Using any of these, Quebec's proportion of MPs in Ottawa is not more unusual than that of Ontario. Quebec, through its share of the seats in the House of Commons, does have a good power to lobby. Unfortunately, most of the lobbyists are corrupted liberals who participate to a government that is waging a political and fiscal war against Quebec. When they are not participating to the government, they are Bloc MPs, who do a good job at, well, not participating to the government. -- Mathieugp 02:45, 31 July 2005 (UTC)[reply]

Some comments on the article

Commenting on the current version:

The introduction needs to be reworked. In general, I think this introduction would be confusing to someone who doesn't know anything about the topic. I think the first sentence is okay, but the second and third sentences should probably be replaced.

I agree. -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

The third sentence ("As expected by many jurists familiar with the subject, the Supreme Court answered "No" to the first two questions.") is useless because it doesn't say what the two questions are.

Yes, this is some unfinished business. I wrote that sentence. Then it was suggested it should be removed unless I could name those jurists. I started to look for my sources. What I found is in the talk page. Originally, I meant to write a little paragraph to inform people that the questions were not the kind of questions for which the govt of Canada did not know the answer. There is a political intention behind the very action of the reference. This is however very touchy as you might imagine. Maybe it is best to remove it since I don't intend to fix it. -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

The introduction should say that the case followed from the 1995 Quebec referendum.

Most logical. -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

The introduction should say that this case led to the Clarity Act.

Again, very logical. Your brain seems to work kinda like my computer. ;-) -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

The introduction really needs to be reworked to make it understandable by an international audience who might know very little about Quebec. The word "secession" should probably be defined in the introduction. As written, I think it would be very difficult for non-lawyers to understand this article unless they already know a lot about the politics of this subject.

Yes, that is a problem. Go ahead and improve whatever you like in this regard. -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

There needs to be an explanation in plain language of what the case is really about. Ideally a plain-language explanation would avoid the term "secession" (which is unfamiliar to a lot of people) and use a term like "independence". Also, the plain-language explanation should highlight the issue of legal recognition. Suppose that the majority in Quebec voted for independence, and the government of Quebec then made a declaration of independence; would that be legally valid? Would courts in Quebec and in the rest of Canada recognize this declaration of independence? Or would the courts continue to apply Canadian law as if Quebec were still a province of Canada?

Well, I agree we should write in plain-language on what the reference is about, but only that. I don't think we should go so far as to answer questions that are not in the reference. The worst thing we can do is give our own interpretation of the reference. How the Supreme Court intepreted it can be deduced from its answer. If we do that, we stay in the "fact zone". -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

With regard to the second question, there needs to be a reference to the Wikipedia article Public international law.

Sure. No objection. -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

The section "Background" is problematic. In my opinion it provides a little too much historical detail. Furthermore, the discussion of patriation is misleading. It isn't really true to say "the federal government and nine of ten provincial governments obtained patriation"; it would be more accurate to say that the constitutional changes which brought about patriation were supported by the federal government and nine of ten provincial governments.

I agree we should try to shorten the history part (which is not very well written in the first place) and fix the sentence as you suggested. -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

I also don't like the terminology about Quebec not having "signed" the constititutional deal.

What terminology do you suggest to replace it? -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

In the section "Submissions", the description of the federal government's submissions is unclear.

I'd say that of the amicus curiae is also not very well explained. We might as well fix it too. -- Mathieugp 16:30, 28 May 2006 (UTC)[reply]

The writeup of the Court's opinion is not bad, but there needs to be some discussion of the duty to negotiate following a referendum. What is the legal origin of that duty?

True. The legal duty to negociate is the point of the Court's opinion which the sovereigntists were most pleased with. This was totally unexpected to them. The déclaration liminaire of Premier of Quebec Lucien Bouchard makes it very clear that the sovereigntists considered the opinion of the court to be just. They didn't really think the same of the Clarity Act which they consider to have been drafted on the basis of a dishonest interpretation of the Court's opinion. I can translate Lucien Bouchard's declaration if you ask. -- Mathieugp 16:27, 28 May 2006 (UTC)[reply]

--Mathew5000 15:05, 28 May 2006 (UTC)[reply]

Two material errors

1. First of all, Justice John Sopinka passed away at the outset of hearings for the Secession opinion, so his name should not appear as a member of the Secession Bench, which is an error easily corrected by reference to the Supreme Court of Canada opinion online at Lexum: Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.: Source: http://csc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.html

2. The second major error at the Wikipedia page is to have referred to the provision of "unanimous REASONS" by the Secession Bench. It is well known that in the case of this non-binding Opinion, the Supreme Court DEPARTED from the statutory requirement (at s.53.4 of the Supreme Court Act) to give REASONS:

"Opinion of Court

(4) Where a reference is made to the Court under subsection (1) or (2), it is the duty of the Court to hear and consider it and to answer each question so referred, and the Court shall certify to the Governor in Council, for his information, its opinion on each question, with the reasons for each answer, and the opinion shall be pronounced in like manner as in the case of a judgment on an appeal to the Court, and any judges who differ from the opinion of the majority shall in like manner certify their opinions and their reasons."

Source: http://laws.justice.gc.ca/en/S-26/text.html

THERE WERE NO "REASONS" CERTIFIED. Which is more clear from the fact that the Opinion concludes:

"156. The reference questions are answered accordingly."

This means that the Supreme Court reference bench IGNORED the statutory requirement to give REASONS-- and did as they pleased. Q.: Is the Supreme Court above the law? Ans.: NO. Does the 1998 Secession Opinion conform to the law as prescribed at s.53 of the Supreme Court Act? Ans.: NO. Q.: Does the Supreme Court think it is above the law? Ans.: Evidently. Q.: Why? Ans.: because they think nobody will be clever enough to APPEAL, although their OPINION jurisdiction is ALWAYS first-instance, and does not benefit from the character of Supreme Court of Canada DECISIONS on appeal, which alone are FINAL.

Q.: What is the legal status of the 1998 Secession Reference Opinion? Ans.: NULL & VOID as ILLEGAL for failure/refusal to comply with the statutory requirement to CERTIFY "REASONS". —Preceding unsigned comment added by 70.52.13.177 (talk) 19:04, 7 August 2009 (UTC)[reply]

It is pointless to write all this in the talk page. If you are sure of your facts and have proper sources, you are free to just fix it.

-- Hi. I've fixed things like this before and had them un-fixed, so it hardly seems worth the time. The standard for factuality is apparently how many times a fallacious remark is repeated; not whether the remark is true or not, regardless of how many times it's repeated. If I were to put the truth into the main page, it would be deleted, because the truth is no longer politically correct in this country, and for those controlling power, in particular, it is extremely inconvenient. I therefore settle for the back page, in the hope someone will read it.

-- DECISION vs. OPINION --

I did a fix today, changing the word "decision" to "opinion" wherever I found it. Here's the reason:

In Attorney-General for Ontario v. Attorney-General for Canada, (1972 AC 571), the Judicial Committee of the Privy Council (highest resort for Canada at the time) laid down the position that the opinions expressed by the Supreme Court of Canada in its advisory jurisdiction under the Supreme Court Act "Will have no more effect than the opinions of the law officers".

This means, quite simply, that these are not "decisions". Judicial decisions of the highest appellate court of Canada have binding force, including on that court itself. However, its opinions, which are rendered based on what is s. 53 of the Supreme Court Act today, do not have binding force, because they are not "decisions" or -- to borrow the American term, sometimes used here, "cases or controveries". In the past, up to 1949, these opinions were at least appealed to the Judicial Committee of the Privy Council in the UK -- for another 'opinion' on the opinion. Since that time, for some odd reason, they have not been subjected to appeal. This is odd, because these opinions are "first" opinions, that no other board of justices has had a chance to review. This is an extremely risky situation; combine that with the fact these opinions are mistaken for decisions by the public, and it's a risky and undemocratic one which subjects the public to autocratic rule, as opposed to their own self-rule by responsible government. Pronouncements by the non-judicial bench of the Supreme Court, sitting in the advisory function under s. 53 of the Supreme Court Act, answering questions self-servingly formulated by the Executive (as opposed to logically formulated by Judges acting judicially), take control of the law and the country out of the hands of the people.

-- BACKGROUND OF THE OPINIONS --

The historical origin of the opinions, moreover, limits their use. They are for the information of the Executive, they are not for the purpose of advising or persuading the public. The Secession Reference and other References have become little more than blatant political tools to mislead the public into thinking that the opinions rendered based on Executive questions are LAW, when they are no such thing.

The use of the word "decision" when referring to "opinions" of the Supreme Court of Canada -- or to the opinions of advisory benches constituted by provincial appellate courts -- is extremely misleading to the public, who are thus encouraged to wrongly assume that an irrevocable decision has been handed down, which they, the public, are required by law to comply with. This misapprehension serves to undermine democracy in Canada.

I would like to SUGGEST that a segment be added to this page on the HISTORY and CONTROVERSY over the "advisory jurisdiction", as it is called in general court parlance, or, the "Special Jurisdiction" as it is called in the Supreme Court Act, itself. The jurisdiction has been controversial from the outset. In 1875, in Hansard on the passage of the first Supreme Court Act, Justice Minister Fournier makes it quite clear that he and his colleagues KNEW the jurisdiction was illegal; he admitted they could not find words to draft it into the Act that would make it legal; and he concluded that since they also knew that a constitutional amendment would be required to make it legal -- but that no such amendment would be granted by the UK because there was no chance of obtaining unanimous approval of the provinces -- it was slipped into the Supreme Court Act in 1875 NONETHELESS, fully knowing it was illegal, but the advisory board thus created posed such a convenience to the Executive that they violated the Constitution and did it anyway.

There is a very substantial history of Supreme Court of Canada Justices balking and dissenting and refusing to participate in the advisories. Even in 1998, at the time of the Secession opinion, the Supreme Court of Canada presumed to -- quite cursorily -- pass review on its own opinion jurisdiction, and found it "legal". However, they were at that time sitting AS AN OPINION BENCH, and had no judicial power to make such a determination with finality; one which can only be made, judicially, and democratically, by a competent court of first instance, that is, a Superior Court under s. 96 of the BNA Act, 1867 seized of the question in the form of a CASE, for example, a citizen vs. the Crown, challenging the legality. This then provides all the safeguards required in a democratic country, meaning that a DECISION is rendered by a competent court sitting JUDICIALLY, on questions of fact and law formulated BY the court and not by an interfering Executive; and the decision is then itself subject to appeal, and then to ultimate appeal at the Supreme Court of Canada. This has not yet happened, and is long overdue.

As a result, the TWO issues in the Secession Reference of 1998, [a] the legality of the advisory function, and [b] the legality of secession, have both been pronounced on by justices sitting NON-judicially, issuing non-binding OPINIONS, of no legal force or effect, that have not even been subjected to a cursory review; and are not even JUDGMENTS. Moreover, the extent to which these opinions are used by the Executive to employ Parliament as a rubber-stamp to make these opinions into apparent "law" makes Canada into an autocracy, not a democracy.

Furthermore the BNA Act, 1867, at s. 17, "prescribes" Parliament and its components; at s. 91, it "prescribes" the lawmaker for Canada as Parliament. In 1867, the Supreme Court didn't even exist yet; therefore, it is no surprise that the Supreme Court is not a component of the legal lawmaker for Canada at ss. 17 & 91. The use of the Supreme Court in an (illegal) advisory function to issue opinions on questions formulated by the Executive, which are then rubber-stamped by Parliament, is NOT PARLIAMENTARY governance in Canada. And it is extremely dangerous both to democracy and freedom, for the preamble of the Constitution of Canada in 1867 has always been understood to be a "guarantee against the government of judges", and a guarantee of self-rule.

I could swear I had linked this before, I don't see it in the history, this is a SCAN of the Hansard of 1875 on the first passage of the Act creating the Supreme Court:

http://www.calameo.com/books/0001117907b0cb2468e63

If you are interested, it contains the precise statements of Justice Minister Fournier admitting that the advisory function (reference function) was known to be unconstitutional; but they did it anyway. I scanned this from the Hansard at the University. It's not an opinion on the event, it's the real record of it.

Thanks for your time.

-- THE ORDER IN COUNCIL vs. THE SECESSION OPINION --

Section 53 of the Supreme Court Act purports to authorize the Executive to ask questions, and compel the non-judicial bench of the Supreme Court to answer the questions. This has always been understood to mean that the Supreme Court, sitting in this function, is not authorized by the statute (Supreme Court Act), to make up the questions itself, or to change the questions asked by the Executive. If you examine the ORDER IN COUNCIL, you will see that NO QUESTION was asked about "clarity of the question" and "clarity of the vote result". There being no such question asked, the Supreme Court could not ANSWER it, without making up the question ITSELF, even if only by implication.

Moreover, in order to ANSWER a question put by ORDER IN COUNCIL, the Supreme Court would have to review relevant facts and give signed and certified REASONS based on those facts. There were referendums "to secede" in 1980 and in 1995; there was a Charlottetown referendum in 1992. There was controversy in Quebec over the results of the 1995 referendum because of over 85,000 "NO" ballots that had been spoiled by election workers. That controversy was taken to Court by the Montreal Gazette, albeit on the basis of a contorted attempt to characterize voting ballots as public "documents" under the Quebec referendum act, in an effort to have the ballots exposed to the public for examination. The Gazette's efforts were rebuffed by the courts, because they were pleaded on wrong grounds. The right ground, the simplest ground, would have been to sue for a re-count, i.e. contest the results, which would automatically have put the ballots on the table for all the world to see. What a shame the Gazette and its high-priced lawyers did it the other way. But, I digress. My point is: [a] the question as to "clarity" was not asked in the Order in Council, therefore the Supreme Court had no authority to ANSWER it; [b] had it been asked, the Supreme Court itself would have had to EXAMINE the history of referendums in Quebec and Canada on the Quebec questions; it would have had to raise the issue of the 85,000+ maliciously spoiled ballots. It would have had to compare questions from each referendum, and determine whether they had been CLEAR or not. After all, if they were NOT clear -- and the Court in the Secession reference never said they were UNCLEAR -- because it didn't review the matter, it didn't look for that information, then there would be no apparent purpose in passing the CLARITY ACT to compel clarity "in future", compared with a supposed "lack" of clarity in the past.

As a result, the OPINION on "clarity" is void, because the question wasn't asked, and the Supreme Court sitting non-judicially under s. 53, therefore had no power to ask it themselves. If you doubt me on this, check the Patriation Reference, where members of the Supreme Court itself clearly stated that they had no power to alter questions asked by the Executive, which would be tantamount to making up their own questions, which they had no power to do.

- DUTY TO NEGOTIATE - "LEGAL BASIS" --

Someone up above said: "* The writeup of the Court's opinion is not bad, but there needs to be some discussion of the duty to negotiate following a referendum. What is the legal origin of that duty?"

Excellent point. Glad someone noticed. There IS no legal origin. The secession opinion purports to CREATE the legal origin by handing the Executive an opinion they can rubber-stamp into law, as the "Clarity Act" and then act accordingly. If you read the BNA Act, 1867 very carefully, you will find: [1] no power to secede under s. 92, which is the head of provincial powers; [2] that all powers are for local purposes only, a province may not act to substantially affect any other province let alone all of Canada; [3] the final provision under s. 92 prescribes a "residual" power for local purposes only. Meaning NO SECESSION, can't leave, or that would affect all other provinces and the confederation of Canada. It was done that way on purpose in 1867 to prevent secession, you can look it up in Bourinot and others. I cite Bourinot for one at my Grounds page:

http://www.calameo.com/books/0001117902cd601fc48fe

EXCERPT:

First Example:

                    No States' Rights for the Provinces

As Sir John G. Bourinot observes at pp. 95-96 of his Parlia- mentary Procedure and Practice, 1903, the legislative powers were distributed between the federal and provincial levels (Articles 91 and 92 of the BNA Act of 1867) in a manner designed to secure "unity" and prevent "secession": "XII. —Distribution of Legislative Powers. In the distribution of the legislative powers entrusted to the general parliament and the local legislatures respectively, the constitution makes such an enumeration as seems well adapted on the whole to secure the unity and stability of the dominion and at the same time gives every necessary freedom to the several provinces in the management of their local and municipal affairs. —In arranging this part of the Constitution, its framers had before them the experience of eighty years' working of the federal system of the United States, and were able to judge in what essential and fundamental respects that system appeared to be defective. —The doctrine of state sovereignty had been pressed to extreme lengths in the United States, and had formed one of the most powerful arguments of the advocates of secession. This doctrine had its origin in the fact that all powers, not expressly conferred upon the general government, are reserved in the constitution to the States. —Now, in the federal constitution of Canada the very reverse principle obtains, with the avowed object of strengthening the basis of the Confederation, and preventing conflict so far as practicable between the provinces that compose the union." In the Debates on Confederation, John A. MacDonald, a founding father of Canada, refers to the American War of Secession 1861-64, as "the disruption of the United States". This war of secession was the reason for the division of powers between the Parliament of Canada and the Legislatures of the Provinces.

Powers not expressly listed as given to the Provinces would expressly belong to the Parliament of Canada. This does not mean, however, that a "power of secession" was left to the central Parliament, because there is no power to secede in a Constitution whose very purpose is perpetual unity.

"... we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local governments and local legislatures, shall be conferred upon the General Government and Legislature. -- We have thus avoided that great source of weakness which has been the cause of the disruption of the United States." In this way, at no time could the Provinces of Canada invoke reserve powers or "States' rights", leading to conflict and attempts to secede. Canada was designed as a permanent union, "for all time to come".

You can find Bourinot in any good library, or in Rare Books at the Grand Bibliotheque in downtown Montreal.

Now, get out your BNA Act, 1867 and read s. 31. A senator is automatically disqualified, by operation of the Constitution, for allegiance, adherence or obedience to a Foreign Power; or for doing any act to become a Subject of or entitled to the rights of a citizen or subject of a Foreign Power. Now, ask yourself: carving a COUNTRY OF QUEBEC out of the territory of Canada... is this not showing obedience, allegiance and adherence to a Foreign Power? And, in terms of North American Union, annexing Canada by "deep integration" thus creating a "new country" on the continent... is this not showing obedience, allegiance and adherence to a Foreign Power? The Model Parliament for North America was LAUNCHED in the Senate Chamber of Canada.

Can you not smell treason? Secession is illegal in Canada; the Constitution is not "silent" on the matter, it is express on the matter. It was designed that way to prevent Canada from flying to pieces and being annexed by the USA. The Constitutional purpose of the statute of 1867 is the permanent nationhood of Canada, by means of a permanent prohibition against annexation and secession. Yet, secession is the tool they have been using since shortly after the Treaty of Rome was signed setting up the basis of the European Union.... separatists, marxists, even Castro, all got their foot into Canada through the FLQ -- who, ultimately, were doing the bidding of the multinational corporations without realizing it. It's the banks and the big corporations who are merging the continents, and shaping up for corporate world-rule.

That's why the Supreme Court of Canada's illegal opinion jurisdiction is so dangerous.

But the truth cannot yet be printed on the front page. However, it will be, one day.