Talk:An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State
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|WikiProject Canada / Quebec / Law||(Rated Stub-class, Mid-importance)|
About this statement:
- The act is merely a political statement and has no effect in law.
Is this based on the intent of the politicians who pased it (as in they came and said "this is just a statement"), based on a legal opinion (ie. an act as no legal bearing) or is it a personnal opinion ?
Not looking to start a fight, just curious.--Marc pasquin 18:51, 24 Jun 2005 (UTC)
I think it's a legal opinion (I'm personally against the Clarity Act myself)Habsfannova 00:49, 3 August 2005 (UTC)
- What key information that seems to be missing here is whether or not this received Royal Assent. If it didn't, then this bill remains a political statement without effect in law. If it did receive the Lieutenant-Governor's signature, then it is an act, and has effect in law, whether or not it actually contradicts federal laws. I have a hard time believing that a bill full of so much groundless text could be granted Royal Assent; and even if it was given by the provincial vice-regal, the Governor General has the right to revoke it. Does anyone know if this bill was made into an act? --gbambino 19:51, 29 November 2006 (UTC)
/// [a] a valid Provincial Act (law) is constitutionally incapable of "contradicting" a valid federal Act (law), and vice versa.
[b] The Clarity Act received the Royal Assent on 29 June 2000, conferred by newly appointed Supreme Court Justice Louis LeBel standing in for the Governor General of Canada who would ordinarily confer it. However, as there is no constitutional power in the Crown to confer the royal assent on an unconstitutional act, and the Clarity Act being unconstitutional, it will one day be declared void.
[c] "Bill 99" received the Royal Assent on 13 December 2000, conferred by Quebec's former Lieutenant Governor, Lise Thibault, in the normal course of her functions. However, as there is no constitutional power in the Crown to confer the royal assent on an unconstitutional act, and "Bill 99" being unconstitutional, it will one day be declared void.
/// Re: ::: The act is merely a political statement and has no effect in law. It is not a "legal opinion" that the Clarity Act and "Bill 99" are mere "political statements" with "no effect in law". It is, in fact, a ridiculous statement.
A fundamental principle of statute law in Canada is that "the law is ALWAYS SPEAKING" (technical term). Look up Louis-Philippe Pigeon on the Interpretation of Statutes (in a good university library). The term "always speaking" means that VALID LAW (meaning law made in respect of a POWER which the particular LAW-MAKER (Parliament or a Legislature) does truly have UNDER the Constitution) ALWAYS has effect; the effect is immediate unless it is expressly stated that parts of the law will come into effect at a future date, and on THAT date, any such provision of that law comes into effect and is then ALWAYS SPEAKING, i.e., it has LEGAL EFFECT.
There is no such thing as a VALID LAW which has NO LEGAL EFFECT. Only a VOID LAW made without jurisdiction (i.e., in the absence of constitutional power) has NO LEGAL EFFECT. Political statements and law are not the same thing. (Political statements are treason are also not the same thing.)
However, there is a principle of Canadian law called PRESUMPTION OF CONSTITUTIONALITY which assumes that any statute emanating from Parliament or a Legislature is VALID until declared VOID by a competent court of law. This basically means that in Canada, the Courts are the arbiters of legality; until there is a FINAL court decision on legality, we presume the law is valid and act accordingly.
However, in order to obtain a correct decision on legality, we have to correctly SEIZE a competent court with the CORRECT QUESTION. A court can only give you what you ask for; if you ask for the wrong thing because you misunderstood the nature of law, or the nature of the specific law you are contesting (as has happened in the Henderson case), then the court may decide one way or another, but it can't help you by supplying the correct basis for your lawsuit if you yourself have not supplied it. In the case of Bill 99, the correct basis for a challenge to its legality has not been supplied by Tyler and Henderson. This plays into the hands of their adversary, who is leading them on a paper chase around the Courthouse, from s. 96 up to Court of Appeal and back, essentially to no valid purpose; which is great when you're buying time. Essentially, Henderson and Tyler, although they are not aware of it, are helping their adversary to buy time while they fritter away their own time chasing the Snark. —Preceding unsigned comment added by 184.108.40.206 (talk) 19:11, 13 October 2010 (UTC)
I realize this is the actual name of the law, but it's a bit wordy. Is there a shorter name by which this act is known?
Also, I suspect that the English name of the act should not have an acute accent in "Quebec". --Saforrest 01:44, 21 November 2005 (UTC)
- Nevermind, it's in the official English text of the act. Interesting. --Saforrest 01:46, 21 November 2005 (UTC)
Holy crap is that a long article name. I wonder if it isn't the longest article name on Wikipedia. --Willmolls 09:31, 2 June 2007 (UTC)
- Really nowadays laws have short names. Except this one! (I didn't believe this at first either.) 220.127.116.11 (talk) 12:25, 19 October 2008 (UTC)
/// Hello. No, there is no short title for this one. Someone who had been reversing edits had said:
(cur | prev) 12:33, 19 October 2008 18.104.22.168 (talk) (2,892 bytes) (I won't revert again, since if it is, the intention is clear that its not welcome. However, if you follow the link, "short title" is not used in its plain English sense, but rather as a technical term)
/// I would like to confirm:
[a] that statutes passed in Canada do usually have both a "Long Title" and a "Short Title". The job of the Long Title is to define the "statutory purpose" (the purpose of the law or act) which serves to confine the contents of the statute and thus also confine deliberations on the bill to the specific subject matter concerning which it is intended to become a statute.
[b] I have studied the two exhibit boxes and the court file in the Henderson challenge of Bill 99 down at the Montreal courthouse. Transcripts of pleadings indicate that the name "Bill 99" was adopted for convenience during pleadings at Quebec Superior Court before Judge Michel CotE, on the suggestion of lawyer REal A. Forest. I think Forest was then with the firm FASKEN MARTINEAU, and sitting as co-counsel with Quebec Government house lawyers, BERNARD ROY & ASSOCIES. —Preceding unsigned comment added by 22.214.171.124 (talk) 18:14, 13 October 2010 (UTC)
Both acts are mandates given to their respective governments. Since law is made through force, it is uncertain how much power the National Assembly has vis-a-vis the Government of Canada to enforce its laws over the latter.
/// Hello. Basic constitutional law of Canada, well understood since 1867, follows the principle that there is a "DIVISION OF POWERS" (legal term) in the Constitution which confers EXCLUSIVE powers upon provincial governments under s. 92 of the British North America Act, 1867, including a "residual power" (technical term) strictly for "local purposes", meaning that no province has ANY power to take steps or implement ANY measure that does not expressly fall under the "CLASSES OF SUBJECTS" (legal term) under s. 92; nor can any province take steps or implement any measure, including ANY STATUTE, which would have as its consequence to SUBSTANTIALLY AFFECT any other province, let alone all of Canada. This vital principle, central to Confederation, and on which Canada's Constitutional jurisprudence was developed by the Courts since 1867, means that since EACH province only has power ON ITS OWN TERRITORY, it CANNOT exercise power over any other territory, i.e., over any other province, or over all of Canada. Any such attempted exercise is constitutionally VOID for want of power. In the same way, the Federal Government may not encroach on exclusive provincial powers by attempting to pass laws modifying those powers or modifying (valid) laws for local purposes passed by a Province. There is thus NO QUESTION of one or the other level using "force" of any kind to impose its laws "over the latter". The two levels do not make laws on each other's subject matters.
There are, however, doctrines developed by the courts since 1867 which seek to deal with occasional overlaps of jurisdiction in a way that keeps the federal and provincial powers clearly separate. However, as there is NO POWER TO SECEDE under s. 92 of the British North America Act, 1867 -- which was deliberately done at Confederation to prevent secession -- and done by restricting Provincial powers to LOCAL EFFECT ONLY, there is no issue of OVERLAP. Any laws purported to be passed on the subject of SECESSION are VOID because there is quite expressly NO POWER TO SECEDE under s. 92. In the absence of a power, no steps and no measures and no "law" may be undertaken, passed, or implemented, all are CONSTITUTIONALLY VOID for want of express power. As for the federal level, section 91 prescribes the federal powers; however, the formula "PEACE, ORDER and GOOD GOVERNMENT" "OF" CANADA specifically RESTRICTS the federal level to passing laws whose sole purpose is for the governance OF "CANADA", which means CANADA as defined at s. 3 of the British North America Act, 1867. The Long Title of the British North America Act, 1867 also makes perfectly clear that laws made by Parliament and the Legislatures "UNDER" (technical term) the Constitution of Canada may ONLY be directed toward the UNION of Canada and "purposes connected therewith":
"An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith" Source: http://www.canlii.org/en/ca/const/const1867.html
Secession is contrary to the UNION, and thus, again, underscores the deliberate absence of a POWER TO SECEDE at s. 92, the LONG TITLE (amongst many other express features of the written Constitution) makes it abundantly clear that NO GOVERNMENT, including the Federal government, has the power to pass LAWS for any purpose CONTRARY to the UNION established in 1867.
This is more clear from the early and definitive sources on statutory construction (interpretation) of the Constitutional statute passed by UK Parliament to create Canada, i.e. no States' Rights for the Provinces:
As Sir John G. Bourinot observes at pp. 95-96 of his Parliamentary 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", as is said many times in the 1865 Debates on Confederation, from which, in part, we judge the statutory purpose of the Constitution.
As a consequence, Bill 99 is ABSOLUTELY VOID; the CLARITY ACT is absolutely void; referendum laws purporting to regulate conditions for voting on secession are ABSOLUTELY VOID, and on and on, etc. This is basic statutory and constitutional interpretation. If Mr. Tyler were a constitutional lawyer, he would know this. His arch-rival REAL A. FOREST knows it; I can tell by the way he winks at the Judge.
Another reasons these "laws" are void is that there is no constitutional power in the Crown to confer the royal assent on an unconstitutional act; which, if it were not the case, would mean that by simple royal assent, the Legislatures could override the Constitution at any time by creating new powers for themselves. Neither the federal nor the provincial level has the ability to create new powers, they have, basically, with minor non-pertinent exceptions, the powers that came with the DIVISION OF POWERS at Confederation, and those conferred by the Statute of Westminster, 1931, and that's all.
You can find Mr. Bourinot's works in Rare Books at a good public library, or in a university law library; you can find the Debates on Confederation (1865) Hunter Rose Publishers, in a law library and in a good university library. Both might also be found at archive.org, and canadiana.org. Have a nice day. —Preceding unsigned comment added by 126.96.36.199 (talk) 18:48, 13 October 2010 (UTC)
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