06 May 2018

Montreal Gazette: Loss in Quebec Bill 99 constitutionality case is ultimately a win

Thursday's judgment changes nothing. Still, it provides a welcome reminder that a UDI in the absence of prior negotiations would be illegal.  


Keith Henderson may have lost his court challenge against Bill 99, but Justice Claude Dallaire’s nuanced decision Thursday in the long-running case ultimately leaves him a winner. It allows just about everyone else to declare victory, too. 

The law, enacted in 2000 by the Parti Québécois government of the day, asserted Quebecers’ right to determine their future. Underpinning Henderson’s challenge was the concern that certain articles might be used as a springboard to a unilateral declaration of independence (UDI). 

Dallaire basically ruled that the law was constitutional because it does not serve as any such thing, nor was it intended to. Rather, she noted, it merely affirmed Quebec’s existing rights and jurisdictions in response to what was perceived as an encroachment by the federal Clarity Act; it was a political cry of “Maîtres chez nous.” As was made clear by the Supreme Court of Canada’s 1998 reference opinion, a referendum victory (with a clear majority and clear question) could be only a first step toward secession, and a UDI without prior negotiations with Quebec’s partners in Confederation on the terms of secession would be illegal. 


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