Excerpts from Claude Ryan's note to the "Friend of the Court".

January 31, 1998

The following notes reflect the point of view of a man of action whose public career has been identified with promotion of a renewed Canadian federalism within which Quebec could develop in solidarity with the other partners of the federation, but also respect its own character...

In the first place, the Supreme Court reference obliges us to be precise as to what we mean by Quebec. According to the submission of the federal government, Quebec is a Canadian province, nothing more. From there to saying that Quebec is a province like the others requires only a step. Now, this reductionist concept has never been accepted in Quebec. In terms of law, Quebec has the status of a province but it forms inside the Canadian federation a society that is distinct by means of the language and culture of the great majority of its inhabitants, by means of its civil code and its institutions. This distinct character of Quebec is at the heart of the constitutional debate. To define Quebec, several terms have been used: collectivity, people, nation, society. Beyond the terms used, the intent was to signify that Quebec forms a society which "has all the attributes of a mature, modern, democratic and pluralist society which is open to the world." (1) All successive governments of Quebec over more than half a century, whether they be federalist or sovereignist, have insisted that this character be more explicitly affirmed and recognized. In the submission of the federal government, Quebec is assimilated under "ethnic, religious or linguistic groups," minorities within duly constituted states to which international law refuses the right of independence. In talking this way, one moves dangerously far away from the concept of equality of two founding peoples formerly recognized by the federal government...

The option of independence has been part of the Quebec political landscape for more than three decades. The principal players have responded pragmatically. Without necessarily supporting the sovereignist option, they have preferred to see it be freely debated in the political arena under democratic principles, rather than be forbidden or promoted by authoritarian means. The legitimacy of the sovereignist option, as a political option, has never been denied by the courts. For 12 years out of 21, in other words, more than half the time since 1976, Quebec has been governed by a party which, while never disguising its commitment to independence, has governed in conformity with the Canadian constitution, the constitutional validity of its laws being submitted to the control of the courts. The evolution of events up to now has brought honour to Canadian and Quebec democracy. Quebec political players have shown that they are capable of conducting the debate over Quebec's political future in a manner that respects democratic rules. Canadian political players have simultaneously respected the acts of Quebec people, in general avoiding interference in this debate except, as is their right, inviting Quebecers to measure carefully the economic and political implications of a choice in favour of independence...

To accept the argument of the federal government would be to accept in principle that a decision concerning [Quebec's] political future, based upon a clearly and democratically expressed will of the population, should be subjected to the consent and, by implication, to the power of veto of the federal Parliament and a substantial majority of the provinces. That is a difficult position to support. It would be inconceivable, after a process spread over several decades, having jumped one by one all the hurdles of a democratic process leading to independence, that Quebec be told that all that was a vain exercise, that Quebec had no choice from the beginning but to submit to the veto power of the rest of Canada...

The role of the Court is to interpret the Constitution and not to substitute itself for those who created it. In a 1981 decision, the Court had proposed a highly dubious interpretation of the Constitution in concluding that it was possible to amend it with the consent of a substantial majority of provinces. This interpretation was nowhere written in the Constitution and lacked a solid basis in Canadian constitutional convention. This decision provided the basis on which subsequently the Charter of Rights and Freedoms and an amending formula were adopted without the agreement--indeed despite the explicit opposition--of the government of Quebec and the National Assembly. These moves were the source of a constitutional impasse which has lasted 16 years and have contributed greatly to the growth of sovereignist sentiment in Quebec. A negative answer by the Court to the questions submitted by the federal government risks creating a new and still graver impasse. In conclusion, the Court would be wise to throw back to the political players the responsibility of finding democratic answers to the questions posed.

(1) . Liberal Party of Quebec, Recognition and Interdependence, report of the Committee on the Evolution of Canadian Federalism, December 1996, p. 12.