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Litigation in Canadian referendum politics.

Abstract: During the last decade, various governments in Canada have organized referenda to define their options on issues of great popular controversy. The Canada-wide referendum on the Charlottetown Constitutional Accord in 1992, the Quebec sovereignty referendum in 1995, and the British Columbia referendum on aboriginal treaty negotiations in 2002 are the most interesting and the most significant examples. The core issue in each case was determining the political direction a government or a jurisdiction should follow. In each of these instances, interested citizens representing a segment of public opinion sought court injunctions to stop the vote. The focus of this article is the use of the courts on the political process. In each of the three cases, the applications for injunction were denied and the referendum proceeded. Nevertheless, the legal proceedings highlighted the increasing impact of law in politics under the Charter, as well as the greater willingness of political actors to use litigation to achieve political goals. These trends point out lessons for democracy that public administrators ought not ignore.

Sommaire : Au cours de la derniere decennie, divers gouvernements au Canada ont organise des referendums pour determiner leurs options concernant des questions faisant l'objet de serieuses controverses. Le referendum canadien de 1992 sur l'Accord constitutionnel de Charlottetown, le referendum de 1995 sur la souverainete du Quebec et le referendum qui s'est tenu en 2002 en Colombie-Britannique sur les negociations des droits issus de traites des Autochtones sont les referendums les plus interessants et les plus marquants. Dans chaque cas, le point essentiel consistait a determiner l'orientation politique que le gouvernement ou une juridiction devrait adopter. Dans chacun de ces exemples, des citoyens concernes representant un segment de l'opinion publique ont tente d'empecher la tenue du vote en sollicitant des injonctions aupres des tribunaux. Le present article porte sur le recours a des moyens legaux pour influer sur le processus politique. Dans chacun des trois cas, les demandes d'injonctions ont ete refusees et le referendum a eu lieu. Neanmoins, les actions en justice ont souligne l'impact grandissant du juridique dans le domaine des politiques, sous l'influence de la Charte, et une plus grande acceptance de la part des responsables politiques a recourir a des litiges pour atteindre des objectifs politiques. Ces tendances soulignent pour la democratie des lecons que les administrateurs publics ne devraient pas ignorer.

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Canada is a difficult country to govern. Its politics are fraught with centrifugal forces that need to be reconciled. For a long time, the relationship between the English and French communities was the most significant of these issues. Recently, the relationship between aboriginal Canadians and the larger society has gained prominence.

Elections are one way of building coalitions capable of handling fundamental and potentially divisive issues. Sometimes, however, governments choose to isolate important matters from the electoral process and attempt to resolve them through votes on single issues. Referenda can be useful vehicles of governance when political parties have taken a clear stand on matters of high political importance. If a government faced a whipped vote in the House of Commons or a legislature and won, its triumph would be hollow, as it would merely have inflamed passions on all sides. If the government were to lose such a crucial vote, the country or the province would be without leadership. In order to avoid such scenarios, referenda can be important instruments of governance.

A referendum allows the political system to take a single issue, to handle it with the gravity and decisiveness of an election, while not placing the stability of the government, or of the political system itself, at risk. This occurs even when referenda are designed to give representative institutions an increased range of options, as well as in cases where the instrument of the referendum is chosen by a government for other reasons.

In a modern democracy, the decision to hold a referendum generates political divisions and tensions. In Canada, citizens sometimes use the courts to prevent a referendum from being held. It is the lessons of these cases for public administrators that this article examines.

This article will look at three cases in which litigation was used to influence referendum politics: the 1992 referendum on the Charlottetown Constitutional Accord, the 1995 Quebec referendum on secession, and the 2002 British Columbia referendum on aboriginal treaty negotiations. The choice of the three cases is explained by their fundamental importance to Canada. The consequences for the political fabric of Canada, of citizens being able to stop referenda by legal action, were greater in these cases than in any other.

The question on a referendum is grounded in politics. The organization of a referendum is a matter of public administration. The litigation dealing with the holding of a referendum is a matter of law. However, these categories are not watertight. Democracy is the conduct of governance encompassing freedom of political choice and rational social organization, all founded on the rule of law. Thus, the most appropriate prism through which to understand litigated attempts to stop the holding of referenda is "political law." Political law is the interdisciplinary study that deals, first, with the interaction among law, public policy and administration, and politics, and, second, with the influence of law on the other instruments of democratic governance.

Characteristics of referenda

A referendum is one of several procedures of direct democracy through which citizens engage in decision-making. The concept of "referendum" incorporates the democratic nature of the process, namely that the event be organized according to formal, equitable and predetermined rules. Those entitled to vote may do so in a free and fair manner, according to rules they know in advance, and in a transparently administered system.

The concept of referendum also integrates the element of directness. In democracies, citizens have a constitutionally based and legally defined right to choose their governments, by way of election. Election endows a government with a mandate defined in time. In a referendum within a democratic system, the issue is put directly before citizens. It is they who vote, directly and without intermediaries. The subject-matter of the vote is usually controversial, and the outcome is often decisive to the nation's political life.

Referenda are inherently legal and political in nature. They engage both the legal and political strands of the nation's psyche. Reasoning and argumentation swirl around the poles not only of what kind of country the people want, and what should be the substantive constitution and the laws that govern them, but also whether such existing fundamental instruments appropriately express the hopes and dreams of a majority of the population or whether these texts ought to be amended to better reflect the changing preponderance of citizens' views.

The result of a referendum is that of a binding vote. By contrast, the term plebiscite denotes a consultative vote. Whether a single-issue vote by the electorate is designated a referendum or a plebiscite, two characteristics have become prominent in their discussion and analysis: the need for clarity in the question put to the electorate, and the extent of the majority required for a referendum to be deemed as having expressed public approval of the plan proposed in the question.

To some extent, in the case of the 1980 Quebec referendum on sovereignty-association, controversy flared around the meaning of the question:

The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, administer its taxes and establish relations abroad--in other words, sovereignty--and at the same time, to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will be submitted to the people through a referendum; ON THESE TERMS, DO YOU AGREE TO GIVE THE GOVERNMENT OF QUEBEC THE MANDATE TO NEGOTIATE THE PROPOSED AGREEMENT BETWEEN QUEBEC AND CANADA?

There was uncertainty as to what this meant and even more imprecision as to what powers the question would vest in the Government of Quebec if it were approved. The wording of the question in the Quebec referendum of 1995 on sovereignty gave rise to an even harsher debate as to its meaning and potential outcome:

Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995, Yes or No?

The controversy surrounding the question detracted from the refendum's legitimacy.

In both 1980 and 1995, the issue of whether a simple majority was sufficient to start discussions between Quebec and Canada was hotly debated. In the end, the "no" vote won by more than fifty per cent, plus one, in both instances, although in the latter case, by not much more. (1) The clarity of the question and the extent of the margin of victory were sufficiently fundamental matters to induce the federal authorities to reinforce their views of them through legislation. The setting of standards regarding these matters was the major purpose of the so-called Clarity Act. (2)

The Constitution of Canada provides no mechanism for the withdrawal of a province from Confederation once it has joined. To fill this void, and to determine the parameters regarding the question and the result within which such withdrawals may take place, Parliament has determined rules that although fundamental are not entrenched in the Constitution. Towards this end, the 1992 Referendum Act enacted the following new power:

3. (1) Where the Governor in Council considers that it is in the public interest to obtain by means of a referendum the opinion of electors on any question relating to the Constitution of Canada, the Governor in Council may, by proclamation, direct that the opinion of electors be obtained by putting the question to the electors of Canada or of one or more of the provinces specified in the proclamation at a referendum called for that purpose. (3)

Read together, the Referendum Act and the Clarity Act ensure the legality of federally organized referenda and provide for a federal right of oversight on provincially organized referenda dealing with fundamental constitutional change. In the partisan environment of politics, this combination of provisions is contentious and at times intensely debated. Admittedly, the Clarity Act has not, or perhaps not yet, been tested before the courts. Nevertheless, these statutes define the requirements of Canadian referenda and demonstrate how vital referenda are to governance.

A vehicle of direct democracy

The idea that a referendum is both political and legal in nature bears further explanation. In politics, a referendum is more than a public opinion poll but less than an election. It is an event that significantly affects the public administration of a country.

The best way to characterize the political aspect of a referendum is to indicate that it is the democratic vehicle for citizen participation in the conduct of public affairs. A referendum vote can be interpreted as conclusively expressing the will of the people on a particular issue of public and political life. It is noteworthy in this regard that federal and provincial referenda are still rarely used. They are saved for contentious issues that governments often have great difficulty handling by other means.

A fundamental point touching on the democratic context of referenda is worth mentioning. The referenda I will be discussing all dealt with an issue fundamental and vital to the political philosophy, the world-view, and the reputation of the sponsoring government. Each of the referendum questions was such that, had it been voted upon in the course of parliamentary debates, it would likely have been made a matter of confidence. In each case, the subject-matter was extensively debated in the preceding election campaign. Campaign promises were made forcefully, and party positions crystallized into government policy that could not have been undone without great political price. Indeed, none of the governing parties could envision changing their position after becoming engaged in the pre-referendum process and the referendum campaign itself.

Thus, with the Charlottetown Accord, Mulroney's Progressive Conservatives wanted to find an accommodation between Canada and Quebec. Similarly, Parizeau's Parti quebecois government was committed to achieving an independent Quebec, with or without association with Canada. Likewise, Campbell's B.C. Liberals insisted on diluting the Nisga'a Accord by enabling all the people of the province to vote on what essentially were various aspects of the aboriginal peoples' role in provincial society.

The points lead to a brief comparison of the legal basis of the referenda examined in this article.

First, how was "referendum" characterized in each case? At the federal level, the Referendum Act uses the expression "the opinion of electors on any question relating to the Constitution of Canada." (4) The relevant elements are that referenda organized pursuant to the federal act provide a reading of popular opinion and that those qualified as voters, as determined through citizenship and age, with a link to a residence, may vote. Moreover, the state must reserve the use of referenda for issues relating to the Constitution of Canada, namely the written constitution.

Quebec's definition is much broader. Section 7 of the province's Referendum Act states, in part, that

The Government may order that the electors be consulted by referendum a) on a question approved by the National Assembly ..., or b) on a bill adopted by the National Assembly ... (5)

The right to vote is reserved for persons who would otherwise be qualified to vote pursuant to the Election Act. (6) However, the subject-matter need not relate to the Constitution, nor indeed even to a "question" that may be of general public interest. Quebeckers can be consulted in respect of a bill that has been submitted to the national assembly.

British Columbia's Referendum Act indicates that voters may be asked to express public opinion "on any matter of public interest or concern." (7) It also ties the right to vote to the general qualifications of voters.

A second ground for comparison is that of the geographic ambit of a referendum. Reflecting the federal nature of Canada, the federal Referendum Act sets out that a referendum may be held "in one or more provinces." (8) This mechanism of applying the federal rules on a province-by-province basis is particularly useful in that it can dovetail with provincial legislation. In the 1992 Canada-wide referendum on the Charlottetown Accord, for example, the federal Referendum Act applied everywhere except in Quebec. There, acting simultaneously and using the same question as in the rest of Canada, the referendum was organized pursuant to Quebec's own legislation.

Section 7 of Quebec's Referendum Act authorizes only that "electors be consulted," leading to the inevitable conclusion that every referendum organized on the basis of this law must involve the entire province. (9) British Columbia legislation authorizes the lieutenant-governor-in-council, when ordering a referendum, to "designate the area of British Columbia within which the referendum will be held." (10) Referendum questions can thus be submitted to the entire electorate or to part of it. The legislation is silent, however, on how decisions on consulting only some British Columbians must be made. For purposes of the 2002 provincial referendum on aboriginal issues, we must refer to Section 5 of the Referendum Regulation, which determined that voting criteria be based on Canadian citizenship, age of majority and six-months' residency in the province.

The third basis of comparison among legislative schemes is whether a referendum vote is binding on the initiating government. Neither the federal nor the Quebec statutes express themselves on this point. Therefore, informed speculation is required. Subsection 3(1) of the federal Referendum Act is based on the expression "opinion of the electors," while the introductory words of Section 7 of Quebec's Referendum Act provides that "electors be consulted." Thus, neither Canada nor Quebec intended by the wording of their respective statutes to bind their respective governments. This is only natural, in the sense that it is wise for governments to ensure a large margin for political manoeuvring.

Notwithstanding the legal texts, referenda produce political dynamics and expectations. Thus, while in law, Mr. Mulroney could have sought to continue with the Charlottetown initiative after its defeat in 1992 and Mr. Parizeau could have sought to negotiate sovereignty for Quebec and a new economic and political partnership with Canada after the defeat of his "yes" option in 1995, neither of these scenarios was politically realistic after the referenda's outcomes. The people had spoken within a framework that was, ironically, legally permissive but politically binding.

The British Columbia Referendum Act is more nuanced on this crucial issue. The overall logic of the legislation is that some referenda are binding on the province's government, while others are not. The binding nature does not arise from a governmental determination prior to the initiation of the process. It depends on whether more than fifty per cent of the validly cast ballots vote the same way on a question.

Close scrutiny of this provision, however, reveals that, despite appearances, all B.C. referendum results seem to be binding. On a referendum question, there are only two choices: "yes" or "no." One of these must necessarily score more than fifty per cent of the validly cast ballots. The fifty per cent, as set out in this statute, applies neither to all electors nor to all ballots cast but specifically to all ballots validly cast. This means that the statute counts as one hundred per cent only those ballots from which a "yes" or "no" choice can be validly derived according to law. Moreover, there is no requirement that any percentage of electors must have voted. Applying these rules logically, the only circumstance in which a referendum can be non-binding is if the "yes" and "no" votes obtain an absolute equality in the numbers of validly cast ballots. That would seem to be a statistical improbability.

Could such a conclusion be right? The only indication the Government of British Columbia gave its people about the essentially binding nature of the outcome was a single sentence in a web-based document on the referendum attributed to Premier Gordon Campbell, in which the following was expressed: "It's an opportunity for you to help determine the principles that should guide our Province's approach to treaty negotiations. (11)

Whatever meaning the government had intended to give the rules, if a referendum produces binding results, certain duties clearly become incumbent on the Government of British Columbia then in office. As the act states,

Duty if referendum is binding

5 If the results of a referendum are binding, the government must, as soon as practicable, take steps, within the competence of the government, that the government considers necessary or advisable to implement the results of the referendum including any and all of the following:

(a) changing programs or policies, or introducing new programs or policies, that are administered by or through the executive government;

(b) introducing legislation in the Legislative Assembly during its first session after the results of such a referendum are known. (12)

Efforts to stop referenda by injunction

The complexities, high stakes and emotional nature of referenda sometimes lead to attempts to use the law to prevent the holding of referenda. This is essentially political action by legal means. It is also the use of legal means to achieve political and partisan results.

The Charlottetown Accord referendum, 1992

In the course of 1991-92, the Government of Canada orchestrated a discussion and negotiation process, informally entitled the Canada Round, to develop a constitutional package of amendments to replace the Meech Lake Accord, which had failed in June 1990. Part of the Canada Round was the proposal to entrench rights to aboriginal self-government. In addition to the governments of the provinces, the Government of Canada extended participation to certain select aboriginal organizations, namely the Assembly of First Nations, the Native Council of Canada, the Metis National Council, and the Inuit Tapirisat of Canada.

The Native Women's Association of Canada (NWAC) held particular views about the entrenchment of aboriginal self-government in the Constitution, but the association had not been invited to take part in the deliberations of the Canada Round. In a first case, NWAC applied to the Trial Division of the Federal Court of Canada to deny further funding to the other aboriginal groups until it was also allowed to participate in the constitutional negotiations and was funded by Ottawa to do so. This application was dismissed on 30 March 1992.

The Federal Court of Appeal allowed NWAC'S appeal. The Supreme Court of Canada would eventually allow a further appeal, holding that the failure of the Government of Canada to provide funding did not violate NWAC'S freedom of expression under Section 2(b) of the Charter and that in choosing and funding their advisers on matters of policy, governments must be free and not constrained by the Charter.

While this case was proceeding through the courts, after the Federal Court of Appeal had issued the decision on 30 August 1992, and after the writs had been issued for the Canada-wide referendum on the Charlottetown Accord, NWAC initiated a second and more important action in Federal Court--Trial Division on 16 September 1992. First, it sought to prohibit the continuation of discussions on subjects dealt with in the Consensus Report on the Constitution of 28 August 1992 or any political accord or legal text related thereto unless it was accorded a right to participate in the constitutional review process. (13) More pertinently, NWAC sought an injunction pursuant to Section 24 of the Charter prohibiting the defendants from continuing with the referendum scheduled for 26 October 1992 or other referenda based on the Consensus Report of 28 August 1992 or related documents. The defendants were the Queen, Brian Mulroney and Joe Clark.

The Native Women's Association of Canada's goal was to prevent the presentation to the electorate of a constitutional amendment package that would not contain a guarantee of equality for women. It sought to guarantee the equality of aboriginal women to aboriginal men. They pleaded that aboriginals' inherent right to self-government contained no gender equality guarantee and that there were no democratic rights guarantees applicable to aboriginal self-governments that may override Charter rights. They also opposed the clause in the Consensus Report that precluded aboriginal women from any legal recourse in respect of the inherent right of self-government for a period of tire years. All this, NWAC believed, would cause irreparable harm to aboriginal women, resulting in their having no protection under any instrument guaranteeing fundamental rights, without rights and without a voice. The association framed its arguments on the requirements of obtaining ah injunction to prevent the 26 October referendum. It argued that it was presenting a serious question to the court and that the balance of inconvenience would mean it would suffer the greater harm if the injunction it sought were refused. Although cast in legal terms, NWAC'S was a political argument based on the notion that not even a victory at the referendum was sufficient to protect NWAC'S political rights and future. The arguments submitted by NWAC focused on, among other things, "the public interest," "principles of democracy" and "abiding respect for the rule of law." The government applied to have NWAC'S motion struck. With respect to the requirements for obtaining an interlocutory injunction, the Crown argued that there was no issue to be tried. In its view, it was up to the first ministers or to the governments involved to determine whom to invite to their table. In sum, the Crown argued that NWAC'S case was not justiciable. This concept of justiciability is key to understanding attempts to stop the holding of referenda. Where a court states that a matter is not justiciable, it indicates that a matter is not legal in nature and ought to be thrown back into the political arena for resolution. In this case, that is what the government wanted. In its view, the plaintiffs, like other Canadians, could express their opinion of the Consensus Report at the ballot box, and they would be able to present their views and to press their arguments at legislative hearings on their proposals.

With the referendum looming on the horizon, the Federal Court heard this case on 13 and 14 October 1992 and rendered its decision on the 16th, a mere ten days before the polling was scheduled to take place. It dismissed the attempt to stop the referendum. The court held that the constitutional deliberations in question were part of a legislative process with which courts should not interfere. Having started its examination of the core of the matter laid before it, namely whether to stop the referendum or not, the court then moved to what, for it, was the heart of the matter, namely the issue of justiciability:

Indeed, however one may define the "legislative process"--and in my view it is very difficult in an evolutionary process by which ideas for constitutional change eventually find their way into constitutional amendments, to fix a date when that process becomes "legislative"--the fundamental problem is that certain issues are not justiciable. Among those are questions as to whom federal and provincial governments ought to meet with and consult during the development of constitutional amendments. That issue is not justiciable unless there are legal or constitutional rules which a court can apply for their determination. What principles are the courts to apply in making up an invitation list for a constitutional conference? Assuming that, for example, section 15 or 28 of the Charter require that there be a gender balance in the interests represented at the constitutional table, how is one to define those interests? To what extent should they be regarded as legitimate free-standing interests, of compelling importance in disregard of competing interests and requiring separate representation? How is a judge to determine who genuinely represents those interests and who does not? These are surely political questions for which there are not legal or constitutional principles to guide a court in its decision. I cannot think that such decisions are the proper function of judges. (14)

In an even broader sweep, the court endorsed earlier judgements that the Charter does not apply to the activities of governments when they are engaged in preparing or making amendments pursuant to Part V of the Constitution Act, 1982. On this basis, the court struck the application for injunction as disclosing no reasonable ground of action. It went even further in ruling that this request was an abuse of the process of the court, involving a matter beyond its jurisdiction.

The Charlottetown referendum was on 26 October 1992, with negative results that are now part of Canadian history. On 13 November 1992, the Federal Court of Appeal declined to exercise its discretion to render a further judgement. Based on the reasoning that the Charlottetown Accord was already dead letter, it dismissed NWAC'S appeal. The court indicated what it believed would be the unique characteristic of this type of action, namely seeking to stop the progress of constitutional development by preventing a referendum on a specific set of proposals. It held that there is no way of knowing when, how or if there will be any future constitutional review process.

The Canadian Charter of Rights and Freedoms cleared the path for citizens and groups to enter the political life of Canada through the courts. The bounds between political and judicial have become increasingly blurred. It has become possible to achieve results in politics by litigating rather than by persuading or negotiating. Moreover, while politics produces compromises based on comprehensive views of society and its goals, litigation results in public policy resolutions derived from individual grievances but with generalized applications that are binding on the parties to the action and the country as a whole. This methodology and these goals were probably part of NWAC's vision of the Canadian political legal scene in the age of the Charter when it decided to use the law to try to achieve its political goals. By litigating, NWAC was hoisted on its own petard. Had the association continued to press the first ministers and the governments of the various Canadian jurisdictions, it might have achieved some intermediate result based on trade-offs, on quid pro quos, on promises, binding or prospective, or on compromises. In short, it might have achieved results of a political nature grounded in the constant and shifting forum of political ideas and alliances. Alternatively, it might have continued to be completely rebuffed on such same political grounds. However, by initiating an application for interlocutory injunction, NWAC presented to the Federal Court its political argumentation cloaked in legal pleadings and in the language, substance and procedure of the law.

The court was mandated to see the entire argumentation in a legal light rather than in a political one. For the justices, the point at issue was not whether it was good governance, or appropriate, or democratically more inclusive, to have NWAC at the table. The justices were concerned only with whether NWAC could validly assert and prove, through testimony and evidence, a legal right to be at the table. What the judges were looking for was whether this case to stop the Charlottetown referendum could meet the criteria developed within the law alone for the granting of interlocutory injunctions.

The Native Women's Association might have believed it could induce the court to think in political terms. The court, true to its mandate, applied legal reasoning to the facts presented to it. It held that the development of constitutional amendments is not justiciable unless there are legal or constitutional rules that a court can apply for their determination. The required legal reasoning was clearly cognizant of the political circumstances of the issue and may even have been distantly aware of the possible political outcomes of a legal decision in either direction. Nevertheless, the court kept sight of the dichotomy between legal argumentation and reasoning, on the one hand, and political persuasion and compromise, on the other. Its reasoning was based on legal norms, and the court applied the rule of law. In law, NWAC was notable to make its case, even though in political terms, it may have garnered sympathy and perhaps even allies, especially among its own natural constituency. The first attempt to prevent the holding of a referendum thus failed.

The Quebec Sovereignty referendum, 1995

A fundamental court judgement in recent Canadian political history was the Quebec Secession Reference of the Supreme Court of Canada. (15) The Bertrand case, which was the second litigation aimed at preventing a referendum, owes its importance in part to the fact that it was the direct antecedent of the Quebec Secession Reference opinion.

The background to this litigation requires review. In the 1993 federal election, the Liberals won a majority and assumed office, with Prime Minister Jean Chretien at the helm. In the Quebec provincial election of 12 September 1994, the Parti quebecois won a majority and Jacques Parizeau became premier. The two leaders differed profoundly on the legality and politics of sovereignty.

On 6 December 1994, the Government of Quebec presented a draft bill entitled An Act respecting the Sovereignty of Quebec in the national assembly. The bill was seen as a step towards a referendum that would form the basis of Quebec's secession. The referendum would be the Government of Quebec's authority to complete conversion of the draft bill into a statute. This would legally authorize the province to negotiate terms of secession with the rest of Canada and, eventually, to declare an independent State of Quebec. In order to facilitate this process, on 12 June 1995, the Parti quebecois government forged an alliance with the smaller of the two opposition parties in the national assembly, the Action democratique, and with the sovereigntist Official Opposition in Ottawa, the Bloc quebecois. The established actors were well engaged along the path that could lead to separation through an unhindered referendum. In politics, however, the higher the stakes, the greater the likelihood of unexpected and unpredictable intervention by new actors. On 10 August 1995, Guy Bertrand, a former sovereigntist, who had recently become an ardent convert to federalism and who practised law in Quebec City, initiated a legal action to undermine the sovereigntist alliance's plans.

Bertrand's actions are a brilliant example of the use of law and litigation to influence politics. Bertrand named Quebec's attorney general, the province's premier and the chief electoral officer as defendants. (16) For maximum effect, he also made the leader of the official opposition Liberal Party of Quebec, the federal minister of justice and the attorneys general of all other jurisdictions in Canada "mis-en-cause," or impleaded parties. The action was for declaratory judgement, interlocutory injunction and for a permanent injunction.

The action rested on four grounds. First, Bertrand argued that the intention of the Government of Quebec to proceed with what was then still the draft bill and with the entente of 12 June 1995 was contrary to the Canadian Charter of Rights and Freedoms. He also reasoned that the Government of Quebec did not have the constitutional authority to table in the national assembly a bill designed to take Quebec out of Canada without using the constitutional amendment process set out in the Constitution Act, 1982. Bertrand also pleaded that by adopting the course of action on which it had set out, Quebec was acting in a manner contrary to law and violating the supremacy of law while also using public funds for improper and illegal purposes. In sum, Bertrand alleged that what Quebec was doing amounted to a parliamentary and constitutional coup d'etat, a fraud on the Canadian Constitution and a diversion (in the sense of misuse or misappropriation) of power, all of which would violate the rights and freedoms of Quebec taxpayers. (17)

The application set out in great detail a legal attack on the allegedly unconstitutional demarche to hold a referendum to give the Quebec government the power to negotiate to take the province out of Confederation. The legal instrument designed by Quebec contained a provision that would bring several of its clauses into effect on the day after they would have been approved by referendum: Clause 2 would declare Quebec a sovereign country; Clause 3 would bind the Government of Quebec to propose a treaty of economic and political partnership to the Government of Canada; and Clause 15, pursuant to which Quebec would succeed Canada in respect of international obligations and rights involving Quebec. Bertrand contended that this mechanism for the enactment of legislation would by-pass the royal assent that, constitutionally, only the lieutenant-governor could provide. He went on to indicate that only the national assembly could amend the lieutenant-governor's powers. As there was no proposal to change these powers, a referendum was not the appropriate way to secure the coming into force of these provisions.

The application also focused on the use of public funds for the organization and holding of the referendum. Bertrand estimated that the exercise would cost between $50 and $100 million and qualified this as shameless waste, particularly at a time when social programs were underfunded. He sought an array of prerogative reliefs, notably a request for a declaration that the proposed referendum was illegal and unconstitutional, an interlocutory and permanent injunction against the premier to not use public funds to hold a referendum on the question of the unilateral secession of Quebec from Canada, and parallel declarations and injunctions against Quebec's chief electoral officer.

Bertrand's legal action to stop the proposed referendum was political and legal in equal measures. In fact, the emphasis on the legal or the political characteristic of the application depended on one's federalist or sovereigntist perspective. The action touched off a storm of controversy about the appropriateness of the use of law and of the courts to try to determine an issue that was widely seen as deeply political. The controversy involved the merits of the question of separatism, secession and Quebec sovereignty: was this a political matter or one of constitutionalism and the continuity of "peace, order and good government"? It also extended to strategic and tactical considerations: assuming that Quebec sovereignty was a political option, ought the issue be determined by political action, discussion and continuing negotiation, or through litigation?

Bertrand's reading of the political legal intentions of the Quebec authorities was quite accurate. While his action was still proceeding, Premier Parizeau introduced in the national assembly Bill 1, An Act respecting the future of Quebec. (18) Voters now had before them a specific legal text enabling them to envision a sovereigntist future. (19)

An aspect of the debate was the nature of democracy. Quebec's government asserted that secession was a democratic process and that it would be inspired by the will of the people, as expressed through the referendum. This brought into focus the question of whether democracy was an expression of majority government or majoritarian political decision, on the one hand, or of governmental continuity within a constitutional/legal framework, on the other. Until then, the Canadian concept of democracy had been intimately linked to the rule of law. The sovereigntist view of democracy was that it was a political matter, devoid of links to law and legality or to the pre-existing legal regime. The most convincing statement of this dichotomy of views was expressed in a short commentary by Errol Mendes that demonstrated that the sovereigntist position was based on a rhetoric of political convenience. (20) In the Quebec Secession Reference, the Supreme Court of Canada would resolve this dilemma only in part. By listing the political legal characteristics of Canada, the highest court spoke of democracy separately and combined the rule of law with constitutionalism as another category.

The general response of the Quebec government as defendant was highly political. The attorney general made a motion that in the hearing on the interlocutory, the Superior Court should decline jurisdiction. This was heard by a judge in chambers on 27 August 1995 and denied. Thereafter, on the instructions of the premier, the attorney general withdrew. The court held that the joint statement of the premier and the attorney general of Quebec justifying their withdrawal from the case was significant enough to reproduce the judgement in its entirety. That left it free to render its judgement on Bertrand's application. We should remember that, separately, Quebec's chief electoral officer continued to be represented in the case.

The Superior Court handed down its first substantive decision on 8 September 1995. (21) This judgement is comprehensive in that it responded to all aspects of Bertrand's application. First, it eliminated some of the grounds as being simply theoretical statements of law in the nature of a legal opinion, rather than arguments. It also indicated that the declarations in relation to international law were misplaced.

From the perspective of political law, the most relevant issue in these proceedings was that part of Bertrand's case where he sought to prevent the holding of the referendum because that would lead to secession. The court looked in turn at each aspect of the process leading up to the referendum and its actual conduct. First, it refused to paralyse the functioning of the national assembly or to prohibit it from debating the issue, as that would have been an infringement of the assembly's parliamentary privileges. Likewise, it refused to prohibit the use of public funds for the promotion of the government's constitutional project.

The court addressed the central point, whether to prevent the referendum or not, in the context of its analysis of the preponderance of inconvenience. Its ratio on this matter amounted to the one pivotal sentence of the entire ruling: "To issue an injunction against the holding of the referendum would risk creating a greater wrong than the wrong that it is sought to prevent." (22) Curiously, the court justified this decision first by taking judicial notice of the fact that neither the official opposition in Quebec nor the federal government intended to block the referendum. Neither Quebec's official opposition nor the federal government had intervened, although both Daniel Johnson and Allan Rock were mis-en-cause. In a sense, the court used judicial notice to give greater weight to the lack of opposition arising from absent political players than to the arguments advanced by the actual applicant in the case before it. However, the court also based its decision on a broad sociological basis. It must be understood, it stated, that the people of Quebec wished to express themselves. Although this statement emphasizes the legitimacy of the undertaking of the referendum, it is a boldly political statement on the part of a judge empowered to interpret the law. It is, of course, the reality that the legal principles at play operate in constant conjunction with political evolution within the democratic framework. The statement by Justice Lesage of the Superior Court was thus reflective of political legal reality, even if unusual from a legal purist's point of view.

On 30 October 1995, the referendum was held. On 3 January 1996, Bertrand filed a further amended version of his application, raising yet more reasons to enjoin any further referendum on sovereignty and asking for yet more declarations.

Given the razor-thin result by which the people of Quebec had voted "no" to the referendum question, and in light of the opposing views of the federal and Quebec governments, it seemed that Ottawa might in some way join the legal battle. In April 1996, when the Quebec government filed a motion to have the expanded Bertrand case dismissed, the attorney general of Canada announced that he would respond to Quebec's position.

Why is the Federal Government Participating?

The Attorney General of Quebec is making some arguments that are of concern to the federal government. These relate to the relevance and applicability of the Constitution to the issue of Quebec separation, and to the jurisdiction of Canadian courts to consider these matters. If accepted, the Quebec Government's position would deny the Canadian Constitution and Canadian courts any relevance in relation to a declaration of sovereignty.

The Attorney General of Canada has a duty to protect the integrity of the Constitution and to uphold the role of the courts as the primary guardians of the Constitution and the rule of law.

The federal government's response to the motion of the Attorney General of Quebec takes no position on the substance of Mr. Bertrand's arguments. What has prompted the federal government's involvement at this point is not the claims advanced by Mr. Bertrand but the legal position of the Attorney General of Quebec on its motion to dismiss. (23)

By the time the Superior Court heard the argumentation on the Quebec attorney general's motion to dismiss Bertrand's expanded application, the referendum was over and the effort to enjoin holding it was dead letter. What is left as the major item of interest for us are the thoughts of this court on the law-and-politics issue, expressed in a judgement handed down on 30 August 1996.

The attorney general of Quebec submitted that the process of accession to sovereignty by the province was an exclusively political initiative that was not subject to judicial review. He went further in affirming at this stage, as he had earlier, that the actions of the Quebec government within the context of the sovereignty plan were extraneous to the rule of law as understood in the Constitution Act, 1982. For a democratic government, such an assertion was astounding. According to this logic, the rule of law applied to the conduct of governance, while a subnational jurisdiction such as a province accepted the sovereignty of the federal state but was suspended or eliminated in respect of the process of installation of a new sovereignty resulting from the attempt to secede, or the secession, of that subnational jurisdiction. The court reacted to this line of argumentation with necessary caution, offering general ideas but rightfully deferring this vital point to the judge in what it then still thought would be the principal, substantive action. The main action contemplated at the time of this hearing and judgement never took place. By the time this ruling was handed down in late August 1996, the involvement and the stake of the federal authorities had become so intense that the minister of justice referred the matter of Quebec secession to the Supreme Court of Canada. The decision to make the reference was announced on 26 September 1996. Bertrand then suspended further proceedings in his case.

The British Columbia Aboriginal Treaties Negotiation referendum, 2002--Phase one: the Sayers case

The cases dealing with the referendum on aboriginal treaty rights in British Columbia can be traced back to August 1998, when the governments of Canada and British Columbia, and the Nisga'a Nation signed the Nisga'a Final Agreement. This agreement gave the Nisga'a people limited rights of self-government in an area of the Nass Valley in northwestern British Columbia. On 13 April 2000, royal assent was given to federal legislation needed to implement the agreement. (24)

The Liberal Party of British Columbia won the provincial general election on 16 May 2001 with an overwhelming majority of seats in the legislature. The new government then followed through on its campaign promise of holding a referendum, despite serious divisions of opinion on the merits of the idea. Several aspects of this undertaking would be rather unique in nature. The referendum was to consist of the following eight questions, each of which was followed by the expression "yes or no?":

1. Private property should not be expropriated for treaty settlements.

2. The terms and conditions of lease and licences should be respected; fair compensation for unavoidable disruption of commercial interests should be ensured.

3. Hunting, fishing and recreational opportunities on Crown land should be ensured for all British Columbians.

4. Parks and protected areas should be maintained for the use and benefit of all British Columbians.

5. Province-wide standards of resource management and environmental protection should continue to apply.

6. Aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia.

7. Treaties should include mechanisms for harmonizing land use planning between Aboriginal governments and neighbouring local governments.

8. The existing tax exemptions for Aboriginal people should be phased out.

The Government of British Columbia decided to have ballots mailed out from the Office of the Chief Electoral Officer and to have eligible voters mail them back to that office. Ballots were mailed on 2 April 2002, to be returned by May 15.

The debate about the negotiation of native rights and about the submission to a referendum of the principles that were henceforth to guide those negotiations was deeply political. British Columbia aboriginals felt threatened by the prospect of a province-wide referendum. While the Nisga'a remained relatively silent in this context, other aboriginal leaders realized that they would have to resort to legal instruments.

The first action designed to try to stop the referendum was initiated by Chief Judith Sayers of the Hupacasath First Nation, filing under her native name of Ke-Kis-Is-Uks. On 23 March 2002, Sayers started an action, seeking to restrain and enjoin the chief electoral officer from mailing ballots and from conducting the referendum until a full determination of her action could take place. She sought a declaration that the Treaty Negotiations Referendum Regulation was invalid or inoperative, in that the referendum questions were ambiguous.

Sayers' affidavit traced the history of the British Columbia aboriginal claims negotiations since 1991 and focused on the Hupacasath First Nation's repeated attempts through the political system to forestall a referendum. It then set out the plaintiff's principal legal arguments to show that the proposed referendum would destroy the British Columbia treaty process.

The affidavit reasoned both legally and politically. It stated that the referendum had already caused racism towards aboriginals and linked this to earlier high-profile aboriginal issues such as the struggles at Oka, Gustafsen Lake and east coast lobster fishing. The action also touched on the natives' rights to litigate in the current circumstances.

Sayer's application tied the strong public interest, presumably in both senses of that expression, namely public benefit and public attention, in treaty negotiations with the equity of delaying the vote until the vires of the legislation could be determined. It also argued for a clear question or questions, clear criteria for accepting or rejecting a ballot and a clear voting time. In sum, this was another instance of a litigant trying to make a political case through the courts.

The application for interlocutory injunction was decided on 27 March 2002 by Justice Robert Hutchison of the British Columbia Supreme Court. Hutchison denied the application, relying on the law of injunctions, making little comment on the political aspects of, or interests in, the case. The judge was not convinced that there was a serious question at issue. He thought that the irreparability of the harm was speculative and hypothetical at that point. With respect to the balance of inconvenience, the judge started by comparing the financial cost incurred by the applicant First Nation to the cost of the referendum as organized by the chief electoral officer. This was the only innovative part of the ruling, as no such analysis had been conducted in the Bertrand judgements. On the matter of the racism arising from the referendum, Hutchison mentioned that the province comprised 3.9 million citizens, with 139,655 aboriginals, whose minority rights under the British North America Act and the Charter of Rights were constitutionally protected.

The court found merit in the argument that the questions are in some respects ambiguous but also felt that it was difficult to see how asking eight general questions would cause the plaintiffs irreparable harm, particularly since they had entrenched rights. In the end, it said the province would still have to deal with the problem of those entrenched rights no matter how the questions are answered. Stopping the referendum by injunction would cause financial hardship on the taxpayers of British Columbia, not to mention the hardship to the Hupacasath, should their suit fail.

While this case was proceeding, at Justice Hutchison's request, the British Columbia chief electoral officer held off mailing the ballots. The day after the decision, Sayers submitted an application for leave to appeal to the British Columbia Court of Appeal, as a matter of extraordinary emergency. The Court of Appeal heard the application on 28 March and denied it immediately. In the intervening twenty-four hours, the chief electoral officer had delivered the ballots to Canada Post. The Court of Appeal was thus able to state that the appeal had become moot. It went on, however, to add that even if the matter were not moot, it would not grant the injunction in any event. The argument based on the vagueness of the questions could be advanced by this or another litigant "in the fullness of time in an action to prevent either the counting of the ballots or to bring about a setting aside of the whole process." This judicial speculation, added to the reason for the actual denial, was a clear but perhaps unnecessary sign of the judiciary's hostility to the applicant.

Sayers' case then moved to the stage of the merits of the application for declaratory relief that the Regulation made pursuant to the Referendum Act is invalid or inoperative, or that the Referendum Act itself is ultra vires. Her main argument was that the referendum sought to procure public endorsement of a mandate for conducting treaty negotiations based on principles pre-established by the provincial government. She submitted that the promotion of democratic decision-making was not contemplated by the Referendum Act. The Crown's defence was based on the distinction between the law and the politics implicated by the action: it argued that the questions were not legally required to be clear, as the referendum was a political tool of the government.

The British Columbia Supreme Court denied Sayers' application in May 2002, and the Regulation was held not to be invalid, inoperative or ultra vires the Referendum Act.

In so deciding, the judge examined whether the Regulation stated a question that solicited an expression of public opinion on a matter of public concern. Stated from the plaintiff's vantage point, were the questions on the referendum ballot endorsements of existing governmental policies or questions that probed public opinion? The judge decided that the position of the provincial government on each of the eight questions had no bearing on the issue of whether the referendum elicits public opinion. The results of the referendum could be the endorsement or rejection of any of the proposed principles. He also held that it was open to the provincial government to elicit public opinion as to what principles should be of guidance in its participation in treaty settlement negotiations, and it is immaterial whether any particular principle lies wholly or partially within its jurisdictional competence, or whether the negotiating process causes the provincial government to agree to a treaty settlement that does not incorporate those principles. The question as to whether it ought to have held a referendum, and the question as to whether it has appropriately participated in the process of treaty settlements, are political matters for which it is accountable to the electorate.

With respect to the clarity of the questions, relying on the Quebec Secession Reference case, the court felt that this was a political aspect of treaty settlement and therefore involved political judgements and evaluations. The sense of the judgement was that a court decided a legal matter, albeit one steeped in political controversy, on legal grounds. It refused to extend its authority to conduct a political analysis. We can only surmise that the court was independently informed of the circumstances of public affairs and of the political life of British Columbia swirling around it. Therefore, the court was aware of the forces at play, of the stakes, as well as of the foreseeable and potential consequences of its judgement. Nevertheless, in the democratic, constitution-based political legal system, it could not and would not do otherwise than occupy that power and exercise that function with which the Canadian and British Columbia system of governance mandated it.

The results of the referendum were submitted by the chief electoral officer to the speaker of the legislative assembly on 3 July 2002. Only 35.83 per cent of eligible voters cast ballots, but among these actual voters, affirmative responses to each of the eight questions ranged from eighty-four to ninety-five per cent of validly cast votes. Premier Campbell held a press conference, interpreting the results as clear and positive support for the government's principles. British Columbia aboriginal leaders indicated that this would mean either the end of negotiations or that the results were irrelevant.

The British Columbia Aboriginal Treaties Negotiation referendum, 2002--Phase two: the Bob case

On 14 April 2002, a number of aboriginals applied for declarations that the Treaty Negotiations Referendum Regulation violates Section 15 of the Canadian Charter of Rights and Freedoms, that the Regulation is a breach of Section 35(1) of the Constitution Act, 1982, and that the "Regulation is of no force and effect as being a law in relation to Indians and Lands reserved for Indians and therefore ultra vires Her Majesty the Queen in Right of British Columbia." These plaintiffs also sought an interlocutory injunction to stop the chief electoral officer holding the referendum pending final disposition of their action.

Mr. Bob presented one essentially political argument in respect of which this case was very similar to that made by Sayers: the issue of discrimination. In Bob's view, the aboriginal people of British Columbia were subject to a history of discrimination that denigrated their societies. They have also felt deprived of many of the legal rights enjoyed by non-aboriginal peoples. The Bob action also argued that the referendum would increase hostility towards aboriginals in B.C. He reasoned that this was particularly true where the questions posed were biased to produce certain results. These effects were said to be exacerbated by failure to provide for a process that allows aboriginals a meaningful voice in the referendum process.

Justice Daphne Smith of the British Columbia Supreme Court heard this case on 8 May 2002. She released her ruling on 15 May and dismissed the application. Justice Smith found that the challenges raised were neither frivolous nor vexatious. She did find that the constitutionality of the Regulations was a serious issue that would merit further examination at a trial. However, she held that Bob was neither able to show irreparable harm nor that the burden of inconveniences favoured him. In the judge's view, the plaintiff's submissions about the counting and the reporting of the referendum vote were theories unsupported by evidence that could demonstrate irreparable harm. The attitudes, feelings and opinions of the residents of British Columbia, meaning in fact their propensity for racism, could not be proved except by expert testimony. With regard to the balance of inconveniences, the court held that the public interest factor should be given great weight. To succeed in such a case, the plaintiffs would have had to demonstrate that the public interest would benefit from the suspension of the referendum legislation. The court saw greater benefit to the public interest by the holding of the referendum than by its suspension. It justified this by the province's stated commitment of "negotiating workable, affordable treaty settlements that would provide certainty, finality and equality."

Conclusions

Every case before the courts is unique to a degree. While the litigants mentioned here did not find a way to get the courts to overturn governmental decisions instituting referenda, others in the future might. Given this consideration, conclusions are at this point tentative.

Between 1992 and 2002, in respect of three referenda, in three separate jurisdictions, four unrelated groups of litigants had their applications to stop referenda by means of injunction denied. Have these cases added to our collective understanding of the public law dealing with referenda?

The NWAC, Bertrand, Sayers and Bob cases enable us to observe developments in law and politics. In dealing with applications for injunctions regarding political events such as referenda, the courts do not treat the legal analysis required in injunction cases in a watertight fashion. The task of the judge in such cases is to look at the seriousness of the matter presented to the court, at the potential for irreparable harm to the applicant, and at the balance of inconveniences between the applicant and the respondent. Counsels for the parties try to fit political facts, trends, argumentation and reasoning into these categories, which are traditional in the law of injunctions. They are faced, however, with the lack of consistency between legal thinking and a political, not to say partisan, view of society that involves a variety of factors and considerations other than, and for our purposes, additional to, the law. They find that it is difficult to structure politically multifaceted positions into the distinctly adversarial system of the law, not because of their inability to do so but more because the subject-matter does not readily lend itself to such transposition.

Based in part on counsels' written briefs and oral pleadings, and in part on their own reflections, which is also essentially legal in training and in nature, judges arrive at decisions that generally comprise rulings on all three criteria, for granting or denying injunctions, but in which the lines of reasoning involving these three criteria tend to intersect and overlap.

By contrast, judges are ready to set aside pleadings placed before them by counsel that they consider inappropriate or insufficiently developed. These labels denote exclusively political arguments that are not grounded in law, hypotheses about public life, as well as evidence of a sociological or sociopolitical nature that courts see as impossible to prove according to legal standards of evidence.

To date, no referendum litigant has convinced a court to issue an injunction based on the argument that, in addition to the three traditional categories, it should consider the prospect that the political repercussions of holding a referendum would harm the legal system. Only Bertrand even came close to this reasoning. As a variation on this theme, a referendum litigant might try to persuade a court to treat the granting of an injunction in a vital and fundamental public law domain differently from that in respect of private or corporate disputes, on the basis that the greater societal risk might make the granting of the injunction more appropriate and necessary.

For now, judges are cautious and indeed reticent, possibly out of a desire to stay within the bounds of settled law. It also reflects judges' sense of the distinction of constitutional responsibilities between legislatures that voted the referendum laws and governments that use them, and the courts that may properly only apply the law. One related consideration is that the urgency with which injunction cases are required to be heard is generally not suitable for the full exposition of applicants' cases. Trials on the merits of such arguments may certainly provide more ample opportunity for reasoned argumentation. The relation between injunction hearings and full trials of the political issues at stake is a vicious cycle, however. Injunction hearings are designed for speedy decision-making. Holding a full trial is most often not a suitable alternative, because by the time one can be held, the referendum campaign is complete and the vote will have taken place.

Is it likely that other litigants will seek to judicially derail referenda that have yet to be initiated? The Charter has had two effects. First, it has blurred the bounds between politics and law and has allowed law into aspects of politics that were previously inured to it. Also, it has vastly expanded the ambit of those who can try to achieve political goals by legal means. Knowledge of these points is now so widespread in Canada as to be commonplace. Hence, we must find the answer to our question regarding future referendum litigation through a more precise looking-glass.

In determining whether to continue political action through the courts, we must assume that political actors are primarily animated by a politically motivated vision. They may thus not fully acknowledge that courts think on a different plane than do parliaments, governments, political parties and pressure groups of civil society. However, political actors enter the legal arena with the benefit of legal advice. Counsel are deemed to know by now that applications to enjoin the holding of referenda are unlikely to succeed. What advice do they tender? How is that legal advice filtered into minds thinking politically?

From a lawyer's point of view, the purpose of going to court is to win a case and thereby to end a dispute that negotiation has not resolved. From a political client's perspective where public law is also involved, there can be other considerations for choosing the litigious route. While an applicant must believe that there is some tactical chance of winning in court, he must also calculate strategically that whether he or she wins or loses, the legal action itself can have the desired effect on the political system. In this perspective, there is objective merit and subjective advantage to the applicant in marshalling arguments in accordance with the discipline required in legal pleadings, even if victory is uncertain. Moreover, the most likely reason inducing political actors to resort to legal action is that, once having exhausted their possibilities of success through political discussion, persuasion and negotiation, the legal action itself becomes a political vehicle. Even if an applicant's legal arguments about a political subject-matter are not susceptible to legal proof, the action itself may offer a public tribune from which to explain the issue to the applicant's natural constituency and to the electorate at large. The case garners media attention and enables the applicant to expose his or her position to a vast audience, at a cost no more than the legal fees involved. The initiation of a legal action can also be a further attempt to convince the political actor opposite to continue negotiating, under the implicit threat of a legally binding judgement rendered by a judge, an impartial third party. The pleadings and the hearing themselves thus become part of the applicant's overall political design. The Charter seems to have rendered this not only possible but desirable. In this context, law is the continuation of politics by other means.

It is probable that political litigation involving the conduct of referenda will continue. Perhaps a future applicant may even devise a legal reason, to which a judge will agree, to enjoin the holding of a referendum.

Notes

(1) The 1980 referendum resulted in 59.56 per cent "no" and 40.44 per cent "yes." The 1995 referendum resulted in 50.58 per cent "no" and 49.42 per cent "yes."

(2) An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, S.C. 2000, c. 26.

(3) Referendum Act, S.C. 1992, c. 9.

(4) Ibid., s. 3(1).

(5) Referendum Act, L.Q. 2003, c. C-64.1, s. 7.

(6) Election Act, L.Q. 2003, c. E-3.3.

(7) Referendum Act, R.S.B.C. 1996, c. 400, s. 1(1).

(8) Referendum Act, S.C. 1992, c. 9, s. 3(1).

(9) Referendum Act, L.Q. 2003, c. C-64.1, s. 7.

(10) Referendum Act, R.S.B.C. 1996, c. 400, s. 1(2)(c).

(11) "Your Guide to the Referendum." Text signed by Gordon Campbell, Premier of British Columbia and temporarily posted at http://www.gov.bc.ca (emphasis added).

(12) Referendum Act, R.S.B.C. 1996, c. 400, s. 5.

(13) Consensus Report on the Constitution was the text of the political agreement reached in Ottawa among the first ministers working under the coordination of Joe Clark, then minister for constitutional affairs. It was on the basis of this, then still only political agreement, that the referendum campaign was started. The absence of a legal text converting the political agreement into draft constitutional amendments became one of the issues for those who proposed to vote "no" on the referendum question. They argued that a solely political agreement, without binding legal quality, was insufficient and inadequate for a proper decision. Eventually, on 9 October 1992, a Draft Legal Text was published to supplement Consensus Report on the Constitution.

(14) Native Women's Association of Canada v. The Queen, [1993] 1 EC. 171 at 183-184a.

(15) Reference re Secession of Quebec, [1998] 161 D.L.R. (4th) 385.

(16) The judgement we now know as Bertrand c. Que bec (Procureur General) was originally entitled Bertrand c. Begin [the attorney general], Parizeau [the premier] and Cote [the chief electoral officer].

(17) The document that initiated this case was entitled "Action pour judgement de claratoire et injonction permanente" and was prepared in French for the Quebec Superior Court. The reasoning set out in this paragraph includes the translation and paraphrasing of some of the legal terms and concepts so as to better render them in English.

(18) Bill 1, An Act respecting the future of Quebec, 35th Legislature, 1st Session, Quebec, 1995.

(19) The events leading up to this litigation, as well as the facts of the case itself, are set out with clarity and precision in Warren J. Newman, The Quebec Secession Reference: The Rule of Law and the Position of the Attorney General of Canada (Toronto: York University Press, 1999). The volume was simultaneously published in French.

(20) Errol P. Mendes, "Democracy v. the rule of law: In Canada? The missing issue," National Journal of Constitutional Law 7, no. 1 (1996), pp. 107-28.

(21) This judgement was prepared in French only and was originally reported as [1995] R.J.Q. 2500 a 2516. A translated version was eventually reported as Bertrand v. Que bec (Procureur General), [1995] 127 D.L.R. (4t") 408.

(22) Ibid., at 431f.

(23) News release of the Department of Justice of Canada, 10 May 1996.

(24) Nisga'a Final Agreement Act., S.C. 2000, c. 7.

The author, B.C.L., LL.B., is senior legal counsel, House of Commons, Parliament of Canada. The views expressed here are exclusively those of the author and are not made on behalf of the House of Commons, its members or administration. He gratefully acknowledges the documentary contribution and advice offered towards the preparation of this article by Ms. Linda Stagg, B.Com., of Elections British Columbia, and the helpful comments of the Journal's anonymous reviewers.
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