March 27, 1998

Madame Anne Roland
Registrar
Supreme Court of Canada
Ottawa, Ontario
K1A 0H8

RE: IN THE MATTER OF section 53 of the Supreme Court Act, R.S.C. 1985, chap. S-26; AND IN THE MATTER OF a Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in Order in Council P.C. 1996-1497, dated the 30th day of September, 1996; reply of the amicus curiae to the answers given by the Attorney General of Canada to questions from the Supreme Court of Canada; S.C.C. File No. 25506

Dear Madame Roland:

On March 20, 1998, counsel for the Attorney General of Canada were served with a copy of a reply of the amicus curiae to the responses provided by the Attorney General of Canada to the questions put by this Court on February 19, 1998.

We were surprised to learn that the amicus curiae considers that he has a right of reply beyond the written responses he provided to the Court in answer to the questions addressed to him on February 19. The Attorney General of Canada does not wish to prolong the exchange of written submissions but is exercising her right of reply in making the following observations for consideration by the Court.

In his reply of March 20, as in his written responses of March 6, the amicus curiae makes abundant use of recent newspaper articles, commissioned expert reports, speeches, political commentary and other extrinsic materials which he has simply filed without leave of the Court. This is contrary to the letter and spirit of this Court's ruling of February 16, in which the Court specifically denied the amicus curiae's motion, brought on the eve of the oral hearing of the Reference, to file additional extrinsic materials without proper notice to the parties. The Attorney General of Canada refers the Court in this regard to the exchange between the Chief Justice and Maître Joli-Coeur at pages 5 and 6 of the Court transcript.

The amicus curiae continues to refer to comments reported in the Toronto Star on February 16, 1998, invoking those comments to raise doubt as to the position of the Attorney General of Canada in this Reference. This amounts to putting into question, improperly and without justification, the mandate of the counsel for the Attorney General of Canada to maintain the substantive position that has been argued throughout this Reference in the factum, the reply, the oral submissions and the ensuing written responses of the Attorney General of Canada.

We emphasize once again, if need be, that the only position of the Attorney General of Canada and the Government of Canada in this Reference is the position that has been pleaded consistently on behalf of the Attorney General of Canada in written and oral argument before the Court. The position is that the Constitution of Canada and, in particular, Part V of the Constitution Act, 1982 prescribing the procedure for amending the Constitution, would apply to the secession of a province from Canada. (See factum, paras. 85-99, 107, 114-115; reply, paras. 56, 59, 61, 67; transcript of oral argument of counsel on February 16, 1998, pages 40-45; written response, paras. 12, 14-17, 21-23, 27, 29-30, 36-37, 42, 73, 75.) The Minister of Justice is on record as fully supporting that position, as evidenced by the Minister's statement on February 17, 1998. That position has been put forward by counsel, acting in their professional capacity and on instructions from the Attorney General of Canada and the Government of Canada.

Notwithstanding the written response of the Attorney General of Canada, the amicus curiae insists that some sort of concession has been made as to the existence of a right of secession. The Attorney General of Canada has clearly demonstrated that while the Government of Canada does not dispute the right of Quebecers to express their views in a consultative referendum on the possible secession of Quebec from Canada, and while the Government of Canada may be disposed, as a matter of public policy, to recognize a clearly-expressed wish by Quebecers in this regard, this in no way suggests or entails that there is a right to unilateral secession. The rules and procedures of the Constitution of Canada cannot be put aside and ignored. To the contrary, the position of the Attorney General and Government of Canada is that the Constitution must apply to any process proposing to effect the secession of a province of Canada.

The amicus curiae continues to contend that the Reference questions are political and hypothetical. There is no doubt, in our view, as to the legal nature and justiciability of the questions put to the Court, and we refer the Court in this regard to the Attorney General of Canada's original reply filed on January 15, 1998, particularly at paras. 27 to 32, and to the oral argument of counsel on February 16, 1998 at pages 27 to 35 of the transcript.

The amicus curiae further alleges, however, that the Attorney General of Canada has been selective and inconsistent in her submissions concerning the hypothetical nature of various issues that have arisen in this Reference. Specifically, he suggests that it is contradictory for the Attorney General of Canada to maintain, on the one hand, that the application of the Constitution to the eventual secession of a province is a matter that is not too hypothetical for the Court to determine, but that the potential applicability of the doctrine of necessity is too hypothetical.

This misstates the Attorney General of Canada's position. The Attorney General has argued (written responses, para. 31) that it is necessary to distinguish unwritten constitutional principles that are relevant to a consideration of the legal framework applicable to secession from the extraordinary saving doctrine of necessity, which is essentially fact-based. The content of unwritten constitutional principles, like the express terms of the Constitution, can be described in advance and then applied in a given context. By contrast, the contours of the doctrine of necessity can be known only after the fact; indeed the amicus curiae acknowledges repeatedly in his reply to the responses of the Attorney General of Canada that necessity applies only retrospectively.

The amicus curiae now invokes the "principe d'effectivité" in this context. The Attorney General of Canada reaffirms that there is simply no principle in Canadian law having the effect suggested by the amicus curiae. (See reply of the Attorney General of Canada, paras. 51, 55-66; and oral argument of counsel on February 16, 1998 at pages 38-40, 46-53 of the transcript.) Further, the Attorney General of Canada rejects as entirely unfounded any attempt to link "effectivité" to the doctrine of necessity. The doctrine of necessity is available in extreme, unforseeable circumstances as a means within the existing constitutional order to avoid a legal vacuum. (See paras. 40-44 of the Attorney General's written responses.) The "principe d'effectivité", were it to exist and have the effect suggested by the amicus curiae, would be about seeking to justify, in advance, attempts to act outside the constitutional order and replace it with a new legal regime. Such a "principle" would be contrary to the very idea of a state governed by the rule of law.

Finally, the amicus curiae concedes that the federal principle infuses Part V of the Constitution Act, 1982, but argues that the rules of Part V cannot apply to secession since secession seeks to put an end to the application of that principle over a given territory. To the contrary, the federal principle buttresses the view that Part V applies to secession, because it is entirely consistent with the requirement that other partners in the federation have a role in the legal procedures by which the secession of a member of the federation is effected. This has been amply dealt with in the previous submissions of the Attorney General of Canada (factum, paras. 71-74, 109; reply, para. 67; written responses, paras. 25-30).

We believe this is sufficient to address the most recent submission of the amicus curiae. This, we trust, completes the proceedings in this Reference.

All of which is respectfully submitted.

_____________________________________________________________________

L. Yves Fortier, Q.C. Pierre Bienvenu

Jean-Marc Aubry, Q.C. Warren J. Newman

Counsel for the Attorney General of Canada

c.c. Sylvie Roussel

Noël, Berthiaume

Ottawa agents for the amicus curiae,

André Joli-Coeur

Henry S. Brown, Q.C.

Edouard Van Bemmel

Gowling, Strathy & Henderson

Ottawa Agents for Interveners:

The Attorney-General of Manitoba

The Attorney-General of Saskatchewan

Grand Council of the Crees

Makivik Corporation

Chiefs of Ontario

Eugene Meehan

Lang Michener

Ottawa Agents for Interveners:

Minister of Justice for the Government of the North-West Territories

Ad Hoc Committee of Canadian Women on the Constitution

Roopnarine Singh et al.

Robert E. Houston

Burke-Robertson

Ottawa Agents for Intervener:

Minister of Justice for the Government of the Yukon

Richard Gaudreau

Bergeron, Gaudreau

Ottawa Agents for Interveners:

Guy Bertrand

Kitigan Zibi Anishinabeg

Raj Anand, Kate Stephenson

Scott & Aylen

Solicitors for Interveners:

Minority Advocacy and Rights Council

Yves Michaud

Vincent Pouliot