Summary of the Argument of the Attorney General of Canada
in the Bertrand Case (Quebec's Motion to Dismiss)

Context

The Attorney General of Canada has been named as a "third party" by Mr. Guy Bertrand in his case against the Government of Quebec in the Superior Court of Quebec. The Attorney General of Quebec has brought a motion to have Mr. Bertrand's case dismissed. In its motion to dismiss the case, the Attorney General of Quebec implies that the Constitution of Canada does not apply to the process of a province's secession and that the courts have no jurisdiction over this process. As a result, the Attorney General of Canada decided to appear on the motion to make submissions on these issues in order to assist the court.

The intervention of the Attorney General of Canada is limited to these specific legal points. In the course of their pleadings, both Mr. Bertrand and the Attorney General of Quebec have raised a number of important issues. The Attorney General of Canada is not taking a position on most of these issues. In particular, it is not challenging the Quebec government's authority to hold a referendum to consult the population of Quebec on the future of the province.

The Constitution of Canada and the Rule of Law

In a document filed with the court, the Attorney General of Canada asserts that Canada is a constitutional democracy. The Constitution is the supreme law of the country, and the rule of law is one of its basic principles. No one is above the law -- not individuals, not institutions, and not even governments. All laws and other measures adopted by governments must be consistent with the Constitution. The Constitution applies throughout Canada, including Quebec.

The Role and Jurisdiction of the Courts

The Attorney General of Canada argues further that from the founding of the country, the courts, and specifically the provincial superior courts, have been the guardians of the Constitution and the rule of law. The courts have a duty to ensure that all legislation is consistent with the Constitution and that governments do not go beyond their constitutional authority. Any law or similar measure having legal effects may be tested before the courts and may be declared of no force and effect if it is inconsistent with the provisions of the Constitution.

While purely political questions do not fall within the courts' jurisdiction, political questions may well be bound up with legal ones. These of course are the courts' business and the courts have the authority to decide whether those questions should be heard as a matter of law.

International Law

One of the legal questions in the case at hand is that of international law. The Attorney General of Quebec suggests that international law sanctions "[Translation] the process of the accession of Quebec to sovereignty". The Attorney General of Canada disagrees with this position as did the five international law experts who were asked their opinion by the Quebec National Assembly commission on Quebec's accession to sovereignty in 1992. While international law does not prohibit secession, Quebec does not meet the conditions for a right to secede. The very fact that the parties disagree on this question shows that this case involves important legal issues that may be examined by the Superior Court.

The Attorney General of Canada does not challenge the right of Quebecers to express democratically their desire to secede or to stay in Canada. However, the secession of any province would need to be done in accordance with the rule of law. The rule of law is not an obstacle to change; rather it provides the framework within which change can occur in an orderly fashion.

Conclusion

The Attorney General of Canada believes that the questions raised in the context of the motion to dismiss Mr. Bertrand's case are constitutional matters, at least in part, and that they clearly fall within the jurisdiction of the Superior Court.

May 22, 1996