SYNOPSIS OF THE POSITION
OF THE ATTORNEY GENERAL OF CANADA
ON THE MOTION TO DISMISS

INTRODUCTION

1.The Attorney General of Canada has been impleaded by the plaintiff as a mis en cause in this case, as appears from the record before the Court.

2.The plaintiff's case raises many procedural and substantive issues. Subject to the following, the Attorney General of Canada takes no position on the questions of substance raised by this case.

3.The motion to dismiss the plaintiff's case, brought by the Attorney General of Quebec, also raises a number of procedural and substantive issues.

4.It is not the intention of the Attorney General of Canada, by his participation in these proceedings, to challenge the authority of the government of Quebec to order, in accordance with s. 7 of the Quebec Referendum Act, that the population of Quebec "be consulted by referendum" on questions concerning the future of Quebec.

5.In his motion to dismiss, notably in paras. 12 to 15, the Attorney General of Quebec submits that the "[TRANSLATION] process of the accession of Quebec to sovereignty [...] is a question which is not within the jurisdiction of the courts". His pleadings implicitly assert that the Constitution of Canada does not apply to, and that the courts have no jurisdiction over, the process of secession of a province. In the view of the Attorney General of Canada, this submission of the Attorney General of Quebec is wrong in law.

6.With respect to the motion to dismiss the case, it is the intention of the Attorney General of Canada to limit his intervention to assisting the Court in its examination of two of the issues raised by the motion: (1) the relevance of the Constitution of Canada and the rule of law to any process aimed at changing the constitutional status of Quebec, and the role of the courts in protecting the principles underlying the Constitution and the rule of law; (2) the jurisdiction of the courts - and, in particular, the Superior Court of Quebec - to determine the validity of any measure which purports to make legally binding and give the force of law to a declaration to the effect that Quebec is no longer a province of Canada but rather a separate and independent sovereign state.

7.In the context of the Attorney General of Quebec's motion to dismiss, the Attorney General of Canada makes the following observations and submissions.

PRINCIPLES

The Constitution of Canada, the Rule of Law and the Role of the Courts

8.Canada is a constitutional democracy. Its political institutions are subject to fundamental rules which govern the conduct of all actors, including governments and legislatures, and which forbid the exercise of arbitrary powers. No one is above the law. All are subject to the rule of law. The courts are the guardians of the Constitution and the rule of law.

"The Court will not question the wisdom of enactments which, by the terms of the Canadian Constitution are within the competence of the Legislatures, but it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power."

Amax Potash Ltd. v. Saskatchewan, [1977] 2 S.C.R. 576, at p. 590 (per Dickson J.).

"[The Constitution] is, as s. 52 of the Constitution Act, 1982 declares, the "supreme law" of the nation, unalterable by the normal legislative process, and unsuffering of laws inconsistent with it. The duty of the judiciary is to interpret and apply the laws of Canada and each of the provinces, and it is thus our duty to ensure that the constitutional law prevails."

Re: Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 745.

Also:Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155.

9.The rule of law is "a fundamental principle of our Constitution" and "a fundamental postulate of our constitutional structure".

Re: Manitoba Language Rights, supra, at p. 747.

Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142 (per Rand J.).

10.The role and powers of the provincial superior courts are essential to the preservation of the rule of law.

"In the constitutional arrangements passed on to us by the British and recognized by the preamble to the Constitution Act, 1867, the provincial superior courts are the foundation of the rule of law itself. Governance by rule of law requires a judicial system that can ensure its orders are enforced and its process respected. [...] Destroying part of the core jurisdiction would be tantamount to abolishing the superior courts of general jurisdiction, which is impermissible without constitutional amendment.

The core jurisdiction of the provincial superior courts comprises those powers which are essential to the administration of justice and the maintenance of the rule of law."

MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at pp. 753-754 (per Lamer C.J.C.).

11.It is manifestly the prerogative and duty of the courts, as defenders of the Constitution, to ensure that the principles of this supreme law are respected. It follows that the validity of any bill, if enacted--or any similar measure to which the legislature or government purports to give binding legal effect -- may be tested before the courts. If the measure is found to be inconsistent with the provisions of the Constitution, the courts will declare it to be ultra vires or of no force or effect.

"[...] it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power."

Amax Potash Ltd. v. Government of Saskatchewan, supra (per Dickson J.).

"[...] the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution."

Re: B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 496-97.

"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void." Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), at 176.

Cited in: Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at p. 367.

12.There can be no doubt that the Constitution Act, 1982 applies throughout Canada, including Quebec.

"The Constitution Act, 1982 is now in force. Its legality is neither challenged nor assailable."

Re: Objection to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793, at p. 806.

Non-justiciable Questions

13.The courts have a discretion to refuse to answer "questions which are not justiciable".

Re: Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 544 (per Sopinka J.).

14.However, in exercising their discretion whether to determine a matter that is alleged to be non-justiciable, the courts' primary concern must be focused on retaining their proper role "within the constitutional framework of our democratic form of government".

"In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch. [...] Since only a court can authoritatively resolve a legal question, its decision will serve to resolve a controversy or it will have some other practical significance."

Re: Canada Assistance Plan (B.C.), supra, at pp. 545-546.

15.The fact that a question which is raised may include a political element does not in itself remove it from the jurisdiction of the courts. Rather, the Court must determine whether the question has a legal component sufficient to warrant its consideration.

Re: Canada Assistance Plan (B.C.), supra, at p. 545.

Justiciable Questions and International Law Issues

16.The Attorney General of Quebec's motion to dismiss the plaintiff's case relies, inter alia, on international instruments and on public international law, which, it is alleged by the Attorney General of Quebec, sanction the "[TRANSLATION] process of the accession of Quebec to sovereignty", in effect Quebec's unilateral secession from Canada. This is a position with which the Attorney General of Canada disagrees. Neither international law nor Canadian constitutional law confer on the National Assembly of Quebec the right to proceed to unilateral secession. Disagreement on this important point itself demonstrates that there are substantive legal issues in this case that are justiciable in the Superior Court.

17.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 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.

18.While secession is not expressly prohibited in international law, Quebec does not meet the conditions for a right to secede. This was confirmed by the opinion of the five international law experts who were consulted by the Quebec National Assembly commission on Quebec's accession to sovereignty in 1992.

Franck, Higgins, Pellet, Shaw and Tomuschat, "L'intégrité territoriale du Québec dans l'hypothèse de l'accession à la souveraineté" in Commission d'étude des questions afférentes à l'accession du Québec à la souveraineté, Exposés et études, volume I, Les attributs d'un Québec souverain (1992), at pp. 383, 418, 420 - 425 and 443.

CONCLUSIONS

19.The Attorney General of Canada submits that the questions of substance raised in the context of the motion to dismiss are clearly ones which are, "at least in part, constitutional in character" and "have a sufficient legal component to warrant the intervention of the judicial branch". These questions are clearly within the purview of the inherent jurisdiction of the Superior Court. The Attorney General of Canada therefore submits that in light of the role of the courts and the issues raised in this matter, the Court should exercise its discretion to allow this case to proceed to a hearing on the merits.

THE WHOLE RESPECTFULLY SUBMITTED.

Quebec, May 22, 1996