Talk:Reference Re Secession of Quebec

message: Someone raised the following question about the paragraph which follows:
"Is is this paragraph really in the court's opinion? I will have to double-check. It seems unlikely that the court would have used such fallacious arguments in its reference."
:For close to 40 of the last 50 years, the Prime Minister of Canada has been a Quebecer. During this period, Quebecers have held from time to time all the most important positions in the federal Cabinet. During the 8 years prior to June 1997, the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Prime Minister of Canada, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of the United Nations, are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad. 
Yes, that is really in there (see paragraph 135)
The court's argument was that there was only a right to unilateral secession if a people: 
# was under colonial rule;
# was under foreign occupation; or
# was denied meaningful political participation.
It is obvious that neither of the first two apply to Quebec (it is neither a colony nor occupied by foreigners) so that leaves the third one to be dealt with, which is what the court was doing in that section.
Jacob1207 02:08, 2 Apr 2004 (UTC)
thread_title: Untitled

message: Thanks Jacob. I read the part. In my opinion, that is just awful. That individuals of French-Canadian origin collaborated to the neocolonial political regime of British Canada does nothing to prove whatever it is the Supreme Court is trying to prove. In a system of indirect rule, collaboration of the "aboriginal" elite is essential. It was the same thing in so many other former British colonies. In Quebec, it started at the time of the Union regime with Lafontaine, Cartier and company.
# Quebec is technically not under colonial rule since federal Canada is a sovereign state. London indeed does not rule over Canada anymore. However the supranational power only moved from London to Ottawa. In reality, Quebec is still not self-governing. Worst, after the "Quebec is a nation within the nation" of Lester B. Pearson, Ottawa now denies our very existence as a political nation to the face of the world. But of course international law is not concerned with such details.
# Quebec was taken over by a foreign power in 1760. When did they leave again? Oh no wait, they made themselves at home right in our country, renamed the place and made us a minority in a political system they now control. 
# Finally, we are getting to the main course. Since some in Ottawa deny that we exist as a people, as a group, they answer no. In order to do that, they need to close their eyes on 400 years of history. Must be difficult. I know I can't do that.
Ah well, what can you do. I think the Supreme Court still did a good job under the circumstances. The best part of the whole document is the following euphemism:
" While much of the Quebec population certainly shares many of the characteristics (such as a common language and culture) that would be considered in determining whether a specific group is a "people" ". 
Come on. Is it so hard to say that Quebecers are a nation in every sense of the word? Mathieugp 18:30, 2 Apr 2004 (UTC)
thread_title:  Colonial rule 

message: Commenting on the current version:
* The introduction needs to be reworked. In general, I think this introduction would be confusing to someone who doesn't know anything about the topic. I think the first sentence is okay, but the second and third sentences should probably be replaced.
: I agree. -- Mathieugp 16:30, 28 May 2006 (UTC)
replies: text: Yes, this is some unfinished business. I wrote that sentence. Then it was suggested it should be removed unless I could name those jurists. I started to look for my sources. What I found is in the talk page. Originally, I meant to write a little paragraph to inform people that the questions were not the kind of questions for which the govt of Canada did not know the answer. There is a political intention behind the very action of the reference. This is however very touchy as you might imagine. Maybe it is best to remove it since I don't intend to fix it. -- Mathieugp 16:30, 28 May 2006 (UTC)

text: Most logical. -- Mathieugp 16:30, 28 May 2006 (UTC)

text: Again, very logical. Your brain seems to work kinda like my computer. ;-) -- Mathieugp 16:30, 28 May 2006 (UTC)

text: Yes, that is a problem. Go ahead and improve whatever you like in this regard. -- Mathieugp 16:30, 28 May 2006 (UTC)

text: Well, I agree we should write in plain-language on what the reference is about, but only that. I don't think we should go so far as to answer questions that are not in the reference. The worst thing we can do is give our own interpretation of the reference. How the Supreme Court intepreted it can be deduced from its answer. If we do that, we stay in the "fact zone". -- Mathieugp 16:30, 28 May 2006 (UTC)

text: Sure. No objection. -- Mathieugp 16:30, 28 May 2006 (UTC)

text: I agree we should try to shorten the history part (which is not very well written in the first place) and fix the sentence as you suggested. -- Mathieugp 16:30, 28 May 2006 (UTC)

text: What terminology do you suggest to replace it? -- Mathieugp 16:30, 28 May 2006 (UTC)

text: I'd say that of the amicus curiae is also not very well explained. We might as well fix it too. -- Mathieugp 16:30, 28 May 2006 (UTC)

text: True. The legal duty to negociate is the point of the Court's opinion which the sovereigntists were most pleased with. This was totally unexpected to them. The déclaration liminaire of Premier of Quebec Lucien Bouchard makes it very clear that the sovereigntists considered the opinion of the court to be just. They didn't really think the same of the Clarity Act which they consider to have been drafted on the basis of a dishonest interpretation of the Court's opinion. I can translate Lucien Bouchard's declaration if you ask. -- Mathieugp 16:27, 28 May 2006 (UTC)
thread_title:  Some comments on the article 

message: 1. First of all, Justice John Sopinka passed away at the outset of hearings for the Secession opinion, so his name should not appear as a member of the Secession Bench, which is an error easily corrected by reference to the Supreme Court of Canada opinion online at Lexum:
Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.: Source: http://csc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.html
2. The second major error at the Wikipedia page is to have referred to the provision of "unanimous REASONS" by the Secession Bench.  It is well known that in the case of this non-binding Opinion, the Supreme Court DEPARTED from the statutory requirement (at s.53.4 of the Supreme Court Act) to give REASONS:
"Opinion of Court
(4) Where a reference is made to the Court under subsection (1) or (2), it is the duty of the Court to hear and consider it and to answer each question so referred, and the Court shall certify to the Governor in Council, for his information, its opinion on each question, with the reasons for each answer, and the opinion shall be pronounced in like manner as in the case of a judgment on an appeal to the Court, and any judges who differ from the opinion of the majority shall in like manner certify their opinions and their reasons."
Source:  http://laws.justice.gc.ca/en/S-26/text.html
THERE WERE NO "REASONS" CERTIFIED.  Which is more clear from the fact that the Opinion concludes:  
"156.  The reference questions are answered accordingly."
This means that the Supreme Court reference bench IGNORED the statutory requirement to give REASONS-- and did as they pleased. Q.: Is the Supreme Court above the law?  Ans.: NO. Does the 1998 Secession Opinion conform to the law as prescribed at s.53 of the Supreme Court Act? Ans.: NO.  Q.: Does the Supreme Court think it is above the law?  Ans.:  Evidently.  Q.: Why?  Ans.: because they think nobody will be clever enough to APPEAL, although their OPINION jurisdiction is ALWAYS first-instance, and does not benefit from the character of Supreme Court of Canada DECISIONS on appeal, which alone are FINAL.
Q.:  What is the legal status of the 1998 Secession Reference Opinion?
Ans.:  NULL & VOID as ILLEGAL for failure/refusal to comply with the statutory requirement to CERTIFY "REASONS".  —Preceding unsigned comment added by 70.52.13.177 (talk) 19:04, 7 August 2009 (UTC)
replies: text: It is pointless to write all this in the talk page. If you are sure of your facts and have proper sources, you are free to just fix it.
--  Hi. I've fixed things like this before and had them un-fixed, so it hardly seems worth the time. The standard for factuality is apparently how many times a fallacious remark is repeated; not whether the remark is true or not, regardless of how many times it's repeated.  If I were to put the truth into the main page, it would be deleted, because the truth is no longer politically correct in this country, and for those controlling power, in particular, it is extremely inconvenient.  I therefore settle for the back page, in the hope someone will read it.
-- DECISION vs. OPINION --
I did a fix today, changing the word "decision" to "opinion" wherever I found it. Here's the reason:
In Attorney-General for Ontario v. Attorney-General for Canada, (1972 AC 571), the Judicial Committee of the Privy Council (highest resort for Canada at the time) laid down the position that the opinions expressed by the Supreme Court of Canada in its advisory jurisdiction under the Supreme Court Act  "Will have no more effect than the opinions of the law officers".
This means, quite simply, that these are not "decisions".  Judicial decisions of the highest appellate court of Canada have binding force, including on that court itself. However, its opinions, which are rendered based on what is s. 53 of the Supreme Court Act today, do not have binding force, because they are not "decisions" or -- to borrow the American term, sometimes used here, "cases or controveries".  In the past, up to 1949, these opinions were at least appealed to the Judicial Committee of the Privy Council in the UK -- for another 'opinion' on the opinion. Since that time, for some odd reason, they have not been subjected to appeal.  This is odd, because these opinions are "first" opinions, that no other board of justices has had a chance to review. This is an extremely risky situation; combine that with the fact these opinions are mistaken for decisions by the public, and it's a risky and undemocratic one which subjects the public to autocratic rule, as opposed to their own self-rule by responsible government.  Pronouncements by the non-judicial bench of the Supreme Court, sitting in the advisory function under s. 53 of the Supreme Court Act, answering questions self-servingly formulated by the Executive (as opposed to logically formulated by Judges acting judicially), take control of the law and the country out of the hands of the people.
-- BACKGROUND OF THE OPINIONS -- 
The historical origin of the opinions, moreover, limits their use. They are for the information of the Executive, they are not for the purpose of advising or persuading the public. The Secession Reference and other References have become little more than blatant political tools to mislead the public into thinking that the opinions rendered based on Executive questions are LAW, when they are no such thing.
The use of the word "decision" when referring to "opinions" of the Supreme Court of Canada -- or to the opinions of advisory benches constituted by provincial appellate courts -- is extremely misleading to the public, who are thus encouraged to wrongly assume that an irrevocable decision has been handed down, which they, the public, are required by law to comply with.  This misapprehension serves to undermine democracy in Canada.
I would like to SUGGEST that a segment be added to this page on the HISTORY and CONTROVERSY over the "advisory jurisdiction", as it is called in general court parlance, or, the "Special Jurisdiction" as it is called in the Supreme Court Act, itself.  The jurisdiction has been controversial from the outset. In 1875, in Hansard on the passage of the first Supreme Court Act, Justice Minister Fournier makes it quite clear that he and his colleagues KNEW the jurisdiction was illegal; he admitted they could not find words to draft it into the Act that would make it legal; and he concluded that since they also knew that a constitutional amendment would be required to make it legal -- but that no such amendment would be granted by the UK because there was no chance of obtaining unanimous approval of the provinces -- it was slipped into the Supreme Court Act in 1875 NONETHELESS, fully knowing it was illegal, but the advisory board thus created posed such a convenience to the Executive that they violated the Constitution and did it anyway.
There is a very substantial history of Supreme Court of Canada Justices balking and dissenting and refusing to participate in the advisories.  Even in 1998, at the time of the Secession opinion, the Supreme Court of Canada presumed to -- quite cursorily -- pass review on its own opinion jurisdiction, and found it "legal". However, they were at that time sitting AS AN OPINION BENCH, and had no judicial power to make such a determination with finality; one which can only be made, judicially, and democratically, by a competent court of first instance, that is, a Superior Court under s. 96 of the BNA Act, 1867 seized of the question in the form of a CASE, for example, a citizen vs. the Crown, challenging the legality.  This then provides all the safeguards required in a democratic country, meaning that a DECISION is rendered by a competent court sitting JUDICIALLY, on questions of fact and law formulated BY the court and not by an interfering Executive; and the decision is then itself subject to appeal, and then to ultimate appeal at the Supreme Court of Canada.  This has not yet happened, and is long overdue.
As a result, the TWO issues in the Secession Reference of 1998, [a] the legality of the advisory function, and [b] the legality of secession, have both been pronounced on by justices sitting NON-judicially, issuing non-binding OPINIONS, of no legal force or effect, that have not even been subjected to a cursory review; and are not even JUDGMENTS. Moreover, the extent to which these opinions are used by the Executive to employ Parliament as a rubber-stamp to make these opinions into apparent "law" makes Canada into an autocracy, not a democracy.
Furthermore the BNA Act, 1867, at s. 17, "prescribes" Parliament and its components; at s. 91, it "prescribes" the lawmaker for Canada as Parliament.  In 1867, the Supreme Court didn't even exist yet; therefore, it is no surprise that the Supreme Court is not a component of the legal lawmaker for Canada at ss. 17 & 91.  The use of the Supreme Court in an (illegal) advisory function to issue opinions on questions formulated by the Executive, which are then rubber-stamped by Parliament, is NOT PARLIAMENTARY governance in Canada. And it is extremely dangerous both to democracy and freedom, for the preamble of the Constitution of Canada in 1867 has always been understood to be a "guarantee against the government of judges", and a guarantee of self-rule.
I could swear I had linked this before, I don't see it in the history, this is a SCAN of the Hansard of 1875 on the first passage of the Act creating the Supreme Court:
http://www.calameo.com/books/0001117907b0cb2468e63
If you are interested, it contains the precise statements of Justice Minister Fournier admitting that the advisory function (reference function) was known to be unconstitutional; but they did it anyway.  I scanned this from the Hansard at the University. It's not an opinion on the event, it's the real record of it.
Thanks for your time.
-- THE ORDER IN COUNCIL vs. THE SECESSION OPINION --
Section 53 of the Supreme Court Act purports to authorize the Executive to ask questions, and compel the non-judicial bench of the Supreme Court to answer the questions.  This has always been understood to mean that the Supreme Court, sitting in this function, is not authorized by the statute (Supreme Court Act), to make up the questions itself, or to change the questions asked by the Executive.  If you examine the ORDER IN COUNCIL, you will see that NO QUESTION was asked about "clarity of the question" and "clarity of the vote result".  There being no such question asked, the Supreme Court could not ANSWER it, without making up the question ITSELF, even if only by implication.
Moreover, in order to ANSWER a question put by ORDER IN COUNCIL, the Supreme Court would have to review relevant facts and give signed and certified REASONS based on those facts.  There were referendums "to secede" in 1980 and in 1995; there was a Charlottetown referendum in 1992.  There was controversy in Quebec over the results of the 1995 referendum because of over 85,000 "NO" ballots that had been spoiled by election workers. That controversy was taken to Court by the Montreal Gazette, albeit on the basis of a contorted attempt to characterize voting ballots as public "documents" under the Quebec referendum act, in an effort to have the ballots exposed to the public for examination.  The Gazette's efforts were rebuffed by the courts, because they were pleaded on wrong grounds. The right ground, the simplest ground, would have been to sue for a re-count, i.e. contest the results, which would automatically have put the ballots on the table for all the world to see.  What a shame the Gazette and its high-priced lawyers did it the other way.  But, I digress.  My point is: [a] the question as to "clarity" was not asked in the Order in Council, therefore the Supreme Court had no authority to ANSWER it; [b] had it been asked, the Supreme Court itself would have had to EXAMINE the history of referendums in Quebec and Canada on the Quebec questions; it would have had to raise the issue of the 85,000+ maliciously spoiled ballots.  It would have had to compare questions from each referendum, and determine whether they had been CLEAR or not.  After all, if they were NOT clear -- and the Court in the Secession reference never said they were UNCLEAR -- because it didn't review the matter, it didn't look for that information, then there would be no apparent purpose in passing the CLARITY ACT to compel clarity "in future", compared with a supposed "lack" of clarity in the past.
As a result, the OPINION on "clarity" is void, because the question wasn't asked, and the Supreme Court sitting non-judicially under s. 53, therefore had no power to ask it themselves.  If you doubt me on this, check the Patriation Reference, where members of the Supreme Court itself clearly stated that they had no power to alter questions asked by the Executive, which would be tantamount to making up their own questions, which they had no power to do.
- DUTY TO NEGOTIATE - "LEGAL BASIS" --
Someone up above said: "* The writeup of the Court's opinion is not bad, but there needs to be some discussion of the duty to negotiate following a referendum. What is the legal origin of that duty?"
Excellent point. Glad someone noticed. There IS no legal origin.  The secession opinion purports to CREATE the legal origin by handing the Executive an opinion they can rubber-stamp into law, as the "Clarity Act" and then act accordingly.  If you read the BNA Act, 1867 very carefully, you will find: [1] no power to secede under s. 92, which is the head of provincial powers; [2] that all powers are for local purposes only, a province may not act to substantially affect any other province let alone all of Canada; [3] the final provision under s. 92 prescribes a "residual" power for local purposes only. Meaning NO SECESSION, can't leave, or that would affect all other provinces and the confederation of Canada.  It was done that way on purpose in 1867 to prevent secession, you can look it up in Bourinot and others. I cite Bourinot for one at my Grounds page:
http://www.calameo.com/books/0001117902cd601fc48fe
EXCERPT:
First Example:
                     No States' Rights for the Provinces
As Sir John G. Bourinot observes at pp. 95-96 of his Parlia- mentary Procedure and Practice, 1903, the legislative powers were distributed between the federal and provincial levels (Articles 91 and 92 of the BNA Act of 1867) in a manner designed to secure "unity" and prevent "secession":
"XII. —Distribution of Legislative Powers.  In the distribution of the legislative powers entrusted to the general parliament and the local legislatures respectively, the constitution makes such an enumeration as seems well adapted on the whole to secure the unity and stability of the dominion and at the same time gives every necessary freedom to the several provinces in the management of their local and municipal affairs. —In arranging this part of the Constitution, its framers had before them the experience of eighty years' working of the federal system of the United States, and were able to judge in what essential and fundamental respects that system appeared to be defective. —The doctrine of state sovereignty had been pressed to extreme lengths in the United States, and had formed one of the most powerful arguments of the advocates of secession.  This doctrine had its origin in the fact that all powers, not expressly conferred upon the general government, are reserved in the constitution to the States. —Now, in the federal constitution of Canada the very reverse principle obtains, with the avowed object of strengthening the basis of the Confederation, and preventing conflict so far as practicable between the provinces that compose the union."
In the Debates on Confederation, John A. MacDonald, a founding father of Canada, refers to the American War of Secession 1861-64, as "the disruption of the United States". This war of secession was the reason for the division of powers between the Parliament of Canada and the Legislatures of the Provinces.
Powers not expressly listed as given to the Provinces would expressly belong to the Parliament of Canada. This does not mean, however, that a "power of secession" was left to the central Parliament, because there is no power to secede in a Constitution whose very purpose is perpetual unity.
"... we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local governments and local legislatures, shall be conferred upon the General Government and Legislature. -- We have thus avoided that great source of weakness which has been the cause of the disruption of the United States."
In this way, at no time could the Provinces of Canada invoke reserve powers or "States' rights", leading to conflict and attempts to secede. Canada was designed as a permanent union, "for all time to come".
You can find Bourinot in any good library, or in Rare Books at the Grand Bibliotheque in downtown Montreal.
Now, get out your BNA Act, 1867 and read s. 31.  A senator is automatically disqualified, by operation of the Constitution, for allegiance, adherence or obedience to a Foreign Power; or for doing any act to become a Subject of or entitled to the rights of a citizen or subject of a Foreign Power. Now, ask yourself: carving a COUNTRY OF QUEBEC out of the territory of Canada... is this not showing obedience, allegiance and adherence to a Foreign Power?  And, in terms of North American Union, annexing Canada by "deep integration" thus creating a "new country" on the continent... is this not showing obedience, allegiance and adherence to a Foreign Power?  The Model Parliament for North America was LAUNCHED in the Senate Chamber of Canada.
Can you not smell treason?  Secession is illegal in Canada; the Constitution is not "silent" on the matter, it is express on the matter.  It was designed that way to prevent Canada from flying to pieces and being annexed by the USA.  The Constitutional purpose of the statute of 1867 is the permanent nationhood of Canada, by means of a permanent prohibition against annexation and secession.  Yet, secession is the tool they have been using since shortly after the Treaty of Rome was signed setting up the basis of the European Union.... separatists, marxists, even Castro, all got their foot into Canada through the FLQ -- who, ultimately, were doing the bidding of the multinational corporations without realizing it.  It's the banks and the big corporations who are merging the continents, and shaping up for corporate world-rule.
That's why the Supreme Court of Canada's illegal opinion jurisdiction is so dangerous.
But the truth cannot yet be printed on the front page.  However, it will be, one day.  —Preceding unsigned comment added by 74.198.65.28 (talk) 02:07, 22 September 2010 (UTC)
thread_title:  Two material errors 

message: John Sopinka's name appears in the Wikipedia list of judges involved in the 1998 Quebec "secession" opinion. He died suddenly of a strange form of blood poisoning just before the secession hearings began, I think. He had no input in the final opinion of 1998. Anyone contra?  — Preceding unsigned comment added by 142.243.254.223 (talk) 18:11, 8 October 2014 (UTC)
thread_title:  John Sopinka died and was replaced - Did he even sit for any "secession" hearings?