In December 2000, the Parliament of Québec enacted the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State (the Act). This statute, which is constitutional in nature, is of great importance because it solemnly reaffirms the collective attainments of the Québec people, the responsibilities of the Québec state, and the rights and prerogatives of the National Assembly with respect to all matters affecting the future of the Québec people within the Canadian federation.
For example, the Act affirms that the people of Québec have the inalienable right to freely decide the political regime and legal status of Québec, and that they alone—acting through their own political institutions—are to determine how they will exercise this right. If a referendum takes place, the winning option is the option that obtains a majority of the valid votes cast (following the 50%+1 rule).
The Act also stipulates that the Québec state derives its legitimacy from the will of the people inhabiting its territory and that it is sovereign, both domestically and internationally, in the areas within its constitutional jurisdictions. The Act reaffirms that the French language is the official language of Québec and that, in exercising its constitutional jurisdiction, the Québec state recognizes the existing rights of the minority English-speaking community and Indigenous nations in Québec. The Act also requires the government to ensure that Québec's territorial integrity is maintained and respected so that the Québec state can exercise all the powers relating to its jurisdiction throughout the territory of Québec.
On May 9, 2001, Keith Henderson and the Equality Party filed a motion with the Superior Court of Québec seeking to have sections 1–5 and 13 of the Act declared unconstitutional, on the grounds that these sections exceed the Parliament of Québec's legislative jurisdiction and violate the Canadian Charter of Rights and Freedoms. They alleged that the Act sought to give the Gouvernement du Québec the right to act in contradiction with the Constitution, specifically to unilaterally declare Québec's sovereignty.
On August 23, 2001, the Attorney General of Québec served the petitioners with a motion for dismissal on the grounds that the questions submitted were not justiciable. On August 19, 2002, the Superior Court dismissed Henderson and the Equality Party's motion. The petitioners appealed the decision to the Court of Appeal of Québec, which allowed the appeal in part on August 30, 2007, although it narrowed the scope of the motion filed with the Superior Court. The Attorney General of Québec decided not to appeal this decision.
The matter came back before the Superior Court, but the petitioners did not state their intent to go ahead with the case until the summer of 2012.
On October 16, 2013, the Attorney General of Canada, as the impleaded party, filed a declaration of intervention proposing that the Superior Court read down sections 1–5 and 13 of the Act to limit their reach as much as possible, or, should this prove to be unfeasible, declare these sections unconstitutional.
In a comprehensive ruling, the Superior Court fully agreed with the position advanced by Québec as to the challenged sections of the Act (Henderson c. Procureure générale du Québec, 2018 QCCS 1586 – in French only). The Superior Court found all the provisions of the Act to be consistent with the Constitution, which includes the Canadian Charter of Rights and Freedoms. It also concluded that the use of the expressions "the Québec people" and "the Québec State" in Québec legislation was not a new phenomenon and that these expressions were used in the Act simply to reiterate this fact, not to lay the groundwork for Québec to secede.
The Superior Court also found that the mere fact of the Act asserting that the Québec people have the right to self-determination is not enough to infer that Québec would be able to unilaterally secede without any negotiation. With respect to the codification of the rule that the winning option in a referendum is the option that gets 50% of the valid votes cast plus one, the Superior Court pointed out that other provinces have similar provisions, and those provisions have never been found to be unconstitutional. Furthermore, the Court noted, the outcome of a referendum is strictly advisory; true decision-making power rests with elected officials.
In short, the Superior Court found that the Act sets out fundamental principles that are critical to Québec's democratic system and form part of Québec's constitution. In the Court's view, these principles are in no way incompatible with the Supreme Court of Canada's statements in Reference re Secession of Quebec, and Québec is the only member of the Canadian federation to which these principles apply.
The Superior Court's decision was taken to the Court of Appeal of Québec, which rejected all of the appellant's grounds of appeal (Henderson c. Procureur général du Québec, 2021 QCCA 565). In particular, the Court refused to identify which constitutional amending procedure would need to be followed in order for Québec to secede and denied the possibility that the unanimous consent procedure would apply, writing:
[Unofficial English translation of the judgment of the Court]As the appellant did in the context of the Secession Reference, he is seeking to entrench an eventual hypothetical initiative for Quebec's independence in a mold within which each Canadian province and the federal government would have an absolute and unilateral right of veto over the process. The Supreme Court, however, did not endorse this approach.
The Court of Appeal also rejected the appellant's argument that the idea of a "Québec people" referred to in the Act, specifically in sections 1–4 and 13, invokes a right to self-determination in international law. In the Court's view, it is entirely possible for a provincial legislature to use such an expression in its legislation without infringing the Canadian constitutional framework.
Lastly, the Court of Appeal refused to make the judicial declarations requested by the Attorney General of Canada to the effect that Québec is a province of Canada and that sections 1–5 and 15 of the Act cannot provide the legal basis for a unilateral declaration of independence. The Court acknowledged that Québec is different from the rest of the provinces, writing:
[Unofficial English translation of the judgment of the Court]. . . Quebec is not a province like others. This is an indisputable sociological and political fact. Among other things, Quebec is the hearth and home of the French language and culture in North America and its legal regime based on the civil law differs markedly from those of its partners and neighbours. The purpose of these observations is not to negate or diminish the significant and important special characteristics of the other provinces of Canada, but rather to prevent Quebec's own significant and indisputable characteristics from being eclipsed or eliminated from the legal discourse.
Given that the Supreme Court of Canada had already spoken on the matter of Québec unilaterally declaring independence in Reference re Secession of Quebec, the Court of Appeal found it unnecessary to revisit the issue.
However, since no court can possibly conceive of all the circumstances in which the Act could be invoked, the Court of Appeal left open the possibility that the Act could one day be deemed inapplicable or inoperative in Canadian domestic law. For this reason, the Court of Appeal confirmed the Superior Court's decision, but struck the paragraph of the decision that was inconsistent with this conclusion.
The appellant did not appeal the Court of Appeal's decision to the Supreme Court of Canada.
