Provinces Leaving Canada Part I: The Quebec Secession case.

• Author: Bowal, Peter
• Position: Famous Cases

... a dear majority vote in Quebec on a dear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize. --Reference Re Secession of Quebec, [1998] 2 SCR 217 at para 150 Introduction

The possible withdrawal of one or more provinces from the Canadian federation ("Wexit") have led people to ask, "What does it take for a province to leave Canada and go its own way?" So we dedicate this Famous Cases column to the unanimous 1998 Supreme Court of Canada case Reference Re Secession of Quebec (referred to as Secession Reference).

In the next column, we follow up with discussion of the so-called Clarity Act that purports to set the federal ground rules for provincial secession. Both of these columns together provide a primer on what it would take, from a constitutional perspective, for any province to separate ("secede") from Canada.

First, a disclaimer. This is a brief legal analysis only for general public awareness. It is not a political or economic assessment of the issue, nor a statement of personal preference. This case should also be seen in its context. Constitutional pronouncements should survive more than two decades but the Supreme Court of Canada is well known to revise its previous proclamations.

Moreover, Secession Reference arose from an extremely close Quebec referendum outcome in 1995, followed by considerable political plotting at both levels of government in the free-space of a new constitutional enigma. This is to say--and this is readily apparent from the decision itself--that not all issues around provincial secession have been answered in the Secession Reference. Future cases will elicit more details.

Background

When the Constitution was repatriated from the United Kingdom in 1982, the new amending formula that was incorporated did not contain any provision specifically for the withdrawal of provinces from Confederation.

In the aftermath of the 1995 referendum, lawsuits were launched questioning the legality of secession. The Parti Quebecois premier promised another referendum when "winning conditions" presented. In September 1996, the federal government sent the issue to the Supreme Court of Canada for constitutional answers.

Secession Reference Decision

The Court considered the legality of a unilateral secession of Quebec under both

Canadian and international law. The following three specific questions were...