Reconciliation and the Straitjacket: A Comparative Analysis of the Secession Reference and R v. Sparrow.

• Author: Hamilton, Robert
• Position: Canada

CONTENTS

Reconciliation and the Straitjacket: A Comparative Analysis of the Secession Reference and R v Sparrow

Robert Hamilton & Joshua Nichols

Introduction 209

1. The Cases 214

   1. R v Sparrow 214

   2. Reference re Secession of Quebec 218

2. Constitutional Pillars and the Uses and Abuses of History for Law 221

   1. R v Sparrow 221

   2. Reference re Secession of Quebec 232

3. Varieties of Reconciliation 236

4. Sparrow's Constitution: Grey Holes and Crises of Legitimacy 239

5. The Secession Reference and Generative Possibilities for Section 35 249

   INTRODUCTION

   On May 25, 1984, Ronald Sparrow went fishing in a part of the Fraser River estuary known as Canoe Passage. As a member of the Musqueam Indian band, Mr. Sparrow fished under the terms of an Indian Food Fishing Licence issued earlier that year. Among other restrictions, the licence prohibited fishing with a drift net of more than 25 fathoms. (1) Mr. Sparrow was caught fishing with a net 45 fathoms in length and was charged under subsection 61(1) of the Fisheries Act. (2) In his defense, Mr. Sparrow argued that the net length restriction in the licence was inconsistent with his Aboriginal rights under subsection 35(1) of the Constitution Act, 1982? The case would find its way to the Supreme Court of Canada and give that Court its first opportunity to interpret subsection 35(1). Because political negotiations intended to determine the scope and content of section 35 had failed, the Court was left with the difficult task of giving meaning to the phrase "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." (4) The R v Sparrow decision was delivered in November 1990.

   The same constitutional process that saw section 35 included in the Constitution created disquietude in Quebec, stirring a nationalist sentiment in the province. The Quiet Revolution of the 1960s had led to the election of the Parti Quebecois (PQ) in 1976 and, in 1980, Quebec held its first independence referendum. (5) The referendum was unsuccessful, but the issues that motivated it were aggravated by the patriation process. In particular, Quebec opposed the amending formula and the introduction of the Canadian Charter of Rights and Freedoms (the Charter). Following the failure of the Meech Lake and Charlottetown Accords, the PQ was re-elected and, in 1995, they held a second referendum, which failed by a narrow margin. In 1996, Lucien Bouchard (the leader of the PQ) announced that his government would hold a third referendum. In response, Prime Minister Jean Chretien initiated a reference on the legality of a unilateral declaration of independence by a province. The Supreme Court delivered its Reference re Secession of Quebec decision in August 1998. (6)

   These two foundational constitutional cases, and the histories giving rise to them, may at first seem unrelated. The Supreme Court itself treated the questions as categorically distinct at the time the cases were decided and has rarely, and then only superficially, brought their doctrinal developments into conversation. This, in our view, evidences a category mistake made by the Supreme Court in the earliest cases interpreting section 35 Aboriginal rights, one that has had important consequences for the development of Aboriginal rights and Crown-Indigenous relations. The mistake, however, is an understandable one; it has undoubtedly come into sharper relief with the benefit of hindsight and the knowledge of how subsequent caselaw has developed. Perhaps more importantly, our conventional legal taxonomies and shared legal grammar emphasize the dissimilarities of these cases; (7) the cartographic instruments we rely on to sort our jurisprudence draw boundaries between them. It seemed natural for the Court to treat the issues as distinct.

   Yet, these taxonomies do not exist in the natural order waiting to be discovered. They allow us to distinguish paradigms and cases, and accumulate the arguments and opinions that establish a given body of law, but they are not universal or invariable. They are forged, fashioned, and refined in relation to specific contexts. They function properly only in conditions and circumstances that are understood as being "typical." In other words, we need to remember that the map is not the territory. These hard cases can serve as helpful reminders for us precisely because they expose the conditions and circumstances that we take for granted as being "typical." They show us that the distinctions we make are localized guidelines for the practice of law, that the law can be otherwise than we had first imagined it to be; they show us that law is not a geometrical machine, but a living practice. (8)

   If we turn our attention to the similarities between Sparrow and the Secession Reference, we quickly see the relationship between the cases is far more open-textured than initially assumed. The cases are connected by a complicated network of overlapping and crisscrossing similarities and differences; once we set them in the right light, we can see that they share striking family resemblances. (9) In both cases, the Supreme Court confronted situations where the explicit provisions of the Constitution did not offer them a clear path forward; in both, the Court opted to use unwritten principles to avoid constitutional deadlock. (10) In both cases, the Court recognized that public law is more than positive laws dealing with issues of governance and the relationships between government and individuals, but "the very constitution of political society, the conditions according to which a community constitutes legitimate authority." (11) In both, sub-state peoples challenged the constitutional order and their place in it, in the process challenging inherited notions of federalism, constitutionalism, and the nation-state.

   The resemblance between these cases is, in our view, of pivotal importance to the future of Canada. The doctrine of Aboriginal rights, thirty years since Sparrow was decided, has been exhausted in important respects. With Indigenous peoples increasingly framing their constitutional demands in the language of self-determination, the limitations of section 35 doctrine are beginning to show; it is increasingly difficult to find productive solutions as the colonial underpinnings of the doctrine prune its more generative outgrowths. The similarities underpinning Sparrow and the Secession Reference, coupled with the vastly dissimilar approaches taken by the Court in each, provide us with a perspicuous view of the unstated presumptions that reside in the background of the Court's interpretation of our constitutional order. The value of this vantage point is not merely critical--it does not consist of simply pointing out the tragic and necessary compulsion of a fatal flaw. It is more akin to correcting a map by going out to the territory and surveying it again. The task is to draw our attention to areas our map has failed to adequately represent, thereby clearing the ground for a principled reimagining of our constitutional order. (12) We believe once the similarities and differences of these cases are seen clearly, they provide us with a judicially navigable route between colonialism and constitutionalism. In short, they provide a route to real and meaningful reconciliation.

   We can now set the itinerary for our investigation. Part I provides a brief overview of the issues facing the Court in each case and the conclusions the Court reached. Given that this is well-trodden territory, we will focus on providing a serviceable outline of the main landmarks. Part II examines the novel constitutional doctrine the Court crafted in each case and the pillars they relied on to support that doctrine. We identify four pillars: in Sparrow the pillars of colonialism and constitutionalism support the doctrine, while in the Secession Reference the weight is carried by the pillars of legality and legitimacy. The pillars engage the Court's use of history in each decision, showing that in each instance the Court proffered an ahistorical account of important legal and historical issues. Challenging the Court's use of history reveals the extent to which the constitutional interpretation in the cases is guided not by historical fact or fealty to precedent but by the Court's own normative vision of the constitutional order. Unwinding the Court's questionable historical accounts brings the contingency of the decisions to the fore, illustrating that the decisions were by no means the necessary, or even the logical, outcome of applying law to fact. History and law were used instrumentally to craft decisions that reflected the justices' convictions about the nature of the constitutional order and the place of sub-state peoples in it. In particular, a historical perspective helps explain the Court's framing of section 35 claims in terms of a suigeneris species of Charter rights rather than as jurisdictional in nature. Part III outlines the competing visions of reconciliation that emerge from each case. Part IV moves from the identification of legal pillars to the implications and consequences of relying on them. Here, we re-focus the question to draw out the consequences of the Court's use of two distinct legal foundations for reconciling the challenges posed by "deep diversity" (to borrow Charles Taylor's helpful concept) and the practical constitutional problems that emerge from it. (13) Our aim in this part is thus twofold: to illustrate both the practical and theoretical problems that emerge from this framework. In Part V, we look at how the principled solution the Court set out in the Secession Reference can be adapted to address the problem that the Sparrow Court attempted to jump over. We conclude by offering some remarks on how this repurposing of the Secession Reference could be put into practice.

1. THE CASES

   1. R v Sparrow

      The facts of the case were outlined above: Ronald Sparrow was...