Reference Re Secession of Quebec,

• Judge: Binnie JJ,Gonthier,Iacobucci,Cory,Lamer C.J.,McLachlin,L'Heureux-Dubé,Major,Bastarache
• Court: Supreme Court (Canada)
• Docket Number: File No.: 25506.
• Date: 20 August 1998

Canada, Supreme Court.

(Lamer CJC; L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ)

Re Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from Canada1

Human rights — Self-determination — Scope and extent — Right to self-determination in the context of an existing State — Whether part of the population of an existing State capable of constituting a ‘people’ for the purpose of the right of self-determination — Internal and external self-determination — Whether international law recognizes a right of unilateral secession for part of the population of an existing State — Quebec — Whether population of Quebec or part thereof a ‘people’—Whether population of Quebec enjoying internal self-determination — Declaration of Principles of Friendly Relations between States 1970

Recognition — Of States — Of right of people to self-determination — Recognition as condonation of unlawful act — Whether likelihood of recognition of breakaway State means that there is a right to create such a State

Relationship of international law and municipal law — In general — Whether Supreme Court of Canada entitled to answer question regarding application of international law — International law as part of the law of Canada — Right of self-determination under Canadian law and international law

States — Creation and dissolution — Self-determination of groups within State — Whether conferring a right of unilateral secession — Relationship between right of self-determination and respect for territorial integrity of State — The law of Canada

Summary: The facts:—The Governor in Council of Canada referred to the Supreme Court of Canada three questions regarding the possible secession of Quebec, one of the Canadian provinces, from Canada.2 The three questions were:

(1) Under the Constitution of Canada, can the National Assembly, Legislature or Government of Quebec effect the secession of Quebec from Canada unilaterally?

(2) Does international law give the National Assembly, Legislature or Government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, Legislature or Government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

(3) In the event of a conflict between domestic and international law on the right of the National Assembly, Legislature or Government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence?

The Government of Quebec did not take part in the proceedings before the Court. The Court appointed an amicus curiae to represent the interests of Quebec. The amicus took a preliminary objection to the jurisdiction of the Court, inter alia on the ground that the questions posed were hypothetical and that Question 2 raised an abstract question of pure international law which it was beyond the competence of the Court to answer.

Held:—The Jurisdiction of the Court

The Court had jurisdiction to answer the questions posed and it was appropriate for the Court to exercise that jurisdiction in the present case.

(l) The Supreme Court Act, Section 53, which made provision for the reference by the Governor in Council of questions on which the Court's opinion was sought, was consistent with the Constitution Act. The questions posed fell within the scope of Section 53 (pp. 540–4).

(2) In answering Question 2, the Court would not be purporting to act as an international tribunal; its answer would not bind any other State or any international tribunal which might subsequently consider this, or a similar, question. The fact that Question 2 raised an issue of international law did not preclude the Court from answering the question. The Court could look to international law in order to determine the rights or obligations of an actor within the Canadian legal system. In the present case, the question posed was not one of ‘pure’ international law but sought to determine the legal rights and obligations of institutions within the Canadian legal system (pp. 545–6).

(3) The questions raised were justiciable (pp. 546–9).

Question 1

Under the Constitution, the secession of a province was not something which could be achieved unilaterally but only on the basis of negotiation between that province, the Federal Government and the other provinces.

(1) Even where the population of a province voted for independence by a clear majority, it was necessary to take account of other principles of the Canadian Constitution, in particular federalism, the rule of law, the protection of minorities and the operation of democracy in the other provinces and in Canada as a whole. It followed that the Constitution did not give Quebec a unilateral right of secession. To hold otherwise would be to allow a unilateral act by one province to alter governance in a manner which was not compatible with the Constitution (pp. 549–70).

(2) Nevertheless, the democratic principle on which the Constitution was based meant that a clear majority for secession in Quebec would require the other provinces and the Federal Government to enter into negotiations on the basis of good faith, in order to attempt to reconcile the rights and obligations of two legitimate majorities, namely that in Quebec and that in Canada as a whole (pp. 570–5).

(3) It was for the political authorities to determine what constituted a sufficiently clear majority and to settle the political process of negotiation. The Court would have no role with regard to the political aspects of constitutional negotiations (pp. 575–8).

Question 2

Neither the population of Quebec nor the provincial institutions possessed a right of unilateral secession under international law. International law did not grant a specific right to secede, nor did it specifically prohibit secession.

(1) The right of a people to self-determination was now firmly established as a right under international law (pp. 580–2).

(2) It was clear that a ‘people’ might include only a portion of the population of an existing State. Nevertheless, while much of the population of Quebec shared many of the characteristics of a ‘people’, such as a common language and culture, it was not necessary in the present case to determine whether or not the population of Quebec constituted a ‘people’ within the meaning of international law (p. 583).

(3) The right to self-determination was normally fulfilled through internal self-determination, the pursuit of a people's political, economic, social and cultural development within the framework of an existing State. A right to external self-determination, which might take the form of the assertion of a right to unilateral secession, arose only in the most extreme cases and only under carefully defined circumstances. Accordingly, there was no necessary incompatibility between the maintenance of the territorial integrity of existing States and the right of a people to self-determination. A State whose government represented the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and which respected the principles of self-determination in its internal arrangements, was entitled to the protection under international law of its territorial integrity (pp. 584–5).

(4) The right to external self-determination clearly existed in the case of a colonial people and of a people which was subject to alien subjugation, domination or exploitation. It was possible that such a right also existed where the ability of a people to exercise its right of internal self-determination was totally frustrated, although it was not clear that this proposition reflected an existing international law standard. Even if it did, however, the situation in Canada was entirely different. Canada was a sovereign and independent State conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people of the territory without distinction. The population of Quebec enjoyed extensive autonomy and members of that population were prominent in all aspects of Canadian national life (pp. 585–8).

(5) The fact that a unilateral secession by Quebec might be followed by the recognition of the newly proclaimed State by other States did not mean that there was a right of secession in international law (pp. 589–91).

Question 3

Since there was no conflict between international law and Canadian law, it was unnecessary to answer Question 3 (p. 591).

The following is the text of the judgment of the Court:

I. Introduction

[1] This Reference requires us to consider momentous questions that go to the heart of our system of constitutional government. The observation we made more than a decade ago in Reference re Manitoba Language RightsUNK, [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1 (Manitoba Language Rights Reference), at p. 728, applies with equal force here: as in that case, the present one ‘combines legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity’. In our view, it is not possible to answer the questions that have been put to us without a consideration of a number of underlying principles. An exploration of the meaning and nature of these underlying principles is not merely of academic interest. On the contrary, such an exploration is of immense practical utility. Only once those underlying principles have been examined and delineated may a considered response to the questions we are required to answer emerge.

[2] The questions posed by the Governor in Council by way of Order in Council P.C. 1996–1497, dated September 30, 1996, read as follows:

• 1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the...