The Aftermath of the Quebec Secession Reference: The First Two Years

• Author: Pierre Bienvenu
• Profession: Ogilvy Renault
• Pages: 237-266

The

Aftermath

of the

Quebec

Secession

Reference:

The

First

Two

Years

Pierre

Bienvenu*

A.

INTRODUCTION

Almost

two

years have elapsed since

the

Supreme Court

of

Canada

released

its

opinion

in

Reference

Re

Secession

of

Quebec.1

As

many

had

pre-

dicted,

the

Court

confirmed

that neither Canadian constitutional

law nor

public international

law

affords

the

province

of

Quebec

the

right

to

secede

from

Canada unilaterally.

However,

the

Court went

on to

hold that

a

clear

majority

vote

in

Quebec

on a

clear referendum question

in

favour

of

secession, while

it

would have

no

direct legal

effect,

"would

confer

legit-

imacy

on

efforts

of the

government

of

Quebec

to

initiate

the

Constitution's

amendment

process

in

order

to

secede

by

constitutional means"

and

"would give

rise to a

reciprocal obligation

on all

parties

to

Confederation

to

negotiate constitutional changes

to

respond

to

that

desire/'2

Partner,

Ogilvy

Renault,

Montreal. Although

the

author

was a

member

of the

legal team that appeared before

the

Supreme Court

of

Canada

on

behalf

of the

Government

of

Canada,

as

well

as

before

the

Superior Court

of

Quebec

on the

occasion

of the

Federal government's intervention

in the

Bertrand

case,

the

views expressed

in

this paper

are

those

of the

author alone.

The

author wishes

to

acknowledge

the

contribution

of

Leigh

Crestohl,

of

Ogilvy Renault,

in the

preparation

of

this paper.

1

[1998]

2

S.C.R.

217

[hereinafter

Secession

Reference].

The

Court's

opinion

was

released

on

August

20,1998.

2

Ibid,

at

para.

87-88.

237

*

238

Pierre

Bienvenu

While

Canadian courts would have

no

supervisory role over

the

ini-

tial

impetus

for the

negotiation

—

a

clear

majority

on a

clear question

in

favour

of

secession

— nor

over

the

conduct

of the

parties during

the

negotiations,

a

breach

of the

constitutional obligation

to

negotiate

could,

indirectly,

give rise

to

sanctions

at the

international level,

as

foreign

states,

in

deciding whether

or not to

recognize

the

emergent state fol-

lowing

a de

facto

secession, would likely evaluate

the

legality

of the

secession process under Canadian law.

The

Federal

government's

decision

to

refer

to

Canada's

highest

court

questions concerning Quebec's possible secession

from

Canada

had

been

a

source

of

considerable controversy, particularly

in the

province

of

Quebec. Against

all

odds,

the

initial reaction

to the

Court's

opinion

was

positive

on

both sides

of the

debate surrounding

the

seces-

sionist

project

in

Quebec.

The

decision

was

widely

praised

by

commen-

tators

and in the

media

as

both

a

wise, well-reasoned opinion,

and a

political

tour

deforce.

In

addition

to the

publication

of a

number

of

learned commentaries

on

the

Court's

opinion,3

the

aftermath

of the

decision, beyond

the

pro-

tagonists'

initial reaction,

has

centred

on the

Federal

government's

response

to the

Secession

Reference

in the

form

of the

Clarity

Act.4

The

fed-

eral

legislative initiative,

in

turn,

has

prompted indignant denunciations

from

the

government

of

Quebec

and the

introduction

of a

draft

bill,

Bill

99,5

embodying

the

government

of

Quebec's response

to the

Clarity

Act.

Since

the

federal

legislative response

to the

Secession

Reference

and

the

resulting debate have focused

on the

Court's requirements

of

clari-

ty,

we

begin with

a

summary

of the

Court's opinion

as it

relates

to

clar-

ity.

We go on to an

analysis

of

both

the

Clarity

Act and

Bill

99,

giving

an

overview

of

their content

and

reviewing

the

reactions that they have

elicited.

We

conclude with guarded comments,

for the

situation remains,

at

the

time

of

writing,

very much

a

dynamic process.

3

See,

for

example,

D.

Schneiderman,

ed.,

The

Quebec Decision: Perspectives

on the

Supreme Court

Ruling

on

Secession

(Toronto: Lorimer, 1999)

and the

articles col-

lected in the Special Issue on the Quebec Secession Reference at (1999) 11

N.J.C.L.

1.

4

Bill

C-20,

An Act to

give

effect

to the

requirement

of

clarity

as set out in the

opinion

of

the

Supreme Court

of

Canada

in the

Quebec Secession

Reference,

2d

Sess.,

36th

Parl.

(as

passed

by the

House

of

Commons

on 15

March

2000)

[hereinafter

Clarity

Act].

5

Bill

99, An Act

respecting

the

existence

of

the

fundamental rights

and

prerogatives

of

the

Quebec

people

and the

Quebec

State,

1st

Sess.,

36th

Leg.,

Quebec (reprint

introduced

on 19

April

2000)

[hereinafter

Bill

99].