The Legal Framework Governing Secession in Light of the Quebec Secession Reference

• Author: Patrick J. Monahan
• Profession: Professor of Law, Osgoode Hall Law School and Affiliated Scholar, Davies, Ward Phillips & Vineberg
• Pages: 205-236

The

Legal Framework

Governing

Secession

in

Light

of the

Quebec

Secession

Reference

Patrick

J.

Monahan*

A.

INTRODUCTION

While

legal commentators

are

prone

to

overuse

the

adjective

"historic"

in

reference

to

Supreme Court rulings that soon afterwards turn

out to

be

commonplace,

this description seems particularly

apt in

relation

to

the

Court's

August

20,1998

advisory opinion

in the

Secession

Reference.1

Almost overnight,

it has

redefined

the

terms

of the

debate over

the

potential secession

of

Quebec

from

Canada.

It is

perhaps hardly surpris-

ing

that lawyers

and

judges have made

frequent

reference

to the

opin-

ion. What stands

out in

this

debate,

however,

is

that politicians,

journalists,

and

even members

of the

general public have familiarized

themselves with

the

details

of the

Court's

pronouncements such that

it

is now

common

to

witness non-lawyers debating

the

nuances

and

implications

of

various paragraphs

of the

Court's judgment.

Prior

to the

release

of the

Court's opinion, there were many

who

questioned

the

wisdom and/or appropriateness

of

asking judges

to

intervene

in

such

a

highly politicized matter.

But the

Court's compro-

Professor

of

Law, Osgoode Hall

Law

School

and

Affiliated

Scholar, Davies,

Ward

Phillips

&

Vineberg.

This article

was

completed

in

June

2000

and

takes

account

of

legal developments

to

that date.

1

Reference

Re

Secession

of

Quebec,

[1998]

2

S.C.R.

217

[hereinafter

Secession

Reference].

205

*

206

Patrick

J.

Monahan

mise solution

—

denying that Quebec

has a

right

to

secede unilaterally

while

affirming

that Canada would

be

duty bound

to

negotiate

seces-

sion

in

good

faith

should

a

clear

majority

of

Quebecers repudiate

the

Canadian constitutional order

— has

largely dissolved those

doubts.

There

is

substantial public support

in

both Quebec

and the

rest

of

Canada

for the

Court's

ruling.2

Even Quebec Premier Lucien Bouchard

has

been forced

to

accept

the

legitimacy

of the

Court's

intervention,

by

tabling legislation recognizing

the

"political importance"

of the

Court's

opinion

and

seeking

to

locate

the

sovereigntist project within

a

legal

framework.3

Similarly,

the

Federal

government's

Clarity

Act,

introduced

in

December 1999

and

enacted into

law on

June

29,

2000,4

is

expressly

justified

on the

basis that

it

gives

effect

to the

requirement

of

clarity

established

by the

opinion

of the

Supreme Court

in the

Secession

Reference.

Elsewhere

I

have explored certain

of the

legal

and

political implica-

tions

of the

Court's

judgment.5

While

I

will summarize aspects

of

that

earlier

analysis here,

my

principal objective

in

this paper

is to

consider

additional important

issues

that have emerged

in

recent

months

in the

2

See

J.F.

Fletcher

& P.

Howe, "Supreme Court Cases

and

Court Support:

The

State

of

Canadian Public Opinion" Choices 6(3) (May

2000)

at

45-46,

finding

a

clear

plurality

in the

rest

of

Canada

(43

percent)

and a

very substantial minori-

ty

in

Quebec

(32

percent) agreeing with

the two

main elements

of the

Court's

ruling.

3 See

Bill

99, An Act

respecting

the

exercise

of

the

fundamental rights

and

prerogatives

of

the

Quebec people

and the

Quebec

State,

1st

Sess., 36th

Leg.,

Quebec,

2000,

(reprinted

version),

the

preamble

to

which notes that "the Supreme Court

of

Canada

rendered

an

advisory opinion

on 20

August 1998,

and

considering

the

recognition

by the

Government

of

Quebec

of its

political importance."

4 See

Bill

C-20,

An Act to

give

effect

to the

requirement

for

clarity

as set out in the

opinion

of

the

Supreme Court

of

Canada

in the

Quebec Secession

Reference,

S.C.

2000,

c. 26

[hereinafter

Bill

C-20].

5 See P.

Monahan, "The

Public

Policy

Role

of the

Supreme Court

of

Canada

in

the

Secession

Reference"

(1999)

11

N.J.C.L.

65

[hereinafter Public Policy

Role]

and

Doing

the

Rules:

An

Assessment

of

the

Federal

Clarity

Act in

Light

of

the

Quebec Secession

Reference

(Vancouver:

C.D. Howe Institute,

2000)

[hereinafter

Doing

the

Rules].

For

other commentaries,

see M.

Dawson, "Reflections

on the

Opinion

of the

Supreme Court

of

Canada

in the

Quebec Secession

Reference"

(1999)

11

N.J.C.L.

5

[hereinafter

Reflections];

D.

Schneiderman,

ed.,

The

Quebec

Decision: Perspectives

on the

Supreme Court

Ruling

on

Secession

(Toronto: James

Lorimer

&

Co., 1999);

and

W.J. Newman,

The

Quebec Secession

Reference:

The

Rule

of

Law and the

Position

of

the

Attorney

General

of

Canada

(Toronto:

York

University

Centre

for

Public

Law and

Public

Policy,

1999)

[hereinafter

The

QSR].

The

Legal

Framework

Governing

Secession

207

continuing debate over

the

legal

and

political

framework

governing

the

potential secession

of

Quebec

from

Canada.

The

first

section

of the

paper

focuses

on the

methodology used

by

the

Court

in its

advisory

opinion,

in

particular

its

reliance

on

"unwritten

principles"

as a

source

of

constitutional obligation.

As is

well

known,

the

Supreme Court relied

on the

unwritten principles

of

"democracy"

and

"federalism"

to

create

a

constitutional duty

to

negotiate secession

in the

event

of a

clear

majority

favouring

this option

on a

clear referendum

question.

I

have earlier argued that

the

Court's

reliance

on

unwritten

principles

was

questionable

from

a

legal perspective, since

the

Court's

methodology seems

to

permit

the

judiciary

to add new

constitutional

obligations that have

no

basis

in the

constitutional

text.6

My

focus

here

is

on the

manner

in

which lower courts have interpreted

and

applied

the

Supreme

Court's

analysis

of

unwritten principles.

I

identify certain dif-

ficulties

that have arisen

in the

recent cases,

and

proceed

to

outline what

I

regard

as a

principled approach

for

dealing with claims based

on

unwritten constitutional principles.

My

recommended approach

is one

that limits

the use of

unwritten principles

to

circumstances where these

unwritten

principles

are

necessary

in

order

to

give proper

effect

to the

terms

of the

written constitution. This approach

is

intended

to

affirm

the

primacy

of the

constitutional text while strictly limiting (although

not

eliminating entirely)

the

role

and

effect

of

unwritten principles.

The

next section

of the

paper considers

the

debate over

the

frame-

work

governing secession that emerged

following

the

tabling

of

Bill

C-

20

in the

House

of

Commons

by

Intergovernmental

Affairs

Minister

Stephane

Dion

in

December

of

1999.

Bill

C-20

is

justified

on the

basis

that

it

gives

effect

to the

requirement

of

clarity established

by the

Supreme Court.

Ironically,

the

introduction

of the

Bill

prompted criti-

cism

from

two

diametrically opposed perspectives.

On the one

hand,

the

legislation

has

been criticized

in the

province

of

Quebec

on the

basis

that

it

represents

an

inappropriate federal intru-

sion into provincial jurisdiction,

on the

theory that

it

interferes with

the

right

of the

Quebec government

and

National Assembly

to

conduct

a

referendum

on a

question

of its own

choosing.

As

such,

the

federal

legislation

is

said

to be

inconsistent with

the

federal

principle.

At the

same time,

the

federal

legislation

has

been

criticized

from

precisely

the

opposite perspective,

on the

basis that

it

fails

to

articulate

and

defend

the

national

interest

in

Canada's

territorial integrity.

In

particular,

it

6

See,

in

particular,

Monahan,

Public

Policy

Role,

supra

note

5 at

74-80,

89-92.