O. The Quebec Secession Reference

Author:Patrick J. Monahan - Byron Shaw

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See note 93

1) The Reference Questions

The federal government took an important step in the direction of Plan B when, in the fall of 1996, it referred a series of three questions to the Supreme Court on issues relating to Quebec secession. Prior to the reference, a private Quebec citizen, Guy Bertrand, had commenced litigation both before and after the 1995 referendum claiming that the referendum, which sought to confer on the Quebec National Assembly a mandate to unilaterally declare sovereignty from Canada, was unconstitutional and amounted to a breach of his constitutionally protected rights.94The Quebec government brought two separate motions to strike out Bertrand’s claims on the grounds that the issues raised were political and/or hypothetical and, therefore, beyond the jurisdiction of the courts. The motions were dismissed and, in August 1996, a judge of the cour supérieure de Quebec referred a number of the issues raised by Bertrand to trial.95The three questions posed by the federal government on the Quebec Secession Reference to the Supreme Court were based on the issues identified by the judge in the Bertrand case. The first was whether Quebec had the right under the Canadian constitution to declare its sovereignty from Canada unilaterally. The second was whether international

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law permits Quebec to unilaterally secede from Canada. The third was whether domestic law or international law would prevail in Canada in the event of a conflict between them.

2) Question One: The Canadian Constitution and Secession

The first question turned on whether secession can be achieved through a constitutional amendment enacted pursuant to Part V of the Constitution Act, 1982. As explained in Section F, above, secession is legally possible through a constitutional amendment under section 41. Secession engages section 41(a), since an amendment authorizing secession would involve the abolition of the office of the lieutenant governor. Secession would also involve changes to the composition of the Supreme Court (section 41(d)), the use of the English and French language (section 41(c)), and minimum representation in the House of Commons (section 41(b)), all of which would require unanimity.

While the Supreme Court declined to specify which of the amending procedures in Part V would apply, it did confirm that the secession of Quebec would require an amendment to the Constitution of Canada and that such an amendment could not be enacted by the province acting unilaterally.96The constitution binds all governments, both federal and provincial, and government action must comply with the law, including the constitution.97However, the Supreme Court also stated that, although Quebec did not have the legal right to declare sovereignty unilaterally, the federal government would have a constitutional duty to negotiate secession following a clear majority favouring this option on a clear referendum question. The recognition of this duty to negotiate surprised many observers, since it had not even been raised by the amicus curiae appointed by the Court to argue against the position of the Attorney General of Canada.98The key element of the Supreme Court’s reasoning in support of this duty to negotiate is the Court’s finding that the constitution is based on at least99four general principles:

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federalism, democracy, constitutionalism and the rule of law, and protection of minorities. The Court also argued that, while constitutional principles "could not be taken as an invitation to dispense with the written text of the Constitution," it is permissible to have resort to unwritten principles in order to form "the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text."100The 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 in favour of that option in a clearly worded referendum.101The Court noted that the constitution makes no express reference to the legal effect of a referendum. However, in the Court’s view, a referendum may provide a democratic method of ascertaining the views of the electorate on important political questions on a particular occasion.

This approach to the application of unwritten constitutional principles has the potential to significantly expand the nature and scope of constitutional obligations. The constitution provides only a general framework within which the political process is intended to operate. The constitution makes express provision for only a limited number of fundamental issues...

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