I. The Secession Reference and the Unwritten Structural Principles of the Constitution

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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In 1998, the Supreme Court of Canada was asked to decide whether Quebec had the right to secede from Canada unilaterally.38The Court’s answer to this difficult and politically loaded question represents a significant statement of the basic principles underlying the Canadian constitution. The Court ruled that a constitutional amendment would be required in order for a province to legally secede from Confederation. However, the Court also stated that considerable weight would have to be given to a clear expression of the will of the people of Quebec to secede. The other provinces and the federal government would have to respect that democratically expressed choice and enter into negotiations with Quebec. In those negotiations, "four fundamental and organizing principles of the Constitution"39would have to be respected. These principles are "not expressly dealt with by the text of the Constitution,"40 but they nonetheless have normative force as operative instruments of our constitutional order. The four principles are federalism, constitu-

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tionalism and the rule of law, respect for minorities, and democracy. The Court stated that these principles "inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based."41The unwritten principles represent the "major elements of the architecture of the Constitution itself and are as such its lifeblood." They "infuse our Constitution and breathe life into it."42The first unwritten principle - federalism - has already been discussed. In the Quebec Secession Reference, the Court explained that federalism is "a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today."43

Federalism is what the Court described as "the political mechanism by which diversity could be reconciled with unity."44The second unwritten principle - constitutionalism and the rule of law - reflects the values of an orderly and civil society in which the constitution is the supreme source of law and authority. The Court identified three essential elements of the rule of law. First, "[t]here is . . . one law for all"45and the law is supreme over both public officials and private actors. Second, the normative basis for civil society is the creation and maintenance of a positive legal order. Third, the law governs the relationship between the state and the individual, and the exercise of public power must...

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