Canada: the Supreme Court Sets Rules for the Secession of Quebec Author(S): Peter Leslie Source: Publius, Vol

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Canada: The Supreme Court Sets Rules for the Secession of Quebec Author(s): Peter Leslie Source: Publius, Vol. 29, No. 2, The State of American Federalism, 1998-1999 (Spring, 1999), pp. 135-151 Published by: Oxford University Press Stable URL: http://www.jstor.org/stable/3330895 . Accessed: 16/07/2014 12:49

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This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions Canada: The SupremeCourt Sets Rules forthe Secession of Quebec

Peter Leslie Queen'sUniversity

TheSupreme Court of Canada ruledin 1998 thatneither the Canadian constitution nor international lawallows Quebec to secede from Canada unilaterally.Secession would require amending the constitution. However,if a clearmajority of Quebecers unambiguously opts for secession, the federal government and theother provinces would have a constitutionalduty to negotiate.This is an obligationthat the court declaredto be implicitin four principles that "inform and sustainthe constitutional text"-federalism, democracy,constitutionalism and therule of law, and respectfor minorities. The same set of principles wouldgovern the negotiations themselves. Accordingly, Quebec could not dictate the terms of secession, and one cannotassume that agreement would be reached.If negotiationsfail, and Quebecdeclares independenceunilaterally, the international community would have to decidewhether Quebec's action was legitimate.

In August 1998, Canada became probablythe only contemporaryfed- erationto have a constitutionallymandated processfor bringing about the secession of one or more of its provincesor states.' However,the process entails such intrinsicdifficulties and would probablytake so long to be brought to conclusion, that it mightbe of littleavail to a province that invokedit. This is the grand paradox, or perhaps the balanced result,that has emerged fromajudgment of the Supreme Court of Canada. The court's decision came thirty years after the founding of the indipendantisteParti quibicois (PQ). The PQ held officefrom 1976 to 1985, won the 1994 election, and was reelected in 1998. Twice,in 1980 and in 1995, it has called a referendumaiming to take Quebec out of Canada; a thirdreferendum is promised,perhaps as earlyas mid-2000,but evidently

AUTHOR'S NOTE: My interpretationof the QuebecSecession Reference has been influencedby discussion at a symposium,November 1998, sponsoredjointly by the Centre for Public Law and Public Policy and the RobartsCentre for Canadian Studies,both atYorkUniversity, Toronto. I wishto thankDaniel Drache and PatrickMonahan, symposiumorganizers, and several paper presenters,notably Donna Greschner, StanleyHartt, Peter Hogg, PaulJoffe,Guy Laforest,Jean Leclair,John Whyte,andJos6 Woehrling. The proceedings were published in Canada Watch7 (January-February1999), a publication of the Robarts Centre. Readers' attentionis also drawnto a special issue of ConstitutionalForum 10 (Fall 1998), published by the Centre forConstitutional Studies, Edmonton. For commentson an earlier draftof thisarticle, I am gratefulto Yves de Montigny,Stanley Hartt, Guy Laforest,George Thomson, Ronald Watts,John Whyte,and RobertYoung. 'To declare, in principle,a rightof secession-as was the case, for example, withthe formerSoviet Union-is ratherless than prescribinghow to accomplish it.

? Publius: TheJournal of Federalism 29:2 (Spring 1999) 135

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it will be held onlyif the Quebec governmentexpects to win it.2 In both of the referendumsalready held, the PQ proposed replacing the federal tie witha bilateraleconomic association, supported bypolitical arrange- ments evidentlyinspired by the European Community/Union. In the 1980 referendum,Premier Rene L6vesque soughta mandate to enterinto negotiationswith "Canada" on the basis of a "sovereignty-association"formula, followingwhich the electoratewould be consultedagain; however, Quebecersrejected this proposal by a 60 percentmajority. In thereferendum of 30 October 1995, bycontrast, Quebec PremierJacquesParizeau asked thepeople ofQuebec to authorizethe national assembly (provincial legislature) to pass a bill declaringsovereignty. In fact,the bill had alreadybeen introduced. Once passed, it would have guided the transitionprocess; in particular,Quebec would provisionallyact as a Canadian provincewhile draftingits constitutionand conductingnegotiations to create a Quebec- Canada "partnership.""Regardless of the outcome of those negotiations, Quebec would become independent in one year,unless the national assembly decided otherwise. The intentwas that the transitionperiod mightbe lengthened if that were needed to resolve outstandingissues, but it could also be shortened if partnershipnegotiations broke down. However,the bill nevercame to a vote;it was withdrawnwhen the federalist forceswon bya hair's breadth,with only 50.6 percentof the vote. The federal governmentdid not challenge the legalityof the referendum or theprospect of a unilateraldeclaration of independence thatwould have followeda 'Yes" vote. Canadian Prime MinisterJean Chretienhad expected a much more resounding victoryfor the federalistside, and apparentlybelieved that a decisive"No" would (as in 1980) severelyweaken the separatistmovement ("independence" and "sovereignty"are terms avoided byfederal politicians). Chastened by the result,and under pressure

2Quebec PremierLucien Bouchard, whose governmentwas re-electedin November 1998, but witha reduced majorityand withfewer votes than the Quebec Liberal Party,is generallyregarded as less strongly committedto sovereigntythan most PQ militants. He has announced that his governmentwill hold a new referendumon sovereigntyduring the latterhalf of its mandate, or perhaps as earlyas spring2000, but onlyunder "winningconditions." The federaliststrategy is to ensure that"winning conditions" never materialize,and thata referendumis neverheld. 'The wordingof the referendumquestion was: "Do you agree thatQuebec should become sovereign, afterhaving made a formaloffer to Canada for a new economic and political partnership,within the scope of the bill respectingthe futureof Quebec and the agreement signed on June 12, 1995?" This agreement was among the leaders of the PQ the Bloc quib&ois (BQ the PQ's counterpartin federal politics;at the time,it formedthe officialopposition in parliament),and the Actiondemocratique du Quebec (ADQ, a splinterparty in provincialpolitics). The agreement,based on a discussion paper prepared by the ADQ and a BQ taskforce, envisioned a Quebec-Canada partnershipwith legislative powers vested in a ministerialcouncil in whichQuebec and Canada would each cast one vote. The partnershipwould be a customsunion and monetaryunion; it would provide forfree movementof goods, services,persons, and capital; and therewould be common or dual citizenship. In the relevantareas, the twostates would exercise a mutualveto. Mutual agreementscould also be negotiatedon variousother matters,including internationalrepresentation, transport, defense, financial institutions, fiscal policy, and environmental protection. There would be a secretariat,an assembly(with a consultativerole) in whichQuebec would have one quarterof the seats,and ajoint dispute-settlementmechanism. See Francois Rocher,"Les aleas de la strat6giepre-ref6rendaire." Canada: The Stateof theFederation 1995, eds. Douglas M. Brown and JonathanW. Rose (Kingston,Ontario: Instituteof IntergovernmentalRelations, 1995), pp. 19-45.

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions Secession of Quebec 137 froman angrypublic in the rest of Canada, which blamed Chretienfor having nearly"lost the country,"the federal governmentnow sought to have the legal situationclarified. Accordingly,it referredto the Supreme Court of Canada threequestions about the legalityof unilateralsecession. The case is generallyreferred to as the QuebecSecession Reference.4 It was decided on the basis of a single set of reasons subscribedto by all nine Supreme Courtjustices. Under the termsof the Supreme Court Act, the court is required to offeradvisory opinions on mattersreferred to it byfederal cabinet order. Some of the mostimportant elements of Canada's constitutionallaw have been establishedin thisway. In particular,there is now a triad of closely interlockeddecisions on constitutionalchange. The firstof these is the PatriationReference5 of 1981, declaring unconstitutional "in theconventional sense" the federalgovernment's intended procedure in bringingabout a major constitutionalrevision. The second is the QuebecVeto Reference6 of

4ReReference by the Governor in Councilconcerning certain questions relating to thesecession of Quebecfrom Canada, 161 D.L.R. [Dominion Law Reports] (4th) 385. The referencewas made bycabinet order (Order in Council) on 30 September 1996; argumentswere heard 16-19February 1998;judgment was rendered 20 August 1998. The paragraphs in thejudgment are numbered, and references(below) to thejudgment cite paragraphsrather than page numbers. 5ReferenceRe Amendmentof theConstitution of Canada, 125 D.L.R. (3rd) 1. Following the defeat of Quebec's referendumon sovereignty-associationin 1980, Canadian Prime Minister Pierre Trudeau launched negotiationswith the provincesto make a comprehensiverevision to the Canadian constitution,including changes to the divisionof powers,the adoption of a formulafor amending the constitution in Canada (hitherto,amendments had to be made by the U.K. parliament),and the enactmentof a Canadian Charterof Rightsand Freedoms withconstitutional status. The negotiationsfailed, but Tru- deau proceeded, against the opposition of all but two provinces (Ontario and Prince Edward Island), witha stripped-downpackage consistingof the amending formulaand the Charter. He introduced a resolutioninto parliamentrequesting the U.K. to pass the necessarylegislation, which would be the last- ever exercise of Britishlegislative power in relation to Canada-hence bringingabout "patriation"of the constitution.In response,several provinces launched referencecases in theirrespective courts of appeal, questioningwhether parliament could constitutionallyproceed withoutprovincial concurrence. In addi- tion, the resolution faced a filibusterin parliament,leading Trudeau to promise that the government would await the outcome of the provincial referencecases, and the inevitableappeal to the Supreme Court of Canada. The court declared (28 September 1981) thatthe procedure was constitutionalin the legal sense, but not in the conventionalsense, because hithertorequests for major constitutionalamend- mentshad been forwardedto the U.K. onlyafter (as the courtdetermined) substantialprovincial consent had been obtained. The court'sdecision forcedthe federalgovernment to resume negotiationswith the provinces,as a resultof whichsubstantial changes were made. An amended resolutionwas adopted after gaining the supportof all provincesbut Quebec. It was subsequentlyincorporated into law by the U.K. parliament,becoming, in Canada, the ConstitutionAct, 1982. 6ReAttorney-General ofQuebec and Attorney-GeneralofCanada, 140 D.L.R. (3rd) 385. On the initiativeof the PQ government,and withthe supportof the federalistLiberal Partyof Quebec, the national assembly decreed: "Quebec formallyvetoes the [constitutional]resolution tabled in the House of Commons on November 18, 1981 bythe federalMinister ofJustice." Parliament, however, ignored thisdecree, and the resolutionproceeded. Quebec thensubmitted a question to the provincialcourt of appeal, askingwhether parliament'sadoption of the constitutionalresolution had been "unconstitutionalin the conventional sense." The court of appeal ruled on 7 April 1982 thatthe resolutionwas not unconstitutional,either in law or by convention. The matterwas appealed to the Supreme Court of Canada; however,on 17 April, the ConstitutionAct, 1982 was proclaimed. The Supreme Court's rulingon the appeal was deliveredon 6 December 1982, almost nine months afterthe Act had come into force. In its decision, the court declared thatthere existed no general conventionalrule of unanimityapplying to constitutionalamendments. It also stated thatthere was no need to consider the claim by the national assemblythat "within the Canadian federationQuebec formsa societydistinct by its language, culture and institutions,one which possesses all the attributesof a distinctnational community;"consequently, "the two founding peoples of Canada are fundamentallyequal." Having declared thismatter to be irrelevantto the case at hand, the courtruled thatQuebec did not have "a conventionalpower of veto over constitutionalamend- mentssuch as those in issue in the presentreference."

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1982, declaringthat a decree bythe nationalassembly, which purported to veto the federal constitutionalinitiative, was withouteffect. (A contrary decision would have invalidatedthe ConstitutionAct, 1982, or at the very least,destroyed its legitimacy.) The thirdis the QuebecSecession Reference. THE CASE

The questionsput to the courtread as follows: 1. Under the Constitutionof Canada, can the NationalAssembly, legislature,or governmentof Quebec effectthe secession of Quebec fromCanada unilaterally? 2. Does internationallaw give the National Assembly,legislature or governmentof Quebec the rightto effectthe secession of Quebec fromCanada unilaterally?In this regard,is there a rightof self-determinationunder internationallaw thatwould give the National Assembly,legislature or governmentof Que- bec the rightto effectthe secession of Quebec fromCanada unilaterally? 3. In the event of a conflictbetween domestic and international law on the rightof the National Assembly,legislature or government of Quebec to effectthe secession of Quebec from Canada unilaterally,which would take precedence in Canada? The Quebec governmentdenounced the federalgovernment for turning to the court in thisway, declaring that the matterwas inherentlypolitical and was thusbeyond the purviewof anycourt. It refusedto participate,in consequence of which the court enlisted the help of an amicuscuriae to argue the case forQuebec's rightof unilateralsecession. When the decision was rendered,however, it waswelcomed by virtually everyone, including the Quebec government.Federalists and indipendentisteseach foundaspects favorableto theirside,7 and each proceeded to put itsown spin on the 65- page judgment. Essentially,the federalgovernment got what it wanted, a rulingthat uni- lateral secession was not legal under eitherdomestic or internationallaw, in consequence ofwhich the question ofwhich would takeprecedence did not arise. However,the Quebec government,and indipendentistesgenerally, expressed deep satisfactionthat the court had not stopped there; it had gone much farther,they said, than Ottawa had wanted it to. Specifically, the courthad ruled thatif ever a clear majorityof Quebecers votedin favor of secession,and the question itselfwas clear,negotiations on the issue of secessionwould have to ensue. However,the courtdid not definethe term "clear majority"-thefederal government has insistedthat a majoritygreater than "50 percentplus one" would be required-nordid it statewhat might

7RobertA. Young, "A Most PoliticJudgment," Constitutional Forum 10 (Fall 1998): 14-18.

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions Secessionof Quebec 139 constitutea "clear question." These, the court declared, are political matters,and cannot be resolvedjudicially. Where ind6pendentisteshighlighted "Canada's" duty to negotiate,federalists highlightedthe factthat negotiations would have to covera range of issues thatthe PQ governmenthas so farshown no inclinationto open up. Thus, the court stated (para. 151) thatin negotiationson secession,the parties would have to address "the interestsof the other provinces,the federal government,Quebec, and indeed the rightsof all Canadians both within and outside Quebec, and specificallythe rightsof minorities." It even implied (para. 96) thatQuebec's boundariesmight be challenged. In general,federalists delighted in the uncertaintiesflowing from the decision,as the potentialfor chaos stemmingfrom a "Yes"vote in a futurereferendum has been presumed (perhaps wrongly)to frightenoff "soft nationalists." The courtnoted (para. 97) thatthe outcome of negotiationscould not be predicted,and it refusedto speculate about whatmight happen if they collapsed or were never initiated. It did, however,acknowledge that an attemptedsecession, other than one broughtabout throughconstitutional amendment,might succeed or fail. In particular,it suggestedthat interna- tionalrecognition might depend on whetherforeign states considered that Quebec on the one hand, and federalistforces on the other,were acting in accordance withCanadian constitutionalprinciples, after a referendumin whicha clear majorityunambiguously opted forsecession. Numerous questions are raised by the Secessioncase. Among them,the followingare addressed below: constitutionalprinciples, a secession referendum and the duty to negotiate, secession and the 1982 amending formula, secession and the internationalcommunity, the Supreme Court and politicalcontroversy, and the realpolitikof secession. CONSTITUTIONAL PRINCIPLES

As jurisprudence,the QuebecSecession Reference is remarkable for its enun- ciation of fourbasic principlesthat "inform and sustainthe constitutional text [and] are the vitalunstated assumptions upon whichthe textis based" (para. 49). The principlesare: federalism,democracy, constitutionalism and the rule of law,and respectfor minorities. None of these, the court said, is absolute; none can trumpthe others. The wholejudgment is based on these fourprinciples. They underlie the values of diversityand accom- modation among culturaland political (provincial) communities,values thatare givenprominence in the court'sdecision. Bycontrast, the concept of nationhood, except as (in the words of constitutionallawyer John D. Whyte)"an arrangementof marketconvenience,"8 is virtuallyabsent from

sJohnD. Whyte,"Constitutionalism and Nation," Canada Watch7 (January-February1999): 21. My discussion of constitutionalprinciples and underlyingvalues, including the referencesto Lincoln, has been stronglyinfluenced by thispaper.

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions 140 Publius/Spring1999 thejudgment. In thissense, and in termsof Americanpolitical discourse, the Supreme Court of Canada has chosenJohn C. Calhoun overAbraham Lincoln. The affinitieswith Calhoun, while evident, are limited.Calhoun regarded the U.S. Constitutionas a compact,from which any state could withdrawif itsterms were altered through constitutional amendment, or if,in theview of thatstate, the Constitution"should failto fulfilthe ends forwhich it was established."' By contrast,in the Secession case, the Supreme Court of Canada rejected unilateralsecession. At no time has the court contem- plated the possibilityof "interposition,"or the non-applicationof federal law withina province,by decision of the provinciallegislature. Nonethe- less, the philosophy underlying the decision may be interpreted as Calhounian,'owith an admixtureof twentieth-century political science. This is evidentin the principlesexpounded by the court. First,federalism is described by the court as "a political and legal response to underlyingsocial and politicalrealities." Federalism"recog- nizes the diversityof the component partsof Confederation,and the au- tonomyof provincialgovernments to develop theirsocieties within their respectivespheres of jurisdiction;" it also "facilitatesthe pursuitof collective goals bycultural and linguisticminorities which form the majoritywithin a particularprovince" (paras. 57, 58, 59). Second, democracy,"commonly understood as being a politicalsystem of majorityrule," is more than that. It is "fundamentallyconnected to sub- stantivegoals, mostimportantly, the promotionof self-government,"and it "accommodatescultural and group identities"(paras. 63, 64). Notingthat "the democraticprinciple was . . . argued before us in the sense of the supremacyof the sovereignwill of a people, in thiscase potentiallyto be expressedby Quebecers in supportof unilateralsecession" (para. 61), the courtcountered that democracy must be "takenin the contextof the other institutionalvalues." In particular,"the relationshipbetween democracy and federalismmeans, for example, thatin Canada theremay be different and equallylegitimate majorities in differentprovinces and territoriesand at the federallevel. No one majorityis more or less 'legitimate'than the othersas an expressionof democraticopinion." Democraticlegitimacy is also counterbalancedby the rule of law and by moral values embedded in the constitutionalstructure (paras. 66, 67). Third,constitutionalism and the rule of law also qualifyor limitsimple majorityrule. The courtstates that under constitutionalgovernment, "The

'John C. Calhoun, "A Discourse on the Constitutionand Governmentof the United States,"John C. Calhoun,Union and Liberty:The Political Philosophy ofJohn C. Calhoun,ed. Ross M. Lence (Indianapolis, IN: LibertyFund, 1992), p. 212. 101do not mean to suggest thatjustices of the Canadian Supreme Court have been influenced by Calhoun. A more likelyinfluence, among political philosophers,is Charles Taylor. See Taylor'sReconcil- ingthe Solitudes: Essays on Canadian Federalismand Nationalism,ed. Guy Laforest(Montreal and Kingston: McGill-Queen's UniversityPress, 1993).

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions Secession of Quebec 141 politicalrepresentatives of the people of a provincehave the capacityand the power to committhe provinceto be bound into the futureby the con- stitutionalrules being adopted. These rules... [define]the majoritywhich mustbe consulted in order to alter the fundamentalbalances of political power (includingthe spheresof autonomyguaranteed by the principleof federalism),individual rights, and minorityrights in our society."The rules can be amended "onlythrough a processof negotiationwhich ensures that there is an opportunityfor the constitutionallydefined rightsof all the partiesto be respectedand reconciled" (para. 76). Fourth,the protectionof minoritiesis guaranteedunder "a numberof specificconstitutional provisions protecting minority language, religion and education rights,"and those guaranteesare "theproduct of historicalcom- promises." The judicial protectionof minoritieshas become especially prominentsince the enactment of the Canadian Charter of Rightsand Freedoms in 1982. A special case is the "explicitprotection for existing aboriginaland treatyrights" under the ConstitutionAct, 1982. Bycontrast with its exposition of theseprinciples, the concept of nationhood as an organic entity,or a Lincolnian "perpetual union," does not appear in the court's decision. Mutual obligation,however, does. Thus, the court cites the wordsof Britain'sColonial Secretaryin 1868, rejecting Nova Scotia's effortsto undo the federal union entered into the year before: "vast obligations, political and commercial, have already been contracted on the faithof a measure so long discussed and so solemnly adopted ... the Queen's governmentfeel that they would not be warranted in advisingthe reversalof a great measure of state,attended by so many extensive consequences already in operation." As the court notes, the interdependence resultingfrom such "vastobligations" has "multiplied immeasurablyin the last 130 years" (para. 42). The court also quotes, approvingly,the words of counsel for Saskatchewan, an intervenorin the case: A nation is builtwhen the communitiesthat comprise it make commitmentsto it,when theyforego choices and opportunities ... when the communitiesthat comprise it make compromises, when theyoffer each other guarantees,when theymake trans- fersand perhapsmost pointedly, when theyreceive from others the benefitsof national solidarity.The threadsof a thousand acts of accommodationare the fabricof a nation (para. 96). Whatthe courtimplicitly suggests is thatno partyto Confederationmay lawfullytear the fabricinto pieces, but it is nonethelesspossible thatthe fabricmay be unwovenin a waythat takes account of past mutualcommit- ments and compromises,as well as contemporary(and future)interests. ContrastLincoln:

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I hold, thatin contemplationof universallaw, and of the Con- stitution,the Union of these States is perpetual. Perpetuityis implied, ifnot expressed,in thefundamental law of all national governments. It is safe to assert that no governmentproper, everhad a provisionin itsorganic law forits own termination.'1 A SECESSION REFERENDUM AND THE DUTY TO NEGOTIATE

Invokingthe fourprinciples it enunciated,while denying that any of them was absolute, the court reached several significantconclusions. First, nationhood is not organicor indissoluble,at least not in Canada. Second, secessionis a legitimatepolitical objective, and maybe accomplishedwith- out legal discontinuityby applying the 1982 amendingformula. Third,"a clear repudiationby the people of Quebec of the existingconstitutional order" (para. 88) would createan obligationupon the federalgovernment and the other nine provincial governmentsto enter into negotiations, although not necessarily"to accede to . . . secession . . . subject only to negotiationof the logisticaldetails" (para. 90). There is no provisionin the Canadian constitutionfor using the referendum procedure, either for constitutionalamendment or any other purpose. In both BritishColumbia and Alberta,however, the law requires a referendumon proposedconstitutional amendments; in Quebec and New- foundland,there is legislationproviding for referendums on constitutional and other matters,at the option of the provincialgovernment. For the federal government,it mightalso be politicallyvery difficult, given the precedent establishedby the CharlottetownAccord,'2 to avoid a Canada- wide referendumif major constitutionalchange is being considered. Under the termsof the ConstitutionAct, 1982, the amendmentprocess is launched when parliamentor any provinciallegislature passes a constitutional resolution.Evidence thatthere is broad public supportadds weight to such an initiative. In the Secessioncase, the Supreme Court noted thata referendummay providea democraticmethod of ascertainingthe views of the electorateon importantpolitical questions. Further, it statedthat a referendumthat was freeof ambiguityin termsof the phrasingof the question,and in termsof the supportit achieved,would conferlegitimacy on the effortsof a Quebec governmentto secede (paras. 87, 88). Although Quebec "could not purportto invokea rightof self-determinationsuch as to dictatethe terms of a proposed secession to the otherparties" (para. 91), nonetheless: The rightsof other provinces and thefederal government cannot

"First Inaugural Address, 4 March 1861. Don E. Fehrenbacher,ed., Lincoln,Speeches and Writings 1859-1865(New York,NY: Libraryof America, 1989), p. 217. 12Seebelow, note 16.

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denythe right of the government of Quebec to pursuesecession, should a clear majorityof the people of Quebec choose that goal, so long as in doing so, Quebec respectsthe rightsof others. Negotiationswould be necessaryto address the interestsof the federal government,of Quebec and the other provinces,and other participants[implicitly: the representativesof aboriginal peoples], as well as the rightsof all Canadians both withinand outside Quebec.... The negotiationprocess .., .would require the reconciliation of various rights and obligations by the representativesof two legitimatemajorities, namely, the clear majorityof the population of Quebec, and the clear majorityof Canada as a whole, whateverthat may be. There can be no suggestionthat either of these majorities"trumps" the other. A political majoritythat does not act in accordance with the underlyingconstitutional principles we have identifiedputs at riskthe legitimacyof the exercise of itsrights (paras. 92, 93). SECESSION AND THE 1982 AMENDING FORMULA

Amendmentsto the Canadian constitutionrequire differentprocesses, accordingto subjectmatter. The generalrule is thatthere must be identical resolutionsby parliament and the legislaturesof sevenprovinces (i.e., two- thirds)representing at leasthalf the Canadian population (the "7/50 rule"). However,there is also a "unanimityrule"; all provinciallegislatures must concur in the case of certainclasses of amendments. Included in thislist are amendmentsin relation to the role of the lieutenantgovernor of a province (who exercises vice-regalpowers at the provincial level), the composition of the Supreme Court of Canada, and the amendingformula itself.All of thesematters would be affectedby secession, although it could be argued thatan amendmentto bringabout the secession of a province was not trulyin relation to them,and thatits implicationsin thisregard were of secondaryimportance. The court studiouslyavoided sayingwhat level of consent would be required forsecession. Indeed, the courtseemingly gave littleimportance to the amendingformula in the eventof a secession13or of negotiationson secession. Instead, it emphasized constitutionalprinciples, the negotia- tion process, and the requirements of democratic legitimacy. Donna Greschner,a constitutionallawyer from Saskatchewan, considers that the court'semphasis on principlesmay undermine the positionof Canada's six small provinces(each withone millionor fewerpeople; these are also the six poorest of the ten). She believes that the requirementof having to negotiateon the basis of the fourconstitutional principles enunciated by

1lose Woehrling, "Unexpected Consequences of Constitutional First Principles," Canada Watch 7 (January-February1999): 18.

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions 144 Publius/Spring1999 the courtcould have the consequence that:"Small provincesmay become lost in the shuffleamong the big players,and theycannot [could not] expect the federal governmentto protecttheir interests." Express legal guarantees under the Constitution Act, 1982 may be disregarded or violated: "If parties exercise their veto under s. 41, or withhold their consent under s. 38, forreasons thatviolate the principles,their action is unconstitutional."She adds: "When small provincesagree to a [constitutional] provision,they will not knowwhether it will last beyond the next courtdecision thatuncovers and applies principles."14 It is possible, and perhaps even likely,that secession may require the assentof fewer provinces, or lessformally declared assent,than other classes of amendment. This maybe impliedin the court'semphasis on good-faith negotiationsin which,arguably, Canada has been enjoined to speak witha singlevoice."5 To understandwhy negotiations may be ofsuch importance, perhapseven forcingthe formalamending process into the background,it may be helpful to take note of some recent history. Twice since 1982, constitutionalamendments agreed to byall governments-theMeech Lake Accordof 1987 and the CharlottetownAccord of 1992-havefailed as public oppositionsubsequently built up.16 Furthermore, under federallegislation in 1996, the amendmentprocedure has become even more complicated. The law now prohibitsthe governmentfrom introducing a parliamentary resolutionunder the 7/50 rule, unless the amendmenthas alreadybeen consented to by a broad coalition of provinces." Taking note of the significanceof thisin the contextof a proposed secession,Jose Woehrling comments:"By insisting on compliancewith such a cumbersomeprocedure, the federalgovernment was able to claim thatit abstractlyrecognized the

4Donna Greschner,"What Can Small ProvincesDo?" Canada Watch7 (January-February1999): 24. In her oral commentsat the York Universitysymposium (see Author'sNote), Grescheralso suggestedthat the Supreme Court mayhave inventeda new amending formulaapplicable to secession. See also Donna Greschner,"The Quebec Secession Reference: Goodbye to Part V?" ConstitutionalForum 10 (Fall 1998): 19-25. "Woehrling,"Unexpected Consequences," 19. For a criticismof thisaspect of the court's decision, note the argumentof Alan Cairns, that while one successor-state(Quebec) would be at the table, the other ("new Canada," or Canada withoutQuebec) would not. The federalgovernment, elected in partby Quebecers, would be there; so would all provincesof the present-dayfederation; but not, perforce,the new statethat would emerge aftersecession. See Alan C. Cairns,"The Quebec Secession Reference:The ConstitutionalObligation to Negotiate,"Constitutional Forum 10 (Fall 1998): 26-30. "The Meech Lake Accord was ratifiedby parliament and byall provinciallegislatures except Manitoba (though Newfoundland, having passed it, withdrewits approval after a provincial election). The CharlottetownAccord was submittedto a Canada-wide referendum,where it was rejected by 54 percent of the voters,and was approved onlyin threeof the Atlanticprovinces and (barely) in Ontario; itwas not thereafterproceeded with. See PatrickJ. Monahan, MeechLake: TheInside Story (Toronto: Universityof Toronto Press,1991); KennethMcRoberts and PatrickMonahan, eds., TheCharlottetown Accord, the Referen- dum,and theFuture of Canada (Toronto: Universityof Toronto Press, 1993); and variousarticles in Ronald L. Wattsand Douglas M. Brown,eds., Canada: TheState of the Federation 1993 (Kingston,ON: Instituteof IntergovernmentalRelations, 1993). "The assent of the followingprovinces is required: Ontario, Quebec, BritishColumbia, twoAtlantic provinces,and twoPrairie provinces-in both of the lattertwo cases, witha majorityof the population in the region. Note thatthis is ordinarylegislation, amendable by parliament;however, while it remainson the statutebooks, it has constitutionalsignificance.

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions Secessionof Quebec 145 rightof Quebecers to decide theirown constitutionalfuture while, at the same time,denying such a righton a practicaland politicallevel." He goes on to say: The courtbrings this scheme to ruinby establishing a sequence of events that leaves only a secondaryrole for the amending formula.... [If negotiationssucceed] it is difficultto see how a provinceor the federalgovernment [or rather,parliament-PL] could then refuse its formal approval, and thus negate the political agreementarrived at. However,should thishappen, the court recognizesthat Quebec could then trythe UDI [unilateraldeclaration of independence] routeand thatsuch a course would be subjectto evaluationby the internationalcommunity."8 SECESSION AND THE INTERNATIONAL COMMUNITY

Whetherto complementits reasoning about constitutionalprinciples or to takeaccount of raw political realities, the court gave considerable importance to the responseof the internationalcommunity to an attemptedsecession. It mayhave done so because it evidentlydid not wish to regardeither the constitutionalstatus quo, or secession,as the defaultoutcome ifQuebecers votedfor secession but negotiationsfailed or were not seriouslyattempted. In thisrespect, one mightsay that the court refused to followeither Calhoun or Lincoln. Unable or unwillingto identifyeither an arbitralprocess or a domesticarbiter if secession is approvedby provincial referendum, the court turned to the internationalcommunity as the ultimateauthority on the legitimacyof secession. It suggestedthat foreign powers would be guided by theirown interpretationof Canadian constitutionalprinciples and the good-faithadherence of various parties to those principles. Its scenario- buildingwent as follows: After131 yearsof Confederation,there exists, inevitably, a high level of integrationin economic, politicaland social institutions across Canada.... thereare regionaleconomic interests,which sometimescoincide withprovincial boundaries, [and] thereare also nationalinterests and enterprises(both public and private) thatwould face potentialdismemberment. There is a national economyand a nationaldebt. Argumentswere raisedbefore us regardingboundary issues. There are linguisticand cultural minorities,including aboriginal peoples, unevenlydistributed across the countrywho look to the Constitutionof Canada for the protectionof theirrights (para. 96). While the negotiatorswould have to contemplatethe possibility of secession,there would be no absolute legal entitlementto it

SWoehrling,"Unexpected Consequences," 18.

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and no assumptionthat an agreementreconciling all relevant rightsand obligationswould actuallybe reached (para. 97). At thispoint, the courtdeclared thatit, itself, could not be expected to arbitratethe outcome if negotiationsbroke down: "The Court has no supervisoryrole over the politicalaspects of constitutionalnegotiations.... reconciliationcan onlybe achieved throughthe giveand takeof the negotiationprocess. ... itwould be forthe democraticallyelected leadershipof thevarious participants to resolvetheir differences" (paras. 100, 101). Leaving unstatedthe possibilitythat the goal ofsecession might be abandoned, and implicitlypresuming a unilateraldeclaration of independence, the court thensuggested that the international community would arbitrate the outcome: To the extentthat a breachof the constitutionalduty to negotiate in accordance withthe principlesdescribed above undermines the legitimacyof a party'sactions, it mayhave importantramifi- cationsat the internationallevel.... a Quebec thathad negoti- ated in conformitywith constitutionalprinciples and values in the face of unreasonable intransigenceon the part of other participantsat thefederal or provinciallevel would be morelikely to be recognizedthan a Quebec whichdid not itselfact according to constitutionalprinciples in thenegotiation process (para. 103). The role of the internationalcommunity was also addressedby the court in a differentsense, when it statedthat international law did not offerQue- bec a rightto unilateralsecession. Whileaffirming that the right of a people to self-determinationis now an acknowledgedprinciple of international law (para. 114), the courtstated that this right is normallyfulfilled through "internalself-determination-a people's pursuitof its political,economic, social and culturaldevelopment within the frameworkof an existingstate" (para 126). An exceptionarises with colonial or oppressed peoples, but as "the population of Quebec cannot plausiblybe said to be denied access to government,"the exception does not applyto Quebec (paras. 131-138). Finally,the court acknowledged that although Quebec mightsecede unlawfully,in termsof both domestic and internationallaw, its independence mighteventually be accorded legal status throughforeign recognition (including by Canada). Such action-in accordance with "the effectivity principle"-representsadaptation to "empiricalfact," but does not confer legalityretroactively (paras. 140-146). THE SUPREME COURT AND POLITICAL CONTROVERSY

The Secessioncase has an obvious bearing on the legitimacyof the court itself,and more broadlyon the legitimacyof the Canadian constitutional order,both wthhin Quebec and withinCanada as a whole. The court has been walkinga veryfine line in its triad of constitutionaljudgments. It would strainthe imaginationto suppose thatthe justices of Canada's highest

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions Secession of Quebec 147 court took no notice of the prospectiveor probable reaction of various publics to theirdecisions on such politicallysensitive matters. Surely, con- stitutionaljurisprudence in Canada is the resultof politicalcalculation, as much as it is the austere product of human reason applied to observable facts. In the Secessioncase, the Supreme Court struckpolitical gold. Its ruling has been lauded by federalistsand indipendentistesalike. There has been criticism,of course. Amongsome federalists,there has been unease about the court'sthin sense of nationhood,and itsapparent readiness to subordi- nate writtenconstitutional rules to generalprinciples, which the courtitself has formulatedin a way thatsuits the conclusions it apparentlyfelt compelled to draw. Among some indipendentistes,there appears to be a desire to prepare the groundfor future attacks on the legitimacyof the courtin a new phase of constitutionalcrisis. For example, political scientistGuy Laforestcriticizes the courtfor undue reliance,when it consideredwhether Quebecers have been able to achieve self-determinationwithin Canada, on thebrief presented by the amicuscuriae appointed by the court itself. Laforest also revisits"the struggles of 1981-82,[when] the SupremeCourt of Canada supportedwith all itsauthority a constitutionalcoup d'itat."'19 The consistencyof the QuebecSecession Reference with these two earlier cases mayreasonably be questioned. Althoughopinions willdiffer on this, it is plausible to argue thatthe presentdecision incorporatesand extends the PatriationReference of 1981, but amounts to repudiationof the Quebec VetoReference of 1982. The court'sdecision in the Vetocase seems difficultto sustainon any grounds other than its unwillingnessto overturna major constitutionalamendment, widely supported outside Quebec and, more ambiguously,within Quebec as well.20Denying Quebec a veto, the court explicitlyrefused to considerQuebec's particularplace withinConfedera- tion.21By contrast,in the opinion of constitutionallawyer Jean Leclair,a self-declaredfederalist, "the Court recognized [in the SecessionReference] the need to take into account Quebec's specificityin Confederation.In otherwords, in the eyesof the Court,the federalprinciple is not an ethereal concept universally applicable in federations; it is historically contextualized.'"22

'1GuyLaforest, "The JudiciaryCommittee of the PrivyCouncil," Canada Watch7 (January-February 1999): 15. 20Pollstaken in November 1981 and March 1982 indicated thata pluralityof Quebecers were critical of the provincialgovernment's refusal to sign the agreementreached among the other governments,but a majoritydisapproved of the federalgovernment's action in proceeding withoutQuebec's consent. I am gratefulto mycolleague MatthewMendelsohn forinformation on these polls. 21Criticismsmay be found in Marc E. Gold, "The Mask of Objectivity:Politics and Rhetoric in the Supreme Court of Canada," SupremeCourt Law Review7 (1985): 455-510; Samuel V. LaSelva, The Moral Foundationsof Canadian Federalism:Paradoxes, Achievements, and Tragediesof Nationhood(Montreal and Kingston:McGill-Queen's UniversityPress, 1996), pp. 49-63. 22JeanLeclair, "A Rulingin Search of a Nation," Canada Watch7 (January-February1999): 22; see also Jean Leclair, "Impoverishmentof the Law by the Law: A Critique of the AttorneyGeneral's Vision of the Rule of Law and the Federal Principle,"Constitutional Forum 10 (Fall 1998): 1-8.

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It is doubtfulthat, if negotiationson secession do occur, the Supreme Courtwould be able to maintainOlympian detachment from politics. The court,as noted, has disclaimeda supervisoryrole over the politicalaspects of such negotiations. However,having declared a constitutionalduty to negotiate,could the courtescape obligationto decide whetherthe parties werenegotiating in good faith?Could itdetermine adherence to-or violation of-constitutionalprinciples without itself making the sorts ofjudgment that it has explicitlydeclared only"political actors" have the capacityto make? It is hard to see how the courtcould, in such a situation,convincingly draw a line betweenthe legal and the political. Its recentjudgments,not onlyin theconstitutional revision triad, but also in manyCharter cases, have blurred thatline ifnot (as some insist)erased it altogether.Perhaps a clear distinc- tioncannot be establishedor maintained. Be thatas it may,it is hard to see howa futurecourt, in a crisisover an intendedsecession, could avoid being drawninto the politicalvortex-unless events were to move so rapidlyas to make courtaction irrelevant. CONCLUSION: THE REALPOLITIK OF SECESSION

I close witha finalcomment on what maywell be a fundamentallack of politicalrealism by the court,and, in thislight, a commenton the overall significanceof the case. In declaringa dutyto negotiate,and in identifying many of the incredibly complex and difficultissues to be resolved in negotiations over a proposed secession,the courtimplicitly assumes that no significanttime constraints apply. How could thatbe? Several commentatorshave suggested that a referendumendorsing secession would precipitatea crisisthat would demand almostimmediate resolution. Politicalscientist Robert Young speculated duringthe lead-up to the 1995 referendumthat if therewere a strong"Yes" vote, the prime ministerwould be compelled to announce immediatelythat the verdict would be accepted. Economic pressure,sporadic violence, and pressure fromforeign governments (notably the United States) would ensure that negotiationsbegan verysoon-in threeor fourdays-and thatin the course of a fewweeks, "the shape of secessionwill [would] clarify."''23 Other commentators,including Stanley Hartt, a formerpolitical chief ofstaff to then-PrimeMinister Brian Mulroney, have predicted an unavoidable financialcrisis, and thusa politicalone as well. Harttargues thatthe prime

2'Robert A. Young, The Secession of Quebec and the Future of Canada, rev. and expanded ed. (Montreal and Kingston: McGill-Queen's UniversityPress, 1998): 159, 169, 176. These pages were evidently writtenbefore the 1995 referendum.In a subsequent section of the book, clearlywritten after the refer- endurn (pp. 380-96), Young reviews six possible post-"Yes" scenarios, indicating a much wider range of possible outcomes from a "Yes" vote, even a decisive one, than earlier seemed likely. For another com- mentary on these issues, written before the 1995 referendum by a political scientist who subsequently became the federal Minister of Intergovernmental Affairs, see Stephane Dion, "The Dynamic of Seces- sions: Scenarios after a Pro-Separatist Vote in a Quebec Referendum," Canadian Journal of Political Science 28 (September 1995): 533-551.

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions Secession of Quebec 149 ministerwould be unable to make the commitmentenvisioned by Young, because-as the court's decision has made clear-he would not have the authorityto do so. The danger of chaos would be considerable because the issues requiringresolution could not be settledwithin a year or so, as envisionedby the PQ, let alone in weeks: "There does not exist as yetany comprehensiveacademic studyof the componentsof the economic union thatwould need to be laboriouslystitched back togetherby constructive cooperation betweentwo sovereign states.... Five to tenyears seems to be a reasonabletime-frame to restructurethe severed economic union."24 Hartt believes thatthe marketswould punish governments,which could not tell them how existingdebts would be servicedand paid; he also predictsthat internaltrade would be disrupted,imposing substantial economic losses both in Quebec and in the rest of Canada. Where Young believes that mountingeconomic costsmay force governments to reach earlyagreement on politicalarrangements that would preservethe economic union, Hartt considers that the problems to be resolvedare too complex for this. He writes:"In the eventthat negotiations [on secession] fail,amidst charges of bad faithon both sides,a unilateraldeclaration of independence willhave contestedlegitimacy, which maximizes the chances of a chaotic outcome." He does not exclude the possibilitythat Quebec mightbe forcedto abandon an attemptedsecession.25 WhetherYoung is right,or Hartt is, the realpolitikof secession is that aftera "Yes"vote, principle would recede beforethe urgencyof decision. It is hard to imagine thatinterested parties-including investors, employers, the employed,the retired,and the indigent,to say nothingof those who quite simplylove theircountry-would sit back and await the outcome of the negotiationsmandated by the court. Either the negotiationswould suppressissues the Supreme Courthas said would need to be resolved,and would ride roughshod over the interestsof non-powerfulplayers, or they would be, in Hartt's words, "acrimonious, slow,and unable, before the damage inflictedby uncertainty has actuallyoccurred, to settlethe intractable issues includingborders, first nation rights,minority protection, asset divi- sion, currency,debt, citizenship,trade relationsand others."'26Either way, the Supreme Court's decision would be of littlerelevance if Quebec ever opts forsecession. The Secessioncase actually resolved almost nothing, in the sense of removing any criticalquestions fromthe realm of political controversy. Even the "obligationto negotiate,"highlighted by so manycommentators (certainlyby the indipendentistes),left in place almostall the existingambi-

24StanleyHartt, "The Next Steps for Canadian Federalists:Strategy and Process," Canada Watch7 (January-February1999): 9. On the costs of secession,see also Marcel Cote and DavidJohnston,If Quebec Goes... TheReal Costof Separation (Toronto: Stoddart,1995). 25Hartt,"Next Steps," 9; and privatecorrespondence withthe author. 26Ibid.

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions 150 Publius/Spring1999 guitiesand uncertaintiessurrounding the process thatcould lead to secession. Member of ParliamentDaniel Turp, fromthe Bloc quebecois,notes thatthe court'sdecision "willallow sovereignists to oppose anypre-emptive argumentthat the restof Canada willnot negotiatewith Quebec following a '"Yes"vote in a Quebec referendum,such as those made duringpast referendum campaigns by federalistleaders such as [formerCanadian prime minister]Pierre Elliott Trudeau or [OntarioPremier] Mike Harris.""27 Turp's statementis indicativeof the politicaluse to which the court'sdecision in the Secessioncase will be put, and indeed is alreadybeing put. However, affirmationsthat negotiations will take place if thereis a '"Yes"vote, what- ever the reluctanceor the tacticalmaneuvers of the federalgovernment, resolvenone of the practicaldifficulties that will come to the fore. It is doubtful,to say the least,that the courtreduced uncertaintyabout the negotiationprocess or its outcome; fewif any of the criticalquestions have been takenoff the table. First,the courtindicated that,for there to exista dutyto negotiate,there would have to be a clear questionand a clear majorityin favorof secession, but it also indicated that the meaning of "clear"will have to be decided politically.Second, the courtdid not specify (and surelycould not havespecified) the composition of a futurenegotiating team thatmight have authorityto speak for the restof Canada. This has been the problem highlightedby those who have said thatthere would be no one to siton the otherside of the tablefrom Quebec in the negotiations that Quebec envisioned in both referendums. The federal government (representingthe whole of Canada, includingthe 25 percentof the population thatlives in Quebec) would lack authorityto committhe nine other provinces;the provinces,on the other hand, would lack the capacityto marginalizethe federalgovernment. In itsjudgment,the courtreferred to both the federal governmentand the provincesas being involvedin the negotiationsit mandated; it also referredto the manyand variedinterests that would have to be taken into account, but it avoided specifyingthe roles to be playedby each of theparties, and itdid not sayhow such a broad range of interestscould all be effectivelyrepresented in the negotiations. Third, the court avoided sayingwhat the scope of the negotiationswould be, and in particular,it did not saywhether they could be expected to lead to the creationof a new formof economic union, or to fullindependence for Quebec, or indeed to any agreed conclusion. Fourth,it did not say whatwould happen ifnegotiations took place, and the partiesreached an agreement thatlegislatures refused to incorporate into a constitutional resolution providingfor secession. It is scarcelyany wonder,then, that a formerQuebec vice-premierunder the PQ, Jacques-YvanMorin, has sum- marized the court'sruling as follows:"In theory,sovereignty is forQuebec

27DanielTurp, "GlobalizingSovereignty," Canada Watch7 (January-February1999): 4. Turp is a constitutionallawyer, on leave fromthe Universitede Montreal.

This content downloaded from 140.232.1.111 on Wed, 16 Jul 2014 12:49:05 PM All use subject to JSTOR Terms and Conditions Secession of Quebec 151 a legitimategoal to pursue,and the rightto secede cannot democratically be denied; in practice, however,the federal power is entitled to raise obstacles and difficultiesthat are importantand numerousenough so as to negate anyattempt to achieve sovereigntyand to throwoff track any nego- tiationon the issue."28 The real significanceof the Secessioncase is more politicalthan jurispru- dential. It mayhave some bearingon a futurereferendum outcome, or on a PQ decision to hold a referendumor postpone it indefinitely.After the judgment was handed down,both federalistsand indipendentistesbegan to interpretthe decision as having palpable advantages for theirown side. This may be taken as an indication of the court's political finessein the short run, and perhaps as forewarningof political controversiesthat a futurecourt may be unable to avoid if the PQ holds and wins a referendum. No doubt, though, the court's judgment will be significant in another wayas well:as a shaperof Canadian politicalnorms, which it surely it willbe, ifit stimulatesreflection on the interrelationshipbetween federalism,democracy, constitutionalism and the rule of law,and the protection of minorities-andon the meaning of nationhood.

z8Jacques-YvanMorin, "A Balanced Judgment?"Canada Watch7 (January-February1999): 3 (emphasis in the original). Morin, like Turp, is a constitutionallawyer; he formerlytaught at the Universitede Montr6al.

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