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Canada: the Supreme Court Sets Rules for the Secession of Quebec Author(S): Peter Leslie Source: Publius, Vol CSF Associates Inc. 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 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Oxford University Press and CSF Associates Inc. are collaborating with JSTOR to digitize, preserve and extend access to Publius. http://www.jstor.org 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 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 136 Publius/Spring1999 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"for- mula, 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 legisla- ture) 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 referen- dum 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]
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