Canada: The supreme court sets rules for the secession of Quebec

Publius: The Journal of Federalism

Volumn 29, Issue 2, 1999, Pages 135-151

  Leslie, Peter ^a  

^a NONE

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EID: 0039130836     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a030018     Document Type: Article

References (35)

1. To declare, in principle, a right of secession-as was the case, for example, with the former Soviet Union-is rather less than prescribing how to accomplish it.
2. Quebec Premier Lucien Bouchard, whose government was re-elected in November 1998, but with a reduced majority and with fewer votes than the Quebec Liberal Party, is generally regarded as less strongly committed to sovereignty than most PQ militants. He has announced that his government will hold a new referendum on sovereignty during the latter half of its mandate, or perhaps as early as spring 2000, but only under "winning conditions." The federalist strategy is to ensure that "winning conditions" never materialize, and that a referendum is never held.
3. The wording of the referendum question was: "Do you agree that Quebec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the bill respecting the future of Quebec and the agreement signed on June 12, 1995?" This agreement was among the leaders of the PQ the Bloc québécois, (BQ the PQ's counterpart in federal politics; at the time, it formed the official opposition in parliament), and the Action démocratique du Quebec (ADQ a splinter party in provincial politics). The agreement, based on a discussion paper prepared by the ADQ and a BQ task force, envisioned a Quebec-Canada partnership with legislative powers vested in a ministerial council in which Quebec and Canada would each cast one vote. The partnership would be a customs union and monetary union; it would provide for free movement of goods, services, persons, and capital; and there would be common or dual citizenship. In the relevant areas, the two states would exercise a mutual veto. Mutual agreements could also be negotiated on various other matters, including international representation, transport, defense, financial institutions, fiscal policy, and environmental protection. There would be a secretariat, an assembly (with a consultative role) in which Quebec would have one quarter of the seats, and a joint dispute-settlement mechanism. See François Rocher, "Les aléas de la stratégie pré-référendaire," Canada: The State of the Federation 1995, eds. Douglas M. Brown and Jonathan W. Rose (Kingston, Ontario: Institute of Intergovernmental Relations, 1995), pp. 19-45.
4. Reference Re Amendment of the Constitution of Canada, 125 D.L.R. (3rd) 1. Following the defeat of Quebec's referendum on sovereignty-association in 1980, Canadian Prime Minister Pierre Trudeau launched negotiations with the provinces to make a comprehensive revision to the Canadian constitution, including changes to the division of powers, the adoption of a formula for amending the constitution in Canada (hitherto, amendments had to be made by the U.K. parliament), and the enactment of a Canadian Charter of Rights and Freedoms with constitutional status. The negotiations failed, but Trudeau proceeded, against the opposition of all but two provinces (Ontario and Prince Edward Island), with a stripped-down package consisting of the amending formula and the Charter. He introduced a resolution into parliament requesting the U.K. to pass the necessary legislation, which would be the last-ever exercise of British legislative power in relation to Canada-hence bringing about "patriation" of the constitution. In response, several provinces launched reference cases in their respective courts of appeal, questioning whether parliament could constitutionally proceed without provincial concurrence. In addition, the resolution faced a filibuster in parliament, leading Trudeau to promise that the government would await the outcome of the provincial reference cases, and the inevitable appeal to the Supreme Court of Canada. The court declared (28 September 1981) that the procedure was constitutional in the legal sense, but not in the conventional sense, because hitherto requests for major constitutional amendments had been forwarded to the U.K. only after (as the court determined) substantial provincial consent had been obtained. The court's decision forced the federal government to resume negotiations with the provinces, as a result of which substantial changes were made. An amended resolution was adopted after gaining the support of all provinces but Quebec. It was subsequently incorporated into law by the U.K. parliament, becoming, in Canada, the Constitution Act, 1982.
5. Re Attorney-General of Quebec and Attorney-General of Canada, 140 D.L.R. (3rd) 385. On the initiative of the PQ government, and with the support of the federalist Liberal Party of Quebec, the national assembly decreed: "Quebec formally vetoes the [constitutional] resolution tabled in the House of Commons on November 18, 1991 by the federal Minister of Justice." Parliament, however, ignored this decree, and the resolution proceeded. Quebec then submitted a question to the provincial court of appeal, asking whether parliament's adoption of the constitutional resolution had been "unconstitutional in the conventional sense." The court of appeal ruled on 7 April 1982 that the resolution was not unconstitutional, either in law or by convention. The matter was appealed to the Supreme Court of Canada; however, on 17 April, the Constitution Act, 1982 was proclaimed. The Supreme Court's ruling on the appeal was delivered on 6 December 1982, almost nine months after the Act had come into force. In its decision, the court declared that there existed no general conventional rule of unanimity applying to constitutional amendments. It also stated that there was no need to consider the claim by the national assembly that "within the Canadian federation Quebec forms a society distinct by its language, culture and institutions, one which possesses all the attributes of a distinct national community;" consequently, "the two founding peoples of Canada are fundamentally equal." Having declared this matter to be irrelevant to the case at hand, the court ruled that Quebec did not have "a conventional power of veto over constitutional amendments such as those in issue in the present reference."
6. Robert A. Young, "A Most Politic Judgment," Constitutional Forum 10 (Fall 1998): 14-18.
7. John D. Whyte, "Constitutionalism and Nation," Canada Watch 7 (January-February 1999): 21. My discussion of constitutional principles and underlying values, including the references to Lincoln, has been strongly influenced by this paper.
8. John C. Calhoun, "A Discourse on the Constitution and Government of the United States," John C. Calhoun, Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis, IN: Liberty Fund, 1992), p. 212.
9. I do not mean to suggest that justices of the Canadian Supreme Court have been influenced by Calhoun. A more likely influence, among political philosophers, is Charles Taylor. See Taylor's Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, ed. Guy Laforest (Montreal and Kingston: McGill-Queen's University Press, 1993).
10. First Inaugural Address, 4 March 1861. Don E. Fehrenbacher, ed., Lincoln, Speeches and Writings 1859-1865 (New York, NY: Library of America, 1989), p. 217.
11. See below, note 16.
12. Jose Woehrling, "Unexpected Consequences of Constitutional First Principles," Canada Watch 7 (January-February 1999): 18.
13. Donna Greschner, "What Can Small Provinces Do?" Canada Watch 7 (January-February 1999): 24. In her oral comments at the York University symposium (see Author's Note), Grescher also suggested that the Supreme Court may have invented a new amending formula applicable to secession. See also Donna Greschner, "The Quebec Secession Reference: Goodbye to Part V?" Constitutional Forum 10 (Fall 1998): 19-25.
14. Donna Greschner, "What Can Small Provinces Do?" Canada Watch 7 (January-February 1999): 24. In her oral comments at the York University symposium (see Author's Note), Grescher also suggested that the Supreme Court may have invented a new amending formula applicable to secession. See also Donna Greschner, "The Quebec Secession Reference: Goodbye to Part V?" Constitutional Forum 10 (Fall 1998): 19-25.
15. Woehrling, "Unexpected Consequences," 19. For a criticism of this aspect of the court's decision, note the argument of Alan Cairns, that while one successor-state (Quebec) would be at the table, the other ("new Canada," or Canada without Quebec) would not. The federal government, elected in part by Quebecers, would be there; so would all provinces of the present-day federation; but not, perforce, the new state that would emerge after secession. See Alan C. Cairns, "The Quebec Secession Reference: The Constitutional Obligation to Negotiate," Constitutional Forum 10 (Fall 1998): 26-30.
16. Woehrling, "Unexpected Consequences," 19. For a criticism of this aspect of the court's decision, note the argument of Alan Cairns, that while one successor-state (Quebec) would be at the table, the other ("new Canada," or Canada without Quebec) would not. The federal government, elected in part by Quebecers, would be there; so would all provinces of the present-day federation; but not, perforce, the new state that would emerge after secession. See Alan C. Cairns, "The Quebec Secession Reference: The Constitutional Obligation to Negotiate," Constitutional Forum 10 (Fall 1998): 26-30.
17. The Meech Lake Accord was ratified by parliament and by all provincial legislatures except Manitoba (though Newfoundland, having passed it, withdrew its approval after a provincial election). The Charlottetown Accord was submitted to a Canada-wide referendum, where it was rejected by 54 percent of the voters, and was approved only in three of the Atlantic provinces and (barely) in Ontario; it was not thereafter proceeded with. See Patrick J. Monahan, Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991); Kenneth McRoberts and Patrick Monahan, eds., The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto: University of Toronto Press, 1993); and various articles in Ronald L. Watts and Douglas M. Brown, eds., Canada: The State of the Federation 1993 (Kingston, ON: Institute of Intergovernmental Relations, 1993).
18. The Meech Lake Accord was ratified by parliament and by all provincial legislatures except Manitoba (though Newfoundland, having passed it, withdrew its approval after a provincial election). The Charlottetown Accord was submitted to a Canada-wide referendum, where it was rejected by 54 percent of the voters, and was approved only in three of the Atlantic provinces and (barely) in Ontario; it was not thereafter proceeded with. See Patrick J. Monahan, Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991); Kenneth McRoberts and Patrick Monahan, eds., The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto: University of Toronto Press, 1993); and various articles in Ronald L. Watts and Douglas M. Brown, eds., Canada: The State of the Federation 1993 (Kingston, ON: Institute of Intergovernmental Relations, 1993).
19. The Meech Lake Accord was ratified by parliament and by all provincial legislatures except Manitoba (though Newfoundland, having passed it, withdrew its approval after a provincial election). The Charlottetown Accord was submitted to a Canada-wide referendum, where it was rejected by 54 percent of the voters, and was approved only in three of the Atlantic provinces and (barely) in Ontario; it was not thereafter proceeded with. See Patrick J. Monahan, Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991); Kenneth McRoberts and Patrick Monahan, eds., The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto: University of Toronto Press, 1993); and various articles in Ronald L. Watts and Douglas M. Brown, eds., Canada: The State of the Federation 1993 (Kingston, ON: Institute of Intergovernmental Relations, 1993).
20. The assent of the following provinces is required: Ontario, Quebec, British Columbia, two Atlantic provinces, and two Prairie provinces-in both of the latter two cases, with a majority of the population in the region. Note that this is ordinary legislation, amendable by parliament; however, while it remains on the statute books, it has constitutional significance.
21. Woehrling, "Unexpected Consequences," 18.
22. Guy Laforest, "The Judiciary Committee of the Privy Council," Canada Watch 7 (January-February 1999): 15.
23. Polls taken in November 1981 and March 1982 indicated that a plurality of Quebecers were critical of the provincial government's refusal to sign the agreement reached among the other governments, but a majority disapproved of the federal government's action in proceeding without Quebec's consent. I am grateful to my colleague Matthew Mendelsohn for information on these polls.
24. Criticisms may be found in Marc E. Gold, "The Mask of Objectivity: Politics and Rhetoric in the Supreme Court of Canada," Supreme Court Law Review 7 (1985): 455-510; Samuel V. LaSelva, The Moral foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies of Nationhood (Montreal and Kingston: McGill-Queen's University Press, 1996), pp. 49-63.
25. Criticisms may be found in Marc E. Gold, "The Mask of Objectivity: Politics and Rhetoric in the Supreme Court of Canada," Supreme Court Law Review 7 (1985): 455-510; Samuel V. LaSelva, The Moral foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies of Nationhood (Montreal and Kingston: McGill-Queen's University Press, 1996), pp. 49-63.
26. Jean Leclair, "A Ruling in Search of a Nation," Canada Watch 7 (January-February 1999): 22; see also Jean Leclair, "Impoverishment of the Law by the Law: A Critique of the Attorney General's Vision of the Rule of Law and the Federal Principle," Constitutional Forum 10 (Fall 1998): 1-8.
27. Jean Leclair, "A Ruling in Search of a Nation," Canada Watch 7 (January-February 1999): 22; see also Jean Leclair, "Impoverishment of the Law by the Law: A Critique of the Attorney General's Vision of the Rule of Law and the Federal Principle," Constitutional Forum 10 (Fall 1998): 1-8.
28. Robert A. Young, The Secession of Quebec and the future of Canada, rev. and expanded ed. (Montreal and Kingston: McGill-Queen's University Press, 1998): 159, 169, 176. These pages were evidently written before the 1995 referendum. In a subsequent section of the book, clearly written after the referendum (pp. 380-96), Young reviews six possible posi-"Yes" scenarios, indicating a much wider range of possible outcomes from a "Yes" vote, even a decisive one, than earlier seemed likely. For another commentary on these issues, written before the 1995 referendum by a political scientist who subsequently became the federal Minister of Intergovernmental Affairs, see Stéphane Dion, "The Dynamic of Secessions: Scenarios after a Pro-Separatist Vote in a Quebec Referendum," Canadian Journal of Political Science 28 (September 1995): 533-351.
29. Robert A. Young, The Secession of Quebec and the future of Canada, rev. and expanded ed. (Montreal and Kingston: McGill-Queen's University Press, 1998): 159, 169, 176. These pages were evidently written before the 1995 referendum. In a subsequent section of the book, clearly written after the referendum (pp. 380-96), Young reviews six possible posi-"Yes" scenarios, indicating a much wider range of possible outcomes from a "Yes" vote, even a decisive one, than earlier seemed likely. For another commentary on these issues, written before the 1995 referendum by a political scientist who subsequently became the federal Minister of Intergovernmental Affairs, see Stéphane Dion, "The Dynamic of Secessions: Scenarios after a Pro-Separatist Vote in a Quebec Referendum," Canadian Journal of Political Science 28 (September 1995): 533-351.
30. Stanley Hartt, "The Next Steps for Canadian Federalists: Strategy and Process," Canada Watch 7 (January-February 1999): 9. On the costs of secession, see also Marcel Coté and David Johnston, If Quebec Goes... The Real Cost of Separation (Toronto: Stoddart, 1995).
31. Stanley Hartt, "The Next Steps for Canadian Federalists: Strategy and Process," Canada Watch 7 (January-February 1999): 9. On the costs of secession, see also Marcel Coté and David Johnston, If Quebec Goes... The Real Cost of Separation (Toronto: Stoddart, 1995).
32. Hartt, "Next Steps," 9; and private correspondence with the author.
33. Ibid.
34. Daniel Turp, "Globalizing Sovereignty," Canada Watch 7 (January-February 1999): 4. Turp is a constitutional lawyer, on leave from the Université de Montréal.
35. Jacques-Yvan Morin, "A Balanced Judgment?" Canada Watch 7 (January-February 1999): 3 (emphasis in the original). Morin, like Turp, is a constitutional lawyer; he formerly taught at the Université de Montréal.