Secession Reference
By Thomas D Marshall
It could hardly have been obvious to those fighting at the Plains of Abraham in 1759 that their battle would not be decisive. Though some years later Quebec would indeed play a pivotal role in the creation of the Dominion of Canada, its place within this union persists as an open-ended question. Canada is, according to many, in a state of “perpetual paralysis” over the perennial question of French secession. What Justice Bora Laskin once termed the “French Fact” continues to dominate federal politics. But ameliorative attempts to reconcile this politically ‘thorny issue’ have in recent history merely culminated in a series of defunct accords and ultimately a 1995 referendum where separatists lost only by the slimmest of margins. With that near-defeat of the “no vote” the Federal Government sought to clarify its position and that of the legal effects of a future vote for separation. In February of 1998 the Supreme Court of Canada responded to three questions addressed to it by the Canadian Government. Only the first two are relevant to this paper; these were:
1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
2. Does international law give [Quebec] the right to [succeed] from Canada unilaterally? [I]s there a right to self‑determination under international law that would give [Quebec] the right to effect the secession…from Canada unilaterally? (Emphasis added)
This paper will first seek to give an overview of the Secession Reference, and the courts response to these two questions. Then, greater attention will be given to the legal and determined effects of a referendum. Thirdly, this paper will address the rights of self-determination, noted in the second question to the Supreme Court, and explain how the court felt that such a right had no application to Quebec secession. Lastly, this paper will address the principle of “effectiveness” as outlined by the court, and how, since the decision, the federal government has responded to these answers from the Supreme Court through the clarity Act 2000.
Overview
The Supreme Court interestingly sought not to ground their unanimous decision in the literal text of the Constitution but rather in certain “underlying principles” which they felt “infuse [it] and breathe life into it.“ From these principles the Court purported to find the answers to the reference questions. These principles were, “federalism, democracy, constitutionalism and the rule of law, and respect for minority rights.” In identifying these principles, and using them to answer in the negative both questions, the court effectively usurped the arguments of the amicus curiae that had largely based its argument in support of sovereignty on the “supremacy of the sovereign will of [Quebec referendum voters]” Though this style of interpretation has been the source of some criticism for “Positivist” scholars as “making constitutional rules, as opposed to merely applying them” this is not the first time the Courts have felt compelled to “fill in the gaps.”
-Federalism
According to the Court, federalism is the “lodestar” and “dominant principle of Canadian constitutional law.” By “distributing power to the government thought…most suited to achieving the particular societal objective…the principle recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction”. “The social and demographic reality of Quebec,” stated the Court, thus “explains…one of the essential reasons for establishing a federal structure.”
- Democracy
The principle of democracy, felt the Court, is more than mere majority rule. When coupled with the principles of federalism, constitutionalism et al democracy encapsulates a “continuous process of discussion” whereby we become committed not only to considering, but rather protecting and acknowledging “dissenting voices”.
- Constitutionalism and the Rule of Law
The rule of law, and the notion of an entrenched constitution allow, according to the Court, for all persons to plan their future course in the knowledge that state action will comply with these proscribed rules. They are, in essence, the rules upon which this nation has contracted and planned its intimate and orderly union. Constitutionalism therefore, is not intended to frustrate the will of majorities, but is itself a decision by the founders of this nation to proscribe the necessary majority that must be attained to effect constitutional change. Constitutionalism and the rule of law thus facilitate a “democratic system of government [that] is committed to considering those dissenting voices…in the laws by which all in the community must live.”
- Protection of Minorities The protection of minorities was the head of argument given the least attention by the Court, but interestingly they felt it necessary to point out that the Canadian Constitution and federal structure of government both encompass such a tradition. In this way Canada ensures through its commitment to federalism, constitutionalism and the rule of law that minorities, who look to Canada to protect their rights, are not “submerged and assimilated.”
These heads of argument above formed the basis of the Court’s decision to answer in the negative both reference questions. As regards question one, the Court began by stating that the Constitution contains no right of unilateral secession. This, according to the Court, meant that any move by a province towards secession would “perforce [require] negotiation” since any such action would require a constitutional amendment. (This is however, a point of contention among many legal scholars, since it is not altogether clear where any such ‘duty to negotiate’ was fashioned from by the Supreme Court. ) Since the principles articulated by the Court all inferred an element of negotiation, compromise, and respect for those within this dominion, the Court felt that neither explicitly, nor implicitly, could one purport to find a rational and legal basis for a “unilateral” right to secede within the Canadian Constitution.
Referendum
The first reference question begged another more direct question: What is the legal effect of a referendum vote for secession by a majority of Quebecers? In answering this it is worth noting nearly the entire text of paragraph seventy-five of the Reference.
“The argument that the Constitution may be legitimately circumvented by resort to a majority vote in a…referendum is superficially persuasive, in large measure because it seems to appeal to…the same principles that underlie the legitimacy of the Constitution.”
The Court then continued at paragraph eighty-seven by stating that “a referendum, in itself and without more, has no direct legal (constitutional) effect, and could not in itself bring about unilateral secession.” However, though a positive referendum result might lack legal force, it would give rise to an obligation to negotiate. The Court stated;
[I]t would confer legitimacy on the efforts of the government of…[a] clear repudiation of the existing constitutional order and [a] clear expression of the desire to pursue secession…would give rise to a reciprocal obligation on all parties to…negotiate constitutional changes to respond to that desire.” (Emphasis added)
Again however, it is here that the Court is not entirely clear about what a duty to negotiate really entails. According to the Court the constitution dictates the rejection of two “absolutist” propositions – “that there would be a legal obligation on the other provinces and federal government to accede to the secession of a province, subject only to negotiation of the logistical details of secession” and that “Quebec could…(simply) purport to invoke a right of self-determination such as to dictate the terms of a proposed secession to the other parties.” Some have suggested that such a position taken by the Supreme Court may have merely been an attempt to seek an “old fashioned Canadian compromise” or simply get the Court out of “a political bind into which the government awkwardly and unjustifiably put it.”
Right of Self-Determination of Peoples
In respect to the second question addressed by the Court, its legal reasoning appeared much less based on theoretical deduction then on a simple rejection of Quebec’s status as that of an oppressed peoples devoid of a political voice.
The amicus curiae felt that the issue of a legal right to self-determination ultimately found legal footing in international law; for example within Article one of both the U.N.'s International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, and its International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 Article one states “All peoples have the right of self-determination.” But the Court broke this argument into two separate types of self-determination. On the one hand, while international law (usually) recognizes a right to self-determination within an existing state, what the amicus curiae sought was a distinct right to “external” self-determination. This the Court determined did not normally exist at international law – largely because such international agreements, while recognizing a right to self-determination, are equally careful to preserve the territorial integrity of sovereign states. An external right however, might be exercised by “(colonial or oppressed peoples, or peoples under an external and oppressive regime) based upon the assumption that (such) classes make up entities that are inherently distinct from the colonialist Power.” Since the Court felt Quebecers do have a “meaningful” avenue for the exercise of their right to self-determination internally, it could hardly be sustained that they might also access external self-determination to effect such rights. At paragraph one hundred and thirty-six the Court stated:
“The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world.”
Effectiveness
This section of the judgment is, academically speaking, the most interesting since it attempts to delineate between de facto and de jur secession and how a court should respond to an illegal secession. “As a court of law, we are ultimately concerned only with legal claims. If the principle of "effectivity" is no more than that "successful revolution begets its own legality it necessarily means that legality follows and does not precede [a] successful revolution.” The Supreme Court, while recognizing that a de facto secession could one day “acquire legal status as a matter of empirical fact” the principle of effectivity by itself could not lead the Court to hold that such action could be considered to have been effected through legal means at the time of secession.
Clarity Act
One of the most frustrating aspects of the Reference for some legal scholars is that no guidance was given as to what would be a “clear question” and “clear majority” necessary in a referendum to trigger a ‘duty’ to negotiate. While this phraseology is used countless times throughout the text of the judgment, it never becomes “clear” who would in fact determine these issues. Would it be for the Canadian Federal Government? The Quebec Government? Two thirds of the provinces and the Federal Government?
In response to the Reference and its internal ambiguities, the Federal Government soon after enacted the “Clarity Act” which, true to its name, sought to provide a legally clear framework for secession. (Whether doing so encourages, or discourages future attempts at secession remains a source of contention among many, and whether the Act in fact provides clarity also remains questionable. ) It is now clear via this Act that the Federal government will be the final arbiter on issues of secession. For example Section one of the Act states; “the House of Commons shall…consider the question and, by resolution set out its determination on whether the question is clear.”(Emphasis added) Section one subsection six similarly addresses another aspect of the judgment, as construed by the Federal Government. It provides that there is no duty to negotiate if the question is not clear. But, according to some writers, such as Daniel Turp, the Clarity Act, far from providing clarity, “casts doubt” on the traditional democratic rule of fifty plus one as demarcating a “clear majority.” As he suggests, Section two subsection four, by suggesting the potential need for a “super-majority,” could possibly “contravene the fundamental principle of equality of voters.”
Conclusion
It may seem odd that the Supreme Court would have felt it their proper role to foray so deeply into “political questions” territory – referendums, majority rule, and the break up of a nation being as they are, the distinct purview of politics. One would have thought that, having found no right to secession within the text of the Constitution and none in international law, the justices would have stopped there. Was this ‘judicial activism’ in matters left best to democratically elected officials? Was this perhaps an attempt to ‘help Canada out’ where politics, for all its versatility, had failed us at the worst time possible? Whatever the case may be, the justice’s accent to the use of abstract principles, such as democracy and federalism, to underpin persuasive (even if illusory) arguments contra a right to secession helped ‘beat’ secessionists at their own ‘game.’ However, by continuing on, and evolving duty to negotiate and by stipulating the “clear majority and clear question” guidelines, the Court obfuscated and couched its decision in significantly unclear terms - not to mention the fact that such duties are in themselves political facts that hardly needed to be articulated by the courts. It seems that, had the Court simply declined to answer the reference questions a convincing argument might have been made by the Federal Government that no right to secession existed. Today, given the Quebec Secession Reference, and the Clarity Act, this cannot be sustained without the substantial interference of the Federal Government in a future Quebec referendum. And that can only lend fuel to the fire of Quebec nationalists who, since 1759, have believed that too much was lost on the Plains of Abraham on that fateful day.
Works Cited
Canadian Cases
Reference Re Secession of Quebec [1998] 2 S.C.R. 217
Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3
United States Cases
Marbury v Madison 31 U.S. (6 Pet.) 515 (1832)
Books and Texts
Brodie, Janine, et al Reinventing Canada: Politics of the 21st Century Prentice Hall, Toronto: 2003
Laskin, Bora. Canadian Constitutional Law 3rd Ed. Carswell Co. Pub. Ltd. Toronto: 1966
Marbury v Madison 31 US (6 Pet.) 515 (1832), See also, Leyland, Peter. Textbook on Administrative Law 4th Ed Oxford University Press, London 2002
Masters. Donald C. A Short History Of Canada Van Nostrand Rienhold Co, Toronto: 1958
Turp, Daniel. The Right to Choose: Essays on Quebec’s Right of Self-Determination Les Editions Themis Inc. Montreal: 2001
Journals
Choudhry, Sujit, Robert Howse, “Constitutional Theory and the Quebec Secession Reference” Canadian Journal of Law and Jurisprudence vol. XIII, No.2 (July 2000)
Kreptul, Andrei. “The Constitutional Right of Secession in Political Theory and History” Journal of Libertarian Studies Vol. 17 no. 4 Ludwig von Mises Institute (September 2003)
Guibernau, Montserrat. “National Identity, devolution and secession in Canada, Britain and Spain” Nations and Nationalism Queen Mary University of London, (Political Science) 12 (1) 2006, 51 - 76
Usher, Dan. “Profundity Rampant: Secession and the Court II” Policy Options (September 1999
Usher, Dan. “The New Constitutional Duty to Negotiate” Policy Options (January/February 1999)
Articles
Bryden, Joan. “The Separatist Curve Ball” The Walrus, February 2006
