Reference re Secession of Quebec
Encyclopedia
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 regarding the legality, under both Canadian and international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

, of a unilateral secession
Secession
Secession is the act of withdrawing from an organization, union, or especially a political entity. Threats of secession also can be a strategy for achieving more limited goals.-Secession theory:...

 of Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....

 from Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

.

Both the Quebec government and the Canadian government stated that they were most pleased with the Supreme Court's opinion, pointing to different sections of the ruling.

Background

Following the election of a majority of Parti Québécois
Parti Québécois
The Parti Québécois is a centre-left political party that advocates national sovereignty for the province of Quebec and secession from Canada. The Party traditionally has support from the labour movement. Unlike many other social-democratic parties, its ties with the labour movement are informal...

 (PQ) MNAs with 41.37% of the popular vote in the 1976 provincial election
Quebec general election, 1976
The Quebec general election of 1976 was held on November 15, 1976 to elect members to National Assembly of the Province of Quebec, Canada. It was one of the most significant elections in Quebec history, rivalled only by the 1960 general election, and caused major repercussions in the rest of Canada...

, the party formed a government and, in 1980, held a referendum. The government of Quebec asked the province's population if it should seek a mandate to negotiate sovereignty for Quebec coupled with the establishment of a new political and economic union with Canada. The referendum resulted in the defeat of the sovereignty option with 59.56% voting no on sovereignty. The PQ was nevertheless re-elected in 1981, this time promising not to hold a referendum.

In 1982, the federal government petitioned the Imperial Parliament in London to amend Canada's constitution so that in the future, all further amendments would take place by means of a process of consent involving only the Parliament of Canada and the legislatures of the provinces (several provinces objected). Up until this point, all amendments had taken place by means of Acts of the Parliament at Westminster
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

, since the Canadian constitution was, strictly speaking, a simple statute of that Parliament.

Colloquially, the switch to a domestic amendment procedure was known as patriation
Canada Act 1982
The Canada Act 1982 is an Act of the Parliament of the United Kingdom that was passed at the request of the Canadian federal government to "patriate" Canada's constitution, ending the necessity for the country to request certain types of amendment to the Constitution of Canada to be made by the...

. The particular formula for amendments that was adopted in 1982 was opposed by the then-government of Quebec, which also opposed the adoption of other constitutional changes made at the same time, such as the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

—although this opposition was not necessarily based on a rejection of the content of these changes, as opposed to the manner of their adoption, and the failure to include amendments specific to Quebec in the package. Also, Quebec had already at that time a more complete Charter that was adopted in 1975.

Two further attempts were made at amending the Canadian constitution in 1987-1990 and 1992 in a manner that, it was hoped, would have caused the Quebec legislature to adopt a motion supporting the revised constitution. These failed packages of constitutional reforms were known as the Meech Lake Accord
Meech Lake Accord
The Meech Lake Accord was a package of proposed amendments to the Constitution of Canada negotiated in 1987 by Prime Minister Brian Mulroney and ten provincial premiers. It was intended to persuade the government of the Province of Quebec to endorse the 1982 Canadian Constitution and increase...

 and the Charlottetown Accord
Charlottetown Accord
The Charlottetown Accord was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October 26 of that year, and was defeated.-Background:...

. Thus, in the mid-1990s, there was a widespread sense that the Constitution of Canada was not fully legitimate, because it had not yet received the formal approval of Québec.

In 1994, the Parti Québécois was re-elected, and announced that it would be initiating a
second referendum to take place in 1995. This time, the question was on sovereignty with an optional partnership with Canada. The "no" side won by only a slight margin. Prior to this referendum, the National Assembly of Quebec
National Assembly of Quebec
The National Assembly of Quebec is the legislative body of the Province of Quebec. The Lieutenant Governor and the National Assembly compose the Parliament of Quebec, which operates in a fashion similar to those of other British-style parliamentary systems.The National Assembly was formerly the...

 adopted a bill relating to the future of Quebec which laid out the Quebec's plan for secession in case of a winning referendum.

In response to the bill and the referendum result, several legal actions were initiated by opponents to the independence of Quebec, questioning the legality of secession. In 1996, Parti Québécois leader Lucien Bouchard
Lucien Bouchard
Lucien Bouchard, is a Canadian lawyer, diplomat, politician and former Minister of the Environment of the Canadian Federal Government. He was the Leader of Opposition in the Canadian House of Commons from 1993 to 1996, and the 27th Premier of Quebec from January 29, 1996 to March 8, 2001...

 announced that his government would make plans to hold another referendum when he was confident that the "winning conditions" were there, pointing to the political cost of losing a third referendum. In reaction to Bouchard's stated plans, Prime Minister Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....

 initiated a reference to answer the legality of a unilateral declaration of independence from a Canadian province.

Questions addressed

The Governor in Council (effectively, the Cabinet of Canada
Cabinet of Canada
The Cabinet of Canada is a body of ministers of the Crown that, along with the Canadian monarch, and within the tenets of the Westminster system, forms the government of Canada...

) submitted the request for an advisory opinion on the following three specific questions:
  1. Under the Constitution of Canada
    Constitution of Canada
    The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...

    , can the National Assembly
    National Assembly of Quebec
    The National Assembly of Quebec is the legislative body of the Province of Quebec. The Lieutenant Governor and the National Assembly compose the Parliament of Quebec, which operates in a fashion similar to those of other British-style parliamentary systems.The National Assembly was formerly the...

    , legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
  2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
  3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

Submissions

There were an unprecedented 15 intervener
Intervener
In law, intervention is a procedure to allow a nonparty, called intervenor to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants...

s. However, the Quebec government refused to take part and was not represented. In its place the Court appointed André Jolicoeur as an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...

 to argue for the sovereignist side.

The federal government's submission argued that the only way a province could secede from Canada would be through a constitutional amendment. Only an amendment through section 45 would allow for unilateral amendments. However, that section does not apply here. To attempt to secede unilaterally would violate the constitution on two grounds. First, it would violate the rule of law by ignoring the authority of the constitution as supreme law of the country, and second, it would violate Canadian federalism
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...

 by acting with powers only allocated to the federal government.

The amicus curiae's submission argued several points. First, they argued that the reference was invalid; the question is purely a political one and thus is outside the authority of the Court to answer under section 52 of the Supreme Court Act
Supreme Court Act
The Supreme Court Act is an Act passed by the Parliament of Canada which established the Supreme Court of Canada. It was originally passed in 1875 as the Supreme and Exchequer Courts Act...

. They attempted to analogize the use of the US political question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...

 doctrine to the Canadian constitution. Furthermore, the question is speculative and premature as there are no substantive facts at question. Second, they focused on the second question, claiming that the ability to separate comes from international law. They argued that the "peoples of Quebec" had a right to self-determination under the Charter of the United Nations and thus can secede given the consent of a majority of the Quebec peoples. They further claimed that since there is no international law barring separation then by convention there must be an implied right to do so. Their primary argument was that the doctrine of effectivity gave them authority to secede. That is, recognition of a new state by other countries would validate the separation. They further claimed that the doctrine of effectivity is part of the constitutional convention through its practice in other parts of the commonwealth.

Several aboriginal interveners submitted facta
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....

 on their right to stay in Canada based on aboriginal treaties and their right to self-determination, further noting that they have already held two referendums where they decided against the separation of the aboriginal peoples from Canada. Their factum attacked the Attorney General's factum on the basis that they completely ignored the role of the aboriginal people within the constitution.

Right to secede under Canadian law

The court addressed the three questions in order. First, they stated that under the Canadian Constitution (and with Quebec being a party to it since its inception), unilateral secession was not legal. However, should a referendum decide in favour of independence, the rest of Canada "would have no basis to deny the right of the government of Quebec to pursue secession." Negotiations would have to follow to define the terms under which Quebec would gain independence, should it maintain that goal. In this section of the judgement they stated that the Constitution is made up of written and unwritten principles (based on text, historical context, and previous constitutional jurisprudence) and that there are four fundamental tenets of the Canadian constitution. Those 4 interrelated and equally important principles or values are:
  1. Federalism – the principle that seeks to “reconcile diversity with unity” by giving federal authority over only those issues of common interest amongst culturally diverse and politically independent provinces. The purpose of Canada’s federalism is not only to create a loose association amongst provinces, but a true national unity.
  2. Democracy – the principle that seeks to promote participation in effective representative self-government, which respects and responds to all voices in a marketplace of ideas.
  3. Constitutionalism and the Rule of Law – the principles that protect citizens from state actions by forcing governments to act under the rule of law, the constitution of Canada being the supreme law. The constitution’s entrenched protections of minorities ensures that the country does not operate simply on majority rule, and enables a true democracy in which minority voices are fairly considered.
  4. Protection of Minorities – the principle that guides the other principles, but one which is also independent and fundamental because of its uniqueness to Canada relative to other federal, constitutional democracies.


They held that these pieces cannot be viewed independently but all interact as part of the Constitutional framework of Canada.

Rights to secede under international law and self-determination

The answer to the second question, which concerned Quebec's right under international law to secede, gave the opinion that the international law on secession was not applicable to the situation of Quebec. The court pointed out that international law "does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their 'parent' state."

The Supreme Court of Canada's opinion stated that the right of a people to self determination was expected to be exercised within the framework of existing states, by negotiation, for example. Such a right could only be exercised unilaterally under certain circumstances, under current international law. The court held that:
The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity
Territorial integrity
Territorial integrity is the principle under international law that nation-states should not attempt to promote secessionist movements or to promote border changes in other nation-states...

 or the stability of relations between sovereign states.


and that
A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...

, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.


The court stated in its opinion that under international law, the right to secede was meant for peoples under a colonial
Colonialism
Colonialism is the establishment, maintenance, acquisition and expansion of colonies in one territory by people from another territory. It is a process whereby the metropole claims sovereignty over the colony and the social structure, government, and economics of the colony are changed by...

 rule or foreign occupation
Military occupation
Military occupation occurs when the control and authority over a territory passes to a hostile army. The territory then becomes occupied territory.-Military occupation and the laws of war:...

. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally.
For close to 40 of the last 50 years, the Prime Minister of Canada
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...

 has been a Quebecer. During this period, Quebecers have held from time to time all the most important positions in the federal Cabinet. During the 8 years prior to June 1997, the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of the United Nations, are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad.


The Supreme Court further stated that:
Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole.

Which law applies in Canada?

Since the court saw no conflict between Canadian law and International law on the question (neither would allow Quebec to secede unilaterally), it considered it unnecessary to answer the question.

Reaction of Quebec

The Quebec government of Lucien Bouchard
Lucien Bouchard
Lucien Bouchard, is a Canadian lawyer, diplomat, politician and former Minister of the Environment of the Canadian Federal Government. He was the Leader of Opposition in the Canadian House of Commons from 1993 to 1996, and the 27th Premier of Quebec from January 29, 1996 to March 8, 2001...

 stated that it was very pleased with the opinion of the Supreme Court. Premier Bouchard stated publicly that the court had validated the referendum strategy that the sovereignists had adopted with René Lévesque
René Lévesque
René Lévesque was a reporter, a minister of the government of Quebec, , the founder of the Parti Québécois political party and the 23rd Premier of Quebec...

. Quebec was most satisfied when the court made it clear that the question of Quebec's political status was above all a political question, and not a legal one. It also liked the fact that the Supreme Court made it clear that the government of Canada and that of the other provinces would have to negotiate after a winning referendum on secession. This would make a unilateral declaration of independence unnecessary.

Reaction of the federal government

The Canadian government of Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....

 stated that it was pleased with the court's opinion. The Supreme Court had made it clear that Quebec could not declare independence unilaterally. Any obligation of Canada to negotiate with Quebec was conditional on the sovereignists' asking a clear question within the context of a referendum. The government of Canada subsequently drafted the Clarity Act
Clarity Act
The Clarity Act is legislation passed by the Parliament of Canada that established the conditions under which the Government of Canada would enter into negotiations that might lead to secession following such a vote by one of the provinces. The Clarity Bill was tabled for first reading in the...

, which Parliament then enacted.

International law - International Court of Justice advisory opinion on Kosovo's declaration of independence

On July 22, 2010, the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...

 delivered an advisory opinion concerning the unilateral declaration of independence by Kosovo. The court had to decide if the declaration did not violate general international law. The court concluded that the unilateral declaration of independence did not violate international law, because it was not issued by any official body bound by Serbian or UN administration rules, and international law does not contain a prohibition against declarations of independence.

The unique situation of Kosovo was not discussed nor presented as a reason for the exclusion of Serbian laws (internal law) to analyse the matter. The court stated that only general international law applies to the situation of a unilateral declaration of independence. The court also stated that a referendum was not required.

However, the ICJ's opinion did not directly relate to Reference re Secession of Quebec, because the former only addresses the ability of a private body to issue a declaration; whereas the Supreme Court's opinion on Reference re Secession concerns the ability to actually effect secession, which is a legal issue.

See also

  • List of Supreme Court of Canada cases (Lamer Court)
  • Unilateral Declaration of Independence
  • Politics of Canada
    Politics of Canada
    The politics of Canada function within a framework of parliamentary democracy and a federal system of parliamentary government with strong democratic traditions. Canada is a constitutional monarchy, in which the Monarch is head of state...

  • Politics of Quebec
    Politics of Quebec
    The politics of Quebec are centred on a provincial government resembling that of the other Canadian provinces, namely a constitutional monarchy and parliamentary democracy. The capital of the province is Quebec City, where the Lieutenant Governor, Premier, the legislature, and cabinet reside.The...

  • Quebec referendum, 1980
  • Quebec referendum, 1995
  • Timeline of Quebec history
    Timeline of Quebec history
    This article presents a detailed timeline of Quebec history. Events taking place outside Quebec, for example in English Canada, the United States, Britain or France, may be included when they are considered to have had a significant impact on Quebec's history....

  • Timeline of Canadian history
    Timeline of Canadian history
    This is a timeline of the history of Canada.*Years BC*Early years AD*1000s*1400s*1500s*1600s: 1600s - 1610s - 1620s - 1630s - 1640s - 1650s - 1660s - 1670s - 1680s - 1690s*1700s: 1700 - 1701 - 1702 - 1703 - 1704 - 1705 - 1706 - 1707 - 1708 - 1709...


External links

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