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Reference re Secession of Quebec
February 16, 17, 18, 19, 1998; August 20, 1998
File No.: 25506
IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C., 1985, c. S-26;
AND IN THE MATTER OF a Reference by the Governor in Council concerning certain
questions relating to the secession of Quebec from Canada, as set out in Order
in Council P.C. 1996-1497, dated the 30th day of September,1996
Indexed as: Reference re Secession of Quebec
IV. Summary of Conclusions
148
As stated at the outset, this Reference has required us to consider momentous
questions that go to the heart of our system of constitutional government. We
have emphasized that the Constitution is more than a written text. It embraces
the entire global system of rules and principles which govern the exercise of
constitutional authority. A superficial reading of selected provisions of the
written constitutional enactment, without more, may be misleading. It is
necessary to make a more profound investigation of the underlying principles
that animate the whole of our Constitution, including the principles of
federalism, democracy, constitutionalism and the rule of law, and respect for
minorities. Those principles must inform our overall appreciation of the
constitutional rights and obligations that would come into play in the event a
clear majority of Quebecers votes on a clear question in favour of secession.
149
The Reference requires us to consider whether Quebec has a right to unilateral
secession. Those who support the existence of such a right found their case
primarily on the principle of democracy. Democracy, however, means more than
simple majority rule. As reflected in our constitutional jurisprudence,
democracy exists in the larger context of other constitutional values such as
those already mentioned. In the 131 years since Confederation, the people of the
provinces and territories have created close ties of interdependence
(economically, socially, politically and culturally) based on shared values that
include federalism, democracy, constitutionalism and the rule of law, and
respect for minorities. A democratic decision of Quebecers in favour of
secession would put those relationships at risk. The Constitution vouchsafes
order and stability, and accordingly secession of a province "under the
Constitution" could not be achieved unilaterally, that is, without
principled negotiation with other participants in Confederation within the
existing constitutional framework.
150
The Constitution is not a straitjacket. Even a brief review of our
constitutional history demonstrates periods of momentous and dramatic change.
Our democratic institutions necessarily accommodate a continuous process of
discussion and evolution, which is reflected in the constitutional right of each
participant in the federation to initiate constitutional change. This right
implies a reciprocal duty on the other participants to engage in discussions to
address any legitimate initiative to change the constitutional order. While it
is true that some attempts at constitutional amendment in recent years have
faltered, a clear majority vote in Quebec on a clear question in favour of
secession would confer democratic legitimacy on the secession initiative which
all of the other participants in Confederation would have to recognize.
151
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.
Democratic rights under the Constitution cannot be divorced from constitutional
obligations. Nor, however, can the reverse proposition be accepted. The
continued existence and operation of the Canadian constitutional order could not
be indifferent to a clear expression of a clear majority of Quebecers that they
no longer wish to remain in Canada. The other provinces and the federal
government would have no basis to deny the right of the government of Quebec to
pursue secession, should a clear majority of the people of Quebec choose that
goal, so long as in doing so, Quebec respects the rights of others. The
negotiations that followed such a vote would address the potential act of
secession as well as its possible terms should in fact secession proceed. There
would be no conclusions predetermined by law on any issue. Negotiations would
need to address the interests of the other provinces, the federal government,
Quebec and indeed the rights of all Canadians both within and outside Quebec,
and specifically the rights of minorities. No one suggests that it would be an
easy set of negotiations.
152
The negotiation process would require the reconciliation of various rights and
obligations by negotiation between two legitimate majorities, namely, the
majority of the population of Quebec, and that of Canada as a whole. A political
majority at either level that does not act in accordance with the underlying
constitutional principles we have mentioned puts at risk the legitimacy of its
exercise of its rights, and the ultimate acceptance of the result by the
international community.
153
The task of the Court has been to clarify the legal framework within which
political decisions are to be taken "under the Constitution", not to
usurp the prerogatives of the political forces that operate within that
framework. The obligations we have identified are binding obligations under the
Constitution of Canada. However, it will be for the political actors to
determine what constitutes "a clear majority on a clear question" in
the circumstances under which a future referendum vote may be taken. Equally, in
the event of demonstrated majority support for Quebec secession, the content and
process of the negotiations will be for the political actors to settle. The
reconciliation of the various legitimate constitutional interests is necessarily
committed to the political rather than the judicial realm precisely because that
reconciliation can only be achieved through the give and take of political
negotiations. To the extent issues addressed in the course of negotiation are
political, the courts, appreciating their proper role in the constitutional
scheme, would have no supervisory role.
154
We have also considered whether a positive legal entitlement to secession exists
under international law in the factual circumstances contemplated by Question 1,
i.e., a clear democratic expression of support on a clear question for Quebec
secession. Some of those who supported an affirmative answer to this question
did so on the basis of the recognized right to self-determination that belongs
to all "peoples". Although much of the Quebec population certainly
shares many of the characteristics of a people, it is not necessary to decide
the "people" issue because, whatever may be the correct determination
of this issue in the context of Quebec, a right to secession only arises under
the principle of self-determination of peoples at international law where
"a people" is governed as part of a colonial empire; where "a
people" is subject to alien subjugation, domination or exploitation; and
possibly where "a people" is denied any meaningful exercise of its
right to self-determination within the state of which it forms a part. In other
circumstances, peoples are expected to achieve self-determination within the
framework of their existing state. A state whose government represents the whole
of the people or peoples resident within its territory, on a basis of equality
and without discrimination, and respects the principles of self-determination in
its internal arrangements, is entitled to maintain its territorial integrity
under international law and to have that territorial integrity recognized by
other states. Quebec does not meet the threshold of a colonial people or an
oppressed people, nor can it be suggested that Quebecers have been denied
meaningful access to government to pursue their political, economic, cultural
and social development. In the circumstances, the National Assembly, the
legislature or the government of Quebec do not enjoy a right at international
law to effect the secession of Quebec from Canada unilaterally.
155
Although there is no right, under the Constitution or at international law, to
unilateral secession, that is secession without negotiation on the basis just
discussed, this does not rule out the possibility of an unconstitutional
declaration of secession leading to a de facto secession. The ultimate success
of such a secession would be dependent on recognition by the international
community, which is likely to consider the legality and legitimacy of secession
having regard to, amongst other facts, the conduct of Quebec and Canada, in
determining whether to grant or withhold recognition. Such recognition, even if
granted, would not, however, provide any retroactive justification for the act
of secession, either under the Constitution of Canada or at international law.
Click to view the complete version of the Supreme Court Reference
regarding Secession
of Quebec.
The official versions of decisions and reasons for decision by the Supreme
Court of Canada are published in the Supreme Court Reports (S.C.R.).
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