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LETTER TO PREMIER LUCIEN BOUCHARD
ON THE NEED TO RESPECT THE SUPREME COURT'S
DECISION IN ITS ENTIRETY
Translation
August 25, 1998
Mr. Lucien Bouchard
Premier of Quebec
885 Grande-Allée Street East
Quebec City, Quebec
G1A 1A2
Dear Mr. Premier:
During your press conference on August 21, you expressed satisfaction in the opinion of
the Supreme Court concerning the legality of a unilateral secession. Please allow me to
assure myself that your satisfaction is not selective.
The Government of Canada has, of course, declared itself bound by all aspects of this
ruling. You, on the other hand, only recognize its legal validity for others and not for you or
your government. You praise those passages that interest you and ignore the content ?
however obvious ? of those passages that displease you. This game of light and shadows is
damaging to your project, especially given that you need the greatest transparency to
succeed in the highly uncertain adventure that negotiating secession in good faith would be.
It was precisely that obligation to negotiate that pleased you. The Court tells us that a clear
majority in favour of secession in a referendum based on a clear question would be
sufficiently legitimate to compel all parties involved to undertake negotiations on secession
in good faith and in accordance with the principles of democracy, federalism, the rule of
law and the protection of minorities.
In this obligation to negotiate, you see a "winning condition" for a possible third referendum. I see it as the confirmation of a legitimate right of our fellow citizens, a right well accepted in Canada and one I have consistently promoted since I entered politics. For example, I am quoted in Le Soleil of January 27, 1996, two days after my appointment as Minister, in the following terms: "If a strong majority of Quebecers unfortunately voted in favour of secession in response to a clear question, I believe that the rest of Canada has the moral obligation to negotiate the division of the territory."
There is, however, a point that cannot be ignored: given that this obligation to negotiate is
reciprocal, it would also be binding on you, much more so than the negotiations you had in
mind in case of a referendum victory in 1995. There are three fundamental differences.
1. Negotiations conditional on clear support for secession
You can no longer claim to be the sole judge of the clarity of the question and of the
majority. The Court makes the obligation to negotiate conditional on obtaining a clear
majority of Quebec electors responding in the affirmative to a clear question on secession.
It leaves it to the political actors to judge the required clarity.
The National Assembly is of course free to ask Quebecers any questions it wants. But you
will appreciate that the federal government, among others, cannot surrender its
responsibility to evaluate the clarity of a question which could result in the break- up of the
country.
A question that does not address secession, or that includes other topics, would not
provide the assurance that Quebecers want to give up Canada. In order to trigger the
obligation to negotiate, which you so enthusiastically welcome, there must be a clear
response to a clear question on secession.
During your press conference you rejected the proposal put forward by Mr. Claude Ryan
that would have given the Official Opposition in the National Assembly a right to examine
the referendum question. But don't you believe that the opinion of the principal federalist
party in Quebec would have an influence on the Government of Canada's own evaluation
of the clarity of the question?
The Government of Canada could never undertake negotiations on secession based on a
question addressing such vague concepts as "sovereignty-association" or "sovereignty with
an offer of political and economic partnership". The risk of misinterpreting the vote would
be too great, as many polls demonstrate.
Requiring that Quebecers be asked a clear question does not insult their intelligence. A
clear question is an essential condition of a valid referendum in a democracy, in Quebec as
elsewhere. Public consultations on attaining independence held in other parts of the world
have almost always put a clear, simple question to voters.
As for the majority required to trigger negotiations on a secession, the Court tells us that its
evaluation is qualitative in nature. There is no absolute legal standard on which to rely. You
draw the conclusion that the Court invites us to be content with 50% + 1, a Quebec split in
two. We do not share this interpretation because the quantity is relevant to evaluating the
quality.
The Court, in its 78 pages of advice, takes the trouble to link the negotiation of a secession
no less than thirteen times to obtaining, beforehand, a "clear majority", three times to a
"clear expression", twice to a "clear repudiation of the existing constitutional order", as well
as once each to a "strong majority", to "results (...) free of ambiguity" and to a "clear
referendum result".
Many important decisions in society require qualified majorities. Thus, the Court mentions
the need for a "substantial consensus" and "broad support in the form of an ‘enhanced
majority'" in order to effect important constitutional modifications. Furthermore, the Court
states that secession would require a constitutional amendment and that these modifications
would be "radical and extensive".
There are no examples of a successful secession based on a slender majority obtained
through a referendum. When questioned on this point you were unable to refer to a single
case during your press conference, and for good reason.
The Government of Canada believes that a majority would need to be sufficiently clear to
avoid any possibility of its collapsing under the pressure of the economic, social and other
difficulties that an attempt at secession would undoubtedly cause. In addition, the size of the majority must be sufficient to legitimize such a radical change that would commit future
generations. We must be wary of circumstantial majorities.
2. Negotiation of secession within the constitutional framework
You can no longer claim to effect a unilateral secession. Bill 1 on the Future of Quebec
contemplated a one-year period of negotiation on a political and economic partnership,
"unless the National Assembly decides otherwise". The National Assembly could
unilaterally declare the independence of Quebec at any point. This declaration would have
been perfectly legal, according to your own erroneous interpretation of international law.
After reading the opinion of the Supreme Court, no one can not know that such an attempt
at unilateral secession would have had no legal basis. International law gives you no right to
effect independence unilaterally while ignoring the Canadian legal order. At no point in the
process would the law authorize you to take it upon yourself to deprive us, Quebecers, of
our full belonging in Canada.
The Court does not rule out the possibility of your attempting a unilateral secession, but the
scenario it describes bears little resemblance to the one you contemplated in 1995. The
Court says that such an attempt would be without "colour of a legal right" and in a context
in which Canada is entitled "to the protection under international law of its territorial
integrity". The Court simply says that the chances of international recognition would be
better if the Government of Quebec negotiated in good faith while its counterparts showed
unreasonable intransigence. Even under such a highly implausible scenario, we can question
whether the international community would overcome its well-known aversion to unilateral
secessions.
A unilateral secession would be impracticable. If, regardless of the law, you decided to
proclaim yourself the government of an independent state, citizens and governments would
be within their rights not to consider you as such and to continue to act peacefully within the Canadian legal order. You cannot by an act contrary to law take Canada away from
millions of Quebecers who would consider themselves to still be Canadians.
Any future negotiations on secession would have to take place within the Canadian
constitutional framework, not between two independent states. Secession would be
proclaimed only after a separation agreement accompanied by a constitutional amendment.
3. Negotiations of secession whose content cannot be predicted
You can no longer claim that you alone would determine what would be on the negotiating
table. The Court does not recognize a right to secession, it establishes only the right to
negotiate in good faith.
The Court explains that these negotiations would relate to much more than just the
"negotiation of the logistical details of secession": "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."
The Court also recognizes "the importance of the submissions made to us respecting the
rights and concerns of aboriginal peoples in the event of a unilateral secession, as well as
the appropriate means of defining the boundaries of a seceding Quebec with particular
regard to the northern lands occupied largely by aboriginal peoples."
Addressing the legitimate interests called into question by secession will raise the issue of
the boundaries of Quebec. "Arguments were raised before us regarding boundary issues.
(...) Nobody seriously suggests that our national existence, seamless in so many aspects,
could be effortlessly separated along what are now the provincial boundaries of Quebec."
The Court warns of the difficulty of the negotiations: "No one can predict the course that
such negotiations might take." This is the beginning of the black hole that the leader of the
Quebec Liberal Party, Jean Charest, has always rightly warned us of.
In short, the obligation to negotiate secession, which the Supreme Court has just given a
constitutional dimension, itself depends on clear support for secession, respect for the
constitutional framework and a great deal of mutual good faith. If your government fails to
observe these principles of clarity, legality and good faith, the constitutional obligation to
negotiate no longer holds.
Negotiations on secession based on the clear support of Quebecers, conducted legally, and with a concern for justice for all: this is the only way to achieve independence for Quebec. The time for stratagems and "winning" tricks is over.
Instead of concocting the question that will snatch a few thousand more votes, do your job.
Explain to us Quebecers why we would be happier if we were no longer Canadians as
well; why we need a smaller country that is ours alone, rather than a larger country shared
with others. If you convince us, the question and the majority will follow. The referendum
will then merely confirm a visible consensus. Firmly determined to separate, Quebecers
could wade through the problems of the negotiations.
If this is a tall order, it is certainly not the fault of the federal government. It is simply that it
must be very hard to give up Canada, a country that you yourself described in 1988 as "a
land of promise (...) celebrated for its generosity and tolerance". Quebecers have
contributed tremendously to building Canada and it is in working with other Canadians that
they want to take on the enormous challenges presented at the dawn of the new millennium. It is up to you to prove to them, in all clarity, that they are wrong.
Sincerely,
Stéphane Dion
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