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"The Supreme Court's Reference on Unilateral Secession: A Turning Point in
Canadian History"
Notes for an address by
the
President of the Privy Council and
Minister of Intergovernmental Affairs the
Honourable Stéphane Dion
at the Centre for
Constitutional Studies
University of Alberta
Edmonton, Alberta
September 24, 1999
The opinion rendered by the Supreme Court of
Canada on August 20, 1998, on unilateral secession, is a turning point in the
history of the Canadian federation. It confirms that a unilateral secession
would have no basis in law.
The Court indicated that, by law, secession
requires a constitutional amendment, which has to be negotiated. It added that
only clear support for secession can give rise to an obligation to undertake
such constitutional negotiations.
The consequence of the opinion from the Supreme
Court of Canada is the confirmation of a right enjoyed by Quebecers: the right
never to have their full belonging to Canada jeopardized unless they have
clearly expressed their desire to renounce it.
This right also benefits all other Canadians,
who, like you Albertans, have the pleasure of having Quebec as a part of their
country. You have the right never to lose Quebec unless Quebecers have clearly
renounced Canada. And like your fellow citizens in Quebec, you have the right,
in the event of any attempt at secession, to have that secession duly
negotiated, in the sincere desire to achieve justice for all.
The Government of Canada believes that it has the
moral duty to refuse to negotiate the loss of Canada for Quebecers unless they
have clearly supported secession. The opinion by the Supreme Court confirmed
that there is a clear legal basis for such a refusal to negotiate in an
atmosphere of ambiguity. In the case of a unilateral declaration of independence
by a provincial government, the Government of Canada is legally justified to
continue to honour peacefully its constitutional responsibilities toward the
population of that province.
The Government of Quebec, for its part, claimed
that international law would prevail over Canadian law in the event of a
unilateral declaration of independence, thus stripping the Canadian government
of its ability to conduct its own evaluation of Quebecers' preferences. Only the
Court could confirm that the Government of Quebec would not be legally justified
in attempting to effect secession unilaterally. On August 20, 1998, the Supreme
Court did just that.
So that we can appreciate just how much of a
turning point this opinion by the Court was, I will first set out the way in
which the secessionist parties in Quebec contemplated effecting a secession. We
will see that their understanding of things was based on a legal myth, an
erroneous theory of a right to secession. Secondly, I will show that this legal
myth disappeared because of the clarifications set out in the Supreme Court's
opinion. I will describe the Court's opinion in a technical, even academic
fashion, but after all, isn't that the only way to please an assembly of
distinguished legal scholars?!
1. The myth of an automatic right to
secession
Quebec's separatist parties, from the R.I.N. to
the Bloc, imagined that they had the right to effect Quebec's independence on
the basis of a simple electoral victory. They maintained that, under
international law, a party that wins the majority of seats in the National
Assembly and thus forms the government would have the right to proclaim itself
to be the government of an independent country.
Over time, these parties acknowledged that
holding a referendum would be a necessary step to confirm Quebecers' will to
effect independence. Ever since then, they have claimed that a referendum
question drafted by the Government of Quebec, provided it had a majority in the
National Assembly, could lead to a declaration of independence from the moment
that an absolute majority of the votes cast (50% plus one) indicated a
favourable response to that question. The unilateral declaration would be valid
for the entire territory of Quebec, regardless of the opinions of voters in the
various regions of the province, because the territorial integrity of Quebec,
though not that of Canada, would be protected by law.
If the separatist parties agreed that the
unilateral declaration of independence might be preceded by negotiations with
Canada, this was, once again, not because they felt they were legally obliged to
undertake such negotiations. If they offered to negotiate it was to facilitate
the transition and to conclude what they called an "economic
association", and what they now call a "political and economic
partnership", with Canada.
Through the procedure set out in Bill 1 in 1995,
An Act respecting the future of Quebec, the Government of Quebec had maintained
that, at any time during those negotiations, it could take it upon itself to
unilaterally proclaim itself to be the government of an independent state. It
was planning a year long period of negotiations following a referendum victory,
"unless the National Assembly decides otherwise." After that
unilateral declaration, all citizens, in Quebec and in Canada as a whole, as
well as all governments, in Canada and abroad, would be legally bound to
consider the Government of Quebec to effectively be the government of an
independent state. The negotiations could continue, but between two independent
states.
This entire process is based on a legal theory
which confuses self-determination with the right to secession. It takes for
granted that once it has been elected, and especially once it has won a
referendum, the Government of Quebec can declare Quebec's independence under
international law, on the basis of the right of peoples to self-determination.
The Attorney General of Quebec argued in Quebec Superior Court in April 1996, in
Bertrand vs. Bégin, that the process of accession to independence "was
sanctioned by international law and that the Superior Court had no jurisdiction
in that regard."
Many people sincerely believed that this theory
was founded in law. That belief influenced their choice in the 1995 referendum.
Secession is a radical change that is already sufficiently grave without
complicating it by undertaking it on the basis of an erroneous legal theory. For
these assertions would inevitably have been challenged in the courts in the
event that a government attempted to effect independence unilaterally. Can we
imagine that not a single Quebecer would have launched a court challenge to a
unilateral process to strip Quebecers of their rights as Canadians? It was worth
it to clarify these matters in advance, in an atmosphere of calm, rather than in
the upheaval of an eventual attempt at secession.
This essential clarification was provided by the
Supreme Court of Canada on August 20, 1998.
2. The obligation of clarity
The Supreme Court refuted the myth of an
automatic right to secession based on a referendum or an election. It found the
argument that a majority vote would make it possible to effect secession by
circumventing the Constitution to be "unsound." It stated that this
argument "misunderstands the meaning of popular sovereignty and the essence
of a constitutional democracy." (par. 75). In fact, "the secession of
a province from Canada must be considered, in legal terms, to require an
amendment to the Constitution" (par. 84).
Nor does the right of peoples to
self-determination confer a right to effect secession unilaterally, except in
situations of former colonies, oppressed peoples, military occupation, or
possibly the denial of the right to internal self-determination. "Such
exceptional circumstances are manifestly inapplicable to Quebec [...]
Accordingly, neither the population of the province of Quebec, even if
characterized in terms of "people" or "peoples", nor its
representative institutions, the National Assembly, the legislature or
government of Quebec, possess a right, under international law, to secede
unilaterally from Canada." (par. 138).
The Court did not rule out the possibility that
the Government of Quebec might attempt to effect secession unilaterally. But the
scenario it depicted had little to do with the one contemplated by the Parizeau
government in 1995. Such an attempt would not be made "under colour of a
legal right" (par. 144) and would be made within a context in which Canada
would be entitled "to the protection under international law of its
territorial integrity." (par. 130).
The secession of a province requires an amendment
to the Constitution, "which perforce requires negotiation" (par. 84)
"within the existing constitutional framework" (par. 149). This means
that the Government of Quebec would be negotiating as a provincial government,
within the framework of the Canadian Constitution from which it derives its
powers. At no point in those negotiations would it have the right to proclaim
itself unilaterally to be the government of an independent state.
The Court did not address the complex mechanics
of eventual negotiations, much less the difficult process of determining the
various parties to such negotiations. It did specify, however, that the
negotiation process would require the reconciliation of various rights and
obligations "by the representatives of two legitimate majorities, namely,
the clear majority of the population of Quebec, and the clear majority of Canada
as a whole, whatever that may be." (par. 93). The words "Canada as a
whole", rather than "the rest of Canada", indicate that the
Government of Quebec would find itself dealing with a party whose very broad
responsibilities would also extend to those Quebecers who wished to remain
Canadian.
Such negotiations would inevitably address
"many issues of great complexity and difficulty." The Court referred
to, among other things, economic issues, the debt, minority rights, Aboriginal
peoples, and territorial boundaries. "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." (par. 96). The
success of such negotiations could well hinge on an agreement to modify
boundaries. The Government of Quebec cannot rule out in advance such a
possibility.
All of the parties to the negotiations on
secession would be governed by four constitutional principles identified by the
Court: "federalism, democracy, constitutionalism and the rule of law, and
the protection of minorities." (par. 90). The practical consequence of this
is that the Government of Quebec could not determine on its own what would or
would not be negotiable. It "could not purport to invoke a right of
self-determination such as to dictate the terms of a proposed secession to the
other parties" (par. 91). Instead, it would have to negotiate so as to
address the interests of "the federal government, of Quebec and the other
provinces, and other participants, as well as the rights of all Canadians both
within and outside Quebec" (par. 92), and of Aboriginals (par. 139), on
every issue, from division of the debt to the question of boundaries.
The four constitutional principles identified by
the Court would not only govern any negotiation on secession, but would also
make such negotiations obligatory if the population of Quebec clearly expressed
its will to secede. (par. 90). "The clear repudiation of the existing
constitutional order and the clear expression of the desire to pursue secession
by the population of a province would give rise to a reciprocal obligation on
all parties to Confederation to negotiate constitutional changes to respond to
that desire." (par. 88).
Then Attorney General, the Honourable Allan Rock,
addressed the moral aspect of this obligation to negotiate in a speech to the
House of Commons on September 26, 1996, setting out the reasons for the
reference to the Supreme Court: "The leading political figures of all our
provinces and the Canadian public have long agreed that the country will not be
held together against the clear will of Quebecers." Similarly, Prime
Minister Jean Chrétien said on December 8, 1997, that [TRANSLATION] "in
such a situation, there will undoubtedly be negotiations with the federal
government." (Le Soleil, 08-12-97). I myself have stressed this principle
many times in my speeches and public letters, starting with my first statement
as a minister, in which I indicated that [TRANSLATION] "in the unfortunate
eventuality that a strong majority in Quebec were to vote on a clear question in
favour of secession, I believe that the rest of Canada would have a moral
obligation to discuss the division of the territory." (Le Soleil,
27-01-1996).
The obligation to negotiate itself does not
change much in terms of political reality. As the constitutional expert Peter
Hogg has noted, "Even without the court's ruling, the political reality is
that the federal government would have to negotiate with Quebec after a majority
of Quebec voters had clearly voted in favour of secession. It is safe to say
that there would be little political support for a policy of attempted
resistance to the wish of the Quebec voters." (Canada Watch, vol 7, pp
34-35). The significant element lies elsewhere: in the solid and irrefutable
causal link that the Court establishes between this obligation to negotiate
secession and the clarity of support for secession.
The obligation to negotiate can stem only from
"a decision of a clear majority of the population of Quebec on a clear
question to pursue secession" (par. 93). There is no such obligation if the
expression of democratic will "is itself fraught with ambiguities. Only the
political actors," the Court tells us, "would have the information and
expertise to make the appropriate judgment as to the point at which, and the
circumstances in which, those ambiguities are resolved one way or the
other." (par. 100).
So the Government of Quebec is certainly free to
use its parliamentary majority to have the National Assembly adopt a referendum
question drafted by the Government, and then to put that question to Quebec
voters. But the Government of Canada, as a "political actor" and a
"participant in Confederation", also has the duty to make its own
evaluation of the clarity of the question and the majority, before concluding
that it is bound to negotiate the break-up of Canada. In this context, the
Government of Canada notes that the Court has defined secession as an act
"to withdraw [...] from the political and constitutional authority" of
a state, with a view to "achieving statehood for a new territorial unit on
the international plane." (par. 83). The Government of Canada thus believes
that, for a question to be clear, it would have to address that issue alone,
without referring to a possible partnership. Quebecers would have to express
clearly "that they no longer wish to remain in Canada" (par. 92) in
order to make Quebec an independent country.
As for the majority required, the Government of
Canada sees the numerous references made by the Court to a "clear
majority" as confirmation that a majority of 50% plus one is insufficient.
In addition, the Court's reference to a "clear majority as a qualitative
evaluation" (par 87) indicates that it is more than a question of numbers.
The proper conduct of the referendum process as a whole would also have to be
taken into account for the referendum result to be deemed to be free of
ambiguity both in terms of the question asked and in terms of the support it
achieved.
The Court thus established a right to negotiate
secession on the basis of clear support, in accordance with constitutional
principles. But the Court did not establish a right to secession as such. The
negotiations may fail: "It is foreseeable that even negotiations carried
out in conformity with the underlying constitutional principles could reach an
impasse." (par. 97). And what would we do then? "We need not speculate
here as to what would then transpire. Under the Constitution, secession requires
that an amendment be negotiated." (par. 97).
That refusal to speculate is wise and realistic,
given that the negotiation of a possible secession raises difficult questions
and wrenching choices. Therein lies the "black hole" that the Leader
of the Opposition in Quebec's National Assembly, Mr. Jean Charest, has always
warned us of, and rightly so. The only thing that can be said is that
governments should take pains to act, under all circumstances, within the
constitutional framework, in accordance with the democratic values and
constitutional principles set out by the Court. A government that chose to act
outside the established law would run a great risk of being unable to maintain
the obedience of its citizens.
Could the Government of Quebec then try to obtain
international recognition? The Court weighed the probabilities in that respect
very prudently and realistically. "A Quebec that had negotiated in
conformity with constitutional principles and values in the face of unreasonable
intransigence on the part of other participants at the federal or provincial
level would be more likely to be recognized than a Quebec which did not itself
act according to constitutional principles in the negotiation process."
(par. 103). Moreover, the Court made it clear that Quebec's governing
institutions "do not enjoy a right at international law to effect the
secession of Quebec from Canada unilaterally." (par. 154).
We can understand the Court's prudence on this
point in light of the international community's extreme reluctance to recognize
unilateral secession. There are, unfortunately, many populations in the world
who desire their independence to an almost unanimous degree, that are victims of
unimaginable exactions by the states to which they belong, and yet do not
succeed in obtaining international recognition as independent states.
And so we Quebecers should not opt for secession
by counting on international support exercised against the will of the Canadian
state. Instead, we should count on the honesty of other Canadians. We should
rely on the values of tolerance that we all share in Canada, and which would be
essential to the conduct of those painful and difficult negotiations. And
therein lies the contradiction of the secessionist project: since other
Canadians are good and reasonable people, why should we want to separate from
them?
Conclusion
It has now been more than a year since the
Supreme Court of Canada rendered its opinion on unilateral secession. The Quebec
government has had all that time to gauge the chasm that separates the
unilateral approach to secession it contemplated in 1995 and an approach that
would comply with the principles of legality and clarity set out by Canada's
highest court.
In moral terms, Quebecers have the right not to
have their belonging to Canada threatened unless they have clearly renounced it.
That right belongs to Quebecers, not to governments. The Government of Canada
has made a commitment to respect that right fully, and it is incumbent upon the
Quebec government to do the same.
A referendum question along the lines of those
asked in 1980 and 1995 could not lead to Quebec independence, because it would
be too ambiguous to make the negotiation of secession obligatory. For a
secession to be effected, all would need to be convinced that it is what
Quebecers clearly want. Advocates of Quebec independence and of Canadian unity
alike must be able to interpret the question and the results of the consultation
in the same way. Otherwise, negotiation of secession would be impossible.
Again, the Government of Canada cannot infringe
upon the prerogatives of the National Assembly, and it has never sought to do
so. The National Assembly has the power to ask Quebecers any referendum question
it sees fit. But only "a clear majority of the population of Quebec on a
clear question to pursue secession" (par. 93) can provide the Government of
Canada with the assurance that Quebecers want it to negotiate the end of its
constitutional responsibilities toward them and, more broadly, the end of their
belonging to Canada.
With clear support for secession, there would be
an obligation to undertake negotiations, but they would still be fraught with
uncertainty, and no one can predict in advance the results of those
negotiations, including the question of borders.
I am convinced that if one were to ask a clear
question to Quebecers, they would vote against secession. They want to stay in
Canada; they are attached to this country which they have built with their
fellow Canadians.
And yet this whole debate could be
avoided. All the Quebec government has to do is announce tomorrow morning that
it will never hold a referendum, unless one day, it becomes evident that a
consensus exists in Quebec in favour of its ceasing to be a part of Canada and
becoming an independent country. If the Government of Quebec were to issue such
a statement, the referendum uncertainty would disappear, together with all the
costs and waste of energy it entails. We would all do better to work together to
improve our quality of life and to solve the social problems that demand all our
attention, and all our unity.
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