The Supreme Court's Reference on unilateral secession: a turning point in Canadian history

"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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