Reflections on the Tenth Anniversary of the Supreme Court’s Opinion in the Quebec Secession Reference

On August 20, 1998, the Supreme Court of Canada handed down its landmark opinion in Reference re Secession of Quebec. To mark the ruling’s ten-year anniversary, TheCourt.ca commissioned a piece from Warren J. Newman, co-counsel for the Attorney General in the Quebec Secession Reference, and author of the acclaimed study, The Quebec Secession Reference: The Rule of Law and the Position of the Attorney General of Canada. 

Ten years ago, on August 20, 1998, the Supreme Court of Canada released its unanimous opinion in the Reference re Secession of Quebec, [1998] 2 SCR 217 [Quebec Secession Reference]. Both prior to and in the aftermath of the October 1995 sovereignty referendum, the government of Quebec had taken the position that neither the Constitution nor the courts of Canada would have any role to play in determining Quebec’s “process of accession to sovereignty.” This position represented an unprecedented challenge to the Canadian legal order and the principles of constitutionalism and the rule of law.

In the Quebec Secession Reference, the Supreme Court of Canada rose to the occasion, as it had done more than a decade earlier in the Reference re Manitoba Language Rights, [1992] 1 SCR 212 [Manitoba Language Rights Reference], another testimonial to the Court’s commitment to its duty to ensure respect for the integrity of the Constitution and the rule of law, even in the face of sweeping illegality sanctioned by the legislature. In a constitutional case that has generally been described, with more understatement than hyperbole, as one of the most important the Court has ever had to consider, the nine judges of the Court resolved to come together as one and to render a remarkably compelling ruling on some of the most basic legal issues relating to the secession of Quebec from Canada. The Court did so despite a heightened political climate surrounding the Reference that made the Court’s role – already difficult – especially sensitive and subject to scrutiny. And at least in the immediate aftermath of the ruling, the Court’s wisdom in its treatment of these issues found broad adherence in both federalist and sovereigntist circles alike; no mean feat when one remembers how polarized these two camps had been with regard to the legitimacy of the Reference as a means of seeking clarification from the courts on the legality of the secession process. Although those differing perspectives were to emerge again in the enactment of the Clarity Act, (Bill C-20, An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, SC 2000, c 26) and the Quebec government’s legislative response thereto, (Bill 99, An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, SQ 2000, c 46) none of this is to gainsay the Supreme Court of Canada’s masterful handling of the issues in the Quebec Secession Reference.

The Attorney General of Canada’s participation before the Superior Court of Quebec in the Bertrand case in May 1996 and in the Reference to the Supreme Court of Canada instituted in September of that year was directed to demonstrating the relevance of the Constitution of Canada and the rule of law to any process aimed at changing the constitutional status of the province of Quebec within the Canadian federation, and to emphasizing the role of the courts in determining the validity of any measure which would purport to give the force of law to a unilateral declaration of independence. The Attorney General of Canada never sought to challenge the right of Quebecers to express democratically their collective desire to have the province secede or to stay within Canada. However, for secession to be effected legally, it would have to be carried out, counsel for the Attorney General argued, in accordance with the Constitution and the underlying principle of the rule of law. These were and are not obstacles to political change; rather, they provide the framework within which change can take place in a stable, orderly fashion, respectful of the fundamental values embraced by all.

In crafting their unanimous judgment, the nine Justices of the Supreme Court of Canada brought much-needed clarity to the basic legal rules, and to the proper place of those rules with respect to the secession process. The judges did so with an eloquence, sensitivity and logic that spoke volumes about the authority and influence the Court justly commands, and about the Court’s maturity, confidence, and institutional resilience in the face of sometimes scurrilous and unwarranted attacks by certain political actors during the course of the Reference.

The brilliance of the Supreme Court of Canada’s ruling in the Quebec Secession Reference lies in the Court’s having had the vision to wed the value of constitutional legality with that of political legitimacy. The Supreme Court of Canada confirmed that unilateral secession would be an unlawful act under the Constitution and a violation of the Canadian legal order; a revolution. Nor was there any legal right at international law, whether as a matter of self-determination or otherwise, to unilateral secession in the circumstances of Quebec. Secession, to be lawful under the Constitution of Canada, would require a constitutional amendment. The Court did not shy away from underscoring that no attempt to dress up a unilateral declaration of independence with the alleged principle of “effectivity” would transform that revolution into a legal act. Acceptance of the principle of effectivity, the Court stated, “would be tantamount to accepting that the National Assembly, legislature or government of Quebec could purport to secede the province unilaterally from Canada in disregard of Canadian and international law”; that was an assertion of fact, not law, and might or might not be true. If argued as an assertion of law, then it simply amounted to the contention “that the law may be broken as long as it can be broken successfully.” That proposition, the Court emphasized, was “contrary to the rule of law, and must be rejected.” (Quebec Secession Reference, paras 107-108).

At the same time, the Court recognized that the sovereigntist movement in Quebec would obtain democratic legitimacy for the secessionist option if a clear majority of Quebecers, on a clear question, expressed their desire that Quebec leave Canada. Moreover, that clear expression of desire would give rise to an obligation on all parties to the federation to negotiate terms and conditions. This, of course, was an interesting and unexpected development for sovereigntists, many of whom immediately embraced this aspect of the Court’s ruling.

Yet it should be remembered that the democratic principle which would legitimize the sovereigntist option was characterized by the Court as an inherent principle of the Constitution of Canada. The duty to negotiate is a constitutional duty, flowing both from the constitutional principle of democracy and the right (or power) of democratically-elected representatives to initiate constitutional amendments pursuant to Part V of the Constitution Act, 1982 (Quebec Secession Reference, paras 69, 88).

Moreover, the duty to negotiate is a reciprocal obligation on all parties; the corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution. The conduct of the parties would be governed by constitutional principles: federalism, democracy, constitutionalism itself and the rule of law; and the protection of minorities. A political majority that did not act in accordance with the underlying constitutional principles would put at risk the legitimacy of the exercise of its rights. The conduct of the parties would assume primary constitutional significance. Secession could not be achieved under the Constitution unilaterally; that is, without principled negotiation within the existing constitutional framework.

What all this amounts to is that sovereigntists as much as federalists have a stake in the proper operation and application of the Constitution of Canada. The Constitution, including its underlying principles, rights and obligations, and its amending procedures, is relevant for sovereigntists because it safeguards their legitimate interests, just as it does those of all Canadians.

The ruling of the Court was immensely salutary for Canada’s civic traditions and political culture. It was not healthy for a significant portion of the country’s population to perceive, rightly or wrongly, that its interests were perpetually “outside” the structure of the country’s supreme and fundamental law, any more than it was healthy for a provincial government to act as if it could ignore the law. As the Court reminded the political actors, “[t]he Constitution binds all governments, both federal and provincial, including the executive branch … They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source” (Quebec Secession Reference, para 72).

However, in embracing the Court’s finding of an obligation to negotiate, sovereigntists must also accept the Court’s rules as to the circumstances in which such a duty would arise – a clear expression by a clear majority of a desire to secede from Canada – and the rules governing the conduct of negotiations: respect by all participants, including a sovereigntist government, of the underlying principles of the Constitution of Canada identified as applicable to the secession context. This includes respect for the principle of the rule of law, but also of constitutionalism itself, which the Court went out of its way to particularize as being embodied in s. 52(1) of the Constitution Act, 1982 and requiring that all government action comply with the Constitution.

Respect for constitutionalism – especially in circumstances such as secession, where a constitutional amendment is required and where a duty to negotiate arises as a corollary to the right to initiate constitutional change under the Constitution Act, 1982 – must mean, at least, respect for the provisions that govern the procedure for amending the Constitution.

Beyond the immediate historical, political and legal context giving rise to the Quebec Secession Reference, the Supreme Court of Canada’s analytical approach, and in particular, its insistence on the normative weight and force of the underlying principles of the Constitution—a trend already well underway in earlier cases, including New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319 and the Ref re Remuneration of Judges of the Prov Court of PEI; Ref re Independence and Impartiality of Judges of the Prov Court of PEI, [1997] 3 SCR 3, but especially highlighted in the Secession Reference – has led to spirited academic commentary1. and further judicial consideration, most recently as respects the scope of the principle of the rule of law, in British Columbia v Imperial Tobacco Canada Ltd, [2005] 2 SCR 473 and British Columbia (Attorney General) v Christie, [2007] 1 SCR 873 and the application of the principle of federalism, in Canadian Western Bank v Alberta, [2007] 2 SCR 3 and British Columbia (Attorney General) v Lafarge Canada Inc, [2007] 2 SCR 86).

Constitutional judicial review has been heretofore largely founded upon the rule, expressed in the words of s. 52(1) of the Constitution Act, 1982, that any law that is inconsistent with the provisions of the Constitution is invalid and of no force and effect. In the preface to a book on the Quebec Secession Reference and the rule of law published in 1999, I queried whether the Supreme Court’s emphasis on constitutional principles (albeit in the specific context of secession, and while affirming the primacy of the written Constitution) had “made more plausible claims that the courts should have a role in reviewing and perhaps even striking down laws allegedly enacted in contravention of broad and open-ended constitutional principles, even where the provisions of the Constitution are arguably not engaged in the debate over the validity of the impugned legislation?” As a practicing constitutional lawyer I demurred from answering that question, noting that it “must be left to another day, and to another forum.” That still seems the prudent course to follow here, although now there is no dearth of commentary and case law on the issue for those disposed to respond to it.2.

Through the Supreme Court of Canada’s opinion in the Quebec Secession Reference, Canada overcame an unprecedented threat to its constitutional integrity, legal order and the rule of law, in a manner that permits the legitimate political forces at play within this country to continue to promote their options for change within the prevailing constitutional framework, while respecting basic rights and fundamental principles. That the debate on Canada’s future has taken place with an additional degree of clarity, and in circumstances of some serenity, with a better understanding and appreciation of the legal system within which fundamental political choices are made in this country, is in no small measure due to the profoundly intelligent efforts of the judges of the Supreme Court of Canada in the Quebec Secession Reference.

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*D.C.S., B.A., B.C.L., LL.B. (McGill), LL.M. (Osgoode); Senior General Counsel, Constitutional and Administrative Law Section, Department of Justice of Canada; Director, LL.M. Professional Development Program in Constitutional Law, Osgoode Hall Law School; of counsel to the Attorney General of Canada in the Quebec Secession Reference.  These remarks draw upon those expressed in W.J. Newman, The Quebec Secession Reference—The Rule of Law and the Position of the Attorney General of Canada, Toronto: York University, 1999, and in articles published in the Supreme Court Law Review and the National Journal of Constitutional Law.  They should not be taken as expressing the official views of the Attorney General of Canada or the Department of Justice.

1. For a sample of the voluminous academic debate on this issue, see J. Cameron, “The Written Word and the Constitution’s Vital Unstated Assumptions”, in P. Thibeault, B. Pelletier and L. Perret, eds., Les mélanges Gérald-A. Beaudoin / Essays in Honour of Gérald-A. Beaudoin, Cowansville: Les Éditions Yvon Blais Inc., 2002; S. Choudry, “Unwritten Constitutionalism in Canada: Where Do Things Stand?” (2001) Can. Bus. Law J. 113, R. Elliott, “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001) 80 Can. Bar Rev. 67, J. Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles” (2002) 27 Queen’s Law J. 389; P.W. Hogg, Constitutional Law of Canada, 5th ed. supplemented., vol., 1, heading 15.9(g), “Unwritten constitutional principles”, Toronto: Thomson-Carswell; P.J. Monahan, “The Public Policy Role of the Supreme Court of Canada in the Secession Reference”, (1999) 11 Nat. Journal of Const. Law 65; M.D. Walters, “The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law”, 51 (2001) Univ. of Toronto Law J. 91.

2.For my contribution to the academic debate, see W.J. Newman, “’Grand Entrance Hall, Back Door or Foundation Stone? The Role of Constitutional Principles in Construing and Applying the Constitution of Canada” (2001) 14 Sup. Ct. Law Rev. (2d) 197; “The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation”, (2005) 16 Nat. Journal of Const. Law 175.