Notes

[1] Reference re Secession of Québec, (20 August 1998), http://www.droit.umontreal.ca/doc/csc-scc/en/pub/1998/vol2/html/1998scr2_0217.html (hereinafter Québec Secession, all citations to the numbered paragraph sections in the Web copy of the judgment).

[2] They were, in full text: Question 1: Under the Constitution of Canada, can the National Assembly, legislature or government of Québec effect the secession of Québec from Canada unilaterally? Question 2: Does international law give the National Assembly, legislature or government of Québec the right to effect the secession of Québec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Québec the right to effect the secession of Québec from Canada unilaterally? Question 3: In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Québec to effect the secession of Québec from Canada unilaterally, which would take precedence in Canada?

[3] These were posed by the Governor in Council by Order in Council P.C. 1996-1497, dated September 30, 1996 under s 53 of the Supreme Court Act (Can.). The Supreme Court in Québec Secession identified quoted as the relevant parts of that section as follows: 53. (1) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning a) the interpretation of the Constitution Acts; ... (d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised. (2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question. (3) Any question concerning any of the matters mentioned in subsections (1) and (2), and referred to the Court by the Governor in Council, shall be conclusively deemed to be an important question.

[4] This paper does not address the other two questions, concerning the relevance of international law to the issue, except as in note 12, infra. The Supreme Court's position here has excited considerable interest among Canadian international lawyers. It has already received attention in what appears to be the first published Australian commentary on the case: see R. Rafuse, "Case Note: Reference re Secession of Québec from Canada: Breaking Up is Hard to Do" (1998) 21 U.N.S.W. L. J. 834, at 841 - 843.

[5] Québec Secession, para 32 introduces this analysis.

[6] In terms of discrete constitutional texts, the Supreme Court in Québec Secession (para 32) saw these as those enumerated in Constitution Act 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c 11, s 52 (2). The Court had a wider conception of the Canadian Constitution than that, however. See text following note 24, infra.

[7] Québec Secession, para 148; see also para 87 (such a question should be "free of ambiguity"). The Court did not go far in its explanation of what such a question might look like, a matter of some earlier political controversy in Canada in relation to the two referenda held on secession in Québec, the first in 1980, the second in 1995.

[8] Québec Secession, para 87 (such a majority, like the question that produced it, should be "free of ambiguity"). The Court did not go far in spelling out in what such a majority would represent.

[9] Québec Secession, para 88.

[10] See Alex Reilly, "Constitutional Principles in Canada and Australia: Lessons from the Québec Secession Decision". As the present paper is meant to indicate, I do not share his scepticism about either the utility of the four principles to resolve the issues before the court, or the relevance of an exercise of the sort that produced them when a court is presented with a problem like that the province of Québec posed for the Court. See especially Part 2.2 of this paper.

[11] Cf J Webber "The Legality of a Unilateral Declaration of Independence under Canadian Law" (1997) 42 McGill L J 281, text at and following 304n 71, where he repudiates the suggestion for Canada, but not in terms that suggest all compact theories are insufficient for this purpose.

[12] See Québec Secession's identification of three sets of circumstances where international law might support a right of secession: at para 112 ("[i]nternational law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination, e.g., the right of secession that arises in the exceptional situation of an oppressed or colonial people"), para 133 ("[t]he other clear case where a right to external self-determination accrues is where a people is subject to alien subjugation, domination or exploitation outside a colonial context"), and para 134 ("when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession"); and see paras 135 ff (rejecting any of these as appropriate to Québec).

[13] That is, Question 1 in note 2, supra. The particularities of Québec's position in the Canadian federation had to be addressed, however. See references in previous note for the main discussion.

[14] Québec Secession itself recognises such a theory as foundational in Canada, especially at paras 42 and 43; for an extended account of the theory and the problem posed by Québec - although not only by Québec, but also by the First Nations (a grouping of indigenous Canadians) - see Alan C. Cairns "Why Is It So Difficult to Talk to Each Other?" (1997) 42 McGill L J 63.

[15] From Cairns, note 14, supra, at 83 - 84 (bracketed material added, footnotes omitted).

[16] Québec Secession, para 32.

[17] Québec Secession para 66.

[18] For a discussion of the issues in Canada in the form of this sort of question of construction, see Webber, note 11, supra, at 287 ff: he there disposes of the suggestion that an amending formula should not be construed as extending to matters of dissolution of the federation, as opposed to issues having to do with the federation as a "going concern", a view of his which appears to be shared by the Supreme Court, in Québec Secession, as witness its para 84.

[19] For just such an argument, see Webber, note 11, supra, passim.

[20] Thus simply leaving that position to the realm of "politics, as opposed to law" - even if these politics were labelled "constitutional politics". Apart from the question whether that boundary between the two could have been sensibly drawn short of the legal relevance of this position, the Supreme Court has on at least two other occasions, when differently constituted, seemed to subscribe to a broader notion of constitutional law than so drawing that boundary would have represented: see Manitoba (Attorney-General) v Canada (Attorney-General) [1981] S.C.R. 753 (Reference Re Resolution to Amend the Constitution); and Reference re Language Rights under s. 23 of the Manitoba Act, 1870 and s 133 of the Constitution Act, 1867 [1985] 1 S.C.R. 721. For the broader notion to which the Court in Québec Secession subscribed, see the text of the next section.

[21] It has been a staple of the programme of the Parti Québecois, newly returned to power following the most recent provincial election (30 November 1998), that it will work for referenda to be held until a "Yes" majority is secured. The most recent variation on this theme is that a third referendum will not be held until "winning" conditions for it exist. See Elizabeth Thompson, "Referendum on hold: premier ", (The Montreal Gazette, newspaper, on-line, 2 December 1998).

[22] Québec Secession, para 32 introduces this analysis, while paras 33 - 51 extract the principles.

[23] See Maclean's [:] Canada's Weekly Newsmagazine, August 31, 1998, at 14 ff "Judgment Day for Canada" (cover article). For how Québec might be seen to have "won" Québec Secession, see James A Thomson, "Getting Out: Secession and Constituional Law" (1999), E Law (this issue).

[24] Québec Secession, para 32 (references in brackets and accompanying footnotes substituted for short form references in the original).

[25] [1997] 3 S.C.R. 3, http://www.droit.umontreal.ca/doc/csc-scc/en/pub/1997/vol3/html/1997scr3_0003.html, at para 92.

[26] Note 20, supra, at 874.

[27] Québec Secession, para 51.

[28] And even more the point next following in this paper's analysis of the case.

[29] See note 3, supra.

[30] Québec Secession, para 25.

[31] Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at 545.

[32] Québec Secession, para 26 (bracketed material added, but emphasis, as indicated at the end of the quotation, is from Québec Secession)..

[33] The Court's logic also suggests - although interestingly the Court does not require - a settlement of the referendum process, including the referendum question, that is to precede the negotiations, in the same deliberative negotiated way: this would be a particularly helpful way in which a "clear" question could be produced. However, Québec has consistently taken the position that any such settlement is unacceptable to it.

[34] The discussion in Québec Secession from which the passages are taken is at paras 88 - 102.

[35] Québec Secession, para 88.

[36] Québec Secession, para 89.

[37] Québec Secession, para 90.

[38] Québec Secession, para 95.

[39] Québec Secession, para 100.

[40] Québec Secession, para 101.

[41] [1989] 2 S.C.R. 49, at 90.

[42] [1993] 1 S.C.R. 319.

[43] Québec Secession, para 102 (full citations and footnotes added).

[44] I am grateful to Rod Macdonald for this point. This is not to say such recognition is comfortable, only that it is legally feasible: for a recent discussion of Canadian case law with reference to Australian material also, see John - Paul F. Bogden, "On the "Agreement Most Foul": A Reconsideration of the Doctrine of Unconscionability" (1997) 25 Man. L.J. 187.

[45] See Reilly, note 10, supra, which, however, questions whether any such list should be used at all.

[46] Id.