Why Québec Secession Matters

Author:	Ralph Simmonds LL.B. Hons (UWA), LL.M. (U Toronto) Professor of Law, School of Law, Murdoch University
Subjects:	Constitutional law Canada cases (Other articles) Federalism (Other articles) Secession (Other articles)
Issue:	Volume 6, Number 1 (March 1999)
Category:	Current Developments

Note: Some Comparative Reflections On The Québec Secession Decision: Three Papers

The release on August 20 1998 of the Supreme of Canada's advisory opinion on the right of the Province of Québec to secede from the Canadian federation (the Québec Secession case) occasioned considerable interest from observers of federal systems. The decision prompted the School of Law at Murdoch University, in collaboration with the Federal Court of Australia in Perth, to organise a roundtable discussion. This became "Constitutional Principles for a Principled Constitution: Lessons from the Québec Secession Decision", Murdoch University, School Of Law Seminar Series, Federal Court Boardroom, Perth, Thursday, 15 October 1998.

The purpose of the roundtable was to stimulate interest in the decision, by exploring different ways in which it might be considered. Three of the four contributions to that roundtable are published in this issue of E Law with some modifications made after their presentation.

Each such contribution indeed adopts a different perspective on the decision. Taking the authors alphabetically, Professor Greg Craven's paper (The Quebec Secession Reference: The Law Of Politics Or The Politics Of Law?) considers the problematic character of the decision considered as a formal legal document. His concern is with the strains produced by the variety of objectives the Supreme Court could be seen to have set itself. His particular interest is in the use of Canadian material in the current constitutional discussions in Australia, in which he has been an active participant. Professor Craven has written extensively on secession.

Professor Ralph Simmonds (Why Québec Secession Matters) focusses on and celebrates one of those objectives of concern to Professor Craven, the decision's intended contribution to the debate about the nature of Canadian federalism. His particular interest stems from his background as some one who has spent considerable time living and working in Québec, and who is interested in theories of federalism when it is under threat.

Dr James Thomson (Getting Out: Secession and Constitutional Law) reflects on the character of the Québec secession decision particularly when viewed from the perspectives of provinces and states in a federation and comparative constitutional law.

Ralph Simmonds, April 1999

Introduction

1. In Québec Secession[1] the Supreme Court of Canada was asked three questions[2] on which to return its advisory opinion[3]. The most important of these questions, in the event, was whether, under the Constitution of Canada, the province of Québec could secede from the Canadian federation unilaterally[4]. To this question, the Supreme Court returned the answer "no". It rested this answer on the implications of the conjoint operation of "four fundamental and organizing principles"[5] of the Canadian constitution[6]. The Court indicated that this would be so even in the face of a result in favour of secession in a popular referendum in Québec. But the Court also found that its four fundamental principles produced a further result. It was that, in the event a popular referendum in Québec that put a "clear" question[7] resulted in a "clear" majority[8] in favour of secession, such a

   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. [9]

2. This paper focuses on these two holdings, especially on the second, concerning the duty to negotiate, and how they were arrived at. The purpose of this paper is to show that Québec Secession is relevant to thinking about any system of federal constitutional law (including our own), about the role of a court in relation to such law, and about the nature of both where fundamental questions of constitutional change are in issue. This is notwithstanding the fact that this case represented a decision in the exercise of the Supreme Court's advisory jurisdiction that has no counterpart in Australian federal constitutional law, and that the key to the Court's two holdings, the four fundamental principles of the Canadian constitution, quite possibly are not, or are not all, transferable to our own[10].

3. This paper advances two theses about the case, and on them rests its argument for the case's wider relevance.

   Two Theses About Québec Secession

   Thesis One: The Unilateral Right to Secede Holding Was Fairly Straightforward

4. The first thesis is that the holding with respect to the unilateral right to secede (none exists, at least in Québec's circumstances) is fairly straightforward. That is, legal theories of a federal state are going to yield a similar answer most of the time.

5. This is not to deny that it is possible to justify a unilateral right to secede in all circumstances under some legal theories of federalism (such as some compact ones[11]). Nor is this to deny that it is possible to justify such a right in some circumstances under many legal theories of federalism (such as circumstances of colonial or other subjugation, oppression or denial of free expression of popular political will[12]).

6. That is, it does not appear that federalism as a legal principle entails that a unilateral right to secede under any circumstances is simply legally impermissible, as being outside the rules or inconsistent with the nature of federalism itself. The question in Québec Secession, however, on the right to secede under the Constitution of Canada, framed in general terms as it was[13], seemed unlikely to produce a positive response.

   Thesis Two: the Deeper Problem to Which Québec Secession Was A Response

7. The second thesis about the case is that, regardless of how readily a Court can deny any general unilateral right to secede, Québec Secession highlights the nature of the problem for any system of federal constitutional law of a position like that taken by Québec. This is the position that appears to be the main political underpinning of its threat to secede. It is a position that goes to the heart of federalism, and so is of wide significance.

8. Québec's position repudiates the theory of the divided self that arguably underpins the very possibility of a successful federation[14]. The theory of a divided self being referred to here is that a federation captures each citizen's concurrent allegiances to both a local (eg Québec) and a national (Canadian) entity, or other divided but concurrent allegiances (such as those of indigenous Canadians).

9. The flavour of the position Québec has taken in opposition to this theory, and that was the backdrop against which the Supreme Court was working, can be gathered from a passage in a commentary by a distinguished Canadian political scientist published before the decision in Québec Secession[15]:

   Both the theory and the practice of divided identities and dual representation in Canadian federalism have become a key target of nationalist, and especially Québec sovereignist, elites seeking to monopolize the voice of their people. From the nationalist, especially sovereignist, perspective, the "external" civic identity of the country as a whole is a threat and a rival. For example, Claude Morin [a Québec politician] described the federal system as a threat because it "divides Québeckers against themselves", and Rene Levesque [the first avowed separatist premier of Québec] remarked in 1979 that federalist Québeckers are "foreigners". There is a pervasive independentiste thesis that the federal citizen with her divided allegiances and divided civic identities has an unhealthy, fractured personality. Such a person, tugged in contradictory directions, is the psychic counterpart of an unhealthy body immobilized by physical ailments. Federalism, it is argued, inhibits the flourishing of the healthy, single-dimensional identity Québecois could enjoy as citizens of an independent state."

10. It is important to note that in Québec Secession the Supreme Court itself did not use language like this to describe the Québec position. However, the Court's other language makes it clear that it was aware that something like this position was what confronted it, as the following passage indicates. This passage was intended by the Court to show the interplay between two of its four "fundamental organizing principles"[16], democracy and federalism[17]:

    It is, of course, true that democracy expresses the sovereign will of the people. Yet this expression, too, must be taken in the context of the other institutional values we have identified as pertinent to this Reference. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter. A federal system of government enables different provinces to pursue policies responsive to the particular concerns and interests of people in that province. At the same time, Canada as a whole is also a democratic community in which citizens construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction. The function of federalism is to enable citizens to participate concurrently in different collectivities and to pursue goals at both a provincial and a federal level."

11. Of course, Canadian federal constitutional law would appear to have a fairly straightforward rule of resolution of the challenge posed by Québec. That rule of resolution would put the matter back into a question of the construction of amending formulae or other process for constitutional change allowed for under the Constitution, perhaps with this question formulated in terms of whether or not the member of the federation can secede unilaterally[18].

12. The Supreme Court could have followed this constructional route - as for example if it had made the argument that Québec could not secede unilaterally because that was not allowed for by Constitution Act 1982 section 41 (requiring unanimity among the provinces for the amendments it covers). It could have argued that this section should be seen in this context as the exclusively applicable part of the text of the constitution to do with this sort of change, and it would have had significant support in the commentary on secession by Québec[19].

13. But the problem that this rule of resolution and an argument like the one described would have posed for the Court is that that argument would not have spoken to the issue posed by a position like Québec's[20]. And in the event the Supreme Court itself did not make the constructional argument just referred to. It did something else, which enabled it to speak to a way the constitutional order would apply following a successful referendum in a province determined to hold one[21], and which goes to the importance of Québec Secession to comparative constitutional law.

    The Importance of Québec Secession to Comparative Constitutional Law

14. The argument here is that the reasoning the Supreme Court of Canada did deploy has described a larger notion of constitutional law than the constructional analysis it could have used.

15. In part, the reasoning the Court did use involved it enunciating a set of basic constitutional ideas. These were the ""four fundamental and organizing principles"[22] of the Canadian constitution - "federalism; democracy; constitutionalism and the rule of law; and respect for minorities" - that justified its conclusion that there was no right to secede unilaterally, and that appear to be the Court's contribution from Québec Secession to the continuing Canadian constitutional debate about Québec. These ideas are ones that might strengthen the arguments of particular protagonists in that debate, even all of them. Thus, Québec certainly fastened on aspects of them in claiming legitimacy for the results of any successful referendum it was able to run[23], although it appears not to have continued in this vein.

16. It is important to note that these four principles are not reducible to deductions or inferences from, or interpretation of, the constitutional text, and are a part of a broader conception of constitutional law than one rooted in textual exegesis. The Court makes this clearest in the following passage in which it introduces the four principles[24]:

    The "Constitution of Canada" certainly includes the constitutional texts enumerated in s. 52(2) of the Constitution Act, 1982. Although these texts have a primary place in determining constitutional rules, they are not exhaustive. The Constitution also "embraces unwritten, as well as written rules", as we recently observed in [Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island[25]]. Finally, as was said in [Reference re Resolution to Amend the Constitution[26]], the Constitution of Canada includes the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.

    These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning...."

17. As the Court itself finally says of the four principles it has extracted[27]:

    Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood."

18. It might be objected - particularly at this point[28] - that the Supreme Court's views are a simply an artefact of its advisory jurisdiction[29], something of very limited or no legal significance - at least outside Canada - because of the range of matters on which the Supreme Court might be compelled, or take the occasion, to pronounce.

19. Such a view would be mistaken, however. While the Court acknowledges that it can in such jurisdiction proceed in a matter that would otherwise not be "ripe" for decision, such as where the matter does not require it to provide a "disposition of rights"[30], the Court re-affirmed its position as to its advisory jurisdiction by quoting from an earlier case[31] as follows[32]:

    While there may be many reasons why a question is non-justiciable, in this appeal [that is, the appeal in the case from which this quote came, not Québec Secession itself] the Attorney General of Canada submitted that to answer the questions would draw the Court into a political controversy and involve it in the legislative process. In exercising its discretion whether to determine a matter that is alleged to be non-justiciable, the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government.... In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch."[Emphasis added.]

20. However, the Court went even further than the use of its four basic principles to determine that there was no unilateral right to secede, to use them to require recognisably constitutional deliberations by way of negotiations to follow a "clear majority" on a "clear question", and out of which negotiations might emerge a new constitutional order.[33]

21. At this point, it is important to let the Court speak for itself, and at some length, if the nature of what it is arguing for is to be appreciated. The following extracts appear to capture what seems to be the essence of the Court's argument to which this paper attaches such importance[34]:

    The federalism principle, in conjunction with the democratic principle, dictates that 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. ...[35]

    What is the content of this obligation to negotiate? At this juncture, we confront the difficult inter-relationship between substantive obligations flowing from the Constitution and questions of judicial competence and restraint in supervising or enforcing those obligations. This is mirrored by the distinction between the legality and the legitimacy of actions taken under the Constitution.... [36]

    The conduct of the parties in such negotiations would be governed by the same constitutional principles which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities. ...[37]

    Refusal of a party to conduct negotiations in a manner consistent with constitutional principles and values would seriously put at risk the legitimacy of that party's assertion of its rights, and perhaps the negotiation process as a whole. Those who quite legitimately insist upon the importance of upholding the rule of law cannot at the same time be oblivious to the need to act in conformity with constitutional principles and values, and so do their part to contribute to the maintenance and promotion of an environment in which the rule of law may flourish. [38]

    ... The Court has no supervisory role over the political aspects of constitutional negotiations. Equally, the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so. A right and a corresponding duty to negotiate secession cannot be built on an alleged expression of democratic will if the expression of democratic will is itself fraught with ambiguities. Only the political actors 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. [39]

    If the circumstances giving rise to the duty to negotiate were to arise, the distinction between the strong defence of legitimate interests and the taking of positions which, in fact, ignore the legitimate interests of others is one that also defies legal analysis. The Court would not have access to all of the information available to the political actors, and the methods appropriate for the search for truth in a court of law are ill-suited to getting to the bottom of constitutional negotiations. To the extent that the questions are political in nature, it is not the role of the judiciary to interpose its own views on the different negotiating positions of the parties, even were it invited to do so. Rather, it is the obligation of the elected representatives to give concrete form to the discharge of their constitutional obligations which only they and their electors can ultimately assess. The reconciliation of the various legitimate constitutional interests outlined above is necessarily committed to the political rather than the judicial realm, precisely because that reconciliation can only be achieved through the give and take of the negotiation process. Having established the legal framework, it would be for the democratically elected leadership of the various participants to resolve their differences. [40]

    The non-justiciability of political issues that lack a legal component does not deprive the surrounding constitutional framework of its binding status, nor does this mean that constitutional obligations could be breached without incurring serious legal repercussions. Where there are legal rights there are remedies, but as we explained in [Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) [41]], and [New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)[42]], the appropriate recourse in some circumstances lies through the workings of the political process rather than the courts. [43]"

22. How this might be translated into legally enforceable norms for the recognition and regulation of constitutional deliberations is of course a matter of considerable difficulty, and provides the occasion for much speculation. But in a legal system like our own, or the Canadian, that recognises a judicial role to police the private law bargaining process through such open-textured norms as unconscionability[44], there would not seem to be a conceptual barrier to such translation.

23. It is also important to note that the development of its four principles by the Court in Québec Secession enabled it to pronounce on the application of the constitutional order following a perseverant Québec's successful referendum in a way that the constructional approach to the right to secede would not. A denial of the right to secede simply on the basis that the Canadian constitution did not allow for it would have left little else to be said for such an aftermath.

    Conclusion

24. The analysis in this paper has been meant to highlight the Court's description in Québec Secession of a conception of constitutional law that could encompass a legally relevant duty to negotiate a restructuring or dissolution of a federation as an important contribution of the judgment to comparative constitutional law. It has been presented as a contribution to an understanding of what a system (not just the Canadian system) of federal constitutional law could properly be seen to entail - at least when the sort crunch comes that a serious threat of secession like that posed by Québec represents.

25. What was said in Québec Secession is thus a discussion that is capable of being relevant to other federations, including the Australian one.

26. That relevance is not so much for the content of the four constitutional principles that did the work in Québec Secession. An Australian court might well - and for reasons given in another paper in this collection[45] probably should - come up with a different list. Nor does it seem likely that an Australian court would arrive at any such principles in the same way, in particular with as little reference to the canonical constitutional text[46]. Rather, the relevance of Québec Secession is the possibility for a judicial contribution that attempts to explain the foundations of constitutionalism in a form that is recognisably legal while not being simply technical. Québec Secession in this view is a remarkable illustration of the possibilities of the judicial craft at the highest level on the most serious of topics.