. . . a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.
– Reference Re Secession of Quebec, [1998] 2 SCR 217 at para 150
Introduction
The possible withdrawal of one or more provinces from the Canadian federation (“Wexit”) have led people to ask, “What does it take for a province to leave Canada and go its own way?” So we dedicate this Famous Cases column to the unanimous 1998 Supreme Court of Canada case Reference Re Secession of Quebec (referred to as Secession Reference).
The Supreme Court of Canada added that a province cannot, even with a clear referendum result, assert self-determination rights to dictate the secession terms.In the next column, we follow up with discussion of the so-called Clarity Act that purports to set the federal ground rules for provincial secession. Both of these columns together provide a primer on what it would take, from a constitutional perspective, for any province to separate (“secede”) from Canada.
First, a disclaimer. This is a brief legal analysis only for general public awareness. It is not a political or economic assessment of the issue, nor a statement of personal preference. This case should also be seen in its context. Constitutional pronouncements should survive more than two decades but the Supreme Court of Canada is well known to revise its previous proclamations.
Moreover, Secession Reference arose from an extremely close Quebec referendum outcome in 1995, followed by considerable political plotting at both levels of government in the free-space of a new constitutional enigma. This is to say – and this is readily apparent from the decision itself – that not all issues around provincial secession have been answered in the Secession Reference. Future cases will elicit more details.
Background
When the Constitution was repatriated from the United Kingdom in 1982, the new amending formula that was incorporated did not contain any provision specifically for the withdrawal of provinces from Confederation.
In the aftermath of the 1995 referendum, lawsuits were launched questioning the legality of secession. The Parti Québécois premier promised another referendum when “winning conditions” presented. In September 1996, the federal government sent the issue to the Supreme Court of Canada for constitutional answers.
Secession Reference Decision
The Court considered the legality of a unilateral secession of Quebec under both Canadian and international law. The following three specific questions were addressed (we have broadened the focus to any province).
1. Under the Constitution of Canada, can any province secede from Canada unilaterally?
The federal government argued that provinces could withdraw only after proper constitutional amendment which would require a sturdy measure of national consensus. Quebec did not participate in the reference but an agent (amicus curiae) was appointed to make sovereigntist arguments. The amicus said the reference was invalid as it was a purely political one that was none of the Court’s business to answer. Alternatively, Quebec’s right to self-determination came exclusively from the Charter of the United Nations and required only majority consent of Quebecois.
The Court concluded that a province’s unilateral secession was not legal under the Constitution of Canada. However, if an independence referendum were to succeed, the rest of Canada “would have no basis to deny the right of the government of Quebec to pursue secession” and negotiation of terms would have to follow. Though it was not tasked to answer the “how” question, the Court stated a requirement of a ‘clear majority voting in favour of a clear secession question.’
The Court famously asserted the Constitution, composed of written and unwritten principles, stands on four fundamental interactive tenets: federalism, democracy, the Rule of Law and the protection of minorities.
2. Does international law give any province the right of self‑determination to secede from Canada unilaterally?
The Court suggested that provinces cannot benefit from international law which “does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their ‘parent’ state.” It envisioned self-determining provinces generally to seek a solution – for example, by negotiation – within the framework of Canada:
The various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states . . . a state whose government represents the whole of the people . . . is entitled to the protection under international law of its territorial integrity.
Under international law, the right to secede was intended for people under colonial rule or foreign occupation. As long as a province can meaningfully strive for self-determination within Canada, there is no right to secede unilaterally.
The Court considered the legality of a unilateral secession of Quebec under both Canadian and international law.The Supreme Court of Canada added that a province cannot, even with a clear referendum result, assert self-determination rights to dictate the secession terms. A strong favourable referendum outcome carries no legal effect on its own. It cannot override the principles of federalism, democracy in the other provinces or in Canada generally, the Rule of Law and protection of minorities.
3. If Canadian and international law disagree on the right of a province to secede from Canada unilaterally, which takes precedence?
The Court found no conflict between Canadian law and international law on the question of a province’s unilateral right to withdraw from Canada so no answer was needed here.
Conclusion
The creators of our Constitution never envisaged one or more provinces leaving Confederation. They included no procedure for provincial secession. Nor is it specifically ruled out. This article describes how the Supreme Court of Canada’s 1998 Secession Reference decision lays out the broad rules for a province withdrawing from Canada in the absence of a written formula.
In the regard, the Court assigned significant burdens to both the province desiring to secede and the federal government. In our next column, we look at how the federal government has specifically operationalized the Succession Reference rules in its Clarity Act.
About Peter Bowal
About Mackenzie Bowal
