IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C., 1985, c. S-26;
AND IN THE MATTER OF a Reference by the Governor in
Council concerning certain questions relating to the 
secession
of Quebec from Canada, as set out in Order in Council P.C. 1996-1497, dated the
30th day of September, 1996
Indexed as: Reference re Secession
of Quebec
File No.: 25506.
1998: February 16, 17, 18, 19; 1998: August 20.
Present: Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
REFERENCE BY GOVERNOR IN COUNCIL
Constitutional law -- Supreme Court of Canada -- Reference jurisdiction -- Whether Supreme Court's reference jurisdiction constitutional -- Constitution Act, 1867, s. 101 -- Supreme Court Act, R.S.C., 1985, c. S-26, s. 53.
Courts -- Supreme Court of
Canada -- Reference jurisdiction -- Governor in Council referring to Supreme
Court three questions relating to secession
of Quebec from Canada -- Whether questions submitted fall outside scope of
reference provision of Supreme Court Act -- Whether questions submitted
justiciable -- Supreme Court Act, R.S.C., 1985, c. S-26, s. 53.
Constitutional law -- Secession
of province -- Unilateral secession
-- Whether Quebec can secede unilaterally from Canada under Constitution.
International law -- Secession
of province of Canadian federation -- Right of self-determination --
Effectivity principle -- Whether international law gives Quebec right to secede
unilaterally from Canada.
Pursuant to s. 53 of the Supreme Court Act, the Governor in Council referred the following questions to this Court:
1.Under the Constitution of
Canada, can the National Assembly, legislature or government of Quebec effect
the secession of
Quebec from Canada unilaterally?
2.Does international law give
the National Assembly, legislature or government of Quebec the right to effect
the secession of
Quebec 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 Quebec the right to effect the secession of
Quebec from Canada unilaterally?
3.In the event of a conflict
between domestic and international law on the right of the National Assembly,
legislature or government of Quebec to effect the secession of
Quebec from Canada unilaterally, which would take precedence in Canada?
Issues regarding the Court's reference jurisdiction were raised by the amicus curiae. He argued that s. 53 of the Supreme Court Act was unconstitutional; that, even if the Court's reference jurisdiction was constitutionally valid, the questions submitted were outside the scope of s. 53; and, finally, that these questions were not justiciable.
Held: Section 53 of the Supreme Court Act is constitutional and the Court should answer the reference questions.
(1) Supreme Court's Reference Jurisdiction
Section 101 of the Constitution Act, 1867 gives Parliament the authority to grant this Court the reference jurisdiction provided for in s. 53 of the Supreme Court Act. The words "general court of appeal" in s. 101 denote the status of the Court within the national court structure and should not be taken as a restrictive definition of the Court's functions. While, in most instances, this Court acts as the exclusive ultimate appellate court in the country, an appellate court can receive, on an exceptional basis, original jurisdiction not incompatible with its appellate jurisdiction. Even if there were any conflict between this Court's reference jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in favour of Parliament's exercise of its plenary power to establish a "general court of appeal". A "general court of appeal" may also properly undertake other legal functions, such as the rendering of advisory opinions. There is no constitutional bar to this Court's receipt of jurisdiction to undertake an advisory role.
The reference questions are within the scope of s. 53 of the Supreme Court Act. Question 1 is directed, at least in part, to the interpretation of the Constitution Acts, which are referred to in s. 53(1)(a). Both Questions 1 and 2 fall within s. 53(1)(d), since they relate to the powers of the legislature or government of a Canadian province. Finally, all three questions are "important questions of law or fact concerning any matter" and thus come within s. 53(2). In answering Question 2, the Court is not exceeding its jurisdiction by purporting to act as an international tribunal. The Court is providing an advisory opinion to the Governor in Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian federation. Further, Question 2 is not beyond the competence of this Court, as a domestic court, because it requires the Court to look at international law rather than domestic law. More importantly, Question 2 does not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations of the legislature or government of Quebec, institutions that exist as part of the Canadian legal order. International law must be addressed since it has been invoked as a consideration in the context of this Reference.
The reference questions are justiciable and should be answered. They do not ask the Court to usurp any democratic decision that the people of Quebec may be called upon to make. The questions, as interpreted by the Court, are strictly limited to aspects of the legal framework in which that democratic decision is to be taken. Since the reference questions may clearly be interpreted as directed to legal issues, the Court is in a position to answer them. The Court cannot exercise its discretion to refuse to answer the questions on a pragmatic basis. The questions raise issues of fundamental public importance and they are not too imprecise or ambiguous to permit a proper legal answer. Nor has the Court been provided with insufficient information regarding the present context in which the questions arise. Finally, the Court may deal on a reference with issues that might otherwise be considered not yet "ripe" for decision.
(2) Question 1
The Constitution is more than
a written text. It embraces the entire global system of rules and principles
which govern the exercise of constitutional authority. A superficial reading of
selected provisions of the written constitutional enactment, without more, may
be misleading. It is necessary to make a more profound investigation of the
underlying principles animating the whole of the Constitution, including the
principles of federalism, democracy, constitutionalism and the rule of law, and
respect for minorities. Those principles must inform our overall appreciation
of the constitutional rights and obligations that would come into play in the
event that a clear majority of Quebecers votes on a clear question in favour of
secession.
The Court in this Reference
is required to consider whether Quebec has a right to unilateral secession.
Arguments in support of the existence of such a right were primarily based on
the principle of democracy. Democracy, however, means more than simple majority
rule. Constitutional jurisprudence shows that democracy exists in the larger
context of other constitutional values. Since Confederation, the people of the
provinces and territories have created close ties of interdependence (economic,
social, political and cultural) based on shared values that include federalism,
democracy, constitutionalism and the rule of law, and respect for minorities. A
democratic decision of Quebecers in favour of secession would
put those relationships at risk. The Constitution vouchsafes order and
stability, and accordingly secession of a
province "under the Constitution" could not be achieved unilaterally,
that is, without principled negotiation with other participants in
Confederation within the existing constitutional framework.
Our democratic institutions
necessarily accommodate a continuous process of discussion and evolution, which
is reflected in the constitutional right of each participant in the federation
to initiate constitutional change. This right implies a reciprocal duty on the
other participants to engage in discussions to address any legitimate
initiative to change the constitutional order. 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.
Quebec could not, despite a
clear referendum result, purport to invoke a right of self-determination to
dictate the terms of a proposed secession to the
other parties to the federation. The democratic vote, by however strong a
majority, would have no legal effect on its own and could not push aside the
principles of federalism and the rule of law, the rights of individuals and
minorities, or the operation of democracy in the other provinces or in Canada
as a whole. Democratic rights under the Constitution cannot be divorced from
constitutional obligations. Nor, however, can the reverse proposition be
accepted: the continued existence and operation of the Canadian constitutional
order could not be indifferent to a clear expression of a clear majority of
Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis
to deny the right of the government of Quebec to pursue secession should a
clear majority of the people of Quebec choose that goal, so long as in doing
so, Quebec respects the rights of others. The negotiations that followed such a
vote would address the potential act of secession as well
as its possible terms should in fact secession proceed.
There would be no conclusions predetermined by law on any issue. Negotiations
would need to address the interests of the other provinces, the federal
government and Quebec and
indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of
minorities.
The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole. A political majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.
The task of the Court has
been to clarify the legal framework within which political decisions are to be
taken "under the Constitution" and not to usurp the prerogatives of
the political forces that operate within that framework. The obligations identified
by the Court are binding obligations under the Constitution. However, it will
be for the political actors to determine what constitutes "a clear
majority on a clear question" in the circumstances under which a future
referendum vote may be taken. Equally, in the event of demonstrated majority
support for Quebec secession, the
content and process of the negotiations will be for the political actors to
settle. The reconciliation of the various legitimate constitutional interests
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 political negotiations. To the extent issues addressed in the course of
negotiation are political, the courts, appreciating their proper role in the
constitutional scheme, would have no supervisory role.
(3) Question 2
The Court was also required
to consider whether a right to unilateral secession exists
under international law. Some supporting an affirmative answer did so on the
basis of the recognized right to self-determination that belongs to all
"peoples". Although much of the Quebec population certainly shares
many of the characteristics of a people, it is not necessary to decide the
"people" issue because, whatever may be the correct determination of
this issue in the context of Quebec, a right to secession only
arises under the principle of self-determination of people at international law
where "a people" is governed as part of a colonial empire; where
"a people" is subject to alien subjugation, domination or
exploitation; and possibly where "a people" is denied any meaningful
exercise of its right to self-determination within the state of which it forms
a part. In other circumstances, peoples are expected to achieve
self-determination within the framework of their existing state. A state whose
government represents the whole of the people or peoples resident within its
territory, on a basis of equality and without discrimination, and respects the
principles of self-determination in its internal arrangements, is entitled to
maintain its territorial integrity under international law and to have that
territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed
people, nor can it be suggested that Quebecers have been denied meaningful
access to government to pursue their political, economic, cultural and social
development. In the circumstances, the "National Assembly, the legislature
or the government of Quebec" do not enjoy a right at international law to
effect the secession of
Quebec from Canada unilaterally.
Although there is no right,
under the Constitution or at international law, to unilateral secession, the
possibility of an unconstitutional declaration of secession leading
to a de facto secession is not
ruled out. The ultimate success of such a secession would be
dependent on recognition by the international community, which is likely to
consider the legality and legitimacy of secession having
regard to, amongst other facts, the conduct of Quebec and Canada, in
determining whether to grant or withhold recognition. Even if granted, such
recognition would not, however, provide any retroactive justification for the act
of secession, either
under the Constitution of Canada or at international law.
(4) Question 3
In view of the answers to Questions 1 and 2, there is no conflict between domestic and international law to be addressed in the context of this Reference.
Cases Cited
Referred to: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Re References by Governor-General in Council (1910), 43 S.C.R. 536, aff'd [1912] A.C. 571; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; De Demko v. Home Secretary, [1959] A.C. 654; Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445; Attorney-General for Ontario v. Attorney-General for Canada, [1947] A.C. 127; Muskrat v. United States, 219 U.S. 346 (1911); Reference re Powers to Levy Rates on Foreign Legations and High Commissioners' Residences, [1943] S.C.R. 208; Reference re Ownership of Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Reference re Waters and Water-Powers, [1929] S.C.R. 200; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Education System in Island of Montreal, [1926] S.C.R. 246; Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54; Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Reference re Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Edwards v. Attorney-General for Canada, [1930] A.C. 124; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Re the Initiative and Referendum Act, [1919] A.C. 935; Haig v. Canada, [1993] 2 S.C.R. 995; R. v. S. (S.), [1990] 2 S.C.R. 254; Switzman v. Elbling, [1957] S.C.R. 285; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Boucher v. The King, [1951] S.C.R. 265; Reference re Alberta Statutes, [1938] S.C.R. 100; Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; R. v. Oakes, [1986] 1 S.C.R. 103; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Roncarelli v. Duplessis, [1959] S.C.R. 121; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Reference re Education Act (Que.), [1993] 2 S.C.R. 511; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Adler v. Ontario, [1996] 3 S.C.R. 609; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Mahe v. Alberta, [1990] 1 S.C.R. 342; R. v. Sparrow, [1990] 1 S.C.R. 1075; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49.
Statutes and Regulations Cited
Ala. Code 1975 § 12-2-10.
Bill of Rights of 1689 (Eng.), 1 Will. & Mar. sess. 2, c. 2.
Canadian Charter of Rights and Freedoms, ss. 2, 3, 4, 7 to 14, 15, 25, 33.
Charter of the United Nations, Can. T.S. 1945 No. 7, Arts. 1(2), 55.
Constitution Act, 1867, preamble, ss. 91, 92(14), 96, 101.
Constitution Act, 1982, ss. 25, 35, 52(1), (2).
Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol No. 2, Europ. T.S. No. 5, p. 36.
Del. Code Ann. tit. 10, § 141 (1996 Supp.).
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Art. 1.
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, Art. 1.
Magna Carta (1215).
Statute of the Inter-American Court of Human Rights (1979), Art. 2.
Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. 5, c. 4 [reprinted in R.S.C., 1985, App. II, No. 27].
Supreme Court Act, R.S.C., 1985, c. S-26, ss. 3, 53(1)(a), (d), (2).
Treaty establishing the European Community, Art. 228(6).
Union Act, 1840 (U.K.), 3-4 Vict., c. 35 [reprinted in R.S.C., 1985, App. II, No. 4].
United States Constitution, art. III, § 2.
Authors Cited
Canada. Legislature. Parliamentary Debates on the subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Provincial Parliament of Canada. Quebec: Hunter, Rose & Co., 1865.
Cassese, Antonio. Self-determination of peoples: A legal reappraisal. Cambridge: Cambridge University Press, 1995.
Conference on Security and Co-operation in Europe. Concluding Document of the Vienna Meeting 1986, Vienna 1989. Ottawa: Department of External Affairs, 1989.
Conference on Security and Co-operation in Europe. Final Act, 14 I.L.M. 1292 (1975).
de Smith, S. A. "Constitutional Lawyers in Revolutionary Situations" (1968), 7 West. Ont. L. Rev. 93.
Doehring, Karl. "Self-Determination". In Bruno Simma, ed., The Charter of the United Nations: A Commentary. Oxford: Oxford University Press, 1994.
European Community. Declaration. Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, December 16, 1991, 31 I.L.M. 1486 (1992).
Favoreu, Louis. "American and European Models of Constitutional Justice". In David S. Clark, ed., Comparative and Private International Law: Essays in Honor of John Henry Merryman on his Seventieth Birthday. Berlin: Duncker & Humblot, 1990, 105.
Hogg, Peter W. Constitutional Law of Canada, 4th ed. Scarborough, Ont.: Carswell, 1997.
Jennings, Robert Yewdall. The Acquisition of Territory in International Law. Manchester: Manchester University Press, 1963.
MacLauchlan, H. Wade. "Accounting for Democracy
and the Rule of Law in the Quebec Secession
Reference" (1997), 76 Can. Bar Rev. 155.
Pope, Joseph, ed. Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act. Toronto: Carswell, 1895.
United Nations. General Assembly. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970.
United Nations. General Assembly. Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6, 9 November 1995.
United Nations. World Conference on Human Rights. Vienna Declaration and Programme of Action, A/CONF.157/24 (Part I), 25 June 1993, chapter III.
Wade, H. W. R. "The Basis of Legal Sovereignty", [1955] Camb. L.J. 172.
Wheare, Kenneth Clinton. Federal Government, 4th ed. London: Oxford University Press, 1963.
REFERENCE by the Governor in
Council, pursuant to s. 53 of the Supreme Court Act, concerning
the secession of Quebec
from Canada.
L. Yves Fortier, Q.C., Pierre Bienvenu, Warren J. Newman, Jean-Marc Aubry, Q.C., and Mary Dawson, Q.C., for the Attorney General of Canada.
André Joli-C{oe}ur, Michel Paradis, Louis Masson, André Binette, Clément Samson, Martin Bédard and Martin St-Amant, for the amicus curiae.
Donna J. Miller, Q.C., and Deborah L. Carlson, for the intervener the Attorney General of Manitoba.
Graeme G. Mitchell and John D. Whyte, Q.C., for the intervener the Attorney General for Saskatchewan.
Bernard W. Funston, for the intervener the Minister of Justice of the Northwest Territories.
Stuart J. Whitley, Q.C., and Howard L. Kushner, for the intervener the Minister of Justice for the Government of the Yukon Territory.
Agnès Laporte and Richard Gaudreau, for the intervener Kitigan Zibi Anishinabeg.
Claude-Armand Sheppard, Paul Joffe and Andrew Orkin, for the intervener the Grand Council of the Crees (Eeyou Estchee).
Peter W. Hutchins and Carol Hilling, for the intervener the Makivik Corporation.
Michael Sherry, for the intervener the Chiefs of Ontario.
Raj Anand and M. Kate Stephenson, for the intervener the Minority Advocacy and Rights Council.
Mary Eberts and Anne Bayefsky, for the intervener the Ad Hoc Committee of Canadian Women on the Constitution.
Guy Bertrand and Patrick Monahan, for the intervener Guy Bertrand.
Stephen A. Scott, for the interveners Roopnarine Singh, Keith Owen Henderson, Claude Leclerc, Kenneth O'Donnell and Van Hoven Petteway.
Vincent Pouliot, on his own behalf.
//The Court//
The following is the judgment delivered by
THE COURT --
I. Introduction
1 This Reference requires us to consider momentous questions that go to the heart of our system of constitutional government. The observation we made more than a decade ago in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 (Manitoba Language Rights Reference), at p. 728, applies with equal force here: as in that case, the present one "combines legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity". In our view, it is not possible to answer the questions that have been put to us without a consideration of a number of underlying principles. An exploration of the meaning and nature of these underlying principles is not merely of academic interest. On the contrary, such an exploration is of immense practical utility. Only once those underlying principles have been examined and delineated may a considered response to the questions we are required to answer emerge.
2 The questions posed by the Governor in Council by way of Order in Council P.C. 1996-1497, dated September 30, 1996, read as follows:
1 Under the Constitution of
Canada, can the National Assembly, legislature or government of Quebec effect
the secession of
Quebec from Canada unilaterally?
2 Does international law give
the National Assembly, legislature or government of Quebec the right to effect
the secession of
Quebec 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 Quebec the right to effect the secession of
Quebec from Canada unilaterally?
3 In the event
of a conflict between domestic and international law on the right of the
National Assembly, legislature or government of Quebec to effect the secession of
Quebec from Canada unilaterally, which would take precedence in Canada?
3 Before turning to Question 1, as a preliminary matter, it is necessary to deal with the issues raised with regard to this Court's reference jurisdiction.
II. The Preliminary Objections to the Court's Reference Jurisdiction
A. The Constitutional Validity of Section 53 of the Supreme Court Act
7 Section 3 of the Supreme Court Act establishes this Court both as a "general court of appeal" for Canada and as an "additional court for the better administration of the laws of Canada". These two roles reflect the two heads of power enumerated in s. 101 of the Constitution Act, 1867. However, the "laws of Canada" referred to in s. 101 consist only of federal law and statute: see Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, at pp. 1065-66. As a result, the phrase "additional courts" contained in s. 101 is an insufficient basis upon which to ground the special jurisdiction established in s. 53 of the Supreme Court Act, which clearly exceeds a consideration of federal law alone (see, e.g., s. 53(2)). Section 53 must therefore be taken as enacted pursuant to Parliament's power to create a "general court of appeal" for Canada.
(1)May a Court of Appeal Exercise an Original Jurisdiction?
9 The words "general court of appeal" in s. 101 denote the status of the Court within the national court structure and should not be taken as a restrictive definition of the Court's functions. In most instances, this Court acts as the exclusive ultimate appellate court in the country, and, as such, is properly constituted as the "general court of appeal" for Canada. Moreover, it is clear that an appellate court can receive, on an exceptional basis, original jurisdiction not incompatible with its appellate jurisdiction.
10 The English Court of Appeal, the U.S. Supreme Court and certain courts of appeal in Canada exercise an original jurisdiction in addition to their appellate functions. See De Demko v. Home Secretary, [1959] A.C. 654 (H.L.), at p. 660; Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445 (Man. C.A.), at p. 453; United States Constitution, art. III, § 2. Although these courts are not constituted under a head of power similar to s. 101, they certainly provide examples which suggest that there is nothing inherently self-contradictory about an appellate court exercising original jurisdiction on an exceptional basis.
11 It is also argued that this Court's original jurisdiction is unconstitutional because it conflicts with the original jurisdiction of the provincial superior courts and usurps the normal appellate process. However, Parliament's power to establish a general court of appeal pursuant to s. 101 is plenary, and takes priority over the province's power to control the administration of justice in s. 92(14). See Attorney-General for Ontario v. Attorney-General for Canada, [1947] A.C. 127 (P.C.). Thus, even if it could be said that there is any conflict between this Court's reference jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in favour of Parliament's exercise of its plenary power to establish a "general court of appeal" provided, as discussed below, advisory functions are not to be considered inconsistent with the functions of a general court of appeal.
(2)May a Court of Appeal Undertake Advisory Functions?
12 The amicus curiae submits that
[TRANSLATION] [e]ither this constitutional power [to give the highest court in the federation jurisdiction to give advisory opinions] is expressly provided for by the Constitution, as is the case in India (Constitution of India, art. 143), or it is not provided for therein and so it simply does not exist. This is what the Supreme Court of the United States has held. [Emphasis added.]
14 In addition, the judicial systems in several European countries (such as Germany, France, Italy, Spain, Portugal and Belgium) include courts dedicated to the review of constitutional claims; these tribunals do not require a concrete dispute involving individual rights to examine the constitutionality of a new law -- an "abstract or objective question" is sufficient. See L. Favoreu, "American and European Models of Constitutional Justice", in D. S. Clark, ed., Comparative and Private International Law (1990), 105, at p. 113. The European Court of Justice, the European Court of Human Rights, and the Inter-American Court of Human Rights also all enjoy explicit grants of jurisdiction to render advisory opinions. See Treaty establishing the European Community, Art. 228(6); Protocol No. 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Europ. T.S. No. 5, p. 36; Statute of the Inter-American Court of Human Rights, Art. 2. There is no plausible basis on which to conclude that a court is, by its nature, inherently precluded from undertaking another legal function in tandem with its judicial duties.
B. The Court's Jurisdiction Under Section 53
16 Section 53 provides in its relevant parts 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.
23 More
importantly, Question 2 of this Reference does not ask an abstract question of
"pure" international law but seeks to determine the legal rights and
obligations of the National Assembly, legislature or government of Quebec, institutions that clearly exist as
part of the Canadian legal order. As will be seen, the amicus curiae
himself submitted that the success of any initiative on the part of Quebec to secede from the Canadian
federation would be governed by international law. In these circumstances, a
consideration of international law in the context of this Reference about the
legal aspects of the unilateral secession of
Quebec is not only permissible but unavoidable.
C. Justiciability
(1)the questions are not justiciable because they are too "theoretical" or speculative;
(2)the questions are not justiciable because they are political in nature;
(3)the questions are not yet ripe for judicial consideration.
26 Though a reference differs from the Court's usual adjudicative function, the Court should not, even in the context of a reference, entertain questions that would be inappropriate to answer. However, given the very different nature of a reference, the question of the appropriateness of answering a question should not focus on whether the dispute is formally adversarial or whether it disposes of cognizable rights. Rather, it should consider whether the dispute is appropriately addressed by a court of law. As we stated in Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 545:
While there may be many reasons why a question is non-justiciable, in this appeal 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.]
Thus the circumstances in which the Court may decline to answer a reference question on the basis of "non-justiciability" include:
(i) if to do so would take the Court beyond its own assessment of its proper role in the constitutional framework of our democratic form of government or
(ii) if the Court could not give an answer that lies within its area of expertise: the interpretation of law.
27 As to the
"proper role" of the Court, it is important to underline, contrary to
the submission of the amicus curiae, that the questions posed in this
Reference do not ask the Court to usurp any democratic decision that the people
of Quebec may be called
upon to make. The questions posed by the Governor in Council, as we interpret
them, are strictly limited to aspects of the legal framework in which that
democratic decision is to be taken. The attempted analogy to the U.S. "political questions"
doctrine therefore has no application. The legal framework having been
clarified, it will be for the population of Quebec, acting through the
political process, to decide whether or not to pursue secession. As will
be seen, the legal framework involves the rights and obligations of Canadians
who live outside the province
of Quebec, as well as those
who live within Quebec.
30 Generally, the instances in which the Court has exercised its discretion to refuse to answer a reference question that is otherwise justiciable can be broadly divided into two categories. First, where the question is too imprecise or ambiguous to permit a complete or accurate answer: see, e.g., McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Reference re Waters and Water-Powers, [1929] S.C.R. 200; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (Provincial Judges Reference), at para. 256. Second, where the parties have not provided sufficient information to allow the Court to provide a complete or accurate answer: see, e.g., Reference re Education System in Island of Montreal, [1926] S.C.R. 246; Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54 (Senate Reference); Provincial Judges Reference, at para. 257.
If the questions are thought to be ambiguous, this Court should not, in a constitutional reference, be in a worse position than that of a witness in a trial and feel compelled simply to answer yes or no. Should it find that a question might be misleading, or should it simply avoid the risk of misunderstanding, the Court is free either to interpret the question . . . or it may qualify both the question and the answer. . . .
The Reference questions raise issues of fundamental public importance. It cannot be said that the questions are too imprecise or ambiguous to permit a proper legal answer. Nor can it be said that the Court has been provided with insufficient information regarding the present context in which the questions arise. Thus, the Court is duty bound in the circumstances to provide its answers.
III. Reference Questions
A. Question 1
Under
the Constitution of Canada, can the National Assembly, legislature or
government of Quebec effect the secession of
Quebec from Canada unilaterally?
(1) Introduction
32 As we confirmed in Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793, at p. 806, "The Constitution Act, 1982 is now in force. Its legality is neither challenged nor assailable." 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 the Provincial Judges Reference, supra, at para. 92. Finally, as was said in the Patriation Reference, supra, at p. 874, 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. In our view, there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities. The foundation and substance of these principles are addressed in the following paragraphs. We will then turn to their specific application to the first reference question before us.
(2) Historical Context: The Significance of Confederation
34 Because this Reference deals with questions fundamental to the nature of Canada, it should not be surprising that it is necessary to review the context in which the Canadian union has evolved. To this end, we will briefly describe the legal evolution of the Constitution and the foundational principles governing constitutional amendments. Our purpose is not to be exhaustive, but to highlight the features most relevant in the context of this Reference.
35 Confederation was an initiative of elected representatives of the people then living in the colonies scattered across part of what is now Canada. It was not initiated by Imperial fiat. In March 1864, a select committee of the Legislative Assembly of the Province of Canada, chaired by George Brown, began to explore prospects for constitutional reform. The committee's report, released in June 1864, recommended that a federal union encompassing Canada East and Canada West, and perhaps the other British North American colonies, be pursued. A group of Reformers from Canada West, led by Brown, joined with Étienne P. Taché and John A. Macdonald in a coalition government for the purpose of engaging in constitutional reform along the lines of the federal model proposed by the committee's report.
36 An opening to pursue federal union soon arose. The leaders of the maritime colonies had planned to meet at Charlottetown in the fall to discuss the perennial topic of maritime union. The Province of Canada secured invitations to send a Canadian delegation. On September 1, 1864, 23 delegates (five from New Brunswick, five from Nova Scotia, five from Prince Edward Island, and eight from the Province of Canada) met in Charlottetown. After five days of discussion, the delegates reached agreement on a plan for federal union.
38 Several matters remained to be resolved, and so the Charlottetown delegates agreed to meet again at Quebec in October, and to invite Newfoundland to send a delegation to join them. The Quebec Conference began on October 10, 1864. Thirty-three delegates (two from Newfoundland, seven from New Brunswick, five from Nova Scotia, seven from Prince Edward Island, and twelve from the Province of Canada) met over a two and a half week period. Precise consideration of each aspect of the federal structure preoccupied the political agenda. The delegates approved 72 resolutions, addressing almost all of what subsequently made its way into the final text of the Constitution Act, 1867. These included guarantees to protect French language and culture, both directly (by making French an official language in Quebec and Canada as a whole) and indirectly (by allocating jurisdiction over education and "Property and Civil Rights in the Province" to the provinces). The protection of minorities was thus reaffirmed.
39 Legally, there remained only the requirement to have the Quebec Resolutions put into proper form and passed by the Imperial Parliament in London. However, politically, it was thought that more was required. Indeed, Resolution 70 provided that "The Sanction of the Imperial and Local Parliaments shall be sought for the Union of the Provinces, on the principles adopted by the Conference." (Cited in J. Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (1895), at p. 52 (emphasis added).)
40 Confirmation of the Quebec Resolutions was achieved more smoothly in central Canada than in the Maritimes. In February and March 1865, the Quebec Resolutions were the subject of almost six weeks of sustained debate in both houses of the Canadian legislature. The Canadian Legislative Assembly approved the Quebec Resolutions in March 1865 with the support of a majority of members from both Canada East and Canada West. The governments of both Prince Edward Island and Newfoundland chose, in accordance with popular sentiment in both colonies, not to accede to the Quebec Resolutions. In New Brunswick, a general election was required before Premier Tilley's pro-Confederation party prevailed. In Nova Scotia, Premier Tupper ultimately obtained a resolution from the House of Assembly favouring Confederation.
41 Sixteen delegates (five from New Brunswick, five from Nova Scotia, and six from the Province of Canada) met in London in December 1866 to finalize the plan for Confederation. To this end, they agreed to some slight modifications and additions to the Quebec Resolutions. Minor changes were made to the distribution of powers, provision was made for the appointment of extra senators in the event of a deadlock between the House of Commons and the Senate, and certain religious minorities were given the right to appeal to the federal government where their denominational school rights were adversely affected by provincial legislation. The British North America Bill was drafted after the London Conference with the assistance of the Colonial Office, and was introduced into the House of Lords in February 1867. The Act passed third reading in the House of Commons on March 8, received royal assent on March 29, and was proclaimed on July 1, 1867. The Dominion of Canada thus became a reality.
42 There was an
early attempt at secession. In the
first Dominion election in September 1867, Premier Tupper's forces were
decimated: members opposed to Confederation won 18 of Nova
Scotia's 19 federal seats, and in the simultaneous
provincial election, 36 of the 38 seats in the provincial legislature. Newly-elected
Premier Joseph Howe led a delegation to the Imperial Parliament in London in an effort to undo the new
constitutional arrangements, but it was too late. The Colonial Office rejected
Premier Howe's plea to permit Nova Scotia to withdraw from Confederation. As the Colonial Secretary wrote in
1868:
The neighbouring province of New Brunswick has entered into the union in reliance on having with it the sister province of Nova Scotia; and vast obligations, political and commercial, have already been contracted on the faith of a measure so long discussed and so solemnly adopted. . . . I trust that the Assembly and the people of Nova Scotia will not be surprised that the Queen's government feel that they would not be warranted in advising the reversal of a great measure of state, attended by so many extensive consequences already in operation. . . .
(Quoted in H. Wade
MacLauchlan, "Accounting for Democracy and the Rule of Law in the Quebec Secession
Reference" (1997), 76 Can. Bar Rev. 155, at p. 168.)
The interdependence characterized by "vast obligations, political and commercial", referred to by the Colonial Secretary in 1868, has, of course, multiplied immeasurably in the last 130 years.
Now, when we [are] united together, if union [is] attained, we [shall] form a political nationality with which neither the national origin, nor the religion of any individual, [will] interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races [is] utopian -- it [is] impossible. Distinctions of this kind [will] always exist. Dissimilarity, in fact, appear[s] to be the order of the physical world and of the moral world, as well as in the political world. But with regard to the objection based on this fact, to the effect that a great nation [can]not be formed because Lower Canada [is] in great part French and Catholic, and Upper Canada [is] British and Protestant, and the Lower Provinces [are] mixed, it [is] futile and worthless in the extreme. . . . In our own Federation we [will] have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success [will] increase the prosperity and glory of the new Confederacy. . . . [W]e [are] of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare.
The federal-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation, and manifested a concern to accommodate that diversity within a single nation by granting significant powers to provincial governments. The Constitution Act, 1867 was an act of nation-building. It was the first step in the transition from colonies separately dependent on the Imperial Parliament for their governance to a unified and independent political state in which different peoples could resolve their disagreements and work together toward common goals and a common interest. Federalism was the political mechanism by which diversity could be reconciled with unity.
44 A federal-provincial division of powers necessitated a written constitution which circumscribed the powers of the new Dominion and Provinces of Canada. Despite its federal structure, the new Dominion was to have "a Constitution similar in Principle to that of the United Kingdom" (Constitution Act, 1867, preamble). Allowing for the obvious differences between the governance of Canada and the United Kingdom, it was nevertheless thought important to thus emphasize the continuity of constitutional principles, including democratic institutions and the rule of law; and the continuity of the exercise of sovereign power transferred from Westminster to the federal and provincial capitals of Canada.
45 After 1867, the Canadian federation continued to evolve both territorially and politically. New territories were admitted to the union and new provinces were formed. In 1870, Rupert's Land and the Northwest Territories were admitted and Manitoba was formed as a province. British Columbia was admitted in 1871, Prince Edward Island in 1873, and the Arctic Islands were added in 1880. In 1898, the Yukon Territory and in 1905, the provinces of Alberta and Saskatchewan were formed from the Northwest Territories. Newfoundland was admitted in 1949 by an amendment to the Constitution Act, 1867. The new territory of Nunavut was carved out of the Northwest Territories in 1993 with the partition to become effective in April 1999.
46 Canada's evolution from colony to fully independent state was gradual. The Imperial Parliament's passage of the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. 5, c. 4, confirmed in law what had earlier been confirmed in fact by the Balfour Declaration of 1926, namely, that Canada was an independent country. Thereafter, Canadian law alone governed in Canada, except where Canada expressly consented to the continued application of Imperial legislation. Canada's independence from Britain was achieved through legal and political evolution with an adherence to the rule of law and stability. The proclamation of the Constitution Act, 1982 removed the last vestige of British authority over the Canadian Constitution and re-affirmed Canada's commitment to the protection of its minority, aboriginal, equality, legal and language rights, and fundamental freedoms as set out in the Canadian Charter of Rights and Freedoms.
47 Legal continuity, which requires an orderly transfer of authority, necessitated that the 1982 amendments be made by the Westminster Parliament, but the legitimacy as distinguished from the formal legality of the amendments derived from political decisions taken in Canada within a legal framework which this Court, in the Patriation Reference, had ruled was in accordance with our Constitution. It should be noted, parenthetically, that the 1982 amendments did not alter the basic division of powers in ss. 91 and 92 of the Constitution Act, 1867, which is the primary textual expression of the principle of federalism in our Constitution, agreed upon at Confederation. It did, however, have the important effect that, despite the refusal of the government of Quebec to join in its adoption, Quebec has become bound to the terms of a Constitution that is different from that which prevailed previously, particularly as regards provisions governing its amendment, and the Canadian Charter of Rights and Freedoms. As to the latter, to the extent that the scope of legislative powers was thereafter to be constrained by the Charter, the constraint operated as much against federal legislative powers as against provincial legislative powers. Moreover, it is to be remembered that s. 33, the "notwithstanding clause", gives Parliament and the provincial legislatures authority to legislate on matters within their jurisdiction in derogation of the fundamental freedoms (s. 2), legal rights (ss. 7 to 14) and equality rights (s. 15) provisions of the Charter.
(3) Analysis of the Constitutional Principles
(a) Nature of the Principles
50 Our Constitution has an internal architecture, or what the majority of this Court in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57, called a "basic constitutional structure". The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole. As we recently emphasized in the Provincial Judges Reference, certain underlying principles infuse our Constitution and breathe life into it. Speaking of the rule of law principle in the Manitoba Language Rights Reference, supra, at p. 750, we held that "the principle is clearly implicit in the very nature of a Constitution". The same may be said of the other three constitutional principles we underscore today.
52 The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136. As this Court indicated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government.
53 Given the existence of these underlying constitutional principles, what use may the Court make of them? In the Provincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (the majority opinion referred to them as "organizing principles" and described one of them, judicial independence, as an "unwritten norm") could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review. However, we also observed in the Provincial Judges Reference that the effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 462-63. In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text".
(b) Federalism
55 It is undisputed that Canada is a federal state. Yet many commentators have observed that, according to the precise terms of the Constitution Act, 1867, the federal system was only partial. See, e.g., K. C. Wheare, Federal Government (4th ed. 1963), at pp. 18-20. This was so because, on paper, the federal government retained sweeping powers which threatened to undermine the autonomy of the provinces. Here again, however, a review of the written provisions of the Constitution does not provide the entire picture. Our political and constitutional practice has adhered to an underlying principle of federalism, and has interpreted the written provisions of the Constitution in this light. For example, although the federal power of disallowance was included in the Constitution Act, 1867, the underlying principle of federalism triumphed early. Many constitutional scholars contend that the federal power of disallowance has been abandoned (e.g., P. W. Hogg, Constitutional Law of Canada (4th ed. 1997), at p. 120).
57 This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, supra, at pp. 905-9, we confirmed that the principle of federalism runs through the political and legal systems of Canada. Indeed, Martland and Ritchie JJ., dissenting in the Patriation Reference, at p. 821, considered federalism to be "the dominant principle of Canadian constitutional law". With the enactment of the Charter, that proposition may have less force than it once did, but there can be little doubt that the principle of federalism remains a central organizational theme of our Constitution. Less obviously, perhaps, but certainly of equal importance, federalism is a political and legal response to underlying social and political realities.
not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head.
More recently, in Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1047, the majority of this Court held that differences between provinces "are a rational part of the political reality in the federal process". It was referring to the differential application of federal law in individual provinces, but the point applies more generally. A unanimous Court expressed similar views in R. v. S. (S.), [1990] 2 S.C.R. 254, at pp. 287-88.
59 The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. This is not merely the result of chance. The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867. The experience of both Canada East and Canada West under the Union Act, 1840 (U.K.), 3-4 Vict., c. 35, had not been satisfactory. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself.
60 Federalism was also welcomed by Nova Scotia and New Brunswick, both of which also affirmed their will to protect their individual cultures and their autonomy over local matters. All new provinces joining the federation sought to achieve similar objectives, which are no less vigorously pursued by the provinces and territories as we approach the new millennium.
(c) Democracy
61 Democracy is
a fundamental value in our constitutional law and political culture. While it
has both an institutional and an individual aspect, the democratic principle
was also argued before us in the sense of the supremacy of the sovereign will
of a people, in this case potentially to be expressed by Quebecers in support
of unilateral secession. It is
useful to explore in a summary way these different aspects of the democratic
principle.
62 The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day. A majority of this Court in OPSEU v. Ontario, supra, at p. 57, confirmed that "the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels". As is apparent from an earlier line of decisions emanating from this Court, including Switzman v. Elbling, [1957] S.C.R. 285, Saumur v. City of Quebec, [1953] 2 S.C.R. 299, Boucher v. The King, [1951] S.C.R. 265, and Reference re Alberta Statutes, [1938] S.C.R. 100, the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself. To have done so might have appeared redundant, even silly, to the framers. As explained in the Provincial Judges Reference, supra, at para. 100, it is evident that our Constitution contemplates that Canada shall be a constitutional democracy. Yet this merely demonstrates the importance of underlying constitutional principles that are nowhere explicitly described in our constitutional texts. The representative and democratic nature of our political institutions was simply assumed.
63 Democracy is commonly understood as being a political system of majority rule. It is essential to be clear what this means. The evolution of our democratic tradition can be traced back to the Magna Carta (1215) and before, through the long struggle for Parliamentary supremacy which culminated in the English Bill of Rights of 1689, the emergence of representative political institutions in the colonial era, the development of responsible government in the 19th century, and eventually, the achievement of Confederation itself in 1867. "[T]he Canadian tradition", the majority of this Court held in Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, at p. 186, is "one of evolutionary democracy moving in uneven steps toward the goal of universal suffrage and more effective representation". Since Confederation, efforts to extend the franchise to those unjustly excluded from participation in our political system -- such as women, minorities, and aboriginal peoples -- have continued, with some success, to the present day.
64 Democracy is not simply concerned with the process of government. On the contrary, as suggested in Switzman v. Elbling, supra, at p. 306, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities: Reference re Provincial Electoral Boundaries, at p. 188. Put another way, a sovereign people exercises its right to self-government through the democratic process. In considering the scope and purpose of the Charter, the Court in R. v. Oakes, [1986] 1 S.C.R. 103, articulated some of the values inherent in the notion of democracy (at p. 136):
The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
65 In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. These legislatures, we have said, are "at the core of the system of representative government": New Brunswick Broadcasting, supra, at p. 387. In individual terms, the right to vote in elections to the House of Commons and the provincial legislatures, and to be candidates in those elections, is guaranteed to "Every citizen of Canada" by virtue of s. 3 of the Charter. Historically, this Court has interpreted democracy to mean the process of representative and responsible government and the right of citizens to participate in the political process as voters (Reference re Provincial Electoral Boundaries, supra) and as candidates (Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876). In addition, the effect of s. 4 of the Charter is to oblige the House of Commons and the provincial legislatures to hold regular elections and to permit citizens to elect representatives to their political institutions. The democratic principle is affirmed with particular clarity in that s. 4 is not subject to the notwithstanding power contained in s. 33.
66 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.
(d) Constitutionalism and the Rule of Law
72 The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s. 52(1) of the Constitution Act, 1982, which provides that "[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455). 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.
(e) Protection of Minorities
79 The fourth underlying constitutional principle we address here concerns the protection of minorities. There are a number of specific constitutional provisions protecting minority language, religion and education rights. Some of those provisions are, as we have recognized on a number of occasions, the product of historical compromises. As this Court observed in Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1173, and in Reference re Education Act (Que.), [1993] 2 S.C.R. 511, at pp. 529-30, the protection of minority religious education rights was a central consideration in the negotiations leading to Confederation. In the absence of such protection, it was felt that the minorities in what was then Canada East and Canada West would be submerged and assimilated. See also Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377, at pp. 401-2, and Adler v. Ontario, [1996] 3 S.C.R. 609. Similar concerns animated the provisions protecting minority language rights, as noted in Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, at p. 564.
80 However, we highlight that even though those provisions were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. The principle is clearly reflected in the Charter's provisions for the protection of minority rights. See, e.g., Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, and Mahe v. Alberta, [1990] 1 S.C.R. 342.
81 The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada's record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution.
82 Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself, the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights, and in s. 25, a non-derogation clause in favour of the rights of aboriginal peoples. The "promise" of s. 35, as it was termed in R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1083, recognized not only the ancient occupation of land by aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments. The protection of these rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value.
(4) The Operation of the
Constitutional Principles in the Secession
Context
83 Secession is the
effort of a group or section of a state to withdraw itself from the political
and constitutional authority of that state, with a view to achieving statehood
for a new territorial unit on the international plane. In a federal state, secession
typically takes the form of a territorial unit seeking to withdraw from the
federation. Secession is a
legal act as much as a political one. By the terms of Question 1 of this
Reference, we are asked to rule on the legality of unilateral secession
"[u]nder the Constitution of Canada". This is an appropriate question,
as the legality of unilateral secession must be
evaluated, at least in the first instance, from the perspective of the domestic
legal order of the state from which the unit seeks to withdraw. As we shall see
below, it is also argued that international law is a relevant standard by which
the legality of a purported act of secession may be
measured.
84 The secession of a
province from Canada must be considered, in legal terms, to require an
amendment to the Constitution, which perforce requires negotiation. The
amendments necessary to achieve a secession could be
radical and extensive. Some commentators have suggested that secession could be
a change of such a magnitude that it could not be considered to be merely an
amendment to the Constitution. We are not persuaded by this contention.
It is of course true that the Constitution is silent as to the ability of a
province to secede from Confederation but, although the Constitution neither
expressly authorizes nor prohibits secession, an act
of secession would
purport to alter the governance of Canadian territory in a manner which
undoubtedly is inconsistent with our current constitutional arrangements. The
fact that those changes would be profound, or that they would purport to have a
significance with respect to international law, does not negate their nature as
amendments to the Constitution of Canada.
85 The
Constitution is the expression of the sovereignty of the people of Canada. It lies within the power of the
people of Canada, acting through their various governments duly elected and
recognized under the Constitution, to effect whatever constitutional
arrangements are desired within Canadian territory, including, should it be so
desired, the secession of
Quebec from Canada. As this Court held in the Manitoba Language Rights
Reference, supra, at p. 745, "[t]he Constitution of a country
is a statement of the will of the people to be governed in accordance with
certain principles held as fundamental and certain prescriptions restrictive of
the powers of the legislature and government". The manner in which such a
political will could be formed and mobilized is a somewhat speculative
exercise, though we are asked to assume the existence of such a political will
for the purpose of answering the question before us. By the terms of this
Reference, we have been asked to consider whether it would be constitutional in
such a circumstance for the National Assembly, legislature or government of
Quebec to effect the secession of Quebec
from Canada unilaterally.
86 The
"unilateral" nature of the act is of cardinal importance and we must
be clear as to what is understood by this term. In one sense, any step towards
a constitutional amendment initiated by a single actor on the constitutional
stage is "unilateral". We do not believe that this is the meaning
contemplated by Question 1, nor is this the sense in which the term has been
used in argument before us. Rather, what is claimed by a right to secede
"unilaterally" is the right to effectuate secession without
prior negotiations with the other provinces and the federal government. At
issue is not the legality of the first step but the legality of the final act
of purported unilateral secession. The
supposed juridical basis for such an act is said to be a clear expression of
democratic will in a referendum in the province of Quebec. This
claim requires us to examine the possible juridical impact, if any, of such a
referendum on the functioning of our Constitution, and on the claimed legality
of a unilateral act of secession.
87 Although the
Constitution does not itself address the use of a referendum procedure, and the
results of a referendum have no direct role or legal effect in our
constitutional scheme, a referendum undoubtedly may provide a democratic method
of ascertaining the views of the electorate on important political questions on
a particular occasion. The democratic principle identified above would demand
that considerable weight be given to a clear expression by the people of Quebec
of their will to secede from Canada, even though a referendum, in itself and
without more, has no direct legal effect, and could not in itself bring about
unilateral secession. Our
political institutions are premised on the democratic principle, and so an
expression of the democratic will of the people of a province carries weight,
in that it would confer legitimacy on the efforts of the government of Quebec to initiate the Constitution's
amendment process in order to secede by constitutional means. In this context,
we refer to a "clear" majority as a qualitative evaluation. The
referendum result, if it is to be taken as an expression of the democratic
will, must be free of ambiguity both in terms of the question asked and in
terms of the support it achieves.
88 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. The amendment of the Constitution begins with a political process
undertaken pursuant to the Constitution itself. In Canada, the initiative for constitutional amendment is the responsibility
of democratically elected representatives of the participants in Confederation.
Those representatives may, of course, take their cue from a referendum, but in
legal terms, constitution-making in Canada, as in many countries, is undertaken by the democratically elected
representatives of the people. The corollary of a legitimate attempt by one
participant in Confederation to seek an amendment to the Constitution is an
obligation on all parties to come to the negotiating table. The clear
repudiation by the people of Quebec of the existing constitutional order would
confer legitimacy on demands for secession, and
place an obligation on the other provinces and the federal government to
acknowledge and respect that expression of democratic will by entering into
negotiations and conducting them in accordance with the underlying
constitutional principles already discussed.
90 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. Those principles lead us to reject two absolutist propositions. One
of those propositions is that there would be a legal obligation on the other
provinces and federal government to accede to the secession of a
province, subject only to negotiation of the logistical details of secession. This
proposition is attributed either to the supposed implications of the democratic
principle of the Constitution, or to the international law principle of
self-determination of peoples.
91 For both
theoretical and practical reasons, we cannot accept this view. We hold that
Quebec could not purport to invoke a right of self-determination such as to
dictate the terms of a proposed secession to the
other parties: that would not be a negotiation at all. As well, it would be
naive to expect that the substantive goal of secession could
readily be distinguished from the practical details of secession. The
devil would be in the details. The democracy principle, as we have emphasized,
cannot be invoked to trump the principles of federalism and rule of law, the
rights of individuals and minorities, or the operation of democracy in the
other provinces or in Canada as
a whole. No negotiations could be effective if their ultimate outcome, secession, is cast
as an absolute legal entitlement based upon an obligation to give effect to
that act of secession in the
Constitution. Such a foregone conclusion would actually undermine the
obligation to negotiate and render it hollow.
92 However, we
are equally unable to accept the reverse proposition, that a clear expression
of self-determination by the people of Quebec would impose no obligations upon the other provinces or the
federal government. The continued existence and operation of the Canadian
constitutional order cannot remain indifferent to the clear expression of a
clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion
that other constitutionally recognized principles necessarily trump the clearly
expressed democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to the underlying
constitutional principles that must inform the amendment process, including the
principles of democracy and federalism. The rights of other provinces and the
federal government cannot deny the right of the government of Quebec to pursue secession, should
a clear majority of the people of Quebec choose that goal, so long as in doing
so, Quebec respects the rights of others. Negotiations would be necessary 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.
93 Is the
rejection of both of these propositions reconcilable? Yes, once it is realized
that none of the rights or principles under discussion is absolute to the exclusion
of the others. This observation suggests that other parties cannot exercise
their rights in such a way as to amount to an absolute denial of Quebec's
rights, and similarly, that so long as Quebec exercises its rights while
respecting the rights of others, it may propose secession and seek
to achieve it through negotiation. The negotiation process precipitated by a
decision of a clear majority of the population of Quebec on a clear question to
pursue secession 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. There can be no suggestion that either of these majorities
"trumps" the other. A political majority that does not act in
accordance with the underlying constitutional principles we have identified
puts at risk the legitimacy of the exercise of its rights.
96 No one can
predict the course that such negotiations might take. The possibility that they
might not lead to an agreement amongst the parties must be recognized.
Negotiations following a referendum vote in favour of seeking secession would
inevitably address a wide range of issues, many of great import. After 131
years of Confederation, there exists, inevitably, a high level of integration
in economic, political and social institutions across Canada. The vision of those who brought about Confederation was to create
a unified country, not a loose alliance of autonomous provinces. Accordingly,
while there are regional economic interests, which sometimes coincide with
provincial boundaries, there are also national interests and enterprises (both
public and private) that would face potential dismemberment. There is a
national economy and a national debt. Arguments were raised before us regarding
boundary issues. There are linguistic and cultural minorities, including
aboriginal peoples, unevenly distributed across the country who look to the
Constitution of Canada for the protection of their rights. Of course, secession would
give rise to many issues of great complexity and difficulty. These would have to
be resolved within the overall framework of the rule of law, thereby assuring
Canadians resident in Quebec
and elsewhere a measure of stability in what would likely be a period of
considerable upheaval and uncertainty. 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. As the Attorney General of
Saskatchewan put it in his oral submission:
A nation is built when the communities that comprise it make commitments to it, when they forego choices and opportunities on behalf of a nation, . . . when the communities that comprise it make compromises, when they offer each other guarantees, when they make transfers and perhaps most pointedly, when they receive from others the benefits of national solidarity. The threads of a thousand acts of accommodation are the fabric of a nation. . . .
97 In the
circumstances, negotiations following such a referendum would undoubtedly be
difficult. While the negotiators would have to contemplate the possibility of secession, there
would be no absolute legal entitlement to it and no assumption that an
agreement reconciling all relevant rights and obligations would actually be
reached. It is foreseeable that even negotiations carried out in conformity
with the underlying constitutional principles could reach an impasse. We need
not speculate here as to what would then transpire. Under the Constitution, secession requires
that an amendment be negotiated.
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 Operation Dismantle, supra, at p. 459, it was pointed out that justiciability is a "doctrine . . . founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes". An analogous doctrine of judicial restraint operates here. Also, as observed in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49 (the Auditor General's case), at p. 91:
There is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme.
100 The role
of the Court in this Reference is limited to the identification of the relevant
aspects of the Constitution in their broadest sense. We have interpreted the
questions as relating to the constitutional framework within which political
decisions may ultimately be made. Within that framework, the workings of the
political process are complex and can only be resolved by means of political
judgments and evaluations. 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.
103 To the
extent that a breach of the constitutional duty to negotiate in accordance with
the principles described above undermines the legitimacy of a party's actions,
it may have important ramifications at the international level. Thus, a failure
of the duty to undertake negotiations and pursue them according to
constitutional principles may undermine that government's claim to legitimacy which
is generally a precondition for recognition by the international community.
Conversely, violations of those principles by the federal or other provincial
governments responding to the request for secession may
undermine their legitimacy. Thus, 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. Both the legality of the acts of the parties to the negotiation
process under Canadian law, and the perceived legitimacy of such action, would
be important considerations in the recognition process. In this way, the
adherence of the parties to the obligation to negotiate would be evaluated in
an indirect manner on the international plane.
104 Accordingly,
the secession of
Quebec from Canada cannot be accomplished by the National Assembly, the
legislature or government of Quebec unilaterally, that is to say, without
principled negotiations, and be considered a lawful act. Any attempt to effect
the secession of a
province from Canada must be undertaken pursuant to the Constitution of Canada,
or else violate the Canadian legal order. However, the continued existence and
operation of the Canadian constitutional order cannot remain unaffected by the
unambiguous expression of a clear majority of Quebecers that they no longer wish
to remain in Canada. The
primary means by which that expression is given effect is the constitutional
duty to negotiate in accordance with the constitutional principles that we have
described herein. In the event secession
negotiations are initiated, our Constitution, no less than our history, would
call on the participants to work to reconcile the rights, obligations and
legitimate aspirations of all Canadians within a framework that emphasizes
constitutional responsibilities as much as it does constitutional rights.
105 It will be
noted that Question 1 does not ask how secession could be
achieved in a constitutional manner, but addresses one form of secession only,
namely unilateral secession.
Although the applicability of various procedures to achieve lawful secession was
raised in argument, each option would require us to assume the existence of
facts that at this stage are unknown. In accordance with the usual rule of
prudence in constitutional cases, we refrain from pronouncing on the
applicability of any particular constitutional procedure to effect secession unless
and until sufficiently clear facts exist to squarely raise an issue for
judicial determination.
(5) Suggested Principle of Effectivity
106 In the foregoing
discussion we have not overlooked the principle of effectivity, which was
placed at the forefront in argument before us. For the reasons that follow, we
do not think that the principle of effectivity has any application to the
issues raised by Question 1. A distinction must be drawn between the right of a
people to act, and their power to do so. They are not identical. A right is
recognized in law: mere physical ability is not necessarily given status as a
right. The fact that an individual or group can act in a certain way says
nothing at all about the legal status or consequences of the act. A power may
be exercised even in the absence of a right to do so, but if it is, then it is
exercised without legal foundation. Our Constitution does not address powers in
this sense. On the contrary, the Constitution is concerned only with the rights
and obligations of individuals, groups and governments, and the structure of
our institutions. It was suggested before us that the National Assembly,
legislature or government of Quebec could unilaterally effect the secession of that
province from Canada, but it was not suggested that they might do so as a
matter of law: rather, it was contended that they simply could do so as a
matter of fact. Although under the Constitution there is no right to pursue secession
unilaterally, that is secession without
principled negotiation, this does not rule out the possibility of an
unconstitutional declaration of secession leading
to a de facto secession. The ultimate
success of such a secession would be
dependent on effective control of a territory and recognition by the
international community. The principles governing secession at
international law are discussed in our answer to Question 2.
107 In our
view, the alleged principle of effectivity has no constitutional or legal
status in the sense that it does not provide an ex ante explanation or
justification for an act. In essence, acceptance of a principle of effectivity
would be tantamount to accepting that the National Assembly, legislature or
government of Quebec may
act without regard to the law, simply because it asserts the power to do so. So
viewed, the suggestion is 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. It is further suggested that if
the secession bid was
successful, a new legal order would be created in that province, which would
then be considered an independent state.
B. Question 2
Does international law give
the National Assembly, legislature or government of Quebec the right to effect
the secession of
Quebec 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 Quebec the right to effect the secession of
Quebec from Canada unilaterally?
109 For
reasons already discussed, the Court does not accept the contention that
Question 2 raises a question of "pure" international law which this
Court has no jurisdiction to address. Question 2 is posed in the context of a
Reference to address the existence or non-existence of a right of unilateral secession by a
province of Canada. The amicus curiae argues that this question
ultimately falls to be determined under international law. In addressing this
issue, the Court does not purport to act as an arbiter between sovereign states
or more generally within the international community. The Court is engaged in
rendering an advisory opinion on certain legal aspects of the continued
existence of the Canadian federation. International law has been invoked as a
consideration and it must therefore be addressed.
110 The
argument before the Court on Question 2 has focused largely on determining
whether, under international law, a positive legal right to unilateral secession exists
in the factual circumstances assumed for the purpose of our response to
Question 1. Arguments were also advanced to the effect that, regardless of the
existence or non-existence of a positive right to unilateral secession,
international law will in the end recognize effective political realities --
including the emergence of a new state -- as facts. While our response to
Question 2 will address considerations raised by this alternative argument of
"effectivity", it should first be noted that the existence of a
positive legal entitlement is quite different from a prediction that the law
will respond after the fact to a then existing political reality. These two
concepts examine different points in time. The questions posed to the Court
address legal rights in advance of a unilateral act of purported secession. While
we touch below on the practice governing the international recognition of
emerging states, the Court is as wary of entertaining speculation about the
possible future conduct of sovereign states on the international level as it
was under Question 1 to speculate about the possible future course of political
negotiations among the participants in the Canadian federation. In both cases,
the Reference questions are directed only to the legal framework within
which the political actors discharge their various mandates.
(1) Secession at
International Law
111 It is
clear that international law does not specifically grant component parts of
sovereign states the legal right to secede unilaterally from their
"parent" state. This is acknowledged by the experts who provided
their opinions on behalf of both the amicus curiae and the Attorney
General of Canada. Given the lack of specific authorization for unilateral secession,
proponents of the existence of such a right at international law are therefore
left to attempt to found their argument (i) on the proposition that unilateral secession is not
specifically prohibited and that what is not specifically prohibited is
inferentially permitted; or (ii) on the implied duty of states to recognize the
legitimacy of secession brought
about by the exercise of the well-established international law right of "a
people" to self-determination. The amicus curiae addressed the
right of self-determination, but submitted that it was not applicable to the
circumstances of Quebec within the Canadian federation, irrespective of the
existence or non-existence of a referendum result in favour of secession. We
agree on this point with the amicus curiae, for reasons that we will
briefly develop.
(a) Absence of a Specific Prohibition
112 International
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,
discussed below. As will be seen, international law places great importance on
the territorial integrity of nation states and, by and large, leaves the
creation of a new state to be determined by the domestic law of the existing
state of which the seceding entity presently forms a part (R. Y. Jennings,
The Acquisition of Territory in International Law (1963), at
pp. 8-9). Where, as here, unilateral secession would be
incompatible with the domestic Constitution, international law is likely to
accept that conclusion subject to the right of peoples to self-determination, a
topic to which we now turn.
(b) The Right of a People to Self-determination
Article 1
. . .
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
The sheer number of resolutions concerning the right of self-determination makes their enumeration impossible.
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.
120 In 1993, the U.N. World Conference on Human Rights adopted the Vienna Declaration and Programme of Action, A/CONF.157/24, 25 June 1993, that reaffirmed Article 1 of the two above-mentioned covenants. The U.N. General Assembly's Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6, 9 November 1995, also emphasizes the right to self-determination by providing that the U.N.'s member states will:
1. . . .
Continue to reaffirm the right of self-determination of all peoples, taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, and recognize the right of peoples to take legitimate action in accordance with the Charter of the United Nations to realize their inalienable right of self-determination. This shall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind. . . . [Emphasis added.]
The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States.
By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development. [Emphasis added.]
122 As will be
seen, international law expects that the right to self-determination will be
exercised by peoples within the framework of existing sovereign states and
consistently with the maintenance of the territorial integrity of those states.
Where this is not possible, in the exceptional circumstances discussed below, a
right of secession may
arise.
(i) Defining "Peoples"
125 While much
of the Quebec population certainly shares many of the characteristics (such as a
common language and culture) that would be considered in determining whether a
specific group is a "people", as do other groups within Quebec and/or
Canada, it is not necessary to explore this legal characterization to resolve
Question 2 appropriately. Similarly, it is not necessary for the Court to
determine whether, should a Quebec people exist within the definition of public
international law, such a people encompasses the entirety of the provincial
population or just a portion thereof. Nor is it necessary to examine the
position of the aboriginal population within Quebec. As the following discussion of the scope of the right to
self-determination will make clear, whatever be the correct application of the
definition of people(s) in this context, their right of self-determination
cannot in the present circumstances be said to ground a right to unilateral secession.
(ii) Scope of the Right to Self-determination
126 The
recognized sources of international law establish that the right to self-determination
of a people is normally fulfilled through internal self-determination --
a people's pursuit of its political, economic, social and cultural development
within the framework of an existing state. A right to external
self-determination (which in this case potentially takes the form of the
assertion of a right to unilateral secession) arises
in only the most extreme of cases and, even then, under carefully defined
circumstances. External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations as
[t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. [Emphasis added.]
be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction. . . . [Emphasis added.]
. . . confirm their commitment strictly and effectively to observe the principle of the territorial integrity of States. They will refrain from any violation of this principle and thus from any action aimed by direct or indirect means, in contravention of the purposes and principles of the Charter of the United Nations, other obligations under international law or the provisions of the [Helsinki] Final Act, at violating the territorial integrity, political independence or the unity of a State. No actions or situations in contravention of this principle will be recognized as legal by the participating States. [Emphasis added.]
Accordingly, the reference in the Helsinki Final Act to a people determining its external political status is interpreted to mean the expression of a people's external political status through the government of the existing state, save in the exceptional circumstances discussed below. As noted by Cassese, supra, at p. 287, given the history and textual structure of this document, its reference to external self-determination simply means that "no territorial or other change can be brought about by the central authorities of a State that is contrary to the will of the whole people of that State".
130 While the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights do not specifically refer to the protection of territorial integrity, they both define the ambit of the right to self-determination in terms that are normally attainable within the framework of an existing state. There is no necessary incompatibility between the maintenance of the territorial integrity of existing states, including Canada, and the right of a "people" to achieve a full measure of self-determination. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.
(iii) Colonial and Oppressed Peoples
131 Accordingly,
the general state of international law with respect to the right to
self-determination is that the right operates within the overriding protection
granted to the territorial integrity of "parent" states. However, as
noted by Cassese, supra, at p. 334, there are certain defined contexts
within which the right to the self-determination of peoples does allow that
right to be exercised "externally", which, in the context of this
Reference, would potentially mean secession:
. . . the right to external self-determination, which entails the possibility of choosing (or restoring) independence, has only been bestowed upon two classes of peoples (those under colonial rule or foreign occupation), based upon the assumption that both classes make up entities that are inherently distinct from the colonialist Power and the occupant Power and that their 'territorial integrity', all but destroyed by the colonialist or occupying Power, should be fully restored. . . .
Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:
(a) To promote friendly relations and co-operation among States; and
(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;
and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.
134 A number
of commentators have further asserted that the right to self-determination may
ground a right to unilateral secession in a
third circumstance. Although this third circumstance has been described in
several ways, the underlying proposition is that, 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. The Vienna
Declaration requirement that governments represent "the whole people
belonging to the territory without distinction of any kind" adds credence
to the assertion that such a complete blockage may potentially give rise to a
right of secession.
135 Clearly,
such a circumstance parallels the other two recognized situations in that the
ability of a people to exercise its right to self-determination internally is
somehow being totally frustrated. While it remains unclear whether this third
proposition actually reflects an established international law standard, it is
unnecessary for present purposes to make that determination. Even assuming that
the third circumstance is sufficient to create a right to unilateral secession under
international law, the current Quebec context cannot be said to approach such a
threshold. As stated by the amicus curiae, Addendum to the factum of the
amicus curiae, at paras. 15-16:
[TRANSLATION] 15. The Quebec people is not the victim of attacks on its physical existence or integrity, or of a massive violation of its fundamental rights. The Quebec people is manifestly not, in the opinion of the amicus curiae, an oppressed people.
16 For close to 40 of the last 50 years, the Prime Minister of Canada has been a Quebecer. During this period, Quebecers have held from time to time all the most important positions in the federal Cabinet. During the 8 years prior to June 1997, the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Prime Minister of Canada, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of the United Nations, are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad.
136 The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of the international documents that address the right to self-determination of peoples, Canada is a "sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction".
138 In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions. 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.
139 We would
not wish to leave this aspect of our answer to Question 2 without acknowledging
the importance of the submissions made to us respecting the rights and concerns
of aboriginal peoples in the event of a unilateral secession, as well
as the appropriate means of defining the boundaries of a seceding Quebec with
particular regard to the northern lands occupied largely by aboriginal peoples.
However, the concern of aboriginal peoples is precipitated by the asserted
right of Quebec to unilateral secession. In
light of our finding that there is no such right applicable to the population
of Quebec, either under the Constitution of Canada or at international law, but
that on the contrary a clear democratic expression of support for secession would
lead under the Constitution to negotiations in which aboriginal interests would
be taken into account, it becomes unnecessary to explore further the concerns
of the aboriginal peoples in this Reference.
(2) Recognition of a Factual/Political Reality: the "Effectivity" Principle
140 As stated,
an argument advanced by the amicus curiae on this branch of the
Reference was that, while international law may not ground a positive right to
unilateral secession in the
context of Quebec, international law equally does not prohibit secession and, in
fact, international recognition would be conferred on such a political reality
if it emerged, for example, via effective control of the territory of what is
now the province of Quebec.
141 It is true
that international law may well, depending on the circumstances, adapt to
recognize a political and/or factual reality, regardless of the legality of the
steps leading to its creation. However, as mentioned at the outset,
effectivity, as such, does not have any real applicability to Question 2, which
asks whether a right to unilateral secession exists.
142 No one
doubts that legal consequences may flow from political facts, and that
"sovereignty is a political fact for which no purely legal authority can
be constituted . . .", H. W. R. Wade, "The Basis of
Legal Sovereignty", [1955] Camb. L.J. 172, at p. 196. Secession of a
province from Canada, if successful in the streets, might well lead to the
creation of a new state. Although recognition by other states is not, at least
as a matter of theory, necessary to achieve statehood, the viability of a
would-be state in the international community depends, as a practical matter,
upon recognition by other states. That process of recognition is guided by
legal norms. However, international recognition is not alone constitutive of
statehood and, critically, does not relate back to the date of secession to serve
retroactively as a source of a "legal" right to secede in the first
place. Recognition occurs only after a territorial unit has been successful, as
a political fact, in achieving secession.
143 As indicated
in responding to Question 1, one of the legal norms which may be recognized by
states in granting or withholding recognition of emergent states is the
legitimacy of the process by which the de facto secession is, or
was, being pursued. The process of recognition, once considered to be an
exercise of pure sovereign discretion, has come to be associated with legal
norms. See, e.g., European Community Declaration on the Guidelines on the
Recognition of New States in Eastern Europe and in the Soviet Union, 31
I.L.M. 1486 (1992), at p. 1487. While national interest and perceived
political advantage to the recognizing state obviously play an important role,
foreign states may also take into account their view as to the existence of a
right to self-determination on the part of the population of the putative
state, and a counterpart domestic evaluation, namely, an examination of the
legality of the secession
according to the law of the state from which the territorial unit purports to
have seceded. As we indicated in our answer to Question 1, an emergent state
that has disregarded legitimate obligations arising out of its previous
situation can potentially expect to be hindered by that disregard in achieving
international recognition, at least with respect to the timing of that
recognition. On the other hand, compliance by the seceding province with such
legitimate obligations would weigh in favour of international recognition. The
notion that what is not explicitly prohibited is implicitly permitted has
little relevance where (as here) international law refers the legality of secession to the
domestic law of the seceding state and the law of that state holds unilateral secession to be
unconstitutional.
144 As a court
of law, we are ultimately concerned only with legal claims. If the principle of
"effectivity" is no more than that "successful revolution begets
its own legality" (S. A. de Smith, "Constitutional Lawyers in
Revolutionary Situations" (1968), 7 West. Ont. L. Rev. 93, at p.
96), it necessarily means that legality follows and does not precede the
successful revolution. Ex hypothesi, the successful revolution took
place outside the constitutional framework of the predecessor state, otherwise
it would not be characterized as "a revolution". It may be that a
unilateral secession by
Quebec would eventually be accorded legal status by Canada and other states,
and thus give rise to legal consequences; but this does not support the more
radical contention that subsequent recognition of a state of affairs brought
about by a unilateral declaration of independence could be taken to mean that secession was
achieved under colour of a legal right.
145 An argument was made to analogize the principle of effectivity with the second aspect of the rule of law identified by this Court in the Manitoba Language Rights Reference, supra, at p. 753, namely, avoidance of a legal vacuum. In that Reference, it will be recalled, this Court declined to strike down all of Manitoba's legislation for its failure to comply with constitutional dictates, out of concern that this would leave the province in a state of chaos. In so doing, we recognized that the rule of law is a constitutional principle which permits the courts to address the practical consequences of their actions, particularly in constitutional cases. The similarity between that principle and the principle of effectivity, it was argued, is that both attempt to refashion the law to meet social reality. However, nothing of our concern in the Manitoba Language Rights Reference about the severe practical consequences of unconstitutionality affected our conclusion that, as a matter of law, all Manitoba legislation at issue in that case was unconstitutional. The Court's declaration of unconstitutionality was clear and unambiguous. The Court's concern with maintenance of the rule of law was directed in its relevant aspect to the appropriate remedy, which in that case was to suspend the declaration of invalidity to permit appropriate rectification to take place.
C. Question 3
In the event of a conflict
between domestic and international law on the right of the National Assembly,
legislature or government of Quebec to effect the secession of
Quebec from Canada unilaterally, which would take precedence in Canada?
IV. Summary of Conclusions
148
As stated at the outset, this Reference has required us to consider momentous
questions that go to the heart of our system of constitutional government. We
have emphasized that the Constitution is more than a written text. It embraces
the entire global system of rules and principles which govern the exercise of
constitutional authority. A superficial reading of selected provisions of the
written constitutional enactment, without more, may be misleading. It is
necessary to make a more profound investigation of the underlying principles
that animate the whole of our Constitution, including the principles of
federalism, democracy, constitutionalism and the rule of law, and respect for
minorities. Those principles must inform our overall appreciation of the
constitutional rights and obligations that would come into play in the event a
clear majority of Quebecers votes on a clear question in favour of secession.
149 The
Reference requires us to consider whether Quebec has a right to unilateral
secession. Those
who support the existence of such a right found their case primarily on the
principle of democracy. Democracy, however, means more than simple majority
rule. As reflected in our constitutional jurisprudence, democracy exists in the
larger context of other constitutional values such as those already mentioned.
In the 131 years since Confederation, the people of the provinces and
territories have created close ties of interdependence (economically, socially,
politically and culturally) based on shared values that include federalism,
democracy, constitutionalism and the rule of law, and respect for minorities. A
democratic decision of Quebecers in favour of secession would
put those relationships at risk. The Constitution vouchsafes order and
stability, and accordingly secession of a
province "under the Constitution" could not be achieved unilaterally,
that is, without principled negotiation with other participants in
Confederation within the existing constitutional framework.
150 The
Constitution is not a straitjacket. Even a brief review of our constitutional
history demonstrates periods of momentous and dramatic change. Our democratic
institutions necessarily accommodate a continuous process of discussion and
evolution, which is reflected in the constitutional right of each participant
in the federation to initiate constitutional change. This right implies a
reciprocal duty on the other participants to engage in discussions to address
any legitimate initiative to change the constitutional order. While it is true
that some attempts at constitutional amendment in recent years have faltered, 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.
151 Quebec
could not, despite a clear referendum result, purport to invoke a right of
self-determination to dictate the terms of a proposed secession to the
other parties to the federation. The democratic vote, by however strong a
majority, would have no legal effect on its own and could not push aside the
principles of federalism and the rule of law, the rights of individuals and
minorities, or the operation of democracy in the other provinces or in Canada
as a whole. Democratic rights under the Constitution cannot be divorced from
constitutional obligations. Nor, however, can the reverse proposition be
accepted. The continued existence and operation of the Canadian constitutional
order could not be indifferent to a clear expression of a clear majority of
Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis
to deny the right of the government of Quebec to pursue secession, should
a clear majority of the people of Quebec choose that goal, so long as in doing
so, Quebec respects the rights of others. The negotiations that followed such a
vote would address the potential act of secession as well
as its possible terms should in fact secession proceed.
There would be no conclusions predetermined by law on any issue. Negotiations
would need to address the interests of the other provinces, the federal
government, Quebec and indeed the rights of all Canadians both within and
outside Quebec, and specifically the rights of minorities. No one suggests that
it would be an easy set of negotiations.
153 The task
of the Court has been to clarify the legal framework within which political
decisions are to be taken "under the Constitution", not to usurp the
prerogatives of the political forces that operate within that framework. The
obligations we have identified are binding obligations under the Constitution
of Canada. However, it will be for the political actors to determine what
constitutes "a clear majority on a clear question" in the
circumstances under which a future referendum vote may be taken. Equally, in
the event of demonstrated majority support for Quebec secession, the
content and process of the negotiations will be for the political actors to
settle. The reconciliation of the various legitimate constitutional interests
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 political negotiations. To the extent issues addressed in the course of
negotiation are political, the courts, appreciating their proper role in the
constitutional scheme, would have no supervisory role.
154 We have
also considered whether a positive legal entitlement to secession exists
under international law in the factual circumstances contemplated by Question
1, i.e., a clear democratic expression of support on a clear question for
Quebec secession. Some of
those who supported an affirmative answer to this question did so on the basis
of the recognized right to self-determination that belongs to all
"peoples". Although much of the Quebec population certainly shares
many of the characteristics of a people, it is not necessary to decide the "people"
issue because, whatever may be the correct determination of this issue in the
context of Quebec, a right to secession only
arises under the principle of self-determination of peoples at international
law where "a people" is governed as part of a colonial empire; where
"a people" is subject to alien subjugation, domination or
exploitation; and possibly where "a people" is denied any meaningful
exercise of its right to self-determination within the state of which it forms
a part. In other circumstances, peoples are expected to achieve
self-determination within the framework of their existing state. A state whose
government represents the whole of the people or peoples resident within its
territory, on a basis of equality and without discrimination, and respects the
principles of self-determination in its internal arrangements, is entitled to
maintain its territorial integrity under international law and to have that
territorial integrity recognized by other states. Quebec does not meet the threshold
of a colonial people or an oppressed people, nor can it be suggested that
Quebecers have been denied meaningful access to government to pursue their
political, economic, cultural and social development. In the circumstances, the
National Assembly, the legislature or the government of Quebec do not enjoy a
right at international law to effect the secession of
Quebec from Canada unilaterally.
155 Although
there is no right, under the Constitution or at international law, to
unilateral secession, that is
secession without
negotiation on the basis just discussed, this does not rule out the possibility
of an unconstitutional declaration of secession leading
to a de facto secession. The
ultimate success of such a secession would be
dependent on recognition by the international community, which is likely to
consider the legality and legitimacy of secession having
regard to, amongst other facts, the conduct of Quebec and Canada, in
determining whether to grant or withhold recognition. Such recognition, even if
granted, would not, however, provide any retroactive justification for the act
of secession, either
under the Constitution of Canada or at international law.
156 The reference questions are answered accordingly.
Judgment accordingly.
Solicitor for the Attorney General of Canada: George Thomson, Ottawa.
Solicitors appointed by the Court as amicus curiae: Joli-C{oe}ur Lacasse Lemieux Simard St-Pierre, Sainte-Foy.
Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.
Solicitor for the intervener the Attorney General for Saskatchewan: W. Brent Cotter, Regina.
Solicitor for the intervener the Minister of Justice of the Northwest Territories: Bernard W. Funston, Gloucester.
Solicitor for the intervener the Minister of Justice for the Government of the Yukon Territory: Stuart J. Whitley, Whitehorse.
Solicitor for the intervener Kitigan Zibi Anishinabeg: Agnès Laporte, Hull.
Solicitors for the intervener the Grand Council of the Crees (Eeyou Estchee): Robinson, Sheppard, Shapiro, Montréal.
Solicitors for the intervener the Makivik Corporation: Hutchins, Soroka & Dionne, Montréal.
Solicitor for the intervener the Chiefs of Ontario: Michael Sherry, Toronto.
Solicitors for the intervener the Minority Advocacy and Rights Council: Scott & Aylen, Toronto.
Solicitors for the intervener the Ad Hoc Committee of Canadian Women on the Constitution: Eberts Symes Street & Corbett, Toronto; Centre for Refugee Studies, North York.
Solicitors for the intervener Guy Bertrand: Guy Bertrand & Associés, Québec; Patrick Monahan, North York.
Solicitors for the interveners Roopnarine Singh, Keith Owen Henderson, Claude Leclerc, Kenneth O'Donnell and Van Hoven Petteway: Stephen A. Scott, Montréal.
Solicitors for the intervener Vincent Pouliot: Paquette & Associés, Montréal.