The Constitutional Way to Divide a Country

Nathalie Des Rosiers

Massey College

Choosing the landmark case of Canadian constitutional law reveals a profound legal fracture. Canada, as it is now known, struggles deeply with its colonial heritage. Canadian law must transform to integrate fully and respectfully Indigenous laws, but the process remains slow, almost elusive. The 1973 Calder case, although lost by the Nisga’a community, was the first time that the Canadian legal system acknowledged the existence of Aboriginal title to land. It is an important case that could be useful in many countries struggling to recognize Indigenous rights and implement the United Nations Declaration on the Rights of Indigenous People (UNDRIP). But the Canadian heritage on this issue remains problematic. Future cases may demonstrate a fuller engagement with Indigenous laws and have a transformative impact on the Canadian legal landscape.

The case I propose presents a mix of highly politicized stakes, an interplay between international and constitutional law as well as an impact still felt today. The Québec Secession Reference of 1998 determined whether the province of Québec could unilaterally declare itself a sovereign country according to Canadian constitutional or international law. Although it concluded that Québec could not proceed unilaterally, it nevertheless established that Canada would have the obligation to negotiate if a referendum on a clear question to separate from Canada was won by a clear majority of Quebeckers. The case has been analysed throughout the world and its reasoning has had a major impact on constitutional decision-making in Canada. It also was perceived as a clear victory … for the Supreme Court of Canada. 

Context for the Decision

For thousands of years, Indigenous communities lived on Canada’s soil. When European settlers came, they brought their diseases, and their traditional wars and conflicts. During the 17th century, after the Vikings had come and gone, the French settled the land. The British also began to settle North America. In a European conflict also fought in North America, the French were defeated in 1763. But because the many French speaking (and Catholic) people remaining in Canada proved difficult to assimilate with English-speaking (and protestant) settlers, the British Crown eventually agreed to provide freedom of worship without penalty, and the ability to maintain their civilian legal system to the people of Québec. The French- and the English-speaking communities continued to co-exist united in their general disregard for Indigenous governance and keen to develop the economy of the new colony. The situation continued throughout the 19th century when the Canadian federation was created in 1867. Throughout the 20th century, the province of Québec, unique in its French-speaking majority, continued to harbor a strong national identity. An independence movement was born in the 1960s, which proposed to make Québec its own country and exit the Canadian federation. Referenda were held in Québec: in the first in 1980, the proposal to become a sovereign nation was rejected with 59.56% voting against the proposal; and in the second in 1995, the proposal was rejected by only 50.58%. The prospects of a third referendum resulting in a majority vote in favour of sovereignty—and the ensuing legal uncertainty—prompted the federal government to refer the issue of a unilateral secession to its highest tribunal, the Supreme Court of Canada. The move was vehemently criticized by the Québec government. The Québec media was hostile to the exercise, accusing federal politicians of stacking the deck against Québec voters to scare them into submission and further undermine the separatist movement. The Court faced a legitimacy crisis: should it answer the questions? Was it being used in a political fight? Would this case threaten its ability to judge, and be seen to judge,  provincial-federal disputes impartially? The Québec government refused to participate in the case. An amicus curia (a lawyer appointed by the Court charged with presenting the best legal response to the federal case) argued that the Court should refuse to answer the questions the federal government had put forward, and that it should refuse to be manipulated by political forces. 

The “Secession” Judgment

The decision begins by analysing whether it is appropriate for the Court to respond to the federal reference. In Canadian law, the reference power is the power of a government to ask a question of a Court, even if there is no active litigation. Instead of waiting for a litigant to instigate a challenge, the government can seek the advice of the Court on a constitutional matter.  The process has been used regularly to resolve constitutional uncertainty. In the Québec Secession Reference case, the Supreme Court concluded that it should respond to the reference, rejecting the argument that the question was a political one beyond the competence of the Court. It affirmed its role as resolving only the “legal aspects” raised by the secession. 

The Reference asked three questions: 1. Whether Canadian constitutional law allowed for a unilateral secession from the federation; 2. Whether international law did so; and 3. In the event of a conflict between Canadian and international law, how should the conflict be resolved. 

The Court concluded that Canadian constitutional law did not permit a unilateral secession. In doing so, it discussed the fundamental architecture of the Canadian constitution animated by unwritten “principles”. “The Constitution ‘embraces unwritten, as well as written rules’" , wrote the Court (at [32]). It found that unwritten principles of federalism, democracy, constitutionalism, and protection of minorities were at play to determine whether a unilateral declaration of secession was constitutional. The principle of democracy would support respecting the clearly expressed wishes of Québécois to leave Canada, but it had to be balanced against other principles, such federalism and constitutionalism.  The federal principle recognized the interdependencies created by a federal union which could not be undone without negotiations between the parties to the federation. The only way to proceed for Québec was to seek an amendment to the Constitution. The negotiations between the parties would need to respect and reflect the unwritten principles of the Constitution, in particular the protection of minorities. The Court summarized the history of the choice of the federal model and emphasized the role that the protection of minorities—linguistic, cultural and regional—played.  It quoted from the French Canadian leader at the time of federation, George-Etienne Cartier, in identifying the objective of the federation being to reconcile diversity with unity (at [43]). It also emphasized that the Canadian Constitution and its underlying principles favor continuity and stability, and that the principles of constitutionalism and the rule of law required all parties to abide by the rules of the Constitution.

The Court also found that Québec had no right to secede unilaterally at international law. It considered that a country has the right to maintain its territorial integrity. The right to self-determination of a people, said the Court, can only disrupt the territorial integrity of a country when such people have been under colonial rule; have been subjugated, dominated or exploited; or have had no meaningful participation in the affairs of the country. The Court concluded that the situation of the people of Québec does not meet the threshold of a colonized people or of a people who have been subjugated, dominated or oppressed. Nor could it be said that Québec was prevented from participating in the affairs of Canada, as Quebeckers have often been Prime Ministers of Canada and have held prominent positions within the federal government. The Court was careful to quote from the amicus curiae on this question (eg, at [135]). 

Both sides expressed satisfaction at the decision. Canada, because it confirmed that secession could not legally be done unilaterally; Québec, because of the recognized obligation of the rest of Canada to negotiate after a referendum supporting separation. It was clear from the decision that the Canadian Constitution was not a prison, and that if clear results on a clear question revealed that the majority of Québec voters wanted to separate from Canada, the federal government would have an obligation to negotiate the terms of Québec’s secession from the Canadian federation. Some have called it a quasi-constitutional right to secession. 

The Great Importance of the Case

The case is important for three reasons. First, it suggests that unwritten principles structure Canadian constitutional law; among them, constitutionalism, rule of law, federalism, democracy and protection of minorities. Some would have wanted the Court to add more unwritten principles; and among them, respect for Indigenous rights. Were this case to be decided now, this issue would be squarely addressed. These unwritten principles clarify the written text and continue to be argued as meta doctrines of constitutional interpretation. 

Second, it created a framework for the Québec–Canada relationship in a future referendum. It did not resolve all issues. The reasoning would apply to any other provinces entertaining leaving the Canadian federation. That is why the Court’s reasoning may interest other countries. 

Third, it enhanced the Court’s credibility as a fair “peace maker”, one that recognized the limits of its role while providing process-oriented solutions for resolution of a highly polarizing and sensitive issue.   For an international audience, the case presents lessons for its treatment of international law, but particularly for its responsiveness to minority’s points of views and to political expressions of nationalism and secession.  

Nathalie Des Rosiers is the Principal of Massey College, Canada

Suggested citation: Nathalie Des Rosiers, ‘The Constitutional Way to Divide a Country’, IACL-AIDC Blog (21 June 2022) https://blog-iacl-aidc.org/globallandmarkjudgments/2022/6/22/the-constitutional-way-to-divide-a-country.