CSF Associates Inc.
Canada: The Supreme Court Sets Rules for the Secession of Quebec
Author(s): Peter Leslie
Source: Publius, Vol. 29, No. 2, The State of American Federalism, 1998-1999 (Spring, 1999),
pp. 135-151
Published by: Oxford University Press
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Canada:
The SupremeCourtSets Rules
fortheSecessionof Quebec
PeterLeslie
Queen'sUniversity
TheSupreme
theCanadianconstitution
norinternational
CourtofCanada ruledin 1998 thatneither
Secession
lawallowsQuebectosecede
wouldrequire
theconstitution.
fromCanada unilaterally.
amending
thefederalgovernment
and
However,
ofQuebecers
unambiguously
optsforsecession,
ifa clearmajority
thatthecourt
theother
wouldhavea constitutional
provinces
dutytonegotiate.Thisis an obligation
declaredtobe implicit
infourprinciples
that"inform
and sustaintheconstitutional
text"-federalism,
constitutionalism
and theruleoflaw,and respect
Thesamesetofprinciples
democracy,
forminorities.
wouldgovernthenegotiations
themselves.
Quebeccouldnotdictatetheterms
Accordingly,
ofsecession,
wouldbe reached.If negotiations
and one cannotassumethatagreement
fail, and Quebecdeclares
theinternational
wouldhavetodecidewhether
community
Quebec'saction
independence
unilaterally,
was legitimate.
In August1998, Canada became probablythe onlycontemporaryfedmandatedprocessforbringingabout the
erationto have a constitutionally
secession of one or more of itsprovincesor states.' However,the process
entails such intrinsicdifficulties
and would probablytake so long to be
it
to
that
conclusion,
brought
mightbe of littleavail to a province that
invokedit. This is the grandparadox, or perhapsthe balanced result,that
has emergedfromajudgment of the Supreme Courtof Canada.
The court's decision came thirtyyears after the founding of the
Partiquibicois(PQ). The PQ held officefrom1976 to 1985,
indipendantiste
won the 1994 election, and was reelected in 1998. Twice,in 1980 and in
1995, it has called a referendumaiming to take Quebec out of Canada; a
thirdreferendumis promised,perhapsas earlyas mid-2000,but evidently
AUTHOR'S NOTE: Myinterpretationof the QuebecSecession
has been influencedbydiscussion
Reference
at a symposium,November 1998, sponsoredjointlyby the Centre forPublic Law and Public Policyand
the RobartsCentreforCanadian Studies,both atYorkUniversity,
Toronto. I wishto thankDaniel Drache
and PatrickMonahan, symposiumorganizers,and several paper presenters,notablyDonna Greschner,
StanleyHartt,Peter Hogg, PaulJoffe,Guy Laforest,Jean Leclair,JohnWhyte,andJos6 Woehrling. The
1999), a publication of the Robarts
proceedings were published in Canada Watch7 (January-February
Centre. Readers' attentionis also drawnto a special issue of Constitutional
Forum10 (Fall 1998), published
by the Centre forConstitutionalStudies,Edmonton. For commentson an earlier draftof thisarticle,I
am gratefulto Yves de Montigny,StanleyHartt, Guy Laforest,George Thomson, Ronald Watts,John
Whyte,and RobertYoung.
'To declare, in principle,a rightof secession-as was the case, for example, withthe formerSoviet
Union-is ratherless than prescribinghow to accomplish it.
? Publius: TheJournal of Federalism29:2 (Spring 1999)
135
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136
Publius/Spring1999
it will be held onlyif the Quebec governmentexpects to win it.2 In both
of the referendumsalreadyheld, the PQ proposed replacing the federal
tie witha bilateraleconomic association,supported bypolitical arrangements evidentlyinspired by the European Community/Union. In the
1980 referendum,PremierRene L6vesque soughta mandate to enterinto
fornegotiationswith"Canada" on thebasis ofa "sovereignty-association"
mula, followingwhich the electoratewould be consultedagain; however,
Quebecersrejectedthisproposalbya 60 percentmajority.In thereferendum
of 30 October 1995,bycontrast,Quebec PremierJacquesParizeau asked
thepeople ofQuebec to authorizethenationalassembly(provinciallegislature) to pass a bill declaringsovereignty.In fact,the bill had alreadybeen
introduced. Once passed, itwould have guided the transitionprocess;in
particular,Quebec would provisionallyact as a Canadian provincewhile
draftingitsconstitutionand conductingnegotiationsto createa QuebecCanada "partnership.""Regardlessof the outcome of those negotiations,
Quebec would become independent in one year,unless the national
assembly decided otherwise. The intentwas that the transitionperiod
mightbe lengthened if thatwere needed to resolveoutstandingissues,
but it could also be shortened if partnershipnegotiationsbroke down.
whenthe federalist
However,thebill nevercame to a vote;itwas withdrawn
forceswon bya hair's breadth,withonly50.6 percentof the vote.
The federalgovernmentdid not challenge the legalityof the referendum or theprospectofa unilateraldeclarationofindependence thatwould
have followeda 'Yes" vote. Canadian Prime MinisterJean Chretienhad
expected a much more resounding victoryfor the federalistside, and
apparentlybelievedthata decisive"No"would (as in 1980) severelyweaken
the separatistmovement ("independence" and "sovereignty"are terms
avoidedbyfederalpoliticians).Chastenedbytheresult,and under pressure
2Quebec PremierLucien Bouchard, whose governmentwas re-electedin November 1998, but witha
reduced majorityand withfewervotesthan theQuebec Liberal Party,is generallyregardedas less strongly
committedto sovereigntythan most PQ militants. He has announced thathis governmentwill hold a
new referendumon sovereignty
duringthe latterhalfof itsmandate,or perhaps as earlyas spring2000,
is to ensure that"winningconditions"never
but onlyunder "winningconditions." The federaliststrategy
materialize,and thata referendumis neverheld.
'The wordingof the referendumquestion was: "Do you agree thatQuebec should become sovereign,
afterhaving made a formalofferto Canada for a new economic and political partnership,withinthe
scope of the bill respectingthe futureof Quebec and the agreementsigned on June 12, 1995?" This
agreement was among the leaders of the PQ the Bloc quib&ois (BQ the PQ's counterpartin federal
du Quebec
politics;at the time,itformedthe officialopposition in parliament),and theActiondemocratique
(ADQ, a splinterpartyin provincialpolitics). The agreement,based on a discussionpaper prepared by
the ADQ and a BQ taskforce,envisioneda Quebec-Canada partnershipwithlegislativepowersvestedin
a ministerialcouncil in whichQuebec and Canada would each cast one vote. The partnershipwould be
a customsunion and monetaryunion; it would provide forfree movementof goods, services,persons,
and capital; and therewould be common or dual citizenship. In the relevantareas, the twostateswould
exercisea mutualveto. Mutual agreementscould also be negotiatedon variousothermatters,including
internationalrepresentation,transport,defense,financialinstitutions,fiscalpolicy,and environmental
protection. There would be a secretariat,an assembly(witha consultativerole) in whichQuebec would
have one quarterof theseats,and ajoint dispute-settlement
mechanism. See FrancoisRocher,"Les aleas
de la strat6giepre-ref6rendaire."Canada: The Stateof theFederation1995, eds. Douglas M. Brown and
Relations,1995), pp. 19-45.
JonathanW. Rose (Kingston,Ontario: Instituteof Intergovernmental
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Secession of Quebec
137
froman angrypublic in the rest of Canada, which blamed Chretienfor
having nearly"lost the country,"the federal governmentnow sought to
have the legal situationclarified.Accordingly,
it referredto the Supreme
Court of Canada threequestionsabout the legalityof unilateralsecession.
The case is generallyreferredto as the QuebecSecessionReference.4
It was
decided on the basis of a single set of reasons subscribedto by all nine
Supreme Courtjustices.
Under the termsof the Supreme Court Act, the court is required to
offeradvisoryopinions on mattersreferredto it byfederalcabinet order.
Some of the mostimportantelementsof Canada's constitutionallaw have
been establishedin thisway.In particular,thereis now a triadof closely
interlockeddecisions on constitutionalchange. The firstof these is the
of 1981,declaringunconstitutional
"in theconventional
Patriation
Reference5
sense" the federalgovernment'sintended procedure in bringingabout a
of
major constitutionalrevision. The second is the QuebecVetoReference6
in Councilconcerning
certainquestionsrelatingto thesecessionofQuebecfrom
4ReReference
bytheGovernor
Canada, 161 D.L.R. [Dominion Law Reports] (4th) 385. The referencewas made bycabinet order (Order
in Council) on 30 September 1996; argumentswere heard 16-19February1998;judgment was rendered
20 August 1998. The paragraphsin thejudgment are numbered,and references(below) to thejudgment cite paragraphsratherthan page numbers.
Re Amendment
of Canada, 125 D.L.R. (3rd) 1. Following the defeat of
5Reference
of theConstitution
in 1980, Canadian Prime MinisterPierre Trudeau
Quebec's referendumon sovereignty-association
launched negotiationswiththe provincesto make a comprehensiverevisionto the Canadian constitution,includingchanges to the divisionof powers,the adoption of a formulaforamending the constitution in Canada (hitherto,amendmentshad to be made by the U.K. parliament),and the enactmentof a
Canadian Charterof Rightsand Freedoms withconstitutionalstatus. The negotiationsfailed,but Trudeau proceeded, against the opposition of all but two provinces (Ontario and Prince Edward Island),
witha stripped-downpackage consistingof the amending formulaand the Charter. He introduced a
resolutioninto parliamentrequestingthe U.K. to pass the necessarylegislation,whichwould be the lastever exercise of Britishlegislativepower in relationto Canada-hence bringingabout "patriation"of the
constitution.In response,severalprovinceslaunched referencecases in theirrespectivecourtsofappeal,
questioningwhetherparliamentcould constitutionally
proceed withoutprovincialconcurrence. In addition, the resolutionfaced a filibusterin parliament,leading Trudeau to promise that the government
would await the outcome of the provincialreferencecases, and the inevitableappeal to the Supreme
Court of Canada. The courtdeclared (28 September 1981) thatthe procedure was constitutionalin the
legal sense, but not in the conventionalsense, because hithertorequestsformajor constitutionalamendmentshad been forwardedto the U.K. onlyafter(as the courtdetermined)substantialprovincialconsent
had been obtained. The court'sdecision forcedthe federalgovernmentto resumenegotiationswiththe
provinces,as a resultofwhichsubstantialchanges weremade. An amended resolutionwas adopted after
gaining the supportof all provincesbut Quebec. It was subsequentlyincorporatedinto law by the U.K.
parliament,becoming,in Canada, the ConstitutionAct, 1982.
6ReAttorney-General
ofQuebecand Attorney-General
ofCanada, 140 D.L.R. (3rd) 385. On the initiativeof
the PQ government,and withthe supportof the federalistLiberal Partyof Quebec, the nationalassembly
decreed: "Quebec formallyvetoes the [constitutional]resolutiontabled in the House of Commons on
November18, 1981 bythe federalMinisterofJustice."Parliament,however,ignored thisdecree, and the
resolutionproceeded. Quebec thensubmitteda question to theprovincialcourtofappeal, askingwhether
parliament'sadoption of the constitutionalresolutionhad been "unconstitutionalin the conventional
sense." The court of appeal ruled on 7 April 1982 thatthe resolutionwas not unconstitutional,eitherin
law or byconvention. The matterwas appealed to the Supreme Court of Canada; however,on 17 April,
the ConstitutionAct, 1982 was proclaimed. The Supreme Court's rulingon the appeal was deliveredon
6 December 1982, almost nine months afterthe Act had come into force. In its decision, the court
declared thatthereexistedno general conventionalrule of unanimityapplyingto constitutionalamendments. It also stated thattherewas no need to consider the claim by the national assemblythat"within
the Canadian federationQuebec formsa societydistinctby its language, culture and institutions,one
which possesses all the attributesof a distinctnational community;"consequently,"the two founding
peoples of Canada are fundamentallyequal." Having declared thismatterto be irrelevantto the case at
hand, the courtruled thatQuebec did not have "a conventionalpowerofvetooverconstitutionalamendmentssuch as those in issue in the presentreference."
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138
1999
Publius/Spring
whichpurportedto
1982,declaringthata decree bythe nationalassembly,
veto the federalconstitutionalinitiative,was withouteffect. (A contrary
decision would have invalidatedthe ConstitutionAct, 1982, or at the very
least,destroyeditslegitimacy.)The thirdis the QuebecSecession
Reference.
THE CASE
The questionsput to the courtread as follows:
1. Under the Constitutionof Canada, can the NationalAssembly,
legislature,or governmentof Quebec effectthe secession of
Quebec fromCanada unilaterally?
2. Does internationallaw give the National Assembly,
legislature
or governmentof Quebec the rightto effectthe secession of
Quebec fromCanada unilaterally?In this regard,is there a
under internationallaw thatwould
rightof self-determination
give the NationalAssembly,legislatureor governmentof Quebec the rightto effectthe secession of Quebec fromCanada
unilaterally?
3. In the eventof a conflictbetweendomesticand international
law on the rightof the National Assembly,legislatureor governmentof Quebec to effectthe secession of Quebec from
whichwould take precedence in Canada?
Canada unilaterally,
forturning
The Quebec government
denounced thefederalgovernment
in
this
was
to the court
inherentlypolitical
way,declaringthatthe matter
and was thusbeyondthe purviewof anycourt. It refusedto participate,in
consequence of which the court enlisted the help of an amicuscuriaeto
argue the case forQuebec's rightof unilateralsecession. When the decisionwas rendered,however,
itwaswelcomedbyvirtually
everyone,including
each foundaspects
theQuebec government.
Federalistsand indipendentistes
favorableto theirside,7 and each proceeded to put itsown spin on the 65page judgment.
thefederalgovernmentgotwhatitwanted,a rulingthatuniEssentially,
lateralsecessionwas not legal under eitherdomesticor internationallaw,
in consequence ofwhichthequestionofwhichwould takeprecedence did
not arise. However,theQuebec government,
and indipendentistes
generally,
not stopped there;it had
that
had
satisfaction
the
court
expressed deep
gone much farther,theysaid, than Ottawahad wanted it to. Specifically,
the courthad ruled thatifevera clear majorityofQuebecers votedin favor
of secession,and the question itselfwas clear,negotiationson the issue of
secessionwould have to ensue. However,the courtdid not definetheterm
has insistedthata majoritygreater
"clearmajority"-the
federalgovernment
than "50 percentplus one" would be required-nordid it statewhatmight
Forum10 (Fall 1998): 14-18.
7RobertA. Young, "A Most PoliticJudgment,"Constitutional
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Secessionof Quebec
139
constitutea "clear question." These, the court declared, are political
matters,and cannot be resolvedjudicially.
"Canada's"dutyto negotiate,federalists
Whereind6pendentistes
highlighted
that
the
fact
negotiationswould have to covera rangeof issues
highlighted
thatthe PQ governmenthas so farshownno inclinationto open up. Thus,
the courtstated (para. 151) thatin negotiationson secession,the parties
would have to address "the interestsof the other provinces,the federal
government,Quebec, and indeed the rightsof all Canadians both within
and outside Quebec, and specificallythe rightsof minorities." It even
implied (para. 96) thatQuebec's boundariesmightbe challenged. In general,federalistsdelightedin theuncertaintiesflowingfromthedecision,as
the potentialforchaos stemmingfroma "Yes"votein a futurereferendum
has been presumed (perhapswrongly)to frightenoff"softnationalists."
The courtnoted (para. 97) thatthe outcome of negotiationscould not
be predicted,and it refusedto speculate about whatmighthappen ifthey
collapsed or were never initiated. It did, however,acknowledgethatan
attemptedsecession,otherthanone broughtabout throughconstitutional
amendment,mightsucceed or fail. In particular,it suggestedthatinternationalrecognitionmightdepend on whetherforeignstatesconsideredthat
Quebec on the one hand, and federalistforceson the other,wereactingin
accordance withCanadian constitutionalprinciples,aftera referendumin
whicha clear majorityunambiguouslyopted forsecession.
case. Among them,the
Numerousquestionsare raised bythe Secession
below:
are
constitutional
addressed
principles,a secessionreferfollowing
endum and the duty to negotiate, secession and the 1982 amending
the Supreme Court
formula, secession and the internationalcommunity,
of secession.
and the realpolitik
and politicalcontroversy,
CONSTITUTIONAL PRINCIPLES
As jurisprudence,the QuebecSecession
is remarkableforits enunReference
ciation of fourbasic principlesthat"informand sustainthe constitutional
text[and] are thevitalunstatedassumptionsupon whichthe textis based"
(para. 49). The principlesare: federalism,democracy,constitutionalism
and the rule of law,and respectforminorities.None of these,the court
said, is absolute; none can trumpthe others. The wholejudgmentis based
on thesefourprinciples. They underlie the values of diversity
and accommodation among culturaland political (provincial) communities,values
thatare givenprominencein thecourt'sdecision. Bycontrast,theconcept
of nationhood, except as (in the words of constitutionallawyerJohn D.
absentfrom
Whyte)"an arrangementof marketconvenience,"8is virtually
1999): 21. My
sJohnD. Whyte,"Constitutionalismand Nation," Canada Watch7 (January-February
discussion of constitutionalprinciplesand underlyingvalues, including the referencesto Lincoln, has
been stronglyinfluencedby thispaper.
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140
Publius/Spring1999
thejudgment. In thissense,and in termsofAmericanpoliticaldiscourse,
the Supreme Courtof Canada has chosenJohnC. Calhoun overAbraham
Lincoln.
withCalhoun,whileevident,are limited.Calhoun regarded
The affinities
the U.S. Constitutionas a compact,fromwhichanystatecould withdrawif
itstermswerealteredthroughconstitutionalamendment,or if,in theview
of thatstate,the Constitution"shouldfailto fulfilthe ends forwhichitwas
established."' By contrast,in the Secession case, the Supreme Court of
Canada rejected unilateralsecession. At no time has the court contemor the non-applicationof federal
plated the possibilityof "interposition,"
law withina province,by decision of the provinciallegislature. Nonetheless, the philosophy underlying the decision may be interpreted as
Calhounian,'owithan admixtureoftwentieth-century
politicalscience. This
is evidentin the principlesexpounded bythe court.
First,federalismis described by the court as "a political and legal
response to underlyingsocial and politicalrealities." Federalism"recogof the componentpartsof Confederation,and the aunizes the diversity
tonomyof provincialgovernmentsto develop theirsocietieswithintheir
the pursuitof collective
respectivespheresofjurisdiction;"it also "facilitates
goals byculturaland linguisticminoritieswhichformthe majoritywithina
particularprovince"(paras. 57, 58, 59).
Second, democracy,"commonlyunderstoodas being a politicalsystem
connected to subof majorityrule,"is more thanthat. It is "fundamentally
thepromotionofself-government,"
and it
stantivegoals,mostimportantly,
"accommodatesculturaland group identities"(paras. 63, 64). Notingthat
"the democraticprinciplewas . . . argued before us in the sense of the
supremacyof the sovereignwillof a people, in thiscase potentiallyto be
expressedbyQuebecers in supportof unilateralsecession" (para. 61), the
courtcounteredthatdemocracymustbe "takenin thecontextofthe other
institutionalvalues." In particular,"the relationshipbetweendemocracy
and federalismmeans,forexample,thatin Canada theremaybe different
and
and equallylegitimatemajoritiesin different
provincesand territories
at the federallevel. No one majorityis more or less 'legitimate'than the
othersas an expressionof democraticopinion." Democraticlegitimacyis
also counterbalancedbythe rule of law and bymoralvalues embedded in
the constitutionalstructure(paras. 66, 67).
and the rule of law also qualifyor limitsimple
Third,constitutionalism
rule.
"The
The
court
states
thatunderconstitutional
government,
majority
'John C. Calhoun, "A Discourse on the Constitutionand Governmentof the United States,"JohnC.
C. Calhoun,ed. Ross M. Lence (Indianapolis, IN:
ThePoliticalPhilosophy
Calhoun,Unionand Liberty:
ofJohn
LibertyFund, 1992), p. 212.
101do not mean to suggestthatjustices of the Canadian Supreme Court have been influencedby
Calhoun. A more likelyinfluence,among politicalphilosophers,is Charles Taylor. See Taylor'sReconciland Nationalism,
ed. GuyLaforest(Montreal and Kingston:
ingtheSolitudes:Essayson Canadian Federalism
Press,1993).
McGill-Queen's University
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Secession of Quebec
141
of the people of a provincehave the capacityand
politicalrepresentatives
the powerto committhe provinceto be bound into the futurebythe constitutionalrulesbeing adopted. These rules... [define]themajority
which
mustbe consultedin order to alter the fundamentalbalances of political
power (includingthe spheresof autonomyguaranteedbythe principleof
federalism),individualrights,and minority
rightsin our society."The rules
can be amended "onlythrougha processofnegotiationwhichensuresthat
there is an opportunityfor the constitutionally
defined rightsof all the
to
be
and
reconciled"
parties
respected
(para. 76).
Fourth,the protectionof minoritiesis guaranteedunder "a numberof
specificconstitutional
provisionsprotectingminority
language,religionand
education rights,"and thoseguaranteesare "theproductofhistoricalcompromises." The judicial protectionof minoritieshas become especially
prominentsince the enactment of the Canadian Charter of Rightsand
Freedoms in 1982. A special case is the "explicitprotectionforexisting
aboriginaland treatyrights"under the ConstitutionAct, 1982.
Bycontrastwithitsexpositionof theseprinciples,theconceptof nationhood as an organic entity,or a Lincolnian "perpetual union," does not
appear in the court'sdecision. Mutual obligation,however,does. Thus,
the courtcites the wordsof Britain'sColonial Secretaryin 1868, rejecting
Nova Scotia's effortsto undo the federal union entered into the year
before: "vastobligations, political and commercial, have already been
contracted on the faithof a measure so long discussed and so solemnly
adopted ... the Queen's governmentfeelthattheywould notbe warranted
in advisingthe reversalof a great measure of state,attended by so many
extensive consequences already in operation." As the court notes, the
interdependence resultingfromsuch "vastobligations"has "multiplied
immeasurablyin the last 130 years" (para. 42). The court also quotes,
approvingly,the words of counsel for Saskatchewan, an intervenorin
the case:
A nation is builtwhen the communitiesthatcompriseit make
commitmentsto it,when theyforegochoices and opportunities
... when the communitiesthatcompriseit make compromises,
when theyoffereach otherguarantees,when theymake transfersand perhapsmostpointedly,when theyreceivefromothers
the benefitsof national solidarity.The threadsof a thousand
acts of accommodationare the fabricof a nation (para. 96).
Whatthe courtimplicitly
suggestsis thatno partyto Confederationmay
lawfullytear the fabricinto pieces, but it is nonethelesspossible thatthe
fabricmaybe unwovenin a waythattakesaccount of past mutualcommitmentsand compromises,as well as contemporary(and future)interests.
ContrastLincoln:
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142
1999
Publius/Spring
I hold, thatin contemplationof universallaw,and of the Constitution,the Union of these Statesis perpetual. Perpetuityis
implied,ifnot expressed,in thefundamentallawofall national
governments.It is safe to assertthat no governmentproper,
everhad a provisionin itsorganiclawforitsown termination.'1
A SECESSION REFERENDUM AND THE DUTY TO NEGOTIATE
Invokingthefourprinciplesit enunciated,whiledenyingthatanyof them
was absolute, the court reached several significantconclusions. First,
nationhood is not organicor indissoluble,at least not in Canada. Second,
secessionis a legitimatepoliticalobjective,and maybe accomplishedwithout legal discontinuity
byapplyingthe 1982 amendingformula. Third,"a
clear repudiationby the people of Quebec of the existingconstitutional
order" (para. 88) would createan obligationupon thefederalgovernment
and the other nine provincial governmentsto enter into negotiations,
although not necessarily"to accede to . . . secession . . . subject only to
negotiationof the logisticaldetails" (para. 90).
There is no provisionin the Canadian constitutionforusing the referendum procedure, either for constitutionalamendment or any other
purpose. In both BritishColumbia and Alberta,however,the law requires
on proposedconstitutional
a referendum
amendments;in Quebec and Newis
for
there
foundland,
legislationproviding referendumson constitutional
and other matters,at the option of the provincialgovernment. For the
federal government,it mightalso be politicallyverydifficult,given the
Accord,'2to avoid a Canadaprecedent establishedby the Charlottetown
if
referendum
constitutional
wide
change is being considered.
major
Under the termsof the ConstitutionAct,1982, the amendmentprocessis
launched when parliamentor anyprovinciallegislaturepasses a constitutionalresolution.Evidence thatthereis broad public supportadds weight
to such an initiative.
In the Secession
case, the Supreme Court noted thata referendummay
providea democraticmethodofascertainingtheviewsof the electorateon
importantpoliticalquestions.Further,it statedthata referendumthatwas
freeof ambiguityin termsof the phrasingof the question,and in termsof
ofa Quebec
thesupportitachieved,would conferlegitimacyon the efforts
governmentto secede (paras. 87, 88). Although Quebec "could not
such as to dictatethe terms
purportto invokea rightof self-determination
of a proposed secessionto the otherparties"(para. 91), nonetheless:
The rightsofotherprovincesand thefederalgovernment
cannot
"First Inaugural Address,4 March 1861. Don E. Fehrenbacher,ed., Lincoln,Speechesand Writings
1859-1865(New York,NY: LibraryofAmerica,1989), p. 217.
12Seebelow,note 16.
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Secessionof Quebec
143
denytherightofthegovernmentofQuebec to pursuesecession,
should a clear majorityof the people of Quebec choose that
goal, so long as in doing so, Quebec respectstherightsofothers.
Negotiationswould be necessaryto address the interestsof the
federal government,of Quebec and the other provinces,and
otherparticipants[implicitly:the representatives
of aboriginal
as
the
of
all
Canadians
both
well
as
withinand
rights
peoples],
outside Quebec.... The negotiationprocess .., .would require
the reconciliation of various rights and obligations by the
representativesof two legitimatemajorities,namely,the clear
majorityof the population of Quebec, and the clear majorityof
Canada as a whole, whateverthat may be. There can be no
suggestionthateitherof thesemajorities"trumps"the other. A
political majoritythat does not act in accordance with the
underlyingconstitutionalprincipleswe have identifiedputs at
riskthe legitimacyof the exerciseof itsrights(paras. 92, 93).
SECESSION AND THE 1982 AMENDING FORMULA
Amendmentsto the Canadian constitutionrequire differentprocesses,
accordingto subjectmatter.The generalruleis thattheremustbe identical
resolutionsbyparliamentand the legislaturesof sevenprovinces(i.e., twoat leasthalftheCanadian population (the "7/50 rule").
thirds)representing
there
is
also
a "unanimityrule"; all provinciallegislaturesmust
However,
in
the
concur
case of certainclasses of amendments. Included in thislist
are amendmentsin relation to the role of the lieutenantgovernorof a
province (who exercises vice-regalpowers at the provincial level), the
composition of the Supreme Courtof Canada, and the amendingformula
itself.All ofthesematterswould be affectedbysecession,althoughitcould
be argued thatan amendmentto bringabout the secession of a province
was not trulyin relationto them,and thatits implicationsin thisregard
were of secondaryimportance.
The court studiouslyavoided sayingwhat level of consent would be
required forsecession. Indeed, the courtseeminglygave littleimportance
to the amendingformulain the eventofa secession13or of negotiationson
secession. Instead, it emphasized constitutionalprinciples,the negotiation process, and the requirements of democratic legitimacy. Donna
Greschner,a constitutionallawyerfromSaskatchewan,considersthatthe
court'semphasison principlesmayunderminethepositionofCanada's six
smallprovinces(each withone millionor fewerpeople; these are also the
six poorest of the ten). She believes that the requirementof having to
negotiateon the basis of the fourconstitutionalprinciplesenunciated by
1lose Woehrling, "Unexpected Consequences of Constitutional FirstPrinciples," Canada Watch
7 (January-February
1999): 18.
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144
Publius/Spring1999
the courtcould have the consequence that:"Small provincesmaybecome
lost in the shuffleamong the big players,and theycannot [could not]
expect the federal governmentto protecttheirinterests."Express legal
guarantees under the Constitution Act, 1982 may be disregarded or
violated: "If parties exercise their veto under s. 41, or withhold their
consent under s. 38, forreasons thatviolatethe principles,theiraction is
unconstitutional."She adds: "When small provincesagree to a [constitutional] provision,theywill not knowwhetherit will last beyond the next
courtdecision thatuncoversand applies principles."14
It is possible, and perhaps even likely,thatsecession may require the
assentoffewerprovinces,or lessformally
declaredassent,thanotherclasses
ofamendment. This maybe impliedin thecourt'semphasison good-faith
negotiationsin which,arguably,Canada has been enjoined to speak witha
singlevoice."5To understandwhynegotiationsmaybe ofsuch importance,
perhapseven forcingtheformalamendingprocessintothebackground,it
may be helpful to take note of some recent history.Twice since 1982,
Meech Lake
constitutionalamendmentsagreed to byall governments-the
Accordof 1987 and the Charlottetown
Accordof 1992-havefailedas public
underfederallegislation
oppositionsubsequentlybuiltup.16Furthermore,
in 1996, the amendmentprocedure has become even more complicated.
The law now prohibitsthe governmentfromintroducinga parliamentary
resolutionunder the 7/50 rule, unless the amendmenthas alreadybeen
consented to by a broad coalition of provinces." Taking note of the
significanceof thisin the contextof a proposed secession,JoseWoehrling
on compliancewithsuch a cumbersomeprocedure,
comments:"Byinsisting
the federalgovernmentwas able to claim thatit abstractly
recognizedthe
1999): 24. In
4Donna Greschner,"WhatCan Small ProvincesDo?" Canada Watch7 (January-February
her oral commentsat theYorkUniversity
symposium(see Author'sNote), Grescheralso suggestedthat
the Supreme Court mayhave inventeda new amending formulaapplicable to secession. See also Donna
Forum10 (Fall 1998):
Greschner,"The Quebec Secession Reference:Goodbye to PartV?" Constitutional
19-25.
"Woehrling,"Unexpected Consequences," 19. For a criticismof thisaspect of the court'sdecision,
note the argumentof Alan Cairns, thatwhile one successor-state(Quebec) would be at the table, the
other ("new Canada," or Canada withoutQuebec) would not. The federalgovernment,elected in partby
Quebecers, would be there;so would all provincesof the present-dayfederation;but not, perforce,the
new statethatwould emerge aftersecession. See Alan C. Cairns,"The Quebec Secession Reference:The
Forum10 (Fall 1998): 26-30.
ConstitutionalObligation to Negotiate,"Constitutional
"The Meech Lake Accordwasratifiedbyparliamentand byall provinciallegislaturesexcept Manitoba
(though Newfoundland, having passed it, withdrewits approval after a provincial election). The
CharlottetownAccord was submittedto a Canada-wide referendum,where itwas rejected by54 percent
of the voters,and was approved onlyin threeof theAtlanticprovincesand (barely) in Ontario; itwas not
thereafterproceeded with. See PatrickJ. Monahan, MeechLake: TheInsideStory(Toronto: Universityof
theReferenToronto Press,1991); KennethMcRobertsand PatrickMonahan, eds., TheCharlottetown
Accord,
of Toronto Press,1993); and variousarticlesin Ronald
dum,and theFutureofCanada (Toronto: University
L. Wattsand Douglas M. Brown,eds., Canada: TheStateoftheFederation1993 (Kingston,ON: Instituteof
Relations,1993).
Intergovernmental
"The assentof the followingprovincesis required: Ontario,Quebec, BritishColumbia, twoAtlantic
provinces,and twoPrairieprovinces-inboth of the lattertwocases, witha majorityof the population in
the region. Note thatthisis ordinarylegislation,amendable byparliament;however,whileit remainson
the statutebooks, it has constitutionalsignificance.
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Secessionof Quebec
145
rightof Quebecers to decide theirown constitutionalfuturewhile,at the
same time,denyingsuch a righton a practicaland politicallevel." He goes
on to say:
The courtbringsthisscheme to ruinbyestablishinga sequence
of events that leaves only a secondaryrole for the amending
to see how a
formula.... [If negotiationssucceed] it is difficult
provinceor the federalgovernment[or rather,parliament-PL]
could then refuse its formal approval, and thus negate the
political agreementarrivedat. However,should thishappen,
the courtrecognizesthatQuebec could then trythe UDI [unilateraldeclarationofindependence] routeand thatsucha course
wouldbe subjectto evaluationbytheinternationalcommunity."8
SECESSION AND THE INTERNATIONAL COMMUNITY
Whetherto complementitsreasoningabout constitutionalprinciplesor to
takeaccountofrawpoliticalrealities,thecourtgaveconsiderableimportance
to the responseof the internationalcommunityto an attemptedsecession.
It mayhave done so because it evidentlydid not wishto regardeitherthe
constitutionalstatusquo, or secession,as thedefaultoutcome ifQuebecers
votedforsecessionbut negotiationsfailedor werenot seriouslyattempted.
In thisrespect,one mightsaythatthecourtrefusedtofolloweitherCalhoun
eitheran arbitralprocessor a
or Lincoln. Unable or unwillingto identify
thecourt
domesticarbiterifsecessionis approvedbyprovincialreferendum,
turned to the internationalcommunityas the ultimateauthorityon the
legitimacyof secession. It suggestedthatforeignpowerswould be guided
of Canadian constitutionalprinciplesand the
by theirown interpretation
adherence
of
various
partiesto those principles. Its scenariogood-faith
went
as
follows:
building
a high
After131 yearsof Confederation,thereexists,inevitably,
levelofintegrationin economic,politicaland social institutions
which
acrossCanada.... thereare regionaleconomic interests,
sometimescoincide withprovincialboundaries,[and] thereare
also nationalinterestsand enterprises(both public and private)
thatwould face potentialdismemberment.There is a national
economyand a nationaldebt. Argumentswereraisedbeforeus
regardingboundaryissues. There are linguisticand cultural
minorities,includingaboriginalpeoples, unevenlydistributed
across the countrywho look to the Constitutionof Canada for
the protectionof theirrights(para. 96).
While the negotiatorswould have to contemplatethe possibility
of secession,therewould be no absolute legal entitlementto it
SWoehrling,"Unexpected Consequences," 18.
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146
1999
Publius/Spring
and no assumptionthatan agreementreconcilingall relevant
rightsand obligationswould actuallybe reached (para. 97).
At thispoint,the courtdeclared thatit,itself,could not be expected to
arbitratethe outcome if negotiationsbroke down: "The Court has no supervisoryrole over the politicalaspectsof constitutionalnegotiations....
reconciliationcan onlybe achieved throughthe giveand takeof the negotiationprocess.... itwould be forthe democraticallyelected leadershipof
toresolvetheirdifferences"
thevariousparticipants
(paras.100,101). Leaving
thatthegoal ofsecessionmightbe abandoned, and
unstatedthepossibility
implicitlypresuminga unilateraldeclarationof independence, the court
theoutcome:
wouldarbitrate
thensuggestedthattheinternational
community
to
To theextentthata breachoftheconstitutional
duty negotiate
in accordance withthe principlesdescribedabove undermines
the legitimacyof a party'sactions,it mayhave importantramificationsat the internationallevel.... a Quebec thathad negotiated in conformitywithconstitutionalprinciples and values
in the face of unreasonable intransigenceon the part of other
at thefederalor provinciallevelwouldbe morelikely
participants
to be recognizedthana Quebec whichdid notitselfactaccording
to constitutional
principlesin thenegotiationprocess(para. 103).
was also addressedbythecourt
The role oftheinternationalcommunity
lawdid not offerQueit
international
in a different
when
stated
that
sense,
thattherightofa people
bec a rightto unilateralsecession. Whileaffirming
is now an acknowledgedprincipleof international
to self-determination
law (para. 114), thecourtstatedthatthisrightis normallyfulfilledthrough
"internalself-determination-a
people's pursuitof its political,economic,
of an existingstate"
cultural
social and
developmentwithintheframework
with
or
colonial oppressedpeoples, but as
(para 126). An exceptionarises
"thepopulation of Quebec cannot plausiblybe said to be denied access to
government,"the exceptiondoes not applyto Quebec (paras. 131-138).
Finally,the court acknowledged thatalthough Quebec mightsecede
in termsofbothdomesticand international
law,itsindependence
unlawfully,
mighteventuallybe accorded legal status throughforeignrecognition
(including by Canada). Such action-in accordance with"the effectivity
adaptation to "empiricalfact,"but does not confer
principle"-represents
(paras. 140-146).
legalityretroactively
THE SUPREME COURT AND POLITICAL CONTROVERSY
case has an obvious bearing on the legitimacyof the court
The Secession
more
and
itself,
broadlyon the legitimacyof the Canadian constitutional
order,both
wthhin Quebec and withinCanada as a whole. The court has
been walkinga veryfine line in its triadof constitutional
judgments. It
wouldstraintheimaginationto suppose thatthejusticesof Canada's highest
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Secession of Quebec
147
court took no notice of the prospectiveor probable reaction of various
publics to theirdecisionson such politicallysensitivematters.Surely,constitutional
jurisprudencein Canada is the resultof politicalcalculation,as
much as it is the austere productof human reason applied to observable
facts.
In the Secession
case, the Supreme Courtstruckpoliticalgold. Its ruling
has been lauded byfederalistsand indipendentistes
alike. There has been
of
course.
some
there
has been unease about
federalists,
criticism,
Among
the court'sthinsense ofnationhood,and itsapparentreadinessto subordinate writtenconstitutional
rulesto generalprinciples,whichthe courtitself
has formulatedin a waythatsuitsthe conclusions it apparentlyfeltcomthereappears to be a desire
pelled to draw. Among some indipendentistes,
to prepare the groundforfutureattackson thelegitimacyof thecourtin a
new phase of constitutionalcrisis. For example, political scientistGuy
Laforestcriticizesthecourtforundue reliance,whenitconsideredwhether
withinCanada, on
Quebecers have been able to achieveself-determination
thebriefpresentedbytheamicuscuriaeappointedbythecourtitself.Laforest
also revisits"thestrugglesof 1981-82,[when] theSupremeCourtofCanada
supportedwithall itsauthoritya constitutionalcoupd'itat."'19
The consistencyof the QuebecSecessionReference
withthese two earlier
cases mayreasonablybe questioned.Althoughopinionswilldifferon this,
it is plausible to argue thatthe presentdecision incorporatesand extends
the PatriationReference
of 1981, but amounts to repudiationof the Quebec
VetoReference
of 1982. The court'sdecision in the Vetocase seems difficult
to
sustainon any grounds other than its unwillingnessto overturna major
constitutionalamendment,widelysupported outside Quebec and, more
ambiguously,withinQuebec as well.20Denying Quebec a veto, the court
explicitlyrefusedto considerQuebec's particularplace withinConfederation.21By contrast,in the opinion of constitutionallawyerJean Leclair,a
self-declaredfederalist,"the Court recognized [in the SecessionReference]
the need to take into account Quebec's specificityin Confederation.In
otherwords,in the eyesof the Court,thefederalprincipleis not an ethereal
concept universally applicable in federations; it is historically
contextualized.'"22
'1GuyLaforest,"The JudiciaryCommitteeof the PrivyCouncil," Canada Watch7 (January-February
1999): 15.
20Pollstakenin November 1981 and March 1982 indicated thata pluralityof Quebecers were critical
of the provincialgovernment'srefusalto sign the agreementreached among the othergovernments,but
a majoritydisapprovedof the federalgovernment'saction in proceedingwithoutQuebec's consent. I am
gratefulto mycolleague MatthewMendelsohn forinformationon these polls.
21Criticisms
may be found in Marc E. Gold, "The Mask of Objectivity:Politics and Rhetoricin the
Supreme Court of Canada," SupremeCourtLaw Review7 (1985): 455-510; Samuel V. LaSelva, TheMoral
Foundationsof Canadian Federalism:Paradoxes,Achievements,
and TragediesofNationhood(Montreal and
Press, 1996), pp. 49-63.
Kingston:McGill-Queen's University
22Jean
Leclair,"A Rulingin Search of a Nation," Canada Watch7 (January-February
1999): 22; see also
Jean Leclair,"Impoverishmentof the Law by the Law: A Critique of the AttorneyGeneral's Vision of the
Rule of Law and the Federal Principle,"Constitutional
Forum10 (Fall 1998): 1-8.
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148
Publius/Spring1999
It is doubtfulthat,if negotiationson secession do occur,the Supreme
Courtwould be able to maintainOlympiandetachmentfrompolitics. The
role overthe politicalaspects
court,as noted,has disclaimeda supervisory
of such negotiations. However,havingdeclared a constitutionaldutyto
negotiate,could the courtescape obligationto decide whetherthe parties
in good faith?Could itdetermineadherenceto-orviolation
werenegotiating
of-constitutional
principleswithoutitselfmakingthesortsofjudgmentthat
it has explicitlydeclared only"politicalactors"have the capacityto make?
draw
It is hard to see how thecourtcould, in such a situation,convincingly
a line betweenthe legal and thepolitical. Itsrecentjudgments,not onlyin
revisiontriad,butalso in manyChartercases,haveblurred
theconstitutional
thatline ifnot (as some insist)erased italtogether.Perhapsa clear distinctioncannotbe establishedor maintained. Be thatas itmay,itis hard to see
howa futurecourt,in a crisisoveran intendedsecession,could avoid being
drawninto the politicalvortex-unlesseventswere to move so rapidlyas to
make courtaction irrelevant.
CONCLUSION: THE REALPOLITIK OF SECESSION
I close witha finalcommenton what maywell be a fundamentallack of
politicalrealismbythe court,and, in thislight,a commenton the overall
significanceofthecase. In declaringa dutyto negotiate,and in identifying
many of the incredibly complex and difficultissues to be resolved in
assumesthat
negotiations over a proposed secession,the courtimplicitly
no significanttimeconstraintsapply.How could thatbe?
Several commentatorshave suggested that a referendumendorsing
secession would precipitatea crisisthatwould demand almostimmediate
resolution. PoliticalscientistRobertYoung speculated duringthe lead-up
to the 1995 referendumthatif therewere a strong"Yes"vote, the prime
ministerwould be compelled to announce immediatelythat the verdict
would be accepted. Economic pressure,sporadic violence, and pressure
fromforeigngovernments(notablythe United States) would ensure that
negotiationsbegan verysoon-in threeor fourdays-andthatin the course
of a fewweeks,"the shape of secessionwill [would] clarify."''23
Other commentators,includingStanleyHartt,a formerpoliticalchief
MinisterBrianMulroney,
havepredictedan unavoidable
to then-Prime
ofstaff
financialcrisis,and thusa politicalone as well. Harttarguesthattheprime
2'Robert A. Young, The Secession of Quebec and theFuture of Canada, rev. and expanded
ed. (Montreal
and Kingston: McGill-Queen's UniversityPress, 1998): 159, 169, 176. These pages were evidently
writtenbeforethe 1995 referendum.In a subsequent section of the book, clearlywrittenafterthe referendurn (pp. 380-96), Young reviews six possible post-"Yes" scenarios, indicating a much wider range of
possible outcomes from a "Yes" vote, even a decisive one, than earlier seemed likely. For another commentary on these issues, written before the 1995 referendum by a political scientist who subsequently
became the federal Minister of Intergovernmental Affairs, see Stephane Dion, "The Dynamic of Secessions: Scenarios after a Pro-Separatist Vote in a Quebec Referendum," Canadian Journal of Political Science
28 (September 1995): 533-551.
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Secession of Quebec
149
ministerwould be unable to make the commitmentenvisionedbyYoung,
because-as the court's decision has made clear-he would not have the
authorityto do so. The danger of chaos would be considerable because
the issues requiringresolutioncould not be settledwithina yearor so, as
envisionedby the PQ, let alone in weeks: "There does not existas yetany
comprehensiveacademic studyof the componentsof the economic union
thatwould need to be laboriouslystitchedback togetherby constructive
cooperation betweentwosovereignstates.... Five to tenyearsseems to be
a reasonabletime-frame
to restructure
theseveredeconomicunion."24Hartt
believes thatthe marketswould punish governments,
whichcould not tell
themhow existingdebtswould be servicedand paid; he also predictsthat
internaltrade would be disrupted,imposingsubstantialeconomic losses
both in Quebec and in the rest of Canada. Where Young believes that
mountingeconomic costsmayforcegovernmentsto reach earlyagreement
on politicalarrangementsthatwould preservethe economic union, Hartt
considersthatthe problems to be resolvedare too complex forthis. He
writes:"In the eventthatnegotiations[on secession] fail,amidstchargesof
bad faithon both sides,a unilateraldeclarationof independence willhave
contestedlegitimacy,
whichmaximizesthe chances of a chaotic outcome."
He does not exclude thepossibility
thatQuebec mightbe forcedto abandon
an attemptedsecession.25
WhetherYoung is right,or Hartt is, the realpolitik
of secession is that
aftera "Yes"vote,principlewould recede beforetheurgencyofdecision. It
is hard to imagine thatinterestedparties-includinginvestors,employers,
the employed,the retired,and the indigent,to say nothingof those who
quite simplylove theircountry-wouldsit back and await the outcome of
the negotiationsmandated by the court. Either the negotiationswould
suppressissuesthe Supreme Courthas said would need to be resolved,and
would ride roughshodover the interestsof non-powerfulplayers,or they
would be, in Hartt's words, "acrimonious, slow,and unable, before the
has actuallyoccurred,to settletheintractable
damage inflicted
byuncertainty
issuesincludingborders,firstnationrights,minorityprotection,assetdiviEitherway,
sion, currency,debt,citizenship,traderelationsand others."'26
the Supreme Court's decision would be of littlerelevanceif Quebec ever
opts forsecession.
The Secessioncase actually resolved almost nothing, in the sense of
removing any criticalquestions fromthe realm of political controversy.
Even the "obligationto negotiate,"highlightedbyso manycommentators
leftin place almostall the existingambi(certainlybythe indipendentistes),
24StanleyHartt, "The Next Steps for Canadian Federalists:Strategyand Process," Canada Watch7
1999): 9. On the costsof secession,see also Marcel Cote and DavidJohnston,IfQuebec
(January-February
Goes... TheReal CostofSeparation(Toronto: Stoddart,1995).
"Next Steps,"9; and privatecorrespondence withthe author.
25Hartt,
26Ibid.
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150
1999
Publius/Spring
guitiesand uncertaintiessurroundingthe process thatcould lead to secession. Member of ParliamentDaniel Turp, fromthe Bloc quebecois,
notes
to oppose anypre-emptive
thatthecourt'sdecision "willallowsovereignists
argumentthattherestof Canada willnot negotiatewithQuebec following
a '"Yes"votein a Quebec referendum,
such as thosemade duringpastreferendum campaigns by federalistleaders such as [formerCanadian prime
minister]PierreElliottTrudeauor [OntarioPremier]MikeHarris.""27
Turp's
statementis indicativeof the politicaluse to whichthe court'sdecision in
the Secession
case will be put, and indeed is alreadybeing put. However,
affirmations
thatnegotiationswill take place if thereis a '"Yes"vote,whatever the reluctanceor the tacticalmaneuversof the federalgovernment,
resolvenone of the practicaldifficulties
thatwillcome to the fore.
It is doubtful,to saythe least,thatthe courtreduced uncertainty
about
the negotiationprocess or itsoutcome; fewifanyof the criticalquestions
have been takenoffthe table. First,the courtindicated that,forthereto
exista dutyto negotiate,therewould have to be a clear questionand a clear
majorityin favorof secession, but it also indicated that the meaning of
"clear"willhave to be decided politically.Second, thecourtdid not specify
(and surelycould nothavespecified)thecompositionofa futurenegotiating
team thatmighthave authorityto speak forthe restof Canada. This has
been the problemhighlightedbythosewho have said thattherewould be
no one to siton theotherside of thetablefromQuebec in thenegotiations
that Quebec envisionedin both referendums.The federalgovernment
(representingthewhole of Canada, includingthe 25 percentof the population thatlivesin Quebec) would lack authorityto committhe nine other
provinces;the provinces,on the other hand, would lack the capacityto
marginalizethefederalgovernment.In itsjudgment,thecourtreferredto
both the federalgovernmentand the provincesas being involvedin the
negotiationsit mandated;it also referredto the manyand variedinterests
that would have to be taken into account, but it avoided specifyingthe
rolesto be playedbyeach oftheparties,and itdid notsayhowsuch a broad
representedin the negotiations.
range of interestscould all be effectively
Third,the courtavoided sayingwhatthe scope of the negotiationswould
be, and in particular,itdid not saywhethertheycould be expected to lead
to the creationof a new formof economic union, or to fullindependence
for Quebec, or indeed to any agreed conclusion. Fourth,it did not say
whatwould happen ifnegotiationstook place, and the partiesreached an
agreement thatlegislaturesrefusedto incorporate into a constitutional
resolution providingforsecession. It is scarcelyanywonder,then,thata
formerQuebec vice-premier
under the PQ, Jacques-YvanMorin,has sumis forQuebec
marized the court'srulingas follows:"In theory,sovereignty
Canada Watch7 (January-February
1999): 4. Turp is a con27DanielTurp, "GlobalizingSovereignty,"
stitutionallawyer,on leave fromthe Universitede Montreal.
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Secession of Quebec
151
a legitimategoal to pursue,and the rightto secede cannot democratically
be denied; in practice, however,the federal power is entitled to raise
obstacles and difficulties
thatare importantand numerousenough so as to
to
achieve
and to throwofftrackanynegonegate anyattempt
sovereignty
tiationon the issue."28
The real significanceof the Secession
case is more politicalthanjurisprudential. It mayhave some bearingon a futurereferendumoutcome,or on
a PQ decision to hold a referendumor postpone it indefinitely.Afterthe
judgmentwas handed down,both federalistsand indipendentistes
began to
the
decision
as
for
their
own
side.
interpret
havingpalpable advantages
This may be taken as an indicationof the court's political finessein the
short run, and perhaps as forewarningof political controversiesthat a
futurecourt maybe unable to avoid if the PQ holds and wins a referendum. No doubt, though, the court's judgment will be significantin
another wayas well:as a shaperofCanadian politicalnorms,whichitsurely
itwillbe, ifit stimulatesreflectionon the interrelationship
betweenfederand therule of law,and theprotection
alism,democracy,constitutionalism
of minorities-andon the meaningof nationhood.
Morin,"A Balanced Judgment?"Canada Watch7 (January-February
1999): 3 (emphasis
z8Jacques-Yvan
in the original). Morin, like Turp, is a constitutionallawyer;he formerlytaughtat the Universitede
Montr6al.
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