Tensions reached a climax when the Parti Québécois (PQ), a political party intent ..... Québécois, the Bloc Québécois (the federal equivalent of the PQ) and the ...
Constitutional Principles in the Secession Reference* Forthcoming in N. Des Rosiers, P. Macklem & P. Oliver (eds) The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017)
ABSTRACT: In Reference Re Secession of Quebec, 1998, the Supreme Court of Canada concluded that the unwritten constitutional principles of federalism and democracy dictated 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 gave rise to a reciprocal obligation on all parties to the federation to negotiate constitutional changes to respond to that desire. To understand this astonishing decision, the author first examines how, over time, in Canada and Quebec, issues of identity(ies), constitutional law and democracy came to be formulated in absolutist terms, making political compromises next to impossible. Only then does he analyse the Supreme Court’s decision and attempts to explain why the latter chose to decide as it did. KEYWORDS: secession, constitutional law, identity, monism, nationalism, pluralism, federalism, unwritten constitutional principles, positivism *** 1 On August 20 1998, in Reference Re Secession of Quebec, the Supreme Court of Canada delivered one of the most important decisions since its establishment in 1875. At issue was whether it was possible, under the Constitution of Canada, for the sub-‐state of Quebec to secede unilaterally from Canada, and whether the right to self-‐determination recognized under international law included such a right to secede. The Supreme Court answered both questions in the negative.2
However, to the astonishment of many, the Court further concluded that, the Constitution not being a ‘straitjacket’,3 the unwritten constitutional principles of federalism and democracy said to be lying in suspension, so to speak, in the interstices of Canada’s constitutional order, ‘dictate[d] 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’.4 In other words, although no right to secede was said to exist under Canadian constitutional law, if, on the occasion of a referendum, a clear majority of Quebecers voted on a clear question in favour of secession, the government of Quebec would be allowed *
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Jean Leclair, professor, Faculty of Law, Université de Montréal. [1998] SCR 217; 1998 CanLII 793 (SCC) [hereinafter Secession Reference; references will be made to the paragraphs instead of to the pages of the decision. The present Handbook dealing with Canadian constitutional law, the international law aspect of the decision will not be addressed. cf Secession Reference (n 1) para 150. Ibid para 88.
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to initiate the Constitution's amendment process in order to secede by constitutional means, and such an attempt to seek an amendment to the Constitution would prompt an obligation on the other provinces and the federal government to come to the negotiation table.5 Most surprising of all for legal observers was the Court’s bypassing of the explicit amendment provisions provided by the Constitution Act, 19826 in favour of a number of ‘fundamental and organizing principles of the Constitution’ to address the question before it.7 The Solomonic nature of the decision allowed both the then Federal Prime minister (Jean Chrétien) and the Premier of Quebec (Lucien Bouchard) to claim victory. Polls also indicated that the decision enjoyed popular support both in Quebec and in the rest of Canada.8 To understand the Supreme Court’s embroilment in the secession debate and explain why it chose to decide as it did, one must first be introduced to how, over time, in Canada and Quebec, issues of identity(ies), constitutional law and democracy came to be formulated in absolutist terms, making political compromises next to impossible. Monistic and Absolutist Understandings of Identities, Constitutional Law and Democracy Canada is a federation where plural and overlapping identities flourish. This does not simply mean that different groups or ‘nations’ cohabit alongside one another, but rather that individuals themselves are plural, nurturing multiple allegiances, some being more important than others, and some being confined to the limits of the historical community to which they belong, while others are not. Canada being a federation, a form of legal pluralism also prevails where provincial, territorial, federal9 and, more and more, indigenous legal orders coexist and overlap one another. Finally, a federal State being composed of a plurality of co-‐equal political communities (provincial or territorial, and federal), i.e. being a polity of polities, it follows that citizens are simultaneously part of at least two demoi, each equally legitimate under Canada’s federal constitution.10 All this makes for a complex regime, whose very intricacy is probably one of the reasons why Canada has not yet been rent asunder. Be that as it may, historical events, their subsequent interpretations and the myths they engendered have served to obscure a great part of Canada’s interlocking webs of social, cultural and legal interactions. A form of methodological nationalism, according to which everything is analysed through the prism of ‘nations’ understood as ‘natural’ collective subjective entities, has tended to represent the Canadian federation as the battleground of two separate and internally homogenous entities: Canada and 5
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Ibid para 87. Schedule B to the Canada Act 1982, ch. 11 (U.K.), arts 38-‐49. cf Secession Reference (n 1) para 32. Joseph Fletcher and Paul Howe, ‘Canadian Attitudes toward the Charter and the Courts in Comparative Perspective’ (2000) 6 Choices 4. Canada is made up of a national government, ten provinces and three territories. Constitution Act, 1867, 30 & 31 Vict. Ch. 3 (U.K.), as reprinted in R.S.C., No. 5 (1985).
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Quebec.11 Furthermore, for various reasons, the Constitution-‐as-‐sacred-‐text has acquired an existential dimension in the last decades of the 20th century in Canada. Explicit recognition in the constitutional frieze, even though this might not translate in anything substantial at a purely legal level, seems to have become the sine qua non requirement for inclusion in the Canadian polity. In other words, form seems to have displaced substance where constitutional making is concerned. The idea of the Constitution not simply as a body of explicit norms but rather as a living body of experience capable of adaptation through political practices, compromises and incremental judicial amendments, is harder to countenance. Finally, the discourse of rights now permeating all political and constitutional discussions has added a new layer of difficulty, serving at once as a springboard for constitutional recognition of collective rights and as a tool to oppose any such recognition. The span of the issues raised by questions of identity, constitutional law and democracy in Canada is much too broad to allow for their examination in any degree of detail. One subject however simultaneously draws upon all these topics: the search for an amending formula. Identifying in formulaic legal propositions who the constituent power holder(s) are (the people? the peoples? legislative assemblies? governments? etc.) and how they interact is always at the heart of an amending procedure. The Constitution Act, 1867 is devoid of any general provision providing for its own amendment. At the time, the Fathers of Confederation (as they are often called) took for granted that only the Imperial Parliament was invested with the power to amend Canada’s constitution. Furthermore, as a colony, Canada was prohibited by the Colonial Laws Validity Act 186512 from amending imperial legislation extending to it. Hence, although some domestic power of amendment was recognized over specific issues, the newly created federal Parliament and the provincial legislatures had to turn to London for the ratification of important constitutional changes. After the First World War, the United Kingdom legally recognized the growing independence of Canada and of its other dominions by adopting the Statute of Westminster 193113 that granted them the power to repeal or amend Imperial statutes applying to them. Symptomatic of the Canadian situation where agreement over a domestic amending procedure had proven impossible, subsection 7(1) of the statute enunciated that ‘[n]othing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts 1867 to 1930….’ As such, this provision juridically crystallized the already existing constitutional convention according to which the United Kingdom would not amend the Canadian Constitution, unless required to do so by Canadian authorities. 11
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Jean Leclair, ‘Federalism as Rejection of Nationalist Monisms’ in Dimitrios Karmis and François Rocher (eds), The Trust/Distrust Dynamic in Multinational Democracies: Canada in Comparative Perspective, (McGill-‐Queen's University Press, 2016) forthcoming. 28 & 29 Vict. c. 63. 22 Geo. V, c. 4 (U.K.).
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Discussions about the adoption of a domestic amending procedure gained a renewed momentum in the 1940s and 50s, and would remain a major political bone of contention until the adoption of the Constitution Act, 1982. The debate was fuelled, among other things, by the successful attempt by the Federal government in 1949 to obtain from London, without the prior consent of the provinces, an amendment empowering it to make changes to the ‘Constitution of Canada’ via an ordinary statute of the Parliament of Canada. Notwithstanding that this provision was eventually interpreted very narrowly by the Supreme Court, the federal government’s decision to act unilaterally went against the grain of the widely held belief that the constitution was a ‘compact’ requiring the intervention of the provinces for its amendment. The ‘compact theory’, or rather theories, espoused many forms that all embodied the idea that the Canadian federation was the product of an agreement between either 1) the provinces among themselves, 2) between two linguistic or national groups and, more recently, 3) between the Canadian Crown and Canada’s indigenous peoples.14 These theories were developed well after 1867 as a means of providing a legitimate rationale for the federal bargain.15 However, it is not so much their veracity as historical facts that generated controversy between academics and politicians, as their normative consequences once political actors started mobilizing them in the debates over the adoption of an amending procedure.16 In English Canada, although the idea of the federation as a compact between the founding colonies/provinces (and the other provinces that joined later on) initially held some appeal, the latter started to falter in the 1930s. During that time, the Great Depression had convinced many Anglo-‐Canadians that a strong federal government was needed and that the distribution of power established in 1867 needed to be updated to acknowledge that fact. The notion of the federation as an agreement between equal provincial partners, entailing as it did the necessity of obtaining the consent of all to amend the constitution, struck many as most problematical.17 Later on, the Second World War and the advent of the Welfare State would be instrumental in refocusing Anglo-‐Canadians’ primary allegiance on the Central government, thus further accelerating the demise of the compact theory. In Quebec, the compact theory came to take on a very different meaning. The federal bargain, it was claimed, was an agreement between two linguistic or national groups (Anglophones and Francophones). Thus, from this perspective, no fundamental changes to the Constitution Act, 1867 could obtain without the consent of Quebec. In fact, as the sole legitimate representative of French Canadians, Quebec possessed a veto over all foundational amendments. 14
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Sébastien Grammond, ‘Compact is Back: The Revival of the Compact Theory of Confederation by the Supreme Court’ (2016) 53 Osgoode Hall Law Journal (forthcoming). For a recent analysis, see Jean-‐François Caron, ‘Le Québec et la Confédération: le fédéralisme et la théorie du pacte’ in Jean-‐François Caron and Marcel Martel (eds), Le Canada français et la Confédération. Fondements et bilan critique (Presses de l’Université Laval 2016). Grammond (n 14). See for example Norman McL. Rogers, ‘The Compact Theory of Confederation’ (1931) 9 Can Bar Rev 395.
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The symbolic power of this version of the compact theory only grew stronger as Quebec nationalism went from a defensive position to an assertive one.18 The Révolution tranquille (Quiet Revolution) that began in the 1960s was a social as well as a political revolution that profoundly transformed Quebec and, by the same token, its constitutional agenda. From the end of the Second World War until the 1960s, an ethnically non-‐inclusive conservative cultural nationalism prevailed among Quebecers. Politically, this translated into the domination of the Union Nationale, a political party bent on promoting close ties with the Catholic Church and minimal State policies. Its leader Maurice Duplessis fought ardently any federal attempt at ‘invading’ the exclusive jurisdictions recognized to the provinces under the Constitution Act, 1867.19 However, under the impetus of the new political forces unleashed by the Quiet Revolution, the State of Quebec became the main instrument of national assertiveness for Quebecers. No longer on the defensive, Quebec governments would thenceforth demand more powers to better serve the people of the province. As time went on, Quebec governments claimed to be the sole voice of the whole ‘nation’, meaning the entire population of the province. It is worth noting that, in the process of becoming ever more Quebecers, most French-‐speaking inhabitants of Quebec abandoned the ‘French Canadian’ denomination. In addition, starting in the 1960s, a more civic-‐pluralist nationalism emerged, according to which all inhabitants of Quebec identifying themselves as Quebecers were recognized as such. As it turns out, two agreements on an amending formula nearly achieved success in 1964 (the Fulton-‐Favreau formula) and 1971 (the Victoria Charter). Both gave a veto to Quebec, but on each occasion, Quebec refused to affix its signature. As underlined by Peter W. Hogg, ‘all participants understood that Quebec had to be a party to whatever agreement was reached, because the sole dissent of Quebec was sufficient to abort both of these previous projects’.20 Tensions reached a climax when the Parti Québécois (PQ), a political party intent on seeking independence, took power in 1976 and held a referendum on a sovereignty-‐association proposal on May 20 1980. As the referendum question illustrates, the PQ did not seek straightforward secession, neither did it want to sever all economic ties with Canada: The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, 18
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The story of this era has been well told by Keith Banting and Richard Simeon (eds), And No One Cheered. Federalism, Democracy and the Constitution Act (Methuen 1983); Peter H. Russell, Constitutional Odyssey. nd Can Canadians Become a Sovereign People? (2 edn, University of Toronto Press 1993); Jeremy Webber, Reimagining Canada. Language, Culture, Community, and the Canadian Constitution (McGill-‐Queen’s University Press 1994). There were however important pockets of French Canadian intellectual and political resistance during the whole of the Duplessis era: Jacques Couillard, ‘Aux sources de la Révolution tranquille: le congrès d’orientation du Parti libéral du Québec du 10 et 11 juin 1938’ (2015) 24 Bulletin d’histoire politique 125. Constitutional Law of Canada, vol 1, para 4.1(b) (R 2013-‐1).
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levy its taxes and establish relations abroad — in other words, sovereignty — and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada? The ‘No’ side won the day with a little less than 60% of the votes cast. Six nights before the fateful day, the federal Prime Minister Pierre Elliot Trudeau, a Quebecer himself, addressed a huge crowd in Montreal (Quebec’s metropolis), and pledged that, if the ‘No’ side won, this would be ‘interpreted [by the central government and the other provinces] as a mandate to change the Constitution, to renew federalism.’21 Referring to his cabinet, he stated: ‘I can make a most solemn commitment that following a NO vote, we will immediately take action to renew the constitution and we will not stop until we have done that.’22 This pledge would soon come back to haunt him (and the rest of the country). In the days that followed the referendum, the federal government immediately took action, trying to reach agreement with the provinces on a new constitutional package. These attempts having all met with failure, on October 2 1980, Ottawa announced its decision to proceed unilaterally. The United Kingdom Parliament would be asked to amend the Canadian constitution, even in the face of provincial opposition. The ‘patriation’ proposal would include, among other things, an amending formula similar to the one introduced in the 1971 Victoria Charter, to which would be added the possibility of resorting to a referendum to bypass the need for provincial assent, and a Charter of rights and freedoms whose language rights guarantees clashed with the most controversial provisions of the Charter of the French Language23 adopted by the PQ in 1977 to make French the common public language of the province. Eight of the ten provinces (including Quebec) objected to the proposal and three of them referred the question of the legality of Ottawa’s unilateral action to their appeal courts. The latter’s divided opinions paved the way for an appeal to the Supreme Court. On the 28th of September 1981, while a majority of the high court judges recognized ‘the untrammelled authority at law’24 of Parliament to adopt a resolution unilaterally requesting amendments to the constitution, yet a differently constituted majority concluded that it would be ‘unconstitutional in the conventional sense’25 to do so without ‘at least [obtaining] a substantial
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Quoted in Webber (n 18) 107. Ibid. R.S.Q. c. C-‐11. Re: Resolution to amend the Constitution [1981] 1 SCR 753, 1981 CanLII 25 (SCC) [hereinafter Patriation Reference] 808 (emphasis added). Ibid 908.
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measure of provincial consent’.26 A year later, in a second momentous decision, the Court would unanimously conclude that Quebec had no conventional power of veto over constitutional amendments affecting its legislative competence.27 Two elements of the 1981 decision are worth mentioning. First, a majority of judges dismissively discarded the compact theories, whether conceived as ‘a full compact theory [between the founding colonies/provinces] … or [as] a modified compact theory’, claiming that they ‘operate[d] in the political realm … [and that they did] not engage the law’.28 Secondly, two of the dissenting judges held that constitutional legality, as opposed to conventionality, had indeed been violated by the Federal government when it adopted its resolution. They stressed that ‘the inviolability of separate and exclusive legislative powers’29 recognized by the principle of federalism, ‘the dominant principle of Canadian constitutional law’,30 had been ‘carried into and considered an integral part of the operation of the resolution procedure.’31 Therefore, a resolution aimed at initiating an amendment procedure ‘could only be an effective expression of Canadian sovereignty if it had the support of both levels of government.’32 The Court’s decision forced an unwilling Prime Minister back to the table. However, the fragility of the alliance between the eight opposing provinces would soon be demonstrated. Prior to the Court’s decision, in April 1981, the ‘Gang of Eight’ had agreed upon a counter-‐proposal containing an amending formula according to which no provinces had a veto. Nevertheless, it provided that a province wishing to do so could opt out of any amendment transferring jurisdiction from the provinces to the federal parliament. Quebec’s Premier, René Lévesque, leader of the now enfeebled PQ government, had agreed to abandon Quebec’s veto only on condition that full financial compensation would be guaranteed to provinces opting out. In spite of this agreement, at the end of the hectic three days conference held in Ottawa in the first week of November 1981, in what would become in Quebec’s myth-‐ideology ‘the night of the long knives’, nine provincial premiers finally struck a deal with the federal government that left Quebec on the sidelines. They succeeded in brokering this agreement only by acquiescing to jettison the right to opt out with full compensation. Although René Lévesque and his 26
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Ibid 905. The major difference between the laws of the constitution and conventional rules of the constitution is that the latter cannot be enforced by courts: ibid 880-‐881. They can only be sanctioned in the political arena. Re: Objection by Quebec to a Resolution to amend the Constitution [1982] 2 SCR 793, 1982 CanLII 219 (SCC) [hereinafter Quebec Veto Reference]. The Court rejected the existence of a conventional power of veto for the reason that such a convention had never been accepted or recognized by the political actors in a sufficiently articulated manner. However, as one shrewd commentator noted: ‘…there was no articulated recognition of the convention requiring substantial consent. Indeed, had the Court insisted on articulated political recognition as rigorously in the first case as they did in the second, no convention at all would have been found to exist in the [Patriation Reference]’: Marc E. Gold, ‘The Mask of Objectivity: Politics and Rhetoric in the Supreme Court of Canada’ [1985] 7 Supreme Court Law Review 455, 477. cf Reference 1981 (n 24) 803. In Quebec Veto Reference (n 27) 812-‐814, the Supreme Court again eluded a similar argument. Ibid 831. Ibid 821. Ibid 831. Ibid 847.
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government bear part of the responsibility for the constitutional isolation of Quebec during this episode,33 and although it is hard to imagine how a man who had dedicated his entire political life to seeking the independence of Quebec could have agreed to a new federal deal, it remains that the other provinces and the federal government took the (mis)calculated risk of amending the Canadian Constitution, and thus the Canadian State fabric, without the consent of Quebec’s political elites. On the night of the May 14 1980, the federal Prime minister had not specified how and in which direction he intended to steer the promised constitutional changes. Undoubtedly, however, a great number of Quebecers had not expected him to proceed without Quebec’s approval. What some experienced as disappointment was felt by others as treason. This is most unfortunate since most Quebecers did not object so much to the content of the constitutional reform, the Canadian Charter of Rights and Freedoms always having been enthusiastically embraced by Quebecers,34 as with the manner of its adoption. They objected to the fact that the province of Quebec was treated as just any other province. They were also concerned that Canada would from thence on, from a federal society, morph into one essentially made up of equal rights-‐bearing citizens gradually focussing their primary allegiance on the institutions of the Federal government rather than on their province’s local institutions. In the years that followed, attempts were made to bring back Quebec into the folds of the Canadian constitution ‘with honour and enthusiasm’, according to the expression of Brian Mulroney then Prime Minister of Canada (1984-‐1993). The failed 1987 Meech Lake Accord, for instance, sought to assuage Quebec’s demands by ensuring the participation of Quebec in the nomination of Supreme Court justices, by increasing Quebec’s power over immigration, by limiting the federal spending power, by providing Quebec with a veto over constitutional amendments and, most importantly, by expressly recognizing Quebec as a ‘distinct society’. Out of the many reasons for the accord’s demise, three deserve mention. First, the new amending formula introduced in 1982 subjected the amendment of either the composition of the Supreme Court or the amending procedures themselves to the unanimous consent of provinces.35 As a consequence, the whole accord was dealt with as a single unit whose ratification required the approval of all provinces. Second, the ‘distinct society’ clause did not mesh harmoniously with the more procedural model of democracy to which more and more Anglo-‐Canadians were adhering. Although still in its infancy, the Canadian Charter of Rights and Freedoms had already acquired the status of 33
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Guy Laforest and Rosalie Readman, ‘More Distress than Enchantment: The Constitutional Negotiations of November 1981 as Seen from Quebec’ in Lois Harder and Steve Patten (eds), Patriation and Its Consequences. Constitutional Making in Canada (UBC Press 2015). th The Federal Idea, A Study on the Occasion of the 30 Anniversary of the Patriation of the Constitution, (CROP 2011); Center for Research and Information on Canada, The Charter: dividing or uniting Canadians? 2002. Constitution Act, 1982, s 41 (d) and (e).
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national icon in English Canada. As Trudeau intended, the Charter had successfully deprovincialized Anglo-‐Canadian identities, operating as both a formal and symbolic expression of the fundamental values that defined Canadianness. Thus, at the same time as the nationalist discourse in Quebec was emphasizing the latter’s radical cultural difference, an equally monolithic understanding of Anglo-‐Canadian identity was taking shape. The Charter helped promote an ’unhyphenated Canadianism’, according to which ‘Canadians should not be divided against themselves, having two allegiances, one to their country, one to their more local identity. They must be Canadians first, each treated, under the constitution, simply as Canadians’.36 Third, the Meech Lake Accord failed because political and social ‘outsiders’ had been knocking on the constitutional door to no avail since the beginning of the 1960s. Up to the Meech Lake Accord, the federal government and Quebec had occupied centre stage in constitutional making processes. But now, the Western provinces, women’s groups, immigrant communities and, most especially, the Indigenous peoples were also requesting formal and explicit recognition in the constitutional text. The Meech Lake Accord and the process of its adoption was thus not to their liking, and they opposed it. The 1992 Charlottetown Accord would eventually seek to satisfy everyone. It only succeeded in convincing the entire population of Canada that mega-‐constitutional negotiations were bound to fail. Two major consequences flowed from of all these constitutional tribulations. First, the bond of trust between Quebec and the rest of Canada further eroded. A powerful discourse of victimization grew in Quebec, and political parties of all stripes stated that they would never sign the constitution unless explicit recognition of the province’s specificity, accompanied by the allocation of new powers, was provided for. Second, the Meech Lake and Charlottetown accords, in conjunction with the all-‐powerful discourse of ‘recognition’37 now suffusing (and suffocating) all Canadian political debates, have sparked a new and dangerous phenomenon: constitutional fetishism emphasizing a textocentric conception of constitutional law.38 It would now appear that for political and social actors, their very existence as worthy members of the Canadian polity is existentially linked to an explicit constitutional recognition. Whatever their de facto (and even de jure!) status may be, nothing less will suffice. 36
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Webber (n 18) 143. The foundational text on this subject was penned by Canadian philosopher Charles Taylor, ‘The Politics of Recognition’ in Amy Gutman (ed), Multiculturalism. Examining the Politics of Recognition (Princeton University Press 1994). Jean-‐François Gaudreault-‐Desbiens, ‘Canadian Federalism and Quebec’s Pathological Prism’ in Stéphan Gervais, Christopher Kirkey, and Jarrett Rudy (eds), Quebec Questions. Quebec Studies for the Twenty-‐First nd Century (2 edn, Oxford University Press 2016); Jean-‐François Gaudreault-‐Desbiens, ‘The Fetishism of Formal Law and the Fate of Constitutional Patriotism in Communities of Comfort: A Canadian Perspective’ in John Eric Fossum, Paul Magnette, and Johanne Poirier (eds), Ties that bind. Accommodating Diversity in Canada and the European Union (P.I.E. Lang 2009).
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For secessionist Quebecers, constitutional law was not the answer to their ‘nation’’s problems; democracy was. The people of Quebec would be the one to decide. And so, on the night of October 30 1995, a second referendum was held. Quebecers were asked the following question: ‘Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 199539?’ Not only did polls demonstrate the public’s confusion as to the meaning of this question,40 but both Jacques Parizeau, leader of the PQ, and Lucien Bouchard, at the time leader of the Bloc québécois, a sovereignist federal political party, would later admit to the question’s lack of clarity.41 Even more shocking, on the very day of the referendum, Lucien Bouchard had no idea how his colleague Parizeau would interpret results that were bound to be close.42 For Bouchard, a ‘Yes’ might not necessarily lead to secession; not so for Parizeau.43 The results of the referendum sent shockwaves throughout the country: 49.42 per cent ‘Yes’ to 50.58 per cent ‘No’. Badly shaken, the federal government decided no longer to let Quebec lead the dance on the issue of secession. And so, the Supreme Court of Canada having jurisdiction to give advisory opinions, the federal government, on September 30 1996, required the high court to answer three questions, the first being the only one that will retain our attention in this chapter: 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 39
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The Bill referred to was Bill 1, entitled An Act respecting the future of Québec, 1995. Section 1 provided as follows: ‘The National Assembly is authorized, within the scope of this Act, to proclaim the sovereignty of Québec. The proclamation must be preceded by a formal offer of economic and political partnership with Canada.’ However, section 26 specified that ‘[t]he proclamation of sovereignty may be made as soon as the partnership treaty has been approved by the National Assembly or as soon as the latter, after requesting the opinion of the orientation and supervision committee, has concluded that the negotiations have proved fruitless’ (my emphasis). Section 26, providing an early escape hatch to the willing, was the only provision of the Act relating to partnership that was of any interest to Jacques Parizeau: Chantal Hébert and Jean Lapierre, Confessions post-‐référendaires. Les acteurs politiques de 1995 et le scénario d’un oui (Éditions de L’homme 2014), 55. The second document referred to the tripartite agreement sealing an alliance between Jacques Parizeau, Lucien Bouchard and Mario Dumont, respectively leaders of the Parti Québécois, the Bloc Québécois (the federal equivalent of the PQ) and the Action Démocratique du Québec. Maurce Pinard, Robert Bernier and Vincent Lemieux, Un combat inachevé (Presses de l’Université du Québec 1997). rd Jaques Parizeau, ‘Lettre ouverte aux juges de la Cour suprême’ Le Devoir (Montreal, September 3 1998) th A9; Michel Venne, ‘Bouchard promet une question plus claire’ Le Devoir (Montreal, August 28 1998) A1. Hébert and Lapierre (n 39) 25, 32. On Parizeau’s and Bouchard’s antagonistic views, see Ibid 34-‐35, 37-‐38, 54-‐55, 61-‐62.
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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?
As we will see, the Court’s unanimous decision introduced a level of complexity in the discourses relating to constitutional law and identity that subtly shattered the monistic edifices erected over the years by both the federalists and the secessionists. The Supreme Court’s non-‐positivist perspective on law and its rejection of monistic depictions of identity The Court was faced with two radically different legal argumentations. On the one hand, the Attorney General of Canada was arguing for a purely positivistic understanding of the constitution, according to which the latter was confined to the four corners of its written provisions.44 Constitutionalism and the rule of law, he argued, required the State to act in compliance with the clear and previously stated rules enshrined in the Constitution. Consequently, since section 45 of the Constitution Act, 1982, the only one allowing a province unilaterally to amend a part of the Constitution, did not authorize secession, that settled the issue. The Court, it was argued, need not make any further determinations; it did not even have to surmise how secession might be effected under the 1982 amending procedures. As for the amicus curiae assuming the task of arguing the secessionists’ case —the PQ government having refused to appear in court claiming that it was for the people of Quebec to decide its own fate—, he basically argued that the right of self-‐determination recognized under international law took precedence over the Canadian constitution, and that a majority vote of ‘le peuple québécois’ would endow it with the required legitimacy to assert effective control over the territory of Quebec. But who exactly was ‘le peuple québécois’? The amicus’ answer was, to say the least, rather vague,45 as one of his most cryptic statements demonstrates: ‘Le peuple québécois est [The people of Quebec is]’.46 Furthermore, in advocating recourse to the democratic principle in such an absolutist fashion, the amicus’ position concealed the fact that the demos’ opinion can only be distilled through legal processes and mechanisms that do not flow naturally from ethereal abstractions.47 Democracy without law is chaos. 44
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Jean Leclair, ‘Impoverishment of The Law by The Law: A Critique of The Attorney General’s Vision of The Rule of Law and The Federal Principle’ (1998) 10 Constitutional Forum 1. Bruce Ryder, ‘A Court in Need and A Friend Indeed: An Analysis of the Arguments of the Amicus Curiae in the Quebec Secession Reference’ (1998) 10 Constitutional Forum 9. Amicus Curiae’s factum quoted in Yves-‐Marie Morissette, Le Renvoi sur la Sécession du Québec. Bilan provisoire et perspectives (Varia 2001) 62. Jeremy Webber, ‘The Legality of a Unilateral Declaration of Independence under Canadian Law’ (1997) 42 McGill LJ 281, 315-‐318.
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*** How did the Court go about deciding this case? Simply resorting to the written provisions of the Constitution Act, 1982 risked alienating Quebecers even further, since it was precisely the legitimacy of the constitutional order instantiated by this reform that was challenged. Furthermore, how could the Court avoid falling into the trap of openly challenging the monolithic depiction of the Quebec people that was so prevalent in nationalist circles? In the first place, the Court refused to embrace to the Attorney General’s textocentric understanding of the Constitution. The constitutional texts were said not be exhaustive; the Constitution also embraces unwritten rules and principles.48 ‘Behind the written word, stated the Court, is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principles. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based.’49 It went on to specify that, even though these principles ‘are not explicitly made part of the Constitution … it would be impossible to conceive of our constitutional structure without them.’50 In fact, the Court asserted that they were the ‘lifeblood’ of Canada’s constitutional structure.51 Four ‘fundamental and organizing principles of the Constitution’ were held as relevant to addressing the reference questions: federalism, democracy, constitutionalism and the rule of law, and respect for minorities.52 Secondly, so as to prevent totalizing approaches of the type advocated by the amicus, the judges emphasized that these foundational principles functioned ‘in symbiosis’, and that, ‘[n]o single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.’53 For instance, the Court underlined that the rule of law and constitutionalism were closely linked to the democratic principle, and vice versa.54 In fact, between these two pillars stood the legitimacy of a political system: The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the ‘sovereign will’ is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an 48
50 51 52 53 54 49
cf Secession Reference (n 1) para 32. Ibid para 49. Ibid para 51. Ibid. Ibid para 32. Ibid para 49. Ibid para 67.
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interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the ‘sovereign will’ or majority rule alone, to the exclusion of other constitutional values.55
The Court went on explaining that the rule of law was not synonymous to blind subjection to legal norms, or democracy to majority rule. On the contrary, the rule of law served a much broader purpose: ‘vouchsaf[ing] to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs’.56 As for democracy, in addition to its institutional and individual dimensions, it was ‘fundamentally connected to substantive goals’ such as the accommodation of cultural and group identities57 which includes the protection of minorities.58 As for the principle of federalism, the Court explained that it was a ‘legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today’.59 Interestingly, the Court explicitly referred to the dissenters’ opinion in the Patriation Reference, recalling that ‘Martland and Ritchie JJ., dissenting in [the Patriation Reference], considered federalism to be "the dominant principle of Canadian constitutional law"’.60 The Court also emphasized that federalism was a political regime that could reconcile the cultural and linguistic diversity of the different peoples inhabiting Canada with their desire to unite and work together toward common goals.61 In addition, the judges indirectly referred to the compact theory when they acknowledged that Quebec’s specificity was a determining factor in the choice for federalism in 1867:
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 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.62
55
57 58 59 60 61 62 56
Ibid para 67. Ibid para 70. Ibid para 74. Ibid paras 79-‐82. Ibid para 57; see also 43. Ibid. Ibid para 43. Ibid para 59.
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From the complex interplay of these four foundational principles, a judicially-‐crafted obligation to negotiate was deduced, one that ‘dictate[d] 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’.63 On the one hand, ‘[t]he 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.’64 Nor, on the other hand, ‘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.’65 Interestingly, the Court insisted that this judicially-‐crafted obligation to negotiate did not circumvent the text of the Constitution, since successful negotiations would still need to be consecrated by a formal amendment.66 Finally, the Court also rejected the positivist dogma according to which judges are the sole interpreters of constitutional legality. Indeed, notwithstanding its assertion that ‘[t]he principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments’,67 the Court stated that its role was confined to establishing the ‘legal framework’ within which political decisions may ultimately be made.68 It concluded, for instance, that what amounts to a clear majority on a clear question called for political judgments and evaluations that were best left to the workings of the political process.69 The same went for the negotiations themselves. In spite of the fact that the Court asserted that ‘[t]he conduct of the parties in such negotiations would be governed by the same constitutional principles which give rise to the duty to negotiate’,70 it asserted that it would play no supervising role since it ‘would not have access to all of the information available to the political actors, and [because] the methods appropriate for the search for truth in a court of law are ill-‐suited to getting to the bottom of constitutional negotiations’.71 Despite the fact that these principles were held to be non-‐justiciable, this did not mean, declared the Court, ‘that constitutional obligations could be breached without incurring serious 63
65 66 67 68 69 70 71 64
Ibid para 88. Ibid para 151. Ibid. Ibid paras 84 and 97. Ibid para 54. Ibid paras 27, 100-‐101, 110 and 153. Ibid. Ibid paras 90 and 94. Ibid para 101.
14
legal repercussions. Where there are legal rights there are remedies, but […] the appropriate recourse in some circumstances lies through the workings of the political process rather than the courts’.72 In this case, the international realm would provide the sanction, for if one of the majorities involved —the majority of the population of Quebec or that of Canada as a whole— failed to act in accordance with the underlying constitutional principles identified by the Court, it would put in jeopardy the legitimacy of its claim in the eyes of the international community.73 *** Criticisms of the Court’s reasoning were mostly authority-‐based objections. The Court, critics argued, neglected the written constitution and, as a consequence, arrogated to itself a constituent power that no formally posited constitutional rules conferred upon it.74 These authors however seem to ignore the fact that Canada was confronted with a ‘constitutional failure’, i.e. the formal rules of constitutional amendment designed to regulate constitutional politics no longer performed their central function, ‘which is to channel debates over constitutional change through procedures that yield institutional decisions that political actors accept as authoritative.’75 These authors also conceived law as a body of rules, a chart of do’s and don’ts, rather than as an interactional phenomenon providing ‘a program for living together’.76 The Court, in a manner akin to that of legal theorist Lon Fuller, seems to have understood the purpose of law to be, not so much the provision of definite and substantial answers to problems, as furnishing individuals with baselines against which to organize their lives with one another.77 The Court’s perspective on law also seemed premised on a belief that adjudication is not an act of pure knowledge. Rules and principles of constitutional law are not immanent and internal to constitutional texts, nor can they be distilled with precision from historical events. Because these open-‐textured texts and events can lead to equally rational but radically different interpretations, one has to admit that constitutional adjudication and interpretation always involve a measure of decisionism.78 Although a judge’s decisional latitude is not absolute, it remains that he or she puts an end to a controversy by selecting one reasonable interpretation out of many others. This choice is not purely conceptual. And in making it, the Court is undoubtedly performing a constituent activity. At this stage of the decision process, the choice of one interpretation over another can no longer be justified according to the strictly internal 72
74 73
75
76
77
78
Ibid para 102. Ibid para 93. See for example Jamie Cameron, ‘The Written Word and the Constitution’s Vital Unstated Assumptions’ in Gérald A. Beaudoin, Benoît Pelletier, and Louis Perret, (eds), Essays in Honour of Gérald-‐A. Beaudoin: The Challenges of Constitutionalism (Éditions Y. Blais 2002). Sujit Choudry, ‘Ackerman’s higher lawmaking in comparative constitutional perspective: Constitutional moments as constitutional failures?’ (2008) 6 I•CON 193, 197. Lon L Fuller, ‘Human Interaction and the Law’ in Kenneth I Winston (ed), The Principles of Social Order: Selected Essays of Lon L Fuller, (Rev edn Hart Publishing) 231, 242. Ibid 254. Jean Leclair, ‘Legality, Legitimacy, Decisionism and Federalism : An analysis of the Supreme Court of Canada’s Reasoning in Reference re Secession of Quebec, 1998’ (Springer 2017) [forthcoming].
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logic of the legal order. The Court is definitely making a political choice, informed by a particular understanding of the good and the just. Obviously, the Court wished to construct a ‘legal framework’ that would allow, not only for legal continuity and certainty79 (whether the outcome be secession or a reconfiguration of the federation), but also for the channels of communication to be opened up so as to make ‘compromise, negotiation, and deliberation’ possible.80 But how did the Court go about to achieve this feat? Although it sometimes gave the impression that the constitution is a perfectly rational, comprehensive and coherent set of rules and principles, the Court nonetheless, through its normative as opposed to descriptive reading of Canada’s constitutional history, reasserted the ‘organic’ dimension of our Constitution; ‘organic’ in the sense of a living and evolving constitutional experience. In so doing, it thus implicitly recognized, in John Whyte’s elegant prose, that ‘we are born into past commitments and inherit them.’81 Yet, some of these inherited commitments are contradictory, while others have been but half fulfilled. Therefore, as much as the constitutional texts, they failed to provide any clear and definite path of solution to the crisis. They did serve as evidence though, that the Canadian federation had survived its internal tensions and crises through negotiations and compromises, however much the latter had left, on different occasions and at different degrees, Quebecers, Westerners, Maritimers and, most especially, Indigenous peoples, unsatisfied. Quoting the Attorney General of Saskatchewan (John Whyte), the Court underlined that ‘[t]he threads of a thousand acts of accommodation are the fabric of a nation’,82 the more so in the case of a federal polity. And so, the justices chose to embrace this idea of historical tensions appeased through compromises by devising a judicially-‐crafted obligation to negotiate based on a synthesis of principles that were themselves in tension with one another. No one principle could trump the others, as no one constituent actor’s demands (for example, Quebec or the united Anglo-‐ Canadian provinces) could outweigh those of its partners. Jeremy Webber defines such an approach as ‘agonistic constitutionalism’, ‘a constitutionalism in which contending positions are seen to be essential to the society, animating it, and where the positions are not neatly contained within a comprehensive, overarching theory. … [A constitutionalism that] takes the diversity of the country as it finds it, and treats the development of its constitution as something that must proceed day by day, not through the fiat of a closed set of founding fathers or their privileged successors.’83 79
80
81
83 82
cf Secession Reference (n 1) paras 27, 101, 110 and 153. Ibid para 68. The Court knew how narrow was the path it was treading. It is no wonder the Court wished to make it very clear that its task was 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’ (para 153). ‘Nations, Minorities and Authority’ (1991) 40 UNBLJ 45, 49. cf Secession Reference (n 1) para 96. The Constitution of Canada: A Contextual Analysis (Hart Publishing 2015) 8.
16
In reaching its conclusion, the Court not only eschewed positivistic legal perspectives, it also gave short shrift to monistic ontological definitions under which the complexity of a political community is crushed, thus indirectly demonstrating that the postulated isomorphy of nation, society and state is just plain false. First, the Court avoided resorting to the word ‘nation’, (unless as a synonym of ‘State’). It declined to determine whether the Quebec population could be characterized as a ‘people’ in international law. And, most strikingly, it did not mention the word ‘sovereignty’, except when summarizing the amicus curiae’s argument based on ‘popular sovereignty’. Second, all through its decision the Court constantly referred to majorities, emphasizing that, in a federal democracy, the need to build such majorities at both the federal and provincial level, necessitates, by its very nature, ‘compromise, negotiation, and deliberation’.84 Such majority-‐ building inevitably generates dissenting voices. The justices were therefore very desirous of bringing to light that a secession attempt is not a contest between two opposing monolithic blocs of unanimous peoples, but rather between majorities, themselves living alongside dissenters. Hence, also, the Court’s insistence that 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’.85 The justices also underscored that a federation is characterized by the existence of not one, but of two legitimate majorities: 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.86 Finally, the Court did not confine itself to a government-‐centric assessment of the virtues of federalism. It also offered a citizen-‐centric perspective with which we are much less accustomed. Hence, after underlining that a federal system of government allows state and sub-‐ states governments to pursue policies responsive to the concerns and interests of their particular constituencies, the Court went on to say that ‘[t]he 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’.87 In that perspective, federalism ceases to be simply a tool of governance for governments, and becomes a political regime allowing for an internally plural individual citizenship. 84
86 87 85
cf Secession Reference (n 1) para 66. Ibid para 67. Ibid para 66. Ibid (my emphasis).
17
*** The decision did not hamper the opposing political forces from continuing their war of words,88 but something had been definitely changed. No longer was it possible to claim that secession was an absolute impossibility or that the formulation of a referendum question was a pure formality having no bearing on the quality of the democratic process.89 More importantly, it made advocating reified and monolithic definitions of collective and individual identities much more difficult than before. The Court did not entirely save Canadians from the abyss. Nevertheless, the Supreme Court justices, while implicitly admitting the tragic dimension of our collective historical fate (i.e. men and women make history, but know not what history they are making), wagered nonetheless that human rationality, however limited might it be, enables us to successfully decrypt from the past a ‘true’ story (not to be confused with the whole truth, since the latter is but a horizon that keeps on receding as we seek to approach it) that is not univocal and that makes sense of the plurality of our multifarious collective stories. The justices’ reasoning is also premised on the conviction that recourse to rationality and limited compromises, rather than to strong emotions, charisma and all-‐encompassing solutions, are still the best tools to ensure our peaceful continuity.
88
89
In the immediate aftermath of the decision, the federal government enacted the Clarity Act, S.C. 2000, c. 26, aimed at giving effect to the requirement for clarity set out in the Supreme Court’s opinion, to which the PQ government responded by enacting the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, S.Q., 2000, c. 46. These enactments are mostly political exercises whose legal impacts risk being minimal when and if a new referendum is ever held in Quebec. The Scottish precedent, with its successfully negotiated referendum question has likely discredited dubious formulations of the 1980 and 1995 type.
18
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