1. The 30 October 1995 referendum, beset with some controversy over appropriateness of the referendum questions and campaigning, saw a mere 50.58% reject a proposed declaration of Québec sovereignty under a draft Bill respecting Québec independence and a “new economic and political partnership” with Canada. Québec lawyer Guy Bertrand had obtained a declaration in a challenge to the earlier 1994 draft of the Bill, as a “serious threat” to his constitutional rights:Bertrand v. Québec (Attorney General)(1995) 127 D.L.R. (4th) 408 (Que.Sup.Ct.). An injunction preventing the referendum was refused as doing more harm than good. The Québec government attempted but failed to strike the action as non-justiciable. It withdrew thereafter from the proceedings. Following the referendum, Bertrand amended his action, this time for a declaration that unilateral secession was unconstitutional and contravened his rights under the Charter. The federal government intervened. The Québec government moved to strike the action as non-justiciable, and lost (unreported, 30 August 1996, Que.Sup.Ct. Pidgeon J). Thereafter, it also withdrew again from these proceedings, maintaining that the secession issue was purely political. In the course of his Lordship's reasons, he identified certain constitutional and international law questions requiring consideration. The Federal Government used this as an invitation to remit those issues, in its own formulation, to the Supreme Court of Canada.

2. Supreme Court of Canada Act, s.53 (R.S.C. 1985 c.S–26).Google Scholar

3. Manitoba, Saskatchewan, the Northwest Territories, Yukon Territory, four separate representatives of aboriginal interests, the Minority Advocacy and Rights Council, the Ad Hoc Committee of Canadian Women on the Constitution, Guy Bertrand, Vincent Pouliot, Yves Michaud and lastly Dr Singh and six others.

4. Reference re Secession of Quebec, [1998] 25 S.C.R. 217 and available via the Internet at [www.scc-csc.gc.ca] (the “Quebec Secession Reference”). The judgment is by the “Court” and is not ascribed to any one of their Ladyships or Lordships.Google Scholar

5. Howse, R. and Malkin, A., “Canadians Are a Sovereign People: How the Supreme Court Should Decide the Reference on Quebec Secession” (1997) 76 C.B.R. 186Google Scholar and MacLauchlin, H. W., “Accounting for Democracy and the Rule of Law in the Quebec Secession Reference” (1997) 76 C.B.R. 155, two articles commissioned by the Canadian Bar Association prior to the court hearing, provide a helpful summary and discussion of the background and issues. The former is remarkably close to the Court's own approach on the points of federalism, democracy, the rule of law and the protection of minorities.Google Scholar

6. Constitution Act 1982, s.101, providing that Parliament may establish a “General Court of Appeal for Canada”; and Supreme Court of Canada Act, s.3.

7. Referring to De Demko v. Home Secretary [1959] A.C. 654 (HL); US Constitution, Art.III(2), and Re Forrest and Registrar of the Court of Appeal of Manitoba (1977) D.L.R. (3d) 445 (Man.CA).Google Scholar

8. Specifically, Art.III(2), and see e.g. Baker v. Carr 369 U.S. 186 (1961) and McCormack, W., “The Justiciability Myth and The Concept of Law” (1986–1987) 14 Hastings Con.L.Q. 595Google Scholar and Galloway, R. W., “Bask Justiciability Analysis” (1990) 30 Santa Clara L.R. 911.Google Scholar

9. Canadian courts have approached and dealt with issues involving “political questions” with less hesitation, diffidence and restriction than their US counterparts. Accordingly, the doctrine is less an issue for Canadian courts than US ones. This arises in part because the separation of powers doctrine in Canada is not as constrictive or restrictive as applied in the US. See e.g. Operation Dismantle Inc. v. The Queen [1985] 1 S.C.R. 441Google Scholar and Reference re Canada Assistance Plan (BC) [1991] 2 S.C.R. 525Google Scholar, and in contrast, see generally, Tribe, L., American Constitutional Law (1978), pp. 52–60, 71–78.Google Scholar

10. As it had considered in e.g. Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] 3 S.C.R. 3 (the “Provincial Judges Reference”)Google Scholar, Reference re Resolution to Amend the Constitution [1981] 1 S.C.R. 753 (the “Patriation Reference”)Google Scholar, Reference re Goods and Services Tax [1992] 2 S.C.R. 445Google Scholar, and Reference re Authority of Parliament in Relation to the Upper House [1980] 1 S.C.R. 54.Google Scholar

11. Developed in the earlier cases of New Brunswick Broadcasting v. Nova Scotia [1993] 1 S.C.R. 319Google Scholar, Harvey v. N.B. (Attorney General) [1996] 2 S.C.R, 876, and Provincial Judges Reference.Google Scholar

12. Citing Provincial Judges Reference, and Fraser v. Public Service Staff Relations Board [1985] 2 S.C.R. 455.Google Scholar

13. Quebec Secession Reference, supra n.4, para. 54.

14. See e.g. Provincial Judges Reference, ibid (judicial independence) and Hunt v. T&N plc [1993] 4 S.C.R. 289 (full faith and credit).Google Scholar

15. This point has received most attention in the US, under the hands of Dworkin, R. (Taking Rights Seriously, 1997, and Law's Empire, 1990)Google Scholar, Choper, J. (Judicial Review in the National Political Process: A Functional Reconsideration of the Role of the Supreme Court, 1980)Google Scholar, Ely, J. H. (Democracy and Distrust, 1980)Google Scholar, and Wolfe, C. (The Rise of Modem Judicial Review, 1985), among others. It is sometimes cast as the debate between “interpretivism” (being closely, if not exclusively bound to the four corners of the constitutional text), “non-interpretivism” (ranging somewhat more freely over policy grounds), and the search for “neutral principles” of constitutional interpretation.Google Scholar

16. As it had done so in the earlier case of Morguard Inv. v. De Savoye [1990] 3 S.C.R. 1077 (interprovincial recognition and enforcement of judgments).Google Scholar

17. See Liquidators of the Maritime Bank of Canada v. Receiver General of Canada [1892] A.C. 437 (PC Can), stating that the object of Confederation was neither to weld the provinces into one nor subordinate them to the federal government.Google Scholar

18. Quebec Secession Reference, supra n.4, para. 67.

19. Quebec Secession Reference, supra n.4, paras 68–69.

20. The federal government and several other interveners had submitted in their respective facta that any secession must be accompanied by negotiations led by the federal government (with the provinces arguing for a right of direct participation). But no one required that such negotiations be a duty; instead, negotiations were understood merely to rationalise the territorial, fiscal and financial split in some ordered fashion, following naturally from the amending formulae which specified certain levels of federal and provincial consent.

21. Quebec Secession Reference, supra n.4, paras. 70–71.

22. Quebec Secession Reference, supra n.4, para. 79.

23. That is, the Constitution governs the process of separation.

24. Quebec Secession Reference, supra n.4, para. 88.

25. In this case, identified by the Court as “a clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be”: para. 93.

26. Quebec Secession Reference, supra n.4, para. 101.

27. Citing Arts.1 and 55, Charter of the United Nations, Can.T.S. 1945 No.7, Art.1, International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Art.1, International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, UN Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A.R.2625 (XXV), 24 Oct. 1970, UN Adoption of the Vienna Declaration and Programme of Action, A/Conf.157/24, 25 June 1993, the General Assembly's Declaration on the Occasion of the 50th Anniversary of the UN, G.A.R.50/6, 9 Nov. 1995 and the CSCE Helsinki Final Act (1975) 14 I.L.M. 1292.Google Scholar

28. Quebec Secession Reference, supra n.4, para. 130.

29. The Court, whilst expressly relying in this second branch of its reasoning on A. Cassese, Self-Determination of Peoples: A Legal Appraisal (1995), also had the benefit of a report by the federal government's expert, Prof. James Crawford (and endorsed by Prof. Luzius Wildhaber) and a combined report, on behalf of the amicus curiae, of Profs. Abi-Saab, Franck, le Bouthillier, Pellet and Shaw. The reports were in general agreement as to the first two bases for external self-determination, but disagreed as to how firmly developed and recognised was the third. The latter reports also pushed for a much wider application of that third basis. See also Finkelstein, N., Vegh, G. and Joly, C., “Does Quebec Have a Right to Secede at International Law?” (1995) 74 C.B.R. 223 (in line with Prof. Crawford's view)Google Scholar; Woehhrling, J., “Les Aspects Juridiques d'une Éventuelle Sécession du Québec” (1995) 74 C.B.R. 293Google Scholar (examining the aspects of a fait accompli and international recognition). Arguing for the much wider application of that third ground for external self-determination are Turp, D., “Le Droit à la sécession: l'expression du principe démocratique”, in Gagnon, A.-G. and Rocher, F. (Eds), Répliques aux détracteurs de la souveraineté (1992)Google Scholar and Brossard, J., L'accession à la souveraineté et le cas du Québec: Conditions et modalités politico-juridiques (2nd edn, 1995).Google Scholar

30. See e.g. Hogg, P., Constitutional Law of Canada (4th edn, 1997)Google Scholar, Wheare, K. C., Federal Government (4th edn, 1963)Google Scholar and Modern Constitutions (2nd edn, 1980), pp.83et seq.Google Scholar, Elazar, D. J., Exploring Federalism (1983)Google Scholar and Friedrich, C. J., Constitutional Government and Democracy (4th edn, 1968), none of which refers to such a mandatory (or even conventional) duty to negotiate.Google Scholar

31. Such a concept does exist in German and Belgian constitutional law, known as Bundestreue or federal loyalty, but addresses conflicts of jurisdiction between federal and local levels of government-thai is, within a constitutional structure, not at its boundary or outside it. see Bauer, H., Die Bundestreue (1992)Google Scholar and Schwarz-Liebermann, H. A. von Wahlendorf, “Une notion capitale: la Bundestreue (fedélité fédérale)” [1979] Rev. Droit Pub. 769. It is less a legal concept and more a convention of political co-operation.Google Scholar

32. See supra n.15 and see also, from a Canadian perspective, Mandel, M., The Charter of Rights and the Legalisation of Politics in Canada (1989).Google Scholar

33. Constitution Act 1982, ss.38, 41, 42, 43, 44 and 45.

34. An Act Respecting Constitutional Amendments, S.C. 1996, c.1. By s.1, the requirement for a majority of provincial support does not apply to those amendments for which the provinces already have a constitutional veto or right of dissent (Constitution Act 1982, ss.41 and 43 respectively). The majority of provinces must include Ontario, Quebec, B.C., at least two of the Atlantic provinces having at least 50% of the population of all those provinces (Nova Scotia, New Brunswick, P.E.I. and Newfoundland), and at least two of the Prairie provinces having at least 50% of the population of those three provinces (Alberta, Saskatchewan and Manitoba).

35. The ill-fated 1987 Meech Lake Accord was concluded during a meeting of the provincial premiers and then Prime Minister Mulroney, without prior public consultation, and collapsed after failing to obtain the required approval in the Manitoba and Newfoundland legislatures. The similarly fated 1992 Charlottetown Accord, preceded by public consultation under then Constitutional Affairs Minister Joe Dark, collapsed after rejection by a 1992 Canada-wide referendum.