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Please help improve this article by adding citations to reliable sources. Unverifiable material may be challenged and removed. | | Reference re Secession of Quebec | | Supreme Court of Canada Image File history File links Question_book-3. ...
Supreme Court of Canada Building, August 2004, Ottawa, ON, CDN, File history Legend: (cur) = this is the current file, (del) = delete this old version, (rev) = revert to this old version. ...
The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system. ...
| Hearing: February 16 - 19, 1998
Judgment: August 20, 1998 | | | Full case name: | Reference re Secession of Quebec | | Citations: | [1998] 2 S.C.R. 217; 1998 CanLII 793 (S.C.C.); (1998), 161 D.L.R. (4th) 385; (1998), 55 C.R.R. (2d) 1 | | Docket No.: | 25506 | | History: | None (reference question) | | | | Holding | | Quebec cannot secede from Canada unilaterally; however, a clear vote to secede in a referendum should lead to negotiations between Quebec and the rest of Canada for secession. | | Court membership | | Chief Justice: Antonio Lamer
Puisne Justices: Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major, Michel Bastarache A Reference Question in Canada is a submission by the federal or a provincial government to the Supreme Court of Canada or the provinces respective Court of Appeal in which the submitting government would like the court to answer a legal question regarding the Constitution Acts, the constitutionality of...
Joseph Antonio Charles Lamer, PC , CC , CD , LL.D , D.U., known as Antonio Lamer (July 8, 1933 – November 24, 2007) was a Canadian lawyer and Chief Justice of the Supreme Court of Canada. ...
Claire LHeureux-Dubé (born September 7, 1927) served as a justice on the Supreme Court of Canada from 1987 to 2002. ...
John Sopinka (March 19, 1933 - November 24, 1997) was a Canadian lawyer and puisne justice on the Supreme Court of Canada, the first Ukrainian-Canadian appointed to the high court. ...
The Honourable Mr. ...
The Honourable Peter deCarteret Cory, B.A., LL.B., LL.D. (born October 25, 1925) was a puisne judge of the Supreme Court of Canada from 1989 to 1999. ...
The Rt. ...
Frank Iacobucci (born January 29, 1937) was an Associate Justice on the Supreme Court of Canada from 1991 to 2004 when he retired from the bench. ...
The Honourable John C. Major, B. Comm , LL.B , LL.D , QC (Born in Mattawa, Ontario, 1931) is a Canadian jurist and pusine justice on the Supreme Court of Canada. ...
The Honourable Michel Bastarache, B.A., LL.L., LL.B., D.E.S. The Honourable Justice Michel Bastarache, BA , LL.L , LL.B , D.E.S. Born June 10, 1947. ...
| | Reasons given | | Unanimous reason by: The Court
| Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada. The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system. ...
This article or section is in need of attention from an expert on the subject. ...
For other uses, see Secession (disambiguation). ...
This article is about the Canadian province. ...
Both the Quebec government and the Canadian government stated that they were most pleased with the Supreme Court's opinion, pointing to different sections of the ruling.
As expected by many jurists familiar with the subject, the Supreme Court answered "No" to the first two questions.
Background
Following the election of a majority of Parti Québécois (PQ) MNAs with 41.37% of the popular vote in the 1976 provincial election, the party formed a government and, in 1980, held a referendum. The government of Quebec asked the province's population if it should seek a mandate to negotiate sovereignty for Quebec coupled with the establishment of a new political and economic union with Canada. The referendum resulted in the defeat of the sovereignty option by a margin of 60% to 40%. The PQ was nevertheless re-elected in 1981, this time promising not to hold a referendum. The Parti Québécois [PQ] (translation: Quebecker Party) is a separatist political party that advocates national sovereignty for the Canadian province of Quebec and secession from Canada, as well as social democratic policies and has traditionally had support from the labour movement. ...
The Quebec general election of 1976 was held on November 15, 1976 to elect members to National Assembly of the Province of Quebec, Canada. ...
The 1980 Quebec referendum was the first referendum in Quebec on the place of Quebec within Canada and whether Quebec should pursue a path toward sovereignty. ...
In 1982, the federal government, with the concurrence of all provinces except Quebec, petitioned the Imperial Parliament in London to amend Canada's constitution so that in the future, all further amendments would take place by means of a process of consent involving only the Parliament of Canada and the legislatures of the provinces. Up until this point, all amendments had taken place by means of Acts of the Parliament at Westminster, since the Canadian constitution was, strictly speaking a simple statute of that Parliament. This article is about the Canadian province. ...
Type Bicameral Houses House of Commons House of Lords Speaker of the House of Commons Michael Martin MP Speaker of the House of Lords Hélène Hayman, PC Members 1377 (646 Commons, 731 Peers) Political groups Labour Party Conservative Party Liberal Democrats Scottish National Party Plaid Cymru Democratic Unionist...
Colloquially, the switch to a domestic amendment procedure was known as "repatriation". The particular formula for amendments that was adopted in 1982 was opposed by the then-government of Quebec, which also opposed the adoption of other constitutional changes made at the same time, such as the Canadian Charter of Rights and Freedoms--although this opposition was not necessarily based on a rejection of the content of these changes, as opposed to the manner of their adoption, and the failure to include amendments specific to Quebec in the package. Also, Quebec had already at that time a more complete Charter that was adopted in 1975. The Charter, signed by Prime Minister Pierre Trudeau in 1981. ...
Two further attempts were made at amending the Canadian constitution in 1987-1990 and 1992 in a manner that, it was hoped, would have caused the Quebec legislature to adopt a motion supporting the revised constitution. These failed packages of constitutional reforms were known as the Meech Lake Accord and the Charlottetown Accord. Thus, in the mid-1990s, there was a widespread sense that the Constitution of Canada was not fully legitimate, because it had not yet received the formal approval of Canada's second-most-populous province. The Meech Lake Accord was a set of failed amendments to the Constitution of Canada negotiated in 1987 by Prime Minister Brian Mulroney and the provincial premiers, including Robert Bourassa, premier of Quebec. ...
Headline on October 27, 1992 Globe and Mail. ...
In 1994, the Parti Québécois was re-elected, and announced that it would be initiating a second referendum to take place in 1995. This time, the question was on sovereignty with an optional partnership with Canada. The "no" side won by only a slight margin. Prior to this referendum, the National Assembly of Quebec adopted a bill relating to the future of Quebec which laid out the Quebec's plan for secession in case of a winning referendum. Bill on the referendum and eventual declaration of independence. ...
The Quebec Parliament Building at night The National Assembly of Quebec (French: Assemblée nationale du Québec) is the name for the legislative body of the province of Quebec, Canada which was defined in the Canadian constitution as the Legislative Assembly of Quebec (lassemblée législative de...
In response to the bill and the referendum result, several legal actions were initiated by opponents to the independence of Quebec, questioning the legality of secession. In 1996, Parti Québécois leader Lucien Bouchard announced that his government would make plans to hold another referendum when he was confident that the "winning conditions" were there, pointing to the political cost of losing a third referendum. In reaction to Bouchard's stated plans, Prime Minister Jean Chrétien initiated a reference to answer the legality of a unilateral declaration of independence from a Canadian province. Lucien Bouchard, PC, B.Sc, LL.B (born December 22, 1938) is a Quebec lawyer, diplomat and politician. ...
Joseph Jacques Jean Chrétien, usually known as Jean Chrétien, PC, QC, BA, BCL, LLD (h. ...
Questions addressed The Governor in Council (effectively, the Cabinet of Canada) submitted the request for an advisory opinion on the following three specific questions: Regions Political culture Foreign relations Other countries Atlas Politics Portal The Cabinet of Canada (French: Cabinet du Canada or Conseil des ministres) plays an important role in the Government of Canada in accordance with the Westminster System. ...
- Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
- Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
- 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?
The Constitution of Canada is the supreme law in Canada; the countrys constitution is an amalgam of codified acts and uncodified traditions and conventions. ...
The Quebec Parliament Building at night The National Assembly of Quebec (French: Assemblée nationale du Québec) is the name for the legislative body of the province of Quebec, Canada which was defined in the Canadian constitution as the Legislative Assembly of Quebec (lassemblée législative de...
Submissions There were an unprecedented 15 interveners. However, the Quebec government refused to take part and was not represented. In its place the Court appointed André Jolicoeur as an amicus curiae to argue for the sovereignist side. Amicus curiae (plural amici curiae) is a legal Latin phrase, literally translated as friend of the court, that refers to a person or entity that is not a party to a case that volunteers to offer information on a point of law or some other aspect of the case to...
The federal government's submission argued that the only way a province could secede from Canada would be through a constitutional amendment. Only an amendment through section 45 would allow for unilateral amendments. However, that section does not apply here. To attempt to secede unilaterally would violate the constitution on two grounds. First, it would violate the rule of law by ignoring the authority of the constitution as supreme law of the country, and second, it would violate Canadian federalism by acting with powers only allocated to the federal government. Canadian federalism is one of the three pillars of the constitutional order, along with responsible government and the Canadian Charter of Rights and Freedoms. ...
The amicus curiae's submission argued several points. First, they argued that the reference was invalid; the question is purely a political one and thus is outside the authority of the Court to answer under section 52 of the Supreme Court Act. They attempted to analogize the use of the US political question doctrine to the Canadian constitution. Furthermore, the question is speculative and premature as there are no substantive facts at question. Second, they focused on the second question, claiming that the ability to separate comes from international law. They argued that the "peoples of Quebec" had a right to self-determination under the Charter of the United Nations and thus can secede given the consent of a majority of the Quebec peoples. They further claimed that since there is no international law barring separation then by convention there must be an implied right to do so. Their primary argument was that the doctrine of effectivity gave them authority to secede. That is, recognition of a new state by other countries would validate the separation. They further claimed that the doctrine of effectivity is part of the constitutional convention through its practice in other parts of the commonwealth. The Supreme Court Act is an Act passed by the Parliament of Canada establishes the Supreme Court of Canada. ...
In United States law, a ruling that a matter in controversy is a political question is a statement by a federal court, declining to rule in a case because: 1) the U.S. Constitution has committed decision-making on this subject to another branch of the federal government; 2) there...
The United Nations Charter is the constitution of the United Nations. ...
Several aboriginal interveners submitted facta on their right to stay in Canada based on aboriginal treaties and their right to self-determination, further noting that they have already held two referendums where they decided against the separation of the aboriginal peoples from Canada. Their factum attacked the Attorney General's factum on the basis that they completely ignored the role of the aboriginal people within the constitution. Brief redirects here. ...
The opinion
Decision The decision was unanimous and written by "The Court", unusual for major Supreme Court cases. It remains largely speculation as to who actually wrote the decision. It is also an unusual decision as it borders very closely on a political document as much as a legal document. A per curiam decision (or opinion) is a ruling handed down by a court with multiple judges in which the decision was made by the court acting as a whole, as opposed to statements made by individual judges. ...
Right to secede under Canadian law The court addressed the three questions in order. First, they stated that under the Canadian Constitution (and with Quebec being a party to it since its inception), unilateral secession was not legal. However, should a referendum decide in favour of independence, the rest of Canada " would have no basis to deny the right of the government of Quebec to pursue secession." Negotiations would have to follow to define the terms under which Quebec would gain independence, should it maintain that goal. In this section of the judgement they identified four fundamental tenants of the Canadian constitution Democracy, Constitutionalism and The Rule of Law, Federalism, and Protection for Minorities. They held that these pieces cannot be viewed independently but all interact as part of the Constitutional framework of Canada.
Rights to secede under international law and self-determination The answer to the second question, which concerned Quebec's right under international law to secede, gave the opinion that the international law on secession was not applicable to the situation of Quebec. The court pointed out that international law "does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their 'parent' state."
The Supreme Court of Canada's decision stated that the right of a people to self determination was expected to be exercised within the framework of existing states, by negotiation, for example. Such a right could only be exercised unilaterally under certain circumstances, under current international law. The court held that:
- The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states.
and that Territorial integrity is the principle under international law that nation-states should not attempt to promote secessionist movements or to promote border changes in other nation-states. ...
- A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.
The court stated in its decision that under international law, the right to secede was meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally. Manifestations Slavery Racial profiling Lynching Hate speech Hate crime Genocide (examples) Ethnocide Ethnic cleansing Pogrom Race war Religious persecution Blood libel Paternalism Police brutality Movements Policies Discriminatory Race / Religion / Sex segregation Apartheid Redlining Internment Ethnocracy Anti-discriminatory Affirmative action in the United States Emancipation Civil rights Desegregation Integration Equal opportunity...
In general, the word colonial means of or relating to a colony. In United States history, the term Colonial is used to refer to the period before US independence. ...
Belligerent military occupation occurs when the control and authority over a territory belonging to a state passes to a hostile army. ...
- For close to 40 of the last 50 years, the Prime Minister of Canada has been a Quebecer. During this period, Quebecers have held from time to time all the most important positions in the federal Cabinet. During the 8 years prior to June 1997, the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of the United Nations, are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad.
The Supreme Court further stated that: Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Regions Political culture Foreign relations Other countries Atlas Politics Portal The Prime Minister of Canada (French: Premier ministre du Canada), is the Minister of the Crown who is head of the Government of Canada. ...
The Supreme Court of Canada consists of the Chief Justice of Canada (French: Juge en chef du Canada) and eight puisne Justices appointed by the Governor in Council (Governor General of Canada) from among superior court judges or from among barristers of at least ten years standing at the Bar...
Which law applies in Canada Since the court saw no conflict between Canadian law and International law on the question (neither would allow Quebec to secede unilaterally), it considered it unnecessary to answer the question.
Reaction of Quebec The Quebec government of Lucien Bouchard stated that it was very pleased with the opinion of the Supreme Court. Premier Bouchard stated publicly that the court had validated the referendum strategy that the sovereignists had adopted with René Lévesque. Quebec was most satisfied when the court made it clear that the question of Quebec's political status was above all a political question, and not a legal one. It also liked the fact that the Supreme Court made it clear that the government of Canada and that of the other provinces would have to negotiate after a winning referendum on secession. This would make a unilateral declaration of independence unnecessary. Lucien Bouchard, PC, B.Sc, LL.B (born December 22, 1938) is a Quebec lawyer, diplomat and politician. ...
René Lévesque (pronounced ) (August 24, 1922 – November 1, 1987) was a reporter, a minister of the government of Quebec, Canada, (1960 – 1966), the founder of the Parti Québécois political party, and 23rd Premier of Quebec (November 25, 1976 – October 3, 1985). ...
Reaction of the federal government The Canadian government of Jean Chrétien stated that it was pleased with the court's opinion.[citation needed] The Supreme Court had made it clear that Quebec could not declare independence unilaterally. Any obligation of Canada to negotiate with Quebec was conditional on the sovereignists' asking a clear question. The government of Canada subsequently drafted the Clarity Act, which Parliament then enacted. Joseph Jacques Jean Chrétien, usually known as Jean Chrétien, PC, QC, BA, BCL, LLD (h. ...
The Clarity Act (known as Bill C-20 before it became law) is legislation of Canadas federal parliament that established the conditions under which the Government of Canada would enter into negotiations that might lead to secession following such a vote by one of the provinces. ...
See also This is a chronological list of notable cases decided by the Supreme Court of Canada from appointment of Antonio Lamer as Chief Justice of Canada to his retirement. ...
A declaration of independence is a proclamation of the independence of a newly formed or reformed independent state from a part or the whole of the territory of another, or a document containing such a declaration. ...
The politics of Canada function within a framework of constitutional monarchy and a federal system of parliamentary government with strong democratic traditions. ...
This article or section does not adequately cite its references or sources. ...
The 1980 Quebec referendum was the first referendum in Quebec on the role of Quebec within Canada and whether Quebec should pursue a path toward sovereignty. ...
Bill on the referendum and eventual declaration of independence. ...
This article presents a detailed timeline of Quebec history. ...
This is a brief timeline of the history of Canada. ...
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