Western Canada’s Quandary: Secession and Sedition

Provincial secession may be the ‘amendment to end all amendments’ but as regards to constitutional law it remains just another amendment. In fact, it would be a constitutional amendment requiring approval from Parliament and every provincial legislature. Only upon acquiring such blessings may one boast of a legal right to secede. The Supreme Court unanimously settled this point. After Ottawa’s narrow victory in Quebec’s 1995 referendum, Jean Chretien asked the Justices to lay down the law regarding provincial secession. They responded with Reference Re Secession (1998).

Independence efforts must follow amendment protocols

Reference re Secession drops anchor in paragraph 84:

“…secession of a province from Canada must be considered, in legal terms, to require an amendment to the Constitution…. Some commentators have suggested that secession could be a change of such a magnitude that it could not be considered to be merely an amendment to the Constitution. We are not persuaded by this contention. …The fact that those changes would be profound, or that they would purport to have a significance with respect to international law, does not negate their nature as amendments to the Constitution…” (1)

The Constitution Act, 1982 channels sixteen types of amendment through five procedures. Most lesser amendments require support from Parliament and seven provincial legislatures (collectively representing half of Canada’s population). Mega-amendments, like secession, fall under Section 41, hence require supporting resolutions from Ottawa and every province. (2)

Justices were unapologetic regarding amendment stringencies:

“Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it.” (3)

Moreover:

“A constitution may provide for a division of power that allocates political power amongst different levels of government. That purpose would be defeated if one of those democratically elected levels of government could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally.” (4)

Unilateral secession’s unconstitutionality gets re-affirmed in paragraphs 104, 106, 112 and 155 alongside statements emphasizing how secession is uncontemplatable absent negotiation.

Canada is negotiated federalism

The Justices dub federalism to be the Constitution’s: “dominant principle,” “central organizing theme,” and “lodestar.”

They remind: 

“the 1982 amendments did not alter the basic division of powers in ss. 91 and 92 of the Constitution Act, 1867 which is the primary textual expression of the principle of federalism.” (5)

They eulogise the “thousand acts of accommodation” sustaining confederation, adding:

“The Constitution Act, 1982 gives expression to this principle, by conferring the right to initiate constitutional change on each participant in Confederation…. the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions…” (6)

Negotiation is federalism’s reification.

Referenda are immaterial

The Constitution nowhere mentions referenda. Obligations to negotiate arise independent of referenda, which themselves carry no constitutional force:

“…the Constitution does not itself address the use of a referendum procedure, and the results of a referendum have no direct or legal effect… a referendum, in itself and without more, has no direct legal effect, and could not in itself bring about unilateral secession.” (7)

Legitimacy is not legality. Referenda legitimize causes. Legally, they are frills.

The Constitution nowhere defines democracy. The Court presumes democracy neither pre-exists nor pre-empts constituted rule of law, hence the “constitution is beyond the reach of majority rule.” (8)

Furthermore:

“Canadians have never accepted that ours is a system of simple majority rule…” (9)

Thus a: “democratic vote, by however a strong majority, would have no legal effect on its own”. (10)

Federalism bears a “two majorities” dilemma; i.e., the majority within the petitioning province versus the majority of Canada as a whole. (11)

“No one majority is more or less “legitimate” than the others…” (12)

The validity of referenda themselves are politically contestable:

“the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation” (13)

“it will be for the political actors to determine what constitutes “a clear majority on a clear question.” (14)

Negotiations pour quoi?

The prize for winning a secessionist referendum is not independence but rather a bonus round of negotiations with Ottawa and the provinces. While conceding that negotiations should follow pro-secessionist referenda; the Justices ponder:

“What is the content of this obligation to negotiate?” (15)

“No one can predict the course that such negotiations might take. The possibility that they might not lead to an agreement amongst the parties must be recognised…” (16)

“While the negotiators would have to contemplate the possibility of secession, there would be no absolute legal entitlement to it….” (17)

Additionally:

“The Court has no supervisory role over the political aspects of constitutional negotiations.” (18)

“…reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm…” (19)

Clarity Act

Chretien’s Clarity Act imposes criteria onto secessionist referenda. (20) While this Act could be repealed by Parliament, it survived Stephen Harper, and will thrive under Mark Carney. Its Preamble deems Canadian unity a matter of utmost gravity because secession terminates citizenship rights—and possibly Aboriginal, French-language, and other rights. The Preamble role-calls Supreme commandments:

• Provinces possess no unilateral right to secede.
• Referenda must present clear questions and represent clear majorities.
• Parliament defines “clear question” and “clear majority.”
• Pro-secessionist referenda victories earn merely a right to negotiate.
• Secession requires constitutional amendments negotiated with all provinces, and Ottawa.

Section 1 stresses referenda questions must be direct and unobscured. They cannot be multiple choice questions or simple requests for authorization to negotiate. Question-drafters must entertain the views of all provincial parties and all Canadian Aboriginals. Ottawa shall not negotiate with any separatist provincial government whose referendum question fails to meet these specs.

Section 2 empowers Parliament to scrutinize referenda votes to ensure they are true expressions of majority will. Size of the vote for secession, and overall voter turnout, shall be gauged. Views of all Canadian parties and Aboriginals must be considered. Absent a clear majority win (as judged by Ottawa) there shall be no negotiations.

Section 3(1):

“It is recognized that there is no right under the Constitution of Canada to effect the secession of a province from Canada unilaterally and that, therefore, an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces and the Government of Canada.”

Section 3(2) stipulates that post-referendum negotiations must slake federal anxieties regarding:

• Aboriginal rights, interests and territorial claims;
• Divisions of assets and debts;
• Border changes; and,
• Minority rights.

Dead-end traps and prison cells

Alberta’s lawful pathway to independence begins with the legislature’s passage of a pro-separation amendment proposal. Separatists must then tramp the land, cap in hand, begging permission from each province, and Parliament. Should any province, or Parliament, reject the proposal, it dies. Rejections are unappealable. Likelihood of Alberta secessionists gaining universal permission… zero.

There exists no requirement that there be a provincial referendum. There exists no guarantee other provinces, or Ottawa, will respect referendum results. The Clarity Act simply furnishes Ottawa with an excuse for refusing to negotiate should there be no secessionist referendum victory. Likelihood of Alberta secessionists winning a clear referendum with a clear majority… zero.

Without negotiations there can be no constitutional amendment. Without amendment there can be no secession. Lawful paths to independence are dead-ends.

Separatists contemplating unlawful paths to independence need read and heed Criminal Code sections on Treason and Sedition. They will learn that persons caught preparing to levy civil war must suffer a minimum 25 years incarceration followed by lifetime parole. (21) Persons conspiring to forcibly overthrow a government also face life imprisonment. (22) Publishing, circulating or speaking words promoting forcible governmental change carries a 14-year sentence. (23) Urging disloyalty among Canadian Forces fetches up to 5 years, as does disobeying orders against armed drilling. (24+25)

Separatists need choose their words, deeds and compatriots, carefully.

Footnotes

1. Supreme Court of Canada. Reference re Secession (1998), paragraph 84.
2. Constitution Act, 1982; Part V: Procedure for Amending the Constitution of Canada, ss. 38 to 47.
3. Reference re Secession, paragraph 77.
4. Ibid. paragraph 74.
5. Ibid. paragraph 47.
6. Ibid. paragraph 69.
7. Ibid. paragraph 87.
8. Ibid. paragraph 74.
9. Ibid. paragraph 76.
10. Ibid. paragraph 151.
11. Ibid. paragraph 152.
12. Ibid. paragraph 66.
13. Ibid. paragraph 100.
14. Ibid. paragraph 153.
15. Ibid. paragraph 151.
16. Ibid. paragraph 96.
17. Ibid. paragraph 97.
18. Ibid. paragraph 100.
19. Ibid. paragraph 151.
20. Statutes of Canada. An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference (The Clarity Act) 2000, c. 26. All references and quotes in this section are to and from the Clarity Act.
21. Criminal Code of Canada. High Treason 46(1)(b), Punishment 47(1), Minimum Punishment (4).
22. Ibid. Treason 46(2)(a)(c), Punishment 47(2)(a).
23. Ibid. Seditious Intention 59(4)(a)(b), Punishment 61(a)(b)(c).
24. Ibid. Offences in relation to military forces 62(1)(c) and (2)(a).
25. Ibid. Unlawful Drilling 70(1)(a) Punishment (3)(a).