What the Supreme Court’s Reference re Secession (1998) actually says

This mooring over the topic of amendments, given the Justices’ commitment to “the primacy of our written constitution,” concentrates attention onto Part V of the Constitution Act, 1982 (Procedure for Amending Constitution of Canada). This Part channels 16 types of amendment through 5 amendment procedures.

Amendments like ‘deleting the equalization provision’ require supporting resolutions passed by the majorities of the members of the House of Commons and the legislatures of 7 provinces possessing, in aggregate, over half Canada’s population.

Amendments like ‘secession’ fall under section 41; hence require supporting resolutions from the Commons and every province.

Any “participant in Confederation” (provincial or federal government) may propose an amendment by issuing a resolution to that effect from their legislative assembly. The amendment’s champions then have 3 years to garner the stipulated sheaf of supporting resolutions. If successful, the Governor General will proclaim the amendment into law. At any time before the proclamation, supportive resolutions may be withdrawn.

The sole attempt at using s.41 came after Mulroney and 10 premiers agreed (Meech Lake, June 3, 1987) to amend the Constitution; mainly to accommodate Quebec’s aspirations for greater autonomy and distinction within Confederation. On June 23, 1987 Quebec’s legislature duly issued a resolution with the Meech Lake amendment proposals attached. Due to intervening elections and protracted opposition these amendment proposals died June 23, 1990.

The Meech Lake proposals were less controversial than outright secession. The likelihood of a secessionist amendment proposal succeeding is practically zero.

The Justices apologetically acknowledge this “absence of amendments” but counter:

137. The continuing failure to reach agreement on amendments to the Constitution, while a matter of concern, does not amount to a denial of self-determination.

Less apologetic ripostes include:

77. Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it. By requiring broad support in the form of an “enhanced majority” to achieve constitutional change, the Constitution ensures minority interests must be addressed before proposed changes which would affect them may be enacted.

And:

74. 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.

Unsurprisingly, the Judgment finds “unilateral secession” (i.e. a province effectuating independence outside s.41’s unanimous consent requirements) to be: “incompatible with the domestic Constitution.” This legal obviosity is repeated in paragraphs 104, 106, 112 and 155 alongside statements emphasizing how secession is only achievable via the Judgment’s favorite euphemism: “principled negotiations” (i.e. “unanimous consent”).

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The Justices surveys the four main foundational principles underlying Confederation: federalism; democracy; constitutionalism and the rule of law; and respect for minorities. They note that many scholars consider “federalism” to be the Constitution’s: “dominant principle;” “central organizing theme;” and, “lodestar.”

The Justices remind:

47. …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.

They eulogise the foregone opportunities, historic compromises and “thousand acts of accommodation” that participants in Confederation made in 1867; and continue to make. An obligation on the part of Confederation’s participants to negotiate, essential to federalism, outs in constitutional text:

69. The Constitution Act, 1982 gives expression to this principle, by conferring the right to initiate constitutional change on each participant in Confederation. In our view, the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions….

Many politicos contend referendums are needed to spur constitutional dialogue. This is groundless. Obligations to dialogue exist independently of any referendum. Moreover, referendums are of no constitutional consequence:

87. Although the Constitution does not itself address the use of a referendum procedure, and the results of a referendum have no direct or legal effect in our constitutional scheme, a referendum undoubtedly may provide a democratic method of ascertaining the views of the electorate on important political questions on a particular occasion. The democratic principle identified would demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada, even though a referendum, in itself and without more, has no direct legal effect, and could not in itself bring about unilateral secession. (Emphasis added.)

And:

88. In Canada, the initiative for a constitutional amendment is the responsibility of democratically elected representatives of the participants of Confederation. Those representatives may, of course, take their cue from a referendum, but in legal terms, constitution-making in Canada, as in many countries, is undertaken by the democratically elected representatives of the people. (Emphasis added.)

Much of the political advice embroidered over this Judgment stitches around the counterpoints: “legality and legitimacy.” The Judgment sanctifies referendums as means of legitimizing causes while ruling that, in terms of constitutional law, referendums are window-dressing.

The Justices add that nowhere in our written constitution is “democracy” described. Nor can democracy pre-exist the rule of law. They further intone:

74. A constitution is beyond the reach of majority rule…

And:

76. Canadians have never accepted that ours is a system of simple majority rule… 

Thus:

151. The democratic vote, by however a strong 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.

The democratic principle is checked by a “two majorities” problem arising from:

152 …two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole.

Again:

66. …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…

The Justices dispatch the notion that one majority “trumps” another; and they accuse those who claim referendums might circumvent the Constitution of misunderstanding constitutional democracy.

Of course, Canada’s constitutional order shouldn’t be indifferent to democratic outpourings. Negotiations should follow successful secessionist referendums; nevertheless, the Justices rhetorically ponder:

151. What is the content of this obligation to negotiate?

Future negotiators receive this counselling:

96. 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…

And:

97. While the negotiators would have to contemplate the possibility of secession, there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached.

Most importantly:

100. The Court has no supervisory role over the political aspects of constitutional negotiations.

Again:

151. …content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm… To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

Even the validity of the extraneous secessionist referendum is up for grabs:

100. …the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so.

And:

153. …it will be for the political actors to determine what constitutes “a clear majority on a clear question.”

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Secession-seeking provinces must first issue resolutions to that effect from their legislatures; and then, solicit the unanimous support of all provinces and the House of Commons. Rather than a right to secede, provinces enjoy a right to beg permission to secede from fellow participants in Confederation, who may grant this request only unanimously. A decision by any province, or the Commons, to reject a secessionist amendment, vetoes said amendment. Said vetoes, being non-justiciable, would signal the unavoidable end of the constitutional road for any separatist venture.

Source Documents

Supreme Court of Canada. Reference re Secession, 1998.

The Constitution Acts 1867 to 1982

Quebec Government. Initiating Resolution, 1987 (Meech Lake Accords).

Federal Government’s Constitutional Amendment’s Act (1996)

Federal Government’s Clarity Act (2000)

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