IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C., 1985, c.

S-26;

AND IN THE MATTER OF a Reference by the Governor in Council concerning certain

questions relating to the secession of Quebec from Canada, as set out in Order in Council
P.C. 1996-1497, dated the 30th day of September, 1996

Indexed as: Reference re Secession of Quebec

File No.: 25506.

1998: February 16, 17, 18, 19; 1998: August 20.

Present: Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major,
Bastarache and Binnie JJ.

REFERENCE BY GOVERNOR IN COUNCIL

____________________________________________________________________________

immense practical utility. Only once those

underlying principles have been examined
THE COURT -- and delineated may a considered response to
the questions we are required to answer
I. Introduction emerge.

1 This Reference requires us to consider 2 The questions posed by the Governor in

momentous questions that go to the heart of Council by way of Order in Council P.C.
our system of constitutional government. 1996-1497, dated September 30, 1996, read
The observation we made more than a as follows:
decade ago in Reference re Manitoba
Language Rights, 1985 CanLII 33 (S.C.C.), 1 Under the Constitution of Canada, can
[1985] 1 S.C.R. 721 (Manitoba Language the National Assembly, legislature or
Rights Reference), at p. 728, applies with government of Quebec effect the secession
equal force here: as in that case, the present of Quebec from Canada unilaterally?
one "combines legal and constitutional
questions of the utmost subtlety and 2 Does international law give the National
complexity with political questions of great Assembly, legislature or government of
sensitivity". In our view, it is not possible to Quebec the right to effect the secession of
answer the questions that have been put to Quebec from Canada unilaterally? In this
us without a consideration of a number of regard, is there a right to self-determination
underlying principles. An exploration of the under international law that would give the
meaning and nature of these underlying National Assembly, legislature or
principles is not merely of academic interest. government of Quebec the right to effect the
On the contrary, such an exploration is of
secession of Quebec from Canada litigation process, a reference does not
unilaterally? engage the Court in a disposition of rights.
For the same reason, the Court may deal on
3 In the event of a conflict between a reference with issues that might otherwise
domestic and international law on the right be considered not yet "ripe" for decision.
of the National Assembly, legislature or
government of Quebec to effect the 26 Though a reference differs from the
secession of Quebec from Canada Court's usual adjudicative function, the
unilaterally, which would take precedence in Court should not, even in the context of a
Canada? reference, entertain questions that would be
inappropriate to answer. However, given the
3 Before turning to Question 1, as a very different nature of a reference, the
preliminary matter, it is necessary to deal question of the appropriateness of answering
with the issues raised with regard to this a question should not focus on whether the
Court's reference jurisdiction. dispute is formally adversarial or whether it
disposes of cognizable rights. Rather, it
[OMITTED] should consider whether the dispute is
appropriately addressed by a court of law.
C. Justiciability As we stated in Reference re Canada
Assistance Plan (B.C.), 1991 CanLII 74
24 It is submitted that even if the Court (S.C.C.), [1991] 2 S.C.R. 525, at p. 545:
has jurisdiction over the questions referred,
the questions themselves are not justiciable. While there may be many reasons why a
Three main arguments are raised in this question is non-justiciable, in this appeal the
regard: Attorney General of Canada submitted that
to answer the questions would draw the
(1)the questions are not justiciable Court into a political controversy and
because they are too "theoretical" or involve it in the legislative process. In
speculative; exercising its discretion whether to
determine a matter that is alleged to be non-
(2)the questions are not justiciable justiciable, the Court's primary concern is to
because they are political in nature; retain its proper role within the
constitutional framework of our democratic
(3)the questions are not yet ripe for form of government. . . . In considering its
judicial consideration. appropriate role the Court must determine
whether the question is purely political in
25 In the context of a reference, the Court, nature and should, therefore, be determined
rather than acting in its traditional in another forum or whether it has a
adjudicative function, is acting in an sufficient legal component to warrant the
advisory capacity. The very fact that the intervention of the judicial branch.
Court may be asked hypothetical questions [Emphasis added.]
in a reference, such as the constitutionality
of proposed legislation, engages the Court in Thus the circumstances in which the
an exercise it would never entertain in the Court may decline to answer a reference
context of litigation. No matter how closely question on the basis of "non-justiciability"
the procedure on a reference may mirror the include:
 (i) if to do so would take the Court Court must still determine whether it should
beyond its own assessment of its proper role exercise its discretion to refuse to answer the
in the constitutional framework of our questions on a pragmatic basis.
democratic form of government or
30 Generally, the instances in which the
(ii) if the Court could not give an answer Court has exercised its discretion to refuse
that lies within its area of expertise: the to answer a reference question that is
interpretation of law. otherwise justiciable can be broadly divided
into two categories. First, where the question
27 As to the "proper role" of the Court, it is too imprecise or ambiguous to permit a
is important to underline, contrary to the complete or accurate answer: see, e.g.,
submission of the amicus curiae, that the McEvoy v. Attorney General for New
questions posed in this Reference do not ask Brunswick, [1983] 1 S.C.R. 704; Reference
the Court to usurp any democratic decision re Waters and Water-Powers, [1929] S.C.R.
that the people of Quebec may be called 200; Reference re Goods and Services Tax,
upon to make. The questions posed by the 1992 CanLII 69 (S.C.C.), [1992] 2 S.C.R.
Governor in Council, as we interpret them, 445; Reference re Remuneration of Judges
are strictly limited to aspects of the legal of the Provincial Court of Prince Edward
framework in which that democratic Island, 1997 CanLII 317 (S.C.C.), [1997] 3
decision is to be taken. The attempted S.C.R. 3 (Provincial Judges Reference), at
analogy to the U.S. "political questions" para. 256. Second, where the parties have
doctrine therefore has no application. The not provided sufficient information to allow
legal framework having been clarified, it the Court to provide a complete or accurate
will be for the population of Quebec, acting answer: see, e.g., Reference re Education
through the political process, to decide System in Island of Montreal, [1926] S.C.R.
whether or not to pursue secession. As will 246; Reference re Authority of Parliament in
be seen, the legal framework involves the relation to the Upper House, [1980] 1
rights and obligations of Canadians who live S.C.R. 54 (Senate Reference); Provincial
outside the province of Quebec, as well as Judges Reference, at para. 257.
those who live within Quebec.
31 There is no doubt that the questions
28 As to the "legal" nature of the posed in this Reference raise difficult issues
questions posed, if the Court is of the and are susceptible to varying
opinion that it is being asked a question with interpretations. However, rather than
a significant extralegal component, it may refusing to answer at all, the Court is guided
interpret the question so as to answer only by the approach advocated by the majority
its legal aspects; if this is not possible, the on the "conventions" issue in Reference re
Court may decline to answer the question. In Resolution to Amend the Constitution, 1981
the present Reference the questions may CanLII 25 (S.C.C.), [1981] 1 S.C.R. 753
clearly be interpreted as directed to legal (Patriation Reference), at pp. 875-76:
issues, and, so interpreted, the Court is in a
position to answer them. If the questions are thought to be
ambiguous, this Court should not, in a
29 Finally, we turn to the proposition that constitutional reference, be in a worse
even though the questions referred to us are position than that of a witness in a trial and
justiciable in the "reference" sense, the feel compelled simply to answer yes or no.
Should it find that a question might be the global system of rules and principles
misleading, or should it simply avoid the which govern the exercise of constitutional
risk of misunderstanding, the Court is free authority in the whole and in every part of
either to interpret the question . . . or it may the Canadian state.
qualify both the question and the answer. . . .
These supporting principles and rules,
The Reference questions raise issues of which include constitutional conventions
fundamental public importance. It cannot be and the workings of Parliament, are a
said that the questions are too imprecise or necessary part of our Constitution because
ambiguous to permit a proper legal answer. problems or situations may arise which are
Nor can it be said that the Court has been not expressly dealt with by the text of the
provided with insufficient information Constitution. In order to endure over time, a
regarding the present context in which the constitution must contain a comprehensive
questions arise. Thus, the Court is duty set of rules and principles which are capable
bound in the circumstances to provide its of providing an exhaustive legal framework
answers. for our system of government. Such
principles and rules emerge from an
III. Reference Questions understanding of the constitutional text
itself, the historical context, and previous
A. Question 1 judicial interpretations of constitutional
meaning. In our view, there are four
Under the Constitution of Canada, can fundamental and organizing principles of the
the National Assembly, legislature or Constitution which are relevant to
government of Quebec effect the secession addressing the question before us (although
of Quebec from Canada unilaterally? this enumeration is by no means
exhaustive): federalism; democracy;
(1) Introduction constitutionalism and the rule of law; and
respect for minorities. The foundation and
32 As we confirmed in Reference re substance of these principles are addressed
Objection by Quebec to a Resolution to in the following paragraphs. We will then
amend the Constitution, [1982] 2 S.C.R. turn to their specific application to the first
793, at p. 806, "The Constitution Act, 1982 reference question before us.
is now in force. Its legality is neither
challenged nor assailable." The (2) Historical Context: The Significance
"Constitution of Canada" certainly includes of Confederation
the constitutional texts enumerated in s.
52(2) of the Constitution Act, 1982. 33 In our constitutional tradition, legality
Although these texts have a primary place in and legitimacy are linked. The precise
determining constitutional rules, they are not nature of this link will be discussed below.
exhaustive. The Constitution also "embraces However, at this stage, we wish to
unwritten, as well as written rules", as we emphasize only that our constitutional
recently observed in the Provincial Judges history demonstrates that our governing
Reference, supra, at para. 92. Finally, as was institutions have adapted and changed to
said in the Patriation Reference, supra, at p. reflect changing social and political values.
874, the Constitution of Canada includes This has generally been accomplished by
methods that have ensured continuity, Prince Edward Island, and eight from the
stability and legal order. Province of Canada) met in Charlottetown.
After five days of discussion, the delegates
34 Because this Reference deals with reached agreement on a plan for federal
questions fundamental to the nature of union.
Canada, it should not be surprising that it is
necessary to review the context in which the 37 The salient aspects of the agreement
Canadian union has evolved. To this end, we may be briefly outlined. There was to be a
will briefly describe the legal evolution of federal union featuring a bicameral central
the Constitution and the foundational legislature. Representation in the Lower
principles governing constitutional House was to be based on population,
amendments. Our purpose is not to be whereas in the Upper House it was to be
exhaustive, but to highlight the features based on regional equality, the regions
most relevant in the context of this comprising Canada East, Canada West and
Reference. the Maritimes. The significance of the
adoption of a federal form of government
35 Confederation was an initiative of cannot be exaggerated. Without it, neither
elected representatives of the people then the agreement of the delegates from Canada
living in the colonies scattered across part of East nor that of the delegates from the
what is now Canada. It was not initiated by maritime colonies could have been obtained.
Imperial fiat. In March 1864, a select
committee of the Legislative Assembly of 38 Several matters remained to be
the Province of Canada, chaired by George resolved, and so the Charlottetown delegates
Brown, began to explore prospects for agreed to meet again at Quebec in October,
constitutional reform. The committee's and to invite Newfoundland to send a
report, released in June 1864, recommended delegation to join them. The Quebec
that a federal union encompassing Canada Conference began on October 10, 1864.
East and Canada West, and perhaps the Thirty-three delegates (two from
other British North American colonies, be Newfoundland, seven from New Brunswick,
pursued. A group of Reformers from Canada five from Nova Scotia, seven from Prince
West, led by Brown, joined with Étienne P. Edward Island, and twelve from the
Taché and John A. Macdonald in a coalition Province of Canada) met over a two and a
government for the purpose of engaging in half week period. Precise consideration of
constitutional reform along the lines of the each aspect of the federal structure
federal model proposed by the committee's preoccupied the political agenda. The
report. delegates approved 72 resolutions,
addressing almost all of what subsequently
36 An opening to pursue federal union made its way into the final text of the
soon arose. The leaders of the maritime Constitution Act, 1867. These included
colonies had planned to meet at guarantees to protect French language and
Charlottetown in the fall to discuss the culture, both directly (by making French an
perennial topic of maritime union. The official language in Quebec and Canada as a
Province of Canada secured invitations to whole) and indirectly (by allocating
send a Canadian delegation. On September jurisdiction over education and "Property
1, 1864, 23 delegates (five from New and Civil Rights in the Province" to the
Brunswick, five from Nova Scotia, five from
provinces). The protection of minorities was additions to the Quebec Resolutions. Minor
thus reaffirmed. changes were made to the distribution of
powers, provision was made for the
39 Legally, there remained only the appointment of extra senators in the event of
requirement to have the Quebec Resolutions a deadlock between the House of Commons
put into proper form and passed by the and the Senate, and certain religious
Imperial Parliament in London. However, minorities were given the right to appeal to
politically, it was thought that more was the federal government where their
required. Indeed, Resolution 70 provided denominational school rights were adversely
that "The Sanction of the Imperial and Local affected by provincial legislation. The
Parliaments shall be sought for the Union of British North America Bill was drafted after
the Provinces, on the principles adopted by the London Conference with the assistance
the Conference." (Cited in J. Pope, ed., of the Colonial Office, and was introduced
Confederation: Being a Series of Hitherto into the House of Lords in February 1867.
Unpublished Documents Bearing on the The Act passed third reading in the House of
British North America Act (1895), at p. 52 Commons on March 8, received royal assent
(emphasis added).) on March 29, and was proclaimed on July 1,
1867. The Dominion of Canada thus became
40 Confirmation of the Quebec a reality.
Resolutions was achieved more smoothly in
central Canada than in the Maritimes. In 42 There was an early attempt at
February and March 1865, the Quebec secession. In the first Dominion election in
Resolutions were the subject of almost six September 1867, Premier Tupper's forces
weeks of sustained debate in both houses of were decimated: members opposed to
the Canadian legislature. The Canadian Confederation won 18 of Nova Scotia's 19
Legislative Assembly approved the Quebec federal seats, and in the simultaneous
Resolutions in March 1865 with the support provincial election, 36 of the 38 seats in the
of a majority of members from both Canada provincial legislature. Newly-elected
East and Canada West. The governments of Premier Joseph Howe led a delegation to the
both Prince Edward Island and Imperial Parliament in London in an effort
Newfoundland chose, in accordance with to undo the new constitutional arrangements,
popular sentiment in both colonies, not to but it was too late. The Colonial Office
accede to the Quebec Resolutions. In New rejected Premier Howe's plea to permit
Brunswick, a general election was required Nova Scotia to withdraw from
before Premier Tilley's pro-Confederation Confederation. As the Colonial Secretary
party prevailed. In Nova Scotia, Premier wrote in 1868:
Tupper ultimately obtained a resolution
from the House of Assembly favouring The neighbouring province of New
Confederation. Brunswick has entered into the union in
reliance on having with it the sister province
41 Sixteen delegates (five from New of Nova Scotia; and vast obligations,
Brunswick, five from Nova Scotia, and six political and commercial, have already been
from the Province of Canada) met in contracted on the faith of a measure so long
London in December 1866 to finalize the discussed and so solemnly adopted. . . . I
plan for Confederation. To this end, they trust that the Assembly and the people of
agreed to some slight modifications and Nova Scotia will not be surprised that the
Queen's government feel that they would not Canada [is] in great part French and
be warranted in advising the reversal of a Catholic, and Upper Canada [is] British and
great measure of state, attended by so many Protestant, and the Lower Provinces [are]
extensive consequences already in mixed, it [is] futile and worthless in the
operation. . . . extreme. . . . In our own Federation we
[will] have Catholic and Protestant, English,
(Quoted in H. Wade MacLauchlan, French, Irish and Scotch, and each by his
"Accounting for Democracy and the Rule of efforts and his success [will] increase the
Law in the Quebec Secession Reference" prosperity and glory of the new
(1997), 76 Can. Bar Rev. 155, at p. 168.) Confederacy. . . . [W]e [are] of different
races, not for the purpose of warring against
The interdependence characterized by each other, but in order to compete and
"vast obligations, political and commercial", emulate for the general welfare.
referred to by the Colonial Secretary in
1868, has, of course, multiplied The federal-provincial division of powers
immeasurably in the last 130 years. was a legal recognition of the diversity that
existed among the initial members of
43 Federalism was a legal response to the Confederation, and manifested a concern to
underlying political and cultural realities accommodate that diversity within a single
that existed at Confederation and continue to nation by granting significant powers to
exist today. At Confederation, political provincial governments. The Constitution
leaders told their respective communities Act, 1867 was an act of nation-building. It
that the Canadian union would be able to was the first step in the transition from
reconcile diversity with unity. It is pertinent, colonies separately dependent on the
in the context of the present Reference, to Imperial Parliament for their governance to
mention the words of George-Étienne a unified and independent political state in
Cartier (cited in the Parliamentary Debates which different peoples could resolve their
on the subject of the Confederation (1865), disagreements and work together toward
at p. 60): common goals and a common interest.
Federalism was the political mechanism by
Now, when we [are] united together, if which diversity could be reconciled with
union [is] attained, we [shall] form a unity.
political nationality with which neither the
national origin, nor the religion of any 44 A federal-provincial division of
individual, [will] interfere. It was lamented powers necessitated a written constitution
by some that we had this diversity of races, which circumscribed the powers of the new
and hopes were expressed that this Dominion and Provinces of Canada. Despite
distinctive feature would cease. The idea of its federal structure, the new Dominion was
unity of races [is] utopian -- it [is] to have "a Constitution similar in Principle
impossible. Distinctions of this kind [will] to that of the United Kingdom"
always exist. Dissimilarity, in fact, appear[s] (Constitution Act, 1867, preamble).
to be the order of the physical world and of Allowing for the obvious differences
the moral world, as well as in the political between the governance of Canada and the
world. But with regard to the objection United Kingdom, it was nevertheless
based on this fact, to the effect that a great thought important to thus emphasize the
nation [can]not be formed because Lower continuity of constitutional principles,
including democratic institutions and the as set out in the Canadian Charter of Rights
rule of law; and the continuity of the and Freedoms.
exercise of sovereign power transferred
from Westminster to the federal and 47 Legal continuity, which requires an
provincial capitals of Canada. orderly transfer of authority, necessitated
that the 1982 amendments be made by the
45 After 1867, the Canadian federation Westminster Parliament, but the legitimacy
continued to evolve both territorially and as distinguished from the formal legality of
politically. New territories were admitted to the amendments derived from political
the union and new provinces were formed. decisions taken in Canada within a legal
In 1870, Rupert's Land and the Northwest framework which this Court, in the
Territories were admitted and Manitoba was Patriation Reference, had ruled was in
formed as a province. British Columbia was accordance with our Constitution. It should
admitted in 1871, Prince Edward Island in be noted, parenthetically, that the 1982
1873, and the Arctic Islands were added in amendments did not alter the basic division
1880. In 1898, the Yukon Territory and in of powers in ss. 91 and 92 of the
1905, the provinces of Alberta and Constitution Act, 1867, which is the primary
Saskatchewan were formed from the textual expression of the principle of
Northwest Territories. Newfoundland was federalism in our Constitution, agreed upon
admitted in 1949 by an amendment to the at Confederation. It did, however, have the
Constitution Act, 1867. The new territory of important effect that, despite the refusal of
Nunavut was carved out of the Northwest the government of Quebec to join in its
Territories in 1993 with the partition to adoption, Quebec has become bound to the
become effective in April 1999. terms of a Constitution that is different from
that which prevailed previously, particularly
46 Canada's evolution from colony to as regards provisions governing its
fully independent state was gradual. The amendment, and the Canadian Charter of
Imperial Parliament's passage of the Statute Rights and Freedoms. As to the latter, to the
of Westminster, 1931 (U.K.), 22 & 23 Geo. extent that the scope of legislative powers
5, c. 4, confirmed in law what had earlier was thereafter to be constrained by the
been confirmed in fact by the Balfour Charter, the constraint operated as much
Declaration of 1926, namely, that Canada against federal legislative powers as against
was an independent country. Thereafter, provincial legislative powers. Moreover, it is
Canadian law alone governed in Canada, to be remembered that s. 33, the
except where Canada expressly consented to "notwithstanding clause", gives Parliament
the continued application of Imperial and the provincial legislatures authority to
legislation. Canada's independence from legislate on matters within their jurisdiction
Britain was achieved through legal and in derogation of the fundamental freedoms
political evolution with an adherence to the (s. 2), legal rights (ss. 7 to 14) and equality
rule of law and stability. The proclamation rights (s. 15) provisions of the Charter.
of the Constitution Act, 1982 removed the
last vestige of British authority over the 48 We think it apparent from even this
Canadian Constitution and re-affirmed brief historical review that the evolution of
Canada's commitment to the protection of its our constitutional arrangements has been
minority, aboriginal, equality, legal and characterized by adherence to the rule of
language rights, and fundamental freedoms law, respect for democratic institutions, the
accommodation of minorities, insistence that of law principle in the Manitoba Language
governments adhere to constitutional Rights Reference, supra, at p. 750, we held
conduct and a desire for continuity and that "the principle is clearly implicit in the
stability. We now turn to a discussion of the very nature of a Constitution". The same
general constitutional principles that bear on may be said of the other three constitutional
the present Reference. principles we underscore today.

(3) Analysis of the Constitutional 51 Although these underlying principles

Principles are not explicitly made part of the
Constitution by any written provision, other
(a) Nature of the Principles than in some respects by the oblique
reference in the preamble to the Constitution
49 What are those underlying principles? Act, 1867, it would be impossible to
Our Constitution is primarily a written one, conceive of our constitutional structure
the product of 131 years of evolution. without them. The principles dictate major
Behind the written word is an historical elements of the architecture of the
lineage stretching back through the ages, Constitution itself and are as such its
which aids in the consideration of the lifeblood.
underlying constitutional principles. These
principles inform and sustain the 52 The principles assist in the
constitutional text: they are the vital unstated interpretation of the text and the delineation
assumptions upon which the text is based. of spheres of jurisdiction, the scope of rights
The following discussion addresses the four and obligations, and the role of our political
foundational constitutional principles that institutions. Equally important, observance
are most germane for resolution of this of and respect for these principles is
Reference: federalism, democracy, essential to the ongoing process of
constitutionalism and the rule of law, and constitutional development and evolution of
respect for minority rights. These defining our Constitution as a "living tree", to invoke
principles function in symbiosis. No single the famous description in Edwards v.
principle can be defined in isolation from Attorney-General for Canada, [1930] A.C.
the others, nor does any one principle trump 124 (P.C.), at p. 136. As this Court indicated
or exclude the operation of any other. in New Brunswick Broadcasting Co. v. Nova
Scotia (Speaker of the House of Assembly),
50 Our Constitution has an internal 1993 CanLII 153 (S.C.C.), [1993] 1 S.C.R.
architecture, or what the majority of this 319, Canadians have long recognized the
Court in OPSEU v. Ontario (Attorney existence and importance of unwritten
General), 1987 CanLII 71 (S.C.C.), [1987] 2 constitutional principles in our system of
S.C.R. 2, at p. 57, called a "basic government.
constitutional structure". The individual
elements of the Constitution are linked to 53 Given the existence of these
the others, and must be interpreted by underlying constitutional principles, what
reference to the structure of the Constitution use may the Court make of them? In the
as a whole. As we recently emphasized in Provincial Judges Reference, supra, at
the Provincial Judges Reference, certain paras. 93 and 104, we cautioned that the
underlying principles infuse our Constitution recognition of these constitutional principles
and breathe life into it. Speaking of the rule (the majority opinion referred to them as
"organizing principles" and described one of of Canada". It is to a discussion of those
them, judicial independence, as an underlying constitutional principles that we
"unwritten norm") could not be taken as an now turn.
invitation to dispense with the written text of
the Constitution. On the contrary, we (b) Federalism
confirmed that there are compelling reasons
to insist upon the primacy of our written 55 It is undisputed that Canada is a
constitution. A written constitution promotes federal state. Yet many commentators have
legal certainty and predictability, and it observed that, according to the precise terms
provides a foundation and a touchstone for of the Constitution Act, 1867, the federal
the exercise of constitutional judicial review. system was only partial. See, e.g., K. C.
However, we also observed in the Wheare, Federal Government (4th ed.
Provincial Judges Reference that the effect 1963), at pp. 18-20. This was so because, on
of the preamble to the Constitution Act, paper, the federal government retained
1867 was to incorporate certain sweeping powers which threatened to
constitutional principles by reference, a undermine the autonomy of the provinces.
point made earlier in Fraser v. Public Here again, however, a review of the written
Service Staff Relations Board, 1985 CanLII provisions of the Constitution does not
14 (S.C.C.), [1985] 2 S.C.R. 455, at pp. 462- provide the entire picture. Our political and
63. In the Provincial Judges Reference, at constitutional practice has adhered to an
para. 104, we determined that the preamble underlying principle of federalism, and has
"invites the courts to turn those principles interpreted the written provisions of the
into the premises of a constitutional Constitution in this light. For example,
argument that culminates in the filling of although the federal power of disallowance
gaps in the express terms of the was included in the Constitution Act, 1867,
constitutional text". the underlying principle of federalism
triumphed early. Many constitutional
54 Underlying constitutional principles scholars contend that the federal power of
may in certain circumstances give rise to disallowance has been abandoned (e.g., P.
substantive legal obligations (have "full W. Hogg, Constitutional Law of Canada
legal force", as we described it in the (4th ed. 1997), at p. 120).
Patriation Reference, supra, at p. 845),
which constitute substantive limitations 56 In a federal system of government
upon government action. These principles such as ours, political power is shared by
may give rise to very abstract and general two orders of government: the federal
obligations, or they may be more specific government on the one hand, and the
and precise in nature. The principles are not provinces on the other. Each is assigned
merely descriptive, but are also invested respective spheres of jurisdiction by the
with a powerful normative force, and are Constitution Act, 1867. See, e.g.,
binding upon both courts and governments. Liquidators of the Maritime Bank of Canada
"In other words", as this Court confirmed in v. Receiver-General of New Brunswick,
the Manitoba Language Rights Reference, [1892] A.C. 437 (P.C.), at pp. 441-42. It is
supra, at p. 752, "in the process of up to the courts "to control the limits of the
Constitutional adjudication, the Court may respective sovereignties": Northern Telecom
have regard to unwritten postulates which Canada Ltd. v. Communication Workers of
form the very foundation of the Constitution Canada, 1983 CanLII 25 (S.C.C.), [1983] 1
S.C.R. 733, at p. 741. In interpreting our central authority, but to establish a central
Constitution, the courts have always been government in which these Provinces should
concerned with the federalism principle, be represented, entrusted with exclusive
inherent in the structure of our constitutional authority only in affairs in which they had a
arrangements, which has from the beginning common interest. Subject to this each
been the lodestar by which the courts have Province was to retain its independence and
been guided. autonomy and to be directly under the
Crown as its head.
57 This underlying principle of
federalism, then, has exercised a role of More recently, in Haig v. Canada, 1993
considerable importance in the interpretation CanLII 58 (S.C.C.), [1993] 2 S.C.R. 995, at
of the written provisions of our Constitution. p. 1047, the majority of this Court held that
In the Patriation Reference, supra, at pp. differences between provinces "are a
905-9, we confirmed that the principle of rational part of the political reality in the
federalism runs through the political and federal process". It was referring to the
legal systems of Canada. Indeed, Martland differential application of federal law in
and Ritchie JJ., dissenting in the Patriation individual provinces, but the point applies
Reference, at p. 821, considered federalism more generally. A unanimous Court
to be "the dominant principle of Canadian expressed similar views in R. v. S. (S.), 1990
constitutional law". With the enactment of CanLII 65 (S.C.C.), [1990] 2 S.C.R. 254, at
the Charter, that proposition may have less pp. 287-88.
force than it once did, but there can be little
doubt that the principle of federalism 59 The principle of federalism facilitates
remains a central organizational theme of the pursuit of collective goals by cultural
our Constitution. Less obviously, perhaps, and linguistic minorities which form the
but certainly of equal importance, federalism majority within a particular province. This is
is a political and legal response to the case in Quebec, where the majority of
underlying social and political realities. the population is French-speaking, and
which possesses a distinct culture. This is
58 The principle of federalism recognizes not merely the result of chance. The social
the diversity of the component parts of and demographic reality of Quebec explains
Confederation, and the autonomy of the existence of the province of Quebec as a
provincial governments to develop their political unit and indeed, was one of the
societies within their respective spheres of essential reasons for establishing a federal
jurisdiction. The federal structure of our structure for the Canadian union in 1867.
country also facilitates democratic The experience of both Canada East and
participation by distributing power to the Canada West under the Union Act, 1840
government thought to be most suited to (U.K.), 3-4 Vict., c. 35, had not been
achieving the particular societal objective satisfactory. The federal structure adopted at
having regard to this diversity. The scheme Confederation enabled French-speaking
of the Constitution Act, 1867, it was said in Canadians to form a numerical majority in
Re the Initiative and Referendum Act, [1919] the province of Quebec, and so exercise the
A.C. 935 (P.C.), at p. 942, was considerable provincial powers conferred by
the Constitution Act, 1867 in such a way as
not to weld the Provinces into one, nor to to promote their language and culture. It also
subordinate Provincial Governments to a made provision for certain guaranteed
representation within the federal Parliament Reference re Alberta Statutes, 1938 CanLII
itself. 1 (S.C.C.), [1938] S.C.R. 100, the
democracy principle can best be understood
60 Federalism was also welcomed by as a sort of baseline against which the
Nova Scotia and New Brunswick, both of framers of our Constitution, and
which also affirmed their will to protect subsequently, our elected representatives
their individual cultures and their autonomy under it, have always operated. It is perhaps
over local matters. All new provinces for this reason that the principle was not
joining the federation sought to achieve explicitly identified in the text of the
similar objectives, which are no less Constitution Act, 1867 itself. To have done
vigorously pursued by the provinces and so might have appeared redundant, even
territories as we approach the new silly, to the framers. As explained in the
millennium. Provincial Judges Reference, supra, at para.
100, it is evident that our Constitution
(c) Democracy contemplates that Canada shall be a
constitutional democracy. Yet this merely
61 Democracy is a fundamental value in demonstrates the importance of underlying
our constitutional law and political culture. constitutional principles that are nowhere
While it has both an institutional and an explicitly described in our constitutional
individual aspect, the democratic principle texts. The representative and democratic
was also argued before us in the sense of the nature of our political institutions was
supremacy of the sovereign will of a people, simply assumed.
in this case potentially to be expressed by
Quebecers in support of unilateral secession. 63 Democracy is commonly understood
It is useful to explore in a summary way as being a political system of majority rule.
these different aspects of the democratic It is essential to be clear what this means.
principle. The evolution of our democratic tradition
can be traced back to the Magna Carta
62 The principle of democracy has always (1215) and before, through the long struggle
informed the design of our constitutional for Parliamentary supremacy which
structure, and continues to act as an essential culminated in the English Bill of Rights of
interpretive consideration to this day. A 1689, the emergence of representative
majority of this Court in OPSEU v. Ontario, political institutions in the colonial era, the
supra, at p. 57, confirmed that "the basic development of responsible government in
structure of our Constitution, as established the 19th century, and eventually, the
by the Constitution Act, 1867, contemplates achievement of Confederation itself in 1867.
the existence of certain political institutions, "[T]he Canadian tradition", the majority of
including freely elected legislative bodies at this Court held in Reference re Provincial
the federal and provincial levels". As is Electoral Boundaries (Sask.), 1991 CanLII
apparent from an earlier line of decisions 61 (S.C.C.), [1991] 2 S.C.R. 158, at p. 186,
emanating from this Court, including is "one of evolutionary democracy moving
Switzman v. Elbling, 1957 CanLII 2 in uneven steps toward the goal of universal
(S.C.C.), [1957] S.C.R. 285, Saumur v. City suffrage and more effective representation".
of Quebec, 1953 CanLII 3 (S.C.C.), [1953] 2 Since Confederation, efforts to extend the
S.C.R. 299, Boucher v. The King, 1950 franchise to those unjustly excluded from
CanLII 2 (S.C.C.), [1951] S.C.R. 265, and participation in our political system -- such
as women, minorities, and aboriginal Charter. Historically, this Court has
peoples -- have continued, with some interpreted democracy to mean the process
success, to the present day. of representative and responsible
government and the right of citizens to
64 Democracy is not simply concerned participate in the political process as voters
with the process of government. On the (Reference re Provincial Electoral
contrary, as suggested in Switzman v. Boundaries, supra) and as candidates
Elbling, supra, at p. 306, democracy is (Harvey v. New Brunswick (Attorney
fundamentally connected to substantive General), 1996 CanLII 163 (S.C.C.), [1996]
goals, most importantly, the promotion of 2 S.C.R. 876). In addition, the effect of s. 4
self-government. Democracy accommodates of the Charter is to oblige the House of
cultural and group identities: Reference re Commons and the provincial legislatures to
Provincial Electoral Boundaries, at p. 188. hold regular elections and to permit citizens
Put another way, a sovereign people to elect representatives to their political
exercises its right to self-government institutions. The democratic principle is
through the democratic process. In affirmed with particular clarity in that s. 4 is
considering the scope and purpose of the not subject to the notwithstanding power
Charter, the Court in R. v. Oakes, 1986 contained in s. 33.
CanLII 46 (S.C.C.), [1986] 1 S.C.R. 103,
articulated some of the values inherent in the 66 It is, of course, true that democracy
notion of democracy (at p. 136): expresses the sovereign will of the people.
Yet this expression, too, must be taken in the
The Court must be guided by the values context of the other institutional values we
and principles essential to a free and have identified as pertinent to this
democratic society which I believe to Reference. The relationship between
embody, to name but a few, respect for the democracy and federalism means, for
inherent dignity of the human person, example, that in Canada there may be
commitment to social justice and equality, different and equally legitimate majorities in
accommodation of a wide variety of beliefs, different provinces and territories and at the
respect for cultural and group identity, and federal level. No one majority is more or
faith in social and political institutions less "legitimate" than the others as an
which enhance the participation of expression of democratic opinion, although,
individuals and groups in society. of course, the consequences will vary with
the subject matter. A federal system of
65 In institutional terms, democracy government enables different provinces to
means that each of the provincial pursue policies responsive to the particular
legislatures and the federal Parliament is concerns and interests of people in that
elected by popular franchise. These province. At the same time, Canada as a
legislatures, we have said, are "at the core of whole is also a democratic community in
the system of representative government": which citizens construct and achieve goals
New Brunswick Broadcasting, supra, at p. on a national scale through a federal
387. In individual terms, the right to vote in government acting within the limits of its
elections to the House of Commons and the jurisdiction. The function of federalism is to
provincial legislatures, and to be candidates enable citizens to participate concurrently in
in those elections, is guaranteed to "Every different collectivities and to pursue goals at
citizen of Canada" by virtue of s. 3 of the both a provincial and a federal level.
67 The consent of the governed is a value is committed to considering those dissenting
that is basic to our understanding of a free voices, and seeking to acknowledge and
and democratic society. Yet democracy in address those voices in the laws by which all
any real sense of the word cannot exist in the community must live.
without the rule of law. It is the law that
creates the framework within which the 69 The Constitution Act, 1982 gives
"sovereign will" is to be ascertained and expression to this principle, by conferring a
implemented. To be accorded legitimacy, right to initiate constitutional change on
democratic institutions must rest, ultimately, each participant in Confederation. In our
on a legal foundation. That is, they must view, the existence of this right imposes a
allow for the participation of, and corresponding duty on the participants in
accountability to, the people, through public Confederation to engage in constitutional
institutions created under the Constitution. discussions in order to acknowledge and
Equally, however, a system of government address democratic expressions of a desire
cannot survive through adherence to the law for change in other provinces. This duty is
alone. A political system must also possess inherent in the democratic principle which is
legitimacy, and in our political culture, that a fundamental predicate of our system of
requires an interaction between the rule of governance.
law and the democratic principle. The
system must be capable of reflecting the (d) Constitutionalism and the Rule of
aspirations of the people. But there is more. Law
Our law's claim to legitimacy also rests on
an appeal to moral values, many of which 70 The principles of constitutionalism and
are imbedded in our constitutional structure. the rule of law lie at the root of our system
It would be a grave mistake to equate of government. The rule of law, as observed
legitimacy with the "sovereign will" or in Roncarelli v. Duplessis, 1959 CanLII 1
majority rule alone, to the exclusion of other (S.C.C.), [1959] S.C.R. 121, at p. 142, is "a
constitutional values. fundamental postulate of our constitutional
structure". As we noted in the Patriation
68 Finally, we highlight that a functioning Reference, supra, at pp. 805-6, "[t]he 'rule of
democracy requires a continuous process of law' is a highly textured expression,
discussion. The Constitution mandates importing many things which are beyond the
government by democratic legislatures, and need of these reasons to explore but
an executive accountable to them, "resting conveying, for example, a sense of
ultimately on public opinion reached by orderliness, of subjection to known legal
discussion and the interplay of ideas" rules and of executive accountability to legal
(Saumur v. City of Quebec, supra, at p. 330). authority". At its most basic level, the rule
At both the federal and provincial level, by of law vouchsafes to the citizens and
its very nature, the need to build majorities residents of the country a stable, predictable
necessitates compromise, negotiation, and and ordered society in which to conduct
deliberation. No one has a monopoly on their affairs. It provides a shield for
truth, and our system is predicated on the individuals from arbitrary state action.
faith that in the marketplace of ideas, the
best solutions to public problems will rise to 71 In the Manitoba Language Rights
the top. Inevitably, there will be dissenting Reference, supra, at pp. 747-52, this Court
voices. A democratic system of government outlined the elements of the rule of law. We
emphasized, first, that the rule of law including the executive branch (Operation
provides that the law is supreme over the Dismantle Inc. v. The Queen, 1985 CanLII
acts of both government and private persons. 74 (S.C.C.), [1985] 1 S.C.R. 441, at p. 455).
There is, in short, one law for all. Second, They may not transgress its provisions:
we explained, at p. 749, that "the rule of law indeed, their sole claim to exercise lawful
requires the creation and maintenance of an authority rests in the powers allocated to
actual order of positive laws which them under the Constitution, and can come
preserves and embodies the more general from no other source.
principle of normative order". It was this
second aspect of the rule of law that was 73 An understanding of the scope and
primarily at issue in the Manitoba Language importance of the principles of the rule of
Rights Reference itself. A third aspect of the law and constitutionalism is aided by
rule of law is, as recently confirmed in the acknowledging explicitly why a constitution
Provincial Judges Reference, supra, at para. is entrenched beyond the reach of simple
10, that "the exercise of all public power majority rule. There are three overlapping
must find its ultimate source in a legal rule". reasons.
Put another way, the relationship between
the state and the individual must be 74 First, a constitution may provide an
regulated by law. Taken together, these three added safeguard for fundamental human
considerations make up a principle of rights and individual freedoms which might
profound constitutional and political otherwise be susceptible to government
significance. interference. Although democratic
government is generally solicitous of those
72 The constitutionalism principle bears rights, there are occasions when the majority
considerable similarity to the rule of law, will be tempted to ignore fundamental rights
although they are not identical. The essence in order to accomplish collective goals more
of constitutionalism in Canada is embodied easily or effectively. Constitutional
in s. 52(1) of the Constitution Act, 1982, entrenchment ensures that those rights will
which provides that "[t]he Constitution of be given due regard and protection. Second,
Canada is the supreme law of Canada, and a constitution may seek to ensure that
any law that is inconsistent with the vulnerable minority groups are endowed
provisions of the Constitution is, to the with the institutions and rights necessary to
extent of the inconsistency, of no force or maintain and promote their identities against
effect." Simply put, the constitutionalism the assimilative pressures of the majority.
principle requires that all government action And third, a constitution may provide for a
comply with the Constitution. The rule of division of political power that allocates
law principle requires that all government political power amongst different levels of
action must comply with the law, including government. That purpose would be
the Constitution. This Court has noted on defeated if one of those democratically
several occasions that with the adoption of elected levels of government could usurp the
the Charter, the Canadian system of powers of the other simply by exercising its
government was transformed to a significant legislative power to allocate additional
extent from a system of Parliamentary political power to itself unilaterally.
supremacy to one of constitutional
supremacy. The Constitution binds all 75 The argument that the Constitution
governments, both federal and provincial, may be legitimately circumvented by resort
to a majority vote in a province-wide 77 In this way, our belief in democracy
referendum is superficially persuasive, in may be harmonized with our belief in
large measure because it seems to appeal to constitutionalism. Constitutional amendment
some of the same principles that underlie the often requires some form of substantial
legitimacy of the Constitution itself, namely, consensus precisely because the content of
democracy and self-government. In short, it the underlying principles of our Constitution
is suggested that as the notion of popular demand it. By requiring broad support in the
sovereignty underlies the legitimacy of our form of an "enhanced majority" to achieve
existing constitutional arrangements, so the constitutional change, the Constitution
same popular sovereignty that originally led ensures that minority interests must be
to the present Constitution must (it is addressed before proposed changes which
argued) also permit "the people" in their would affect them may be enacted.
exercise of popular sovereignty to secede by
majority vote alone. However, closer 78 It might be objected, then, that
analysis reveals that this argument is constitutionalism is therefore incompatible
unsound, because it misunderstands the with democratic government. This would be
meaning of popular sovereignty and the an erroneous view. Constitutionalism
essence of a constitutional democracy. facilitates -- indeed, makes possible -- a
democratic political system by creating an
76 Canadians have never accepted that orderly framework within which people may
ours is a system of simple majority rule. Our make political decisions. Viewed correctly,
principle of democracy, taken in conjunction constitutionalism and the rule of law are not
with the other constitutional principles in conflict with democracy; rather, they are
discussed here, is richer. Constitutional essential to it. Without that relationship, the
government is necessarily predicated on the political will upon which democratic
idea that the political representatives of the decisions are taken would itself be
people of a province have the capacity and undermined.
the power to commit the province to be
bound into the future by the constitutional (e) Protection of Minorities
rules being adopted. These rules are
"binding" not in the sense of frustrating the 79 The fourth underlying constitutional
will of a majority of a province, but as principle we address here concerns the
defining the majority which must be protection of minorities. There are a number
consulted in order to alter the fundamental of specific constitutional provisions
balances of political power (including the protecting minority language, religion and
spheres of autonomy guaranteed by the education rights. Some of those provisions
principle of federalism), individual rights, are, as we have recognized on a number of
and minority rights in our society. Of occasions, the product of historical
course, those constitutional rules are compromises. As this Court observed in
themselves amenable to amendment, but Reference re Bill 30, An Act to amend the
only through a process of negotiation which Education Act (Ont.), 1987 CanLII 65
ensures that there is an opportunity for the (S.C.C.), [1987] 1 S.C.R. 1148, at p. 1173,
constitutionally defined rights of all the and in Reference re Education Act (Que.),
parties to be respected and reconciled. 1993 CanLII 100 (S.C.C.), [1993] 2 S.C.R.
511, at pp. 529-30, the protection of
minority religious education rights was a
central consideration in the negotiations review that it entails, is the protection of
leading to Confederation. In the absence of minorities. However, it should not be
such protection, it was felt that the forgotten that the protection of minority
minorities in what was then Canada East and rights had a long history before the
Canada West would be submerged and enactment of the Charter. Indeed, the
assimilated. See also Greater Montreal protection of minority rights was clearly an
Protestant School Board v. Quebec essential consideration in the design of our
(Attorney General), 1989 CanLII 125 constitutional structure even at the time of
(S.C.C.), [1989] 1 S.C.R. 377, at pp. 401-2, Confederation: Senate Reference, supra, at
and Adler v. Ontario, 1996 CanLII 148 p. 71. Although Canada's record of
(S.C.C.), [1996] 3 S.C.R. 609. Similar upholding the rights of minorities is not a
concerns animated the provisions protecting spotless one, that goal is one towards which
minority language rights, as noted in Société Canadians have been striving since
des Acadiens du Nouveau-Brunswick Inc. v. Confederation, and the process has not been
Association of Parents for Fairness in without successes. The principle of
Education, 1986 CanLII 66 (S.C.C.), [1986] protecting minority rights continues to
1 S.C.R. 549, at p. 564. exercise influence in the operation and
interpretation of our Constitution.
80 However, we highlight that even
though those provisions were the product of 82 Consistent with this long tradition of
negotiation and political compromise, that respect for minorities, which is at least as
does not render them unprincipled. Rather, old as Canada itself, the framers of the
such a concern reflects a broader principle Constitution Act, 1982 included in s. 35
related to the protection of minority rights. explicit protection for existing aboriginal
Undoubtedly, the three other constitutional and treaty rights, and in s. 25, a non-
principles inform the scope and operation of derogation clause in favour of the rights of
the specific provisions that protect the rights aboriginal peoples. The "promise" of s. 35,
of minorities. We emphasize that the as it was termed in R. v. Sparrow, 1990
protection of minority rights is itself an CanLII 104 (S.C.C.), [1990] 1 S.C.R. 1075,
independent principle underlying our at p. 1083, recognized not only the ancient
constitutional order. The principle is clearly occupation of land by aboriginal peoples,
reflected in the Charter's provisions for the but their contribution to the building of
protection of minority rights. See, e.g., Canada, and the special commitments made
Reference re Public Schools Act (Man.), s. to them by successive governments. The
79(3), (4) and (7), 1993 CanLII 119 protection of these rights, so recently and
(S.C.C.), [1993] 1 S.C.R. 839, and Mahe v. arduously achieved, whether looked at in
Alberta, 1990 CanLII 133 (S.C.C.), [1990] 1 their own right or as part of the larger
S.C.R. 342. concern with minorities, reflects an
important underlying constitutional value.
81 The concern of our courts and
governments to protect minorities has been (4) The Operation of the Constitutional
prominent in recent years, particularly Principles in the Secession Context
following the enactment of the Charter.
Undoubtedly, one of the key considerations 83 Secession is the effort of a group or
motivating the enactment of the Charter, section of a state to withdraw itself from the
and the process of constitutional judicial political and constitutional authority of that
state, with a view to achieving statehood for 85 The Constitution is the expression of
a new territorial unit on the international the sovereignty of the people of Canada. It
plane. In a federal state, secession typically lies within the power of the people of
takes the form of a territorial unit seeking to Canada, acting through their various
withdraw from the federation. Secession is a governments duly elected and recognized
legal act as much as a political one. By the under the Constitution, to effect whatever
terms of Question 1 of this Reference, we constitutional arrangements are desired
are asked to rule on the legality of unilateral within Canadian territory, including, should
secession "[u]nder the Constitution of it be so desired, the secession of Quebec
Canada". This is an appropriate question, as from Canada. As this Court held in the
the legality of unilateral secession must be Manitoba Language Rights Reference,
evaluated, at least in the first instance, from supra, at p. 745, "[t]he Constitution of a
the perspective of the domestic legal order country is a statement of the will of the
of the state from which the unit seeks to people to be governed in accordance with
withdraw. As we shall see below, it is also certain principles held as fundamental and
argued that international law is a relevant certain prescriptions restrictive of the
standard by which the legality of a purported powers of the legislature and government".
act of secession may be measured. The manner in which such a political will
could be formed and mobilized is a
84 The secession of a province from somewhat speculative exercise, though we
Canada must be considered, in legal terms, are asked to assume the existence of such a
to require an amendment to the Constitution, political will for the purpose of answering
which perforce requires negotiation. The the question before us. By the terms of this
amendments necessary to achieve a Reference, we have been asked to consider
secession could be radical and extensive. whether it would be constitutional in such a
Some commentators have suggested that circumstance for the National Assembly,
secession could be a change of such a legislature or government of Quebec to
magnitude that it could not be considered to effect the secession of Quebec from Canada
be merely an amendment to the unilaterally.
Constitution. We are not persuaded by this
contention. It is of course true that the 86 The "unilateral" nature of the act is of
Constitution is silent as to the ability of a cardinal importance and we must be clear as
province to secede from Confederation but, to what is understood by this term. In one
although the Constitution neither expressly sense, any step towards a constitutional
authorizes nor prohibits secession, an act of amendment initiated by a single actor on the
secession would purport to alter the constitutional stage is "unilateral". We do
governance of Canadian territory in a not believe that this is the meaning
manner which undoubtedly is inconsistent contemplated by Question 1, nor is this the
with our current constitutional sense in which the term has been used in
arrangements. The fact that those changes argument before us. Rather, what is claimed
would be profound, or that they would by a right to secede "unilaterally" is the right
purport to have a significance with respect to effectuate secession without prior
to international law, does not negate their negotiations with the other provinces and the
nature as amendments to the Constitution of federal government. At issue is not the
Canada. legality of the first step but the legality of
the final act of purported unilateral
secession. The supposed juridical basis for by the population of a province would give
such an act is said to be a clear expression of rise to a reciprocal obligation on all parties
democratic will in a referendum in the to Confederation to negotiate constitutional
province of Quebec. This claim requires us changes to respond to that desire. The
to examine the possible juridical impact, if amendment of the Constitution begins with a
any, of such a referendum on the functioning political process undertaken pursuant to the
of our Constitution, and on the claimed Constitution itself. In Canada, the initiative
legality of a unilateral act of secession. for constitutional amendment is the
responsibility of democratically elected
87 Although the Constitution does not representatives of the participants in
itself address the use of a referendum Confederation. Those representatives may,
procedure, and the results of a referendum of course, take their cue from a referendum,
have no direct role or legal effect in our but in legal terms, constitution-making in
constitutional scheme, a referendum Canada, as in many countries, is undertaken
undoubtedly may provide a democratic by the democratically elected representatives
method of ascertaining the views of the of the people. The corollary of a legitimate
electorate on important political questions attempt by one participant in Confederation
on a particular occasion. The democratic to seek an amendment to the Constitution is
principle identified above would demand an obligation on all parties to come to the
that considerable weight be given to a clear negotiating table. The clear repudiation by
expression by the people of Quebec of their the people of Quebec of the existing
will to secede from Canada, even though a constitutional order would confer legitimacy
referendum, in itself and without more, has on demands for secession, and place an
no direct legal effect, and could not in itself obligation on the other provinces and the
bring about unilateral secession. Our federal government to acknowledge and
political institutions are premised on the respect that expression of democratic will by
democratic principle, and so an expression entering into negotiations and conducting
of the democratic will of the people of a them in accordance with the underlying
province carries weight, in that it would constitutional principles already discussed.
confer legitimacy on the efforts of the
government of Quebec to initiate the 89 What is the content of this obligation
Constitution's amendment process in order to negotiate? At this juncture, we confront
to secede by constitutional means. In this the difficult inter-relationship between
context, we refer to a "clear" majority as a substantive obligations flowing from the
qualitative evaluation. The referendum Constitution and questions of judicial
result, if it is to be taken as an expression of competence and restraint in supervising or
the democratic will, must be free of enforcing those obligations. This is mirrored
ambiguity both in terms of the question by the distinction between the legality and
asked and in terms of the support it the legitimacy of actions taken under the
achieves. Constitution. We propose to focus first on
the substantive obligations flowing from this
88 The federalism principle, in obligation to negotiate; once the nature of
conjunction with the democratic principle, those obligations has been described, it is
dictates that the clear repudiation of the easier to assess the appropriate means of
existing constitutional order and the clear enforcement of those obligations, and to
expression of the desire to pursue secession
comment on the distinction between legality 92 However, we are equally unable to
and legitimacy. accept the reverse proposition, that a clear
expression of self-determination by the
90 The conduct of the parties in such people of Quebec would impose no
negotiations would be governed by the same obligations upon the other provinces or the
constitutional principles which give rise to federal government. The continued
the duty to negotiate: federalism, existence and operation of the Canadian
democracy, constitutionalism and the rule of constitutional order cannot remain
law, and the protection of minorities. Those indifferent to the clear expression of a clear
principles lead us to reject two absolutist majority of Quebecers that they no longer
propositions. One of those propositions is wish to remain in Canada. This would
that there would be a legal obligation on the amount to the assertion that other
other provinces and federal government to constitutionally recognized principles
accede to the secession of a province, necessarily trump the clearly expressed
subject only to negotiation of the logistical democratic will of the people of Quebec.
details of secession. This proposition is Such a proposition fails to give sufficient
attributed either to the supposed weight to the underlying constitutional
implications of the democratic principle of principles that must inform the amendment
the Constitution, or to the international law process, including the principles of
principle of self-determination of peoples. democracy and federalism. The rights of
other provinces and the federal government
91 For both theoretical and practical cannot deny the right of the government of
reasons, we cannot accept this view. We Quebec to pursue secession, should a clear
hold that Quebec could not purport to majority of the people of Quebec choose
invoke a right of self-determination such as that goal, so long as in doing so, Quebec
to dictate the terms of a proposed secession respects the rights of others. Negotiations
to the other parties: that would not be a would be necessary to address the interests
negotiation at all. As well, it would be naive of the federal government, of Quebec and
to expect that the substantive goal of the other provinces, and other participants,
secession could readily be distinguished as well as the rights of all Canadians both
from the practical details of secession. The within and outside Quebec.
devil would be in the details. The democracy
principle, as we have emphasized, cannot be 93 Is the rejection of both of these
invoked to trump the principles of propositions reconcilable? Yes, once it is
federalism and rule of law, the rights of realized that none of the rights or principles
individuals and minorities, or the operation under discussion is absolute to the exclusion
of democracy in the other provinces or in of the others. This observation suggests that
Canada as a whole. No negotiations could be other parties cannot exercise their rights in
effective if their ultimate outcome, such a way as to amount to an absolute
secession, is cast as an absolute legal denial of Quebec's rights, and similarly, that
entitlement based upon an obligation to give so long as Quebec exercises its rights while
effect to that act of secession in the respecting the rights of others, it may
Constitution. Such a foregone conclusion propose secession and seek to achieve it
would actually undermine the obligation to through negotiation. The negotiation process
negotiate and render it hollow. precipitated by a decision of a clear majority
of the population of Quebec on a clear
question to pursue secession would require high level of integration in economic,
the reconciliation of various rights and political and social institutions across
obligations by the representatives of two Canada. The vision of those who brought
legitimate majorities, namely, the clear about Confederation was to create a unified
majority of the population of Quebec, and country, not a loose alliance of autonomous
the clear majority of Canada as a whole, provinces. Accordingly, while there are
whatever that may be. There can be no regional economic interests, which
suggestion that either of these majorities sometimes coincide with provincial
"trumps" the other. A political majority that boundaries, there are also national interests
does not act in accordance with the and enterprises (both public and private) that
underlying constitutional principles we have would face potential dismemberment. There
identified puts at risk the legitimacy of the is a national economy and a national debt.
exercise of its rights. Arguments were raised before us regarding
boundary issues. There are linguistic and
94 In such circumstances, the conduct of cultural minorities, including aboriginal
the parties assumes primary constitutional peoples, unevenly distributed across the
significance. The negotiation process must country who look to the Constitution of
be conducted with an eye to the Canada for the protection of their rights. Of
constitutional principles we have outlined, course, secession would give rise to many
which must inform the actions of all the issues of great complexity and difficulty.
participants in the negotiation process. These would have to be resolved within the
overall framework of the rule of law,
95 Refusal of a party to conduct thereby assuring Canadians resident in
negotiations in a manner consistent with Quebec and elsewhere a measure of stability
constitutional principles and values would in what would likely be a period of
seriously put at risk the legitimacy of that considerable upheaval and uncertainty.
party's assertion of its rights, and perhaps Nobody seriously suggests that our national
the negotiation process as a whole. Those existence, seamless in so many aspects,
who quite legitimately insist upon the could be effortlessly separated along what
importance of upholding the rule of law are now the provincial boundaries of
cannot at the same time be oblivious to the Quebec. As the Attorney General of
need to act in conformity with constitutional Saskatchewan put it in his oral submission:
principles and values, and so do their part to
contribute to the maintenance and promotion A nation is built when the communities
of an environment in which the rule of law that comprise it make commitments to it,
may flourish. when they forego choices and opportunities
on behalf of a nation, . . . when the
96 No one can predict the course that such communities that comprise it make
negotiations might take. The possibility that compromises, when they offer each other
they might not lead to an agreement guarantees, when they make transfers and
amongst the parties must be recognized. perhaps most pointedly, when they receive
Negotiations following a referendum vote in from others the benefits of national
favour of seeking secession would solidarity. The threads of a thousand acts of
inevitably address a wide range of issues, accommodation are the fabric of a nation. . .
many of great import. After 131 years of .
Confederation, there exists, inevitably, a
97 In the circumstances, negotiations In Operation Dismantle, supra, at p. 459,
following such a referendum would it was pointed out that justiciability is a
undoubtedly be difficult. While the "doctrine . . . founded upon a concern with
negotiators would have to contemplate the the appropriate role of the courts as the
possibility of secession, there would be no forum for the resolution of different types of
absolute legal entitlement to it and no disputes". An analogous doctrine of judicial
assumption that an agreement reconciling all restraint operates here. Also, as observed in
relevant rights and obligations would Canada (Auditor General) v. Canada
actually be reached. It is foreseeable that (Minister of Energy, Mines and Resources),
even negotiations carried out in conformity 1989 CanLII 73 (S.C.C.), [1989] 2 S.C.R. 49
with the underlying constitutional principles (the Auditor General's case), at p. 91:
could reach an impasse. We need not
speculate here as to what would then There is an array of issues which calls for
transpire. Under the Constitution, secession the exercise of judicial judgment on whether
requires that an amendment be negotiated. the questions are properly cognizable by the
courts. Ultimately, such judgment depends
98 The respective roles of the courts and on the appreciation by the judiciary of its
political actors in discharging the own position in the constitutional scheme.
constitutional obligations we have identified
follows ineluctably from the foregoing 100 The role of the Court in this
observations. In the Patriation Reference, a Reference is limited to the identification of
distinction was drawn between the law of the relevant aspects of the Constitution in
the Constitution, which, generally speaking, their broadest sense. We have interpreted the
will be enforced by the courts, and other questions as relating to the constitutional
constitutional rules, such as the conventions framework within which political decisions
of the Constitution, which carry only may ultimately be made. Within that
political sanctions. It is also the case, framework, the workings of the political
however, that judicial intervention, even in process are complex and can only be
relation to the law of the Constitution, is resolved by means of political judgments
subject to the Court's appreciation of its and evaluations. The Court has no
proper role in the constitutional scheme. supervisory role over the political aspects of
constitutional negotiations. Equally, the
99 The notion of justiciability is, as we initial impetus for negotiation, namely a
earlier pointed out in dealing with the clear majority on a clear question in favour
preliminary objection, linked to the notion of secession, is subject only to political
of appropriate judicial restraint. We earlier evaluation, and properly so. A right and a
made reference to the discussion of corresponding duty to negotiate secession
justiciability in Reference re Canada cannot be built on an alleged expression of
Assistance Plan, supra, at p. 545: democratic will if the expression of
democratic will is itself fraught with
In exercising its discretion whether to ambiguities. Only the political actors would
determine a matter that is alleged to be non- have the information and expertise to make
justiciable, the Court's primary concern is to the appropriate judgment as to the point at
retain its proper role within the which, and the circumstances in which,
constitutional framework of our democratic those ambiguities are resolved one way or
form of government. the other.
101 If the circumstances giving rise to the the workings of the political process rather
duty to negotiate were to arise, the than the courts.
distinction between the strong defence of
legitimate interests and the taking of 103 To the extent that a breach of the
positions which, in fact, ignore the constitutional duty to negotiate in
legitimate interests of others is one that also accordance with the principles described
defies legal analysis. The Court would not above undermines the legitimacy of a party's
have access to all of the information actions, it may have important ramifications
available to the political actors, and the at the international level. Thus, a failure of
methods appropriate for the search for truth the duty to undertake negotiations and
in a court of law are ill-suited to getting to pursue them according to constitutional
the bottom of constitutional negotiations. To principles may undermine that government's
the extent that the questions are political in claim to legitimacy which is generally a
nature, it is not the role of the judiciary to precondition for recognition by the
interpose its own views on the different international community. Conversely,
negotiating positions of the parties, even violations of those principles by the federal
were it invited to do so. Rather, it is the or other provincial governments responding
obligation of the elected representatives to to the request for secession may undermine
give concrete form to the discharge of their their legitimacy. Thus, a Quebec that had
constitutional obligations which only they negotiated in conformity with constitutional
and their electors can ultimately assess. The principles and values in the face of
reconciliation of the various legitimate unreasonable intransigence on the part of
constitutional interests outlined above is other participants at the federal or provincial
necessarily committed to the political rather level would be more likely to be recognized
than the judicial realm, precisely because than a Quebec which did not itself act
that reconciliation can only be achieved according to constitutional principles in the
through the give and take of the negotiation negotiation process. Both the legality of the
process. Having established the legal acts of the parties to the negotiation process
framework, it would be for the under Canadian law, and the perceived
democratically elected leadership of the legitimacy of such action, would be
various participants to resolve their important considerations in the recognition
differences. process. In this way, the adherence of the
parties to the obligation to negotiate would
102 The non-justiciability of political be evaluated in an indirect manner on the
issues that lack a legal component does not international plane.
deprive the surrounding constitutional
framework of its binding status, nor does 104 Accordingly, the secession of Quebec
this mean that constitutional obligations from Canada cannot be accomplished by the
could be breached without incurring serious National Assembly, the legislature or
legal repercussions. Where there are legal government of Quebec unilaterally, that is to
rights there are remedies, but as we say, without principled negotiations, and be
explained in the Auditor General's case, considered a lawful act. Any attempt to
supra, at p. 90, and New Brunswick effect the secession of a province from
Broadcasting, supra, the appropriate Canada must be undertaken pursuant to the
recourse in some circumstances lies through Constitution of Canada, or else violate the
Canadian legal order. However, the
continued existence and operation of the identical. A right is recognized in law: mere
Canadian constitutional order cannot remain physical ability is not necessarily given
unaffected by the unambiguous expression status as a right. The fact that an individual
of a clear majority of Quebecers that they no or group can act in a certain way says
longer wish to remain in Canada. The nothing at all about the legal status or
primary means by which that expression is consequences of the act. A power may be
given effect is the constitutional duty to exercised even in the absence of a right to
negotiate in accordance with the do so, but if it is, then it is exercised without
constitutional principles that we have legal foundation. Our Constitution does not
described herein. In the event secession address powers in this sense. On the
negotiations are initiated, our Constitution, contrary, the Constitution is concerned only
no less than our history, would call on the with the rights and obligations of
participants to work to reconcile the rights, individuals, groups and governments, and
obligations and legitimate aspirations of all the structure of our institutions. It was
Canadians within a framework that suggested before us that the National
emphasizes constitutional responsibilities as Assembly, legislature or government of
much as it does constitutional rights. Quebec could unilaterally effect the
secession of that province from Canada, but
105 It will be noted that Question 1 does it was not suggested that they might do so as
not ask how secession could be achieved in a matter of law: rather, it was contended that
a constitutional manner, but addresses one they simply could do so as a matter of fact.
form of secession only, namely unilateral Although under the Constitution there is no
secession. Although the applicability of right to pursue secession unilaterally, that is
various procedures to achieve lawful secession without principled negotiation,
secession was raised in argument, each this does not rule out the possibility of an
option would require us to assume the unconstitutional declaration of secession
existence of facts that at this stage are leading to a de facto secession. The ultimate
unknown. In accordance with the usual rule success of such a secession would be
of prudence in constitutional cases, we dependent on effective control of a territory
refrain from pronouncing on the and recognition by the international
applicability of any particular constitutional community. The principles governing
procedure to effect secession unless and secession at international law are discussed
until sufficiently clear facts exist to squarely in our answer to Question 2.
raise an issue for judicial determination.
107 In our view, the alleged principle of
(5) Suggested Principle of Effectivity effectivity has no constitutional or legal
status in the sense that it does not provide an
106 In the foregoing discussion we have ex ante explanation or justification for an
not overlooked the principle of effectivity, act. In essence, acceptance of a principle of
which was placed at the forefront in effectivity would be tantamount to accepting
argument before us. For the reasons that that the National Assembly, legislature or
follow, we do not think that the principle of government of Quebec may act without
effectivity has any application to the issues regard to the law, simply because it asserts
raised by Question 1. A distinction must be the power to do so. So viewed, the
drawn between the right of a people to act, suggestion is that the National Assembly,
and their power to do so. They are not legislature or government of Quebec could
purport to secede the province unilaterally than a written text. It embraces the entire
from Canada in disregard of Canadian and global system of rules and principles which
international law. It is further suggested that govern the exercise of constitutional
if the secession bid was successful, a new authority. A superficial reading of selected
legal order would be created in that provisions of the written constitutional
province, which would then be considered enactment, without more, may be
an independent state. misleading. It is necessary to make a more
profound investigation of the underlying
108 Such a proposition is an assertion of principles that animate the whole of our
fact, not a statement of law. It may or may Constitution, including the principles of
not be true; in any event it is irrelevant to the federalism, democracy, constitutionalism
questions of law before us. If, on the other and the rule of law, and respect for
hand, it is put forward as an assertion of law, minorities. Those principles must inform our
then it simply amounts to the contention that overall appreciation of the constitutional
the law may be broken as long as it can be rights and obligations that would come into
broken successfully. Such a notion is play in the event a clear majority of
contrary to the rule of law, and must be Quebecers votes on a clear question in
rejected. favour of secession.

149 The Reference requires us to consider

whether Quebec has a right to unilateral
[OMITTED] secession. Those who support the existence
of such a right found their case primarily on
C. Question 3 the principle of democracy. Democracy,
however, means more than simple majority
In the event of a conflict between rule. As reflected in our constitutional
domestic and international law on the right jurisprudence, democracy exists in the larger
of the National Assembly, legislature or context of other constitutional values such as
government of Quebec to effect the those already mentioned. In the 131 years
secession of Quebec from Canada since Confederation, the people of the
unilaterally, which would take precedence in provinces and territories have created close
Canada? ties of interdependence (economically,
socially, politically and culturally) based on
147 In view of our answers to Questions 1 shared values that include federalism,
and 2, there is no conflict between domestic democracy, constitutionalism and the rule of
and international law to be addressed in the law, and respect for minorities. A
context of this Reference. democratic decision of Quebecers in favour
of secession would put those relationships at
IV. Summary of Conclusions risk. The Constitution vouchsafes order and
stability, and accordingly secession of a
148 province "under the Constitution" could not
As stated at the outset, this Reference has be achieved unilaterally, that is, without
required us to consider momentous principled negotiation with other
questions that go to the heart of our system participants in Confederation within the
of constitutional government. We have existing constitutional framework.
emphasized that the Constitution is more
150 The Constitution is not a straitjacket. respects the rights of others. The
Even a brief review of our constitutional negotiations that followed such a vote would
history demonstrates periods of momentous address the potential act of secession as well
and dramatic change. Our democratic as its possible terms should in fact secession
institutions necessarily accommodate a proceed. There would be no conclusions
continuous process of discussion and predetermined by law on any issue.
evolution, which is reflected in the Negotiations would need to address the
constitutional right of each participant in the interests of the other provinces, the federal
federation to initiate constitutional change. government, Quebec and indeed the rights
This right implies a reciprocal duty on the of all Canadians both within and outside
other participants to engage in discussions to Quebec, and specifically the rights of
address any legitimate initiative to change minorities. No one suggests that it would be
the constitutional order. While it is true that an easy set of negotiations.
some attempts at constitutional amendment
in recent years have faltered, a clear 152 The negotiation process would
majority vote in Quebec on a clear question require the reconciliation of various rights
in favour of secession would confer and obligations by negotiation between two
democratic legitimacy on the secession legitimate majorities, namely, the majority
initiative which all of the other participants of the population of Quebec, and that of
in Confederation would have to recognize. Canada as a whole. A political majority at
either level that does not act in accordance
151 Quebec could not, despite a clear with the underlying constitutional principles
referendum result, purport to invoke a right we have mentioned puts at risk the
of self-determination to dictate the terms of legitimacy of its exercise of its rights, and
a proposed secession to the other parties to the ultimate acceptance of the result by the
the federation. The democratic vote, by international community.
however strong a majority, would have no
legal effect on its own and could not push 153 The task of the Court has been to
aside the principles of federalism and the clarify the legal framework within which
rule of law, the rights of individuals and political decisions are to be taken "under the
minorities, or the operation of democracy in Constitution", not to usurp the prerogatives
the other provinces or in Canada as a whole. of the political forces that operate within
Democratic rights under the Constitution that framework. The obligations we have
cannot be divorced from constitutional identified are binding obligations under the
obligations. Nor, however, can the reverse Constitution of Canada. However, it will be
proposition be accepted. The continued for the political actors to determine what
existence and operation of the Canadian constitutes "a clear majority on a clear
constitutional order could not be indifferent question" in the circumstances under which
to a clear expression of a clear majority of a future referendum vote may be taken.
Quebecers that they no longer wish to Equally, in the event of demonstrated
remain in Canada. The other provinces and majority support for Quebec secession, the
the federal government would have no basis content and process of the negotiations will
to deny the right of the government of be for the political actors to settle. The
Quebec to pursue secession, should a clear reconciliation of the various legitimate
majority of the people of Quebec choose constitutional interests is necessarily
that goal, so long as in doing so, Quebec committed to the political rather than the
judicial realm precisely because that meet the threshold of a colonial people or an
reconciliation can only be achieved through oppressed people, nor can it be suggested
the give and take of political negotiations. that Quebecers have been denied meaningful
To the extent issues addressed in the course access to government to pursue their
of negotiation are political, the courts, political, economic, cultural and social
appreciating their proper role in the development. In the circumstances, the
constitutional scheme, would have no National Assembly, the legislature or the
supervisory role. government of Quebec do not enjoy a right
at international law to effect the secession of
154 We have also considered whether a Quebec from Canada unilaterally.
positive legal entitlement to secession exists
under international law in the factual 155 Although there is no right, under the
circumstances contemplated by Question 1, Constitution or at international law, to
i.e., a clear democratic expression of support unilateral secession, that is secession
on a clear question for Quebec secession. without negotiation on the basis just
Some of those who supported an affirmative discussed, this does not rule out the
answer to this question did so on the basis of possibility of an unconstitutional declaration
the recognized right to self-determination of secession leading to a de facto secession.
that belongs to all "peoples". Although The ultimate success of such a secession
much of the Quebec population certainly would be dependent on recognition by the
shares many of the characteristics of a international community, which is likely to
people, it is not necessary to decide the consider the legality and legitimacy of
"people" issue because, whatever may be the secession having regard to, amongst other
correct determination of this issue in the facts, the conduct of Quebec and Canada, in
context of Quebec, a right to secession only determining whether to grant or withhold
arises under the principle of self- recognition. Such recognition, even if
determination of peoples at international law granted, would not, however, provide any
where "a people" is governed as part of a retroactive justification for the act of
colonial empire; where "a people" is subject secession, either under the Constitution of
to alien subjugation, domination or Canada or at international law.
exploitation; and possibly where "a people"
is denied any meaningful exercise of its 156 The reference questions are answered
right to self-determination within the state of accordingly.
which it forms a part. In other
circumstances, peoples are expected to
achieve self-determination within the
framework of their existing state. 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 internal
arrangements, is entitled to maintain its
territorial integrity under international law
and to have that territorial integrity
recognized by other states. Quebec does not