The Secession Reference and the Limits of Law

When the Supreme Court of Canada issued its judgment on the legality of unilateral Quebec secession in August 1998 many Canadians did not know what to make of it. The Court held that the only lawful way in which Quebec might depart the Canadian federation was through one of the amendment mechanisms provided in the Constitution Act 1982. It thus affirmed that Quebec could not secede without the agreement of at least the Houses of the federal Parliament and some number of provincial legislative assemblies. Prime Minister Chretien declared the next day that the judgement was a victory for all Canadians. The court also held, however, that upon a sufficient expression of popular sentiment for separation in Quebec the government of the province had a right . . . to pursue secession. In that case the federal government and other provinces were obliged to enter into honest negotiations to attempt to satisfy the desire for secession. Thus Premier Bouchard, on the same day, confidently announced that the Court had shake[n] the very foundations of federalist strategy. No wonder one of the of the most common adjectives applied to the decision was solomonic. My purpose in this paper is to consider the best way to characterize what the Supreme Court did in the Secession Reference. The immediate importance of the Court\u27s judgment has perhaps receded as the intensity of separatist sentiment in Quebec has diminished. But, in a country whose underlying constitutional premises continue to be unsettled, it remains a critical artifact in any attempt to forecast the constitutional future. More generally, it illustrates an unusual but not unique phenomenon - the intervention of courts of law in the resolution of disputes concerning the very presuppositions of the legal and political system of which they form a part