Academic journal article British Journal of Canadian Studies

Secession and Constitutional Principles: Working with the Supreme Court's Statement of Principles

Academic journal article British Journal of Canadian Studies

Secession and Constitutional Principles: Working with the Supreme Court's Statement of Principles

Article excerpt

In the 1990s the Canadian Supreme Court was presented with the daunting challenge of assessing the legality of unilateral secession. It produced a ruling with the well-known conclusion that in the event of a clear expression of democratic will to secede, there was a duty on the part of all concerned to negotiate. There has been much debate about the idea of a duty to negotiate. Another aspect of the judicial decision that merits attention was the court's reliance on four principles (federalism, democracy, legitimacy and the rule of law, and respect for minorities) and their depiction of these principles. This essay reviews how the judiciary framed these principles and analyses the strengths and weaknesses of their conceptualisation. While the court's decision was a landmark in constitutional debates, the conceptual treatment of individual principles merits renewed attention, and various issues (such as the treatment of aboriginal peoples) warrant further reflection.

EIGHT YEARS HAVE PASSED since the Canadian Supreme Court passed judgement in the case of the Reference Re: The Secession of Quebec (1998), but debate and re-examination continue. Canadian and international commentators have joined in the discussion, and the constitutional stakes remain high. As Peter Russell has recently pointed out, 'In going where no high court in a constitutional democracy has gone before - namely to the legal rules governing secession - it was also a landmark decision for worldwide constitutionalism' (Russell 2004: 245). Canadian Chief Justice Beverley McLachlin spoke of the escalating debate over judicial recourse to specifying and drawing upon fundamental constitutional principles in her December 2005 Lord Cook Lecture in Wellington, New Zealand. She recognised that 'the subject has engaged judges, parliamentarians and academics in countries as far flung as Israel, Australia and the United States. It has been debated both in countries that have written constitutions and those that do not' (p. 1). The Chief Justice used this prestigious speaking opportunity to make a secular natural law case for recourse to these principles even when they may be seemingly unstated in formal constitutional documents.

In resolving the issues before it in the secession reference, the court worked from four identified constitutional principles (federalism, democracy, constitutionalism and the rule of law, and protection of minorities) and declared there to be a duty to negotiate secession in the event of a clear and democratically-expressed desire to pursue it. The federal government of Jean Chrétien followed this up with the Clarity Act, designed to set out the institutional framework for recognising an appropriate expression of democratic intent, and, as expected, federal- provincial discussion ensued.

Debate over the judgement and its implications continues to reveal a diversity of opinion. The majority position is that the court responded constructively and thoughtfully to a highly-charged set of questions from the Chrétien government. No less an authority than Robert Young has deemed the decision 'masterful' (Young 2004: 42). He has argued that the thoughtfulness of the decision contributed to marginalising extremists from both sides. Similarly, Ken McRoberts concludes that 'the decision largely defused the confrontation that had emerged between public opinion in Quebec and in the rest of Canada over Quebec's right to sovereignty' (McRoberts 2004: 421) Alternative perspectives are readily apparent though. In a widely-assigned introductory Canadian politics text, Robert and Doreen Jackson challenge the judicial determination of duty to negotiate, and declare that 'The judges' hasty and ill-considered decision may one day do more harm than good for the unity of Canada' (Jackson and Jackson 2001: 248). A more moderate line of questioning suggests that the court has made the potential task of the federal government more difficult by clearly specifying the negotiation requirement. …

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