Quebec cannot secede from Canada unilaterally; however, a clear vote on a clear question to secede in a referendum should lead to negotiations between Quebec and the rest of Canada for secession. However, above all, secession would require a constitutional amendment.
Following the election of a majority of Parti Québécois (PQ) Members of the National Assembly (MNAs) with 41.37% of the popular vote in the 1976 provincial election, the party formed a government and, in 1980, held a referendum. The government of Quebec asked the province's population if it should seek a mandate to negotiate sovereignty for Quebec coupled with the establishment of a new political and economic union with Canada. The referendum resulted in the defeat of the sovereignty option with 59.56% voting no on sovereignty. The PQ was nevertheless re-elected in 1981, this time promising not to hold a referendum.
In 1982, the federal government petitioned the Parliament of the United Kingdom in London to amend Canada's constitution so that in the future, all further amendments would take place by means of a process of consent involving only the Parliament of Canada and the legislatures of the provinces (several provinces objected). Up until this point, all amendments had taken place by means of Acts of the Parliament at Westminster, since the Canadian constitution was, strictly speaking, a simple statute of that Parliament.
Colloquially, the switch to a domestic amendment procedure was known as patriation. The particular formula for amendments that was adopted in 1982 was opposed by the then-government of Quebec, which also opposed the adoption of other constitutional changes made at the same time, such as the Canadian Charter of Rights and Freedoms—although this opposition was not necessarily based on a rejection of the content of these changes, as opposed to the manner of their adoption, and the failure to include amendments specific to Quebec in the package. Also, Quebec had already at that time a more complete Charter that was adopted in 1975.
Two further attempts were made at amending the Canadian constitution in 1987-1990 and 1992 in a manner that, it was hoped, would have caused the Quebec legislature to adopt a motion supporting the revised constitution. These failed packages of constitutional reforms were known as the Meech Lake Accord and the Charlottetown Accord. Thus, in the mid-1990s, there was a widespread sense that the Constitution of Canada was not fully legitimate, because it had not yet received the formal approval of Quebec.
In 1994, the Parti Québécois was re-elected and announced that it would be initiating a second referendum to take place in 1995. This time, the question was on sovereignty with an optional partnership with Canada. The "no" side won by only a narrow margin. Prior to this referendum, the National Assembly of Quebec adopted a bill relating to the future of Quebec which laid out the Quebec's plan for secession in case of a winning referendum.
In response to the bill and the referendum result, several legal actions were initiated by opponents to the independence of Quebec, questioning the legality of secession. In 1996, Parti Québécois leader Lucien Bouchard announced that his government would make plans to hold another referendum when he was confident that the "winning conditions" were there, pointing to the political cost of losing a third referendum. In reaction to Bouchard's stated plans, Prime Minister Jean Chrétien initiated a reference to answer the legality of a unilateral declaration of independence from a Canadian province.
The Governor in Council (effectively, the Cabinet of Canada) submitted the request for an advisory opinion on the following three specific questions:
Does international law give the National Assembly, legislature, or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature, or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
In the event of a conflict between domestic and international law on the right of the National Assembly, legislature, or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?
There were an unprecedented 15 interveners. However, the Quebec government refused to take part and was not represented. In its place the Court appointed André Jolicoeur as an amicus curiae to argue for the sovereigntist side.
The federal government's submission argued that the only way a province could secede from Canada would be through a constitutional amendment. Only an amendment through section 45 would allow for unilateral amendments. However, that section does not apply here. To attempt to secede unilaterally would violate the constitution on two grounds. First, it would violate the rule of law by ignoring the authority of the constitution as supreme law of the country, and second, it would violate Canadian federalism by acting with powers only allocated to the federal government.
The amicus curiae's submission argued several points. First, they argued that the reference was invalid; the question is purely a political one and thus is outside the authority of the Court to answer under section 52 of the Supreme Court Act. They attempted to analogize the use of the US political question doctrine to the Canadian constitution. Furthermore, the question is speculative and premature as there are no substantive facts at question. Second, they focused on the second question, claiming that the ability to separate comes from international law. They argued that the "peoples of Quebec" had a right to self-determination under the Charter of the United Nations and thus can secede given the consent of a majority of the Quebec peoples. They further claimed that since there is no international law barring separation then by convention there must be an implied right to do so. Their primary argument was that the doctrine of effectivity gave them authority to secede. That is, recognition of a new state by other countries would validate the separation. They further claimed that the doctrine of effectivity is part of the constitutional convention through its practice in other parts of the commonwealth.
Several aboriginal interveners submitted facta on their right to stay in Canada based on aboriginal treaties and their right to self-determination, further noting that they have already held two referendums where they decided against the separation of the aboriginal peoples from Canada. Their factum attacked the Attorney General's factum on the basis that they completely ignored the role of the aboriginal people within the constitution.
Right to secede under Canadian law
The court addressed the three questions in order. First, they stated that under the Canadian Constitution (and with Quebec being a party to it since its inception), unilateral secession was not legal. However, should a referendum decide in favour of independence, the rest of Canada "would have no basis to deny the right of the government of Quebec to pursue secession." Negotiations would have to follow to define the terms under which Quebec would gain independence, should it maintain that goal. In this section of the judgement they stated that the Constitution is made up of written and unwritten principles (based on text, historical context, and previous constitutional jurisprudence) and that there are four fundamental tenets of the Canadian constitution. Those 4 interrelated and equally important principles or values are:
Federalism – the principle that seeks to “reconcile diversity with unity” by giving federal authority over only those issues of common interest amongst culturally diverse and politically independent provinces. The purpose of Canada’s federalism is not only to create a loose association amongst provinces, but a true national unity.
Democracy – the principle that seeks to promote participation in effective representative self-government, which respects and responds to all voices in a marketplace of ideas.
Constitutionalism and the Rule of Law – the principles that protect citizens from state actions by forcing governments to act under the rule of law, the constitution of Canada being the supreme law. The constitution’s entrenched protections of minorities ensures that the country does not operate simply on majority rule, and enables a true democracy in which minority voices are fairly considered.
Protection of Minorities – the principle that guides the other principles, but one which is also independent and fundamental because of its uniqueness to Canada relative to other federal, constitutional democracies.
They held that these pieces cannot be viewed independently but all interact as part of the Constitutional framework of Canada.
Rights to secede under international law and self-determination
The answer to the second question, which concerned Quebec's right under international law to secede, gave the opinion that the international law on secession was not applicable to the situation of Quebec. The court pointed out that international law "does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their 'parent' state."
The Supreme Court of Canada's opinion stated that the right of a people to self-determination was expected to be exercised within the framework of existing states, by negotiation, for example. Such a right could only be exercised unilaterally under certain circumstances, under current international law. The court held that:
The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states.
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 own internal arrangements, is entitled to the protection under international law of its territorial integrity.
The court stated in its opinion that under international law, the right to secede was meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally.
For close to 40 of the last 50 years, the Prime Minister of Canada has been a Quebecer. During this period, Quebecers have held from time to time all the most important positions in the federal Cabinet. During the 8 years prior to June 1997, the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of the United Nations, are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad.
The Supreme Court further stated that: Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole.
Which law applies in Canada?
Since the court saw no conflict between Canadian law and International law on the question (neither would allow Quebec to secede unilaterally), it considered it unnecessary to answer the question.
Reaction of Quebec
The Quebec government of Lucien Bouchard stated that it was very pleased with the opinion of the Supreme Court. Premier Bouchard stated publicly that the court had validated the referendum strategy that the sovereigntists had adopted with René Lévesque. Quebec was most satisfied when the court made it clear that the question of Quebec's political status was above all a political question, and not a legal one. It also liked the fact that the Supreme Court made it clear that the government of Canada and that of the other provinces would have to negotiate after a winning referendum on secession. This would make a unilateral declaration of independence unnecessary.
Reaction of the federal government
The Canadian government of Jean Chrétien stated that it was pleased with the court's opinion. The Supreme Court had made it clear that Quebec could not declare independence unilaterally. Any obligation of Canada to negotiate with Quebec was conditional on the sovereigntists' asking a clear question within the context of a referendum. The government of Canada subsequently drafted the Clarity Act, which Parliament then enacted.