Is the Supreme Court's Secession Reference Still Relevant?

The media has been talking a lot about secession lately, with an organized separatist movement in Alberta (albeit with support that looks increasingly weak), and the spectre of a third Quebec vote possibly on the horizon (although support for independence remains relatively weak in Quebec as well, and the idea of another referendum even less popular).

If the last few years have taught us anything, we shouldn’t take stability and calm for granted. It is therefore important to think hard about the circumstances around a provincial referendum on secession and how it could play out under the Constitution of Canada. The Supreme Court’s famed opinion in the 1998 Quebec Secession Reference remains the central judicial authority on the topic, so it’s important to understand what the Court actually said. But given the landmark decision is also nearly 30 years old, it’s also important to think about whether aspects of the Court’s thinking require an update.

What the Secession Reference Says

In the aftermath of the razor-thin 1995 Quebec referendum results, the Court was handed a political hand grenade. Part of a two-track strategy of the federal government to confront Quebec sovereignty (Track A: play nice, allow for asymmetry and further decentralization to accommodate Quebec within Confederation; Track B: play tough, outline consequences of secession and ensure clarity on rules), the reference posed to the Court asked whether Quebec could lawfully engage in unilateral secession.

The relatively easy answer to the question - a clear ‘no’ - posed a challenge for the Court. It was axiomatic that a province could not unilaterally secede; after all, the Constitution has an amending formula requiring the approval of the two houses of Parliament and most provinces for most major changes, and indeed of all provinces for some changes. And the secession of a province would surely trip many matters requiring those thresholds. But if the Court simply pointed to the amending formula and left it at that, it risked inviting the perception that the Constitution was simply a straitjacket. Worse still, the Court’s legitimacy in the eyes of many Quebecers might suffer.

So the Court made only the briefest of mentions of the actual rules of amendment. Instead, it sailed into a discussion of ‘unwritten constitutional principles’ in order to declare (invent) a new constitutional obligation: in the event of a ‘clear majority’ answering a ‘clear question’ on secession, the rest of Canada would have a “duty to negotiate”.

As a legal decision, the Court’s Secession Reference opinion is dubious. As I have written in my scholarly work, it amounts to a judicial amendment of the Constitution. Via a discussion of a specific set of principles - democracy, federalism, constitutionalism and the rule of law, and minority rights - the Court transforms what is really an issue of political legitimacy into a legal obligation.

But as a political essay, the Court’s opinion is widely regarded as a masterstroke. By giving something that would satiate, at least somewhat, both sides of the sovereignty divide, its effect was to calm things down. The Court also did a lot to get itself off the hook in the future. While articulating the duty to negotiate as a constitutional obligation, it makes it quite clear that all aspects of those negotiations are effectively non-justiciable. Even the determination of whether a “clear majority” was established, which the Court describes as a ‘qualitative’ matter (at para. 87) or whether there was a “clear question,” is left entirely to the political process.

Moreover, the Court is quite clear that negotiations may not necessarily result in secession. It simply emphasized that both sides must respect the constitutional principles at stake - principles which inform each other and which do not trump each other. In other words, Quebec cannot rely on a simple claim of majoritarian democracy to assert independence, it must grapple with the other, legitimate, majority view of the rest of Canada, as well as the Constitution and rule of law, and indeed, the rights of minorities (in particular its Indigenous population). Similarly, Canada cannot simply ignore a referendum outcome, it must recognize a repudiation of the constitutional order by the people of Quebec, within the context in which federalism operates to provide them a voice.

The Court is clear-eyed that secession implicates a host of economic, political, and social realities, and that matters of debate include issues ranging from divvying up the national debt to provincial boundaries, (para. 96) none of which courts are well equipped to deal with or supervise. In short, aside from a duty to negotiate, everything else is left entirely to the political process. And that process may end in a stalemate.

Does the Secession Reference Even Apply to Alberta?

It might be worth asking whether the particularities of Quebec informed the Secession Reference to such an extent that the Court’s reasoning applies only to that province. For example, in enunciating the principle of federalism, the Court emphasizes the extent to which federalism “facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture.” (at para. 59).

Indeed, the existence of the predominately French population in the former colony of Lower Canada is why Canada has federalism in the first place. By contrast, Alberta was carved out of the Northwest Territories, a creation of an Act of the federal Parliament in 1905. While each province, Alberta included, can claim a distinct political culture, Albertans are simply not ‘a people’ or a nationality in the sociological sense the way the francophone majority in Quebec are. One might be able to craft an argument from history and even from the application of the Court’s unwritten principles that an Alberta secession is simply a non starter.

Yet that is certainly not what the Court says. Too many other passages of the Court’s opinion make it clear that its analysis applies to any province, not only Quebec. A ‘clear repudiation’ of the constitutional order by Albertans should be seen as spurring the same invented duty to negotiate as would exist in the Quebec context.

Is the Secession Reference dated? Yep.

While the Court’s core findings - that a province cannot effect unilateral secession, and that there is a duty to negotiate under conditions where a clear majority supports a clear question on secession - remain in tact, there is one key aspect of the Court’s 1998 opinion that would likely look dramatically different if the decision were rendered today.

Although the 1998 Court explicitly acknowledged that “aboriginal interests” must be taken into account in the context of any future negotiations, it decided it was unnecessary to delve deeply into questions concerning Indigenous rights or “the appropriate means of defining the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by aboriginal people” (at para. 139).

A Secession opinion written today would almost certainly require the elaboration of an additional unwritten constitutional principle: the honour of the Crown. It would also necessitate a much deeper discussion of the historic and modern treaties, and of Aboriginal title, to go along with the story of Confederation the Court outlines at the start of its 1998 opinion. As Canada moves to implement the TRC report, as well as the principles of the United Nations Declaration of the Rights of Indigenous Peoples, it becomes clear the landscape on reconciliation, and its implications for the constitution, has changed dramatically since the Court issued its Secession Reference opinion.

The principle of the honour of the Crown was not fully cemented in Canadian constitutional jurisprudence until six years after the Secession Reference, in the 2004 Haida Nation case. The honour of the Crown requires the Crown to act fairly and with integrity in its relationship with Indigenous peoples. It is the principle that undergirds the duty to consult and accommodate in the context of protecting Aboriginal and treaty rights under section 35 of the Constitution Act, 1982. The honour of the Crown also gives rise to the Crown’s fiduciary duty to protect Indigenous interests and indeed to act in the best interests of Indigenous peoples, stemming from the Crown’s control and management of lands, resources, and governance matters.

The existence of historical and modern treaties, and the Court’s recognition and first specific application of Aboriginal title in 2014 also weigh heavily on the implications of provincial secession where First Nations, Metis, or Inuit peoples stand in opposition. Although the Supreme Court has yet to affirm an inherent right of self government under section 35, the relevant jurisprudence has increasingly moved in a direction that aims to reconciles the Crown’s assertion of sovereignty with the pre-existing sovereignties of Indigenous peoples.

In short, if undertaken properly, an analysis of the honour of the Crown in the context of secession would have profound implications for the overall conclusions the Court drew in 1998. It would become increasingly difficult to see secession as a valid constitutional option under the Constitution of Canada - even in contexts where negotiations among the colonial governments came to an agreement - where Indigenous communities living on that land stood in opposition. At the very least it would mean provincial secession that would leave a former province with its existing borders fully intact is virtually impossible.

This is, assuming, a court engaged in an analysis of the relevant constitutional principles in a manner consistent with how they were applied in the 1998 reference: as objects with full legal effect, capable of modulating or adding to the rules of amendment, just as the discovery of the duty to negotiate did. Indeed, in some ways the honour of the Crown, as a sui generis (unique) principle, may be more powerful than the other unwritten principles of the constitution. In its recent decision declaring that unwritten principles could not be relied upon independently to invalidate legislation, the Court’s majority singled out the honour of the Crown as a possible exception to its reasons.

On this basis, we should read the 1998 Secession Reference as of continuing relevance, but arguably with the duty to negotiate augmented by the honour of the Crown: that Indigenous peoples must be a part of any negotiations, and that secession is simply impermissible where they do not consent.