Reference re Secession of Quebec

After the 1995 referendum, the federal government referred the legality of unilateral Quebec secession to the SCC. The Court held secession requires constitutional amendment, but acknowledged that a clear democratic mandate would impose a constitutional duty on the rest of Canada to negotiate.

The Governor in Council referred three questions to the SCC: (1) Can the National Assembly, legislature or government of Quebec unilaterally secede under Canadian law? (2) Can it do so under international law? (3) If conflict between domestic and international law, which prevails?

As above.

(1) No unilateral secession under Canadian law. (2) No right under international law (no people in colonial subjugation or denial of internal self-determination). (3) No conflict.

The Constitution rests on four foundational principles operating in symbiosis: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. A clear majority on a clear question would create a reciprocal duty on all parties to the federation to negotiate constitutional change. Negotiation does not, however, dictate the outcome — secession would still require constitutional amendment.

The Court declined to define what counts as a "clear question" or "clear majority" — those are political determinations. But the principles of democracy and federalism mean a clear democratic expression cannot simply be ignored. Conversely, the constitutionalism and rule-of-law principles preclude unilateral action. International law gives no general right of secession to peoples within liberal democratic states.

One of the most cited references in Canadian constitutional history. Identifies the four unwritten constitutional principles. Influences global constitutional theory of secession (cited in Catalonia, Scotland debates). Led directly to the federal Clarity Act 2000.

Reference re Secession of Quebec, [1998] 2 SCR 217, 1998 CanLII 793 (SCC).

Lamer CJ, L'Heureux-Dubé J, Gonthier J, Cory J, McLachlin J, Iacobucci J, Major J, Bastarache J, Binnie J