Reference re Secession of Quebec

Reference re Secession of Quebec
Collection
Supreme Court Judgments
Date
1998-08-20
Report
[1998] 2 SCR 217
Case number
25506
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Canada
Subjects
Constitutional law
Courts
International law
Notes
SCC Case Information: 25506
Decision Content
Reference re Secession of Quebec, [1998] 2 S.C.R. 217
IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C., 1985, c. S-26 ;
AND IN THE MATTER OF a Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in Order in Council P.C. 1996-1497, dated the 30th day of September, 1996
Indexed as: Reference re Secession of Quebec
File No.: 25506.
1998: February 16, 17, 18, 19; 1998: August 20.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
reference by governor in council
Constitutional law ‑‑ Supreme Court of Canada ‑‑ Reference jurisdiction ‑‑ Whether Supreme Court's reference jurisdiction constitutional ‑‑ Constitution Act, 1867, s. 101 ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 53 .
Courts ‑‑ Supreme Court of Canada ‑‑ Reference jurisdiction ‑‑ Governor in Council referring to Supreme Court three questions relating to secession of Quebec from Canada ‑‑ Whether questions submitted fall outside scope of reference provision of Supreme Court Act ‑‑ Whether questions submitted justiciable ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 53 .
Constitutional law ‑‑ Secession of province ‑‑ Unilateral secession ‑‑ Whether Quebec can secede unilaterally from Canada under Constitution.
International law ‑‑ Secession of province of Canadian federation ‑‑ Right of self‑determination ‑‑ Effectivity principle ‑‑ Whether international law gives Quebec right to secede unilaterally from Canada.
Pursuant to s. 53 of the Supreme Court Act , the Governor in Council referred the following questions to this Court:
1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
2. 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?
3. 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?
Issues regarding the Court's reference jurisdiction were raised by the amicus curiae. He argued that s. 53 of the Supreme Court Act was unconstitutional; that, even if the Court's reference jurisdiction was constitutionally valid, the questions submitted were outside the scope of s. 53 ; and, finally, that these questions were not justiciable.
Held: Section 53 of the Supreme Court Act is constitutional and the Court should answer the reference questions.
(1) Supreme Court's Reference Jurisdiction
Section 101 of the Constitution Act, 1867 gives Parliament the authority to grant this Court the reference jurisdiction provided for in s. 53 of the Supreme Court Act . The words "general court of appeal" in s. 101 denote the status of the Court within the national court structure and should not be taken as a restrictive definition of the Court's functions. While, in most instances, this Court acts as the exclusive ultimate appellate court in the country, an appellate court can receive, on an exceptional basis, original jurisdiction not incompatible with its appellate jurisdiction. Even if there were any conflict between this Court's reference jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in favour of Parliament's exercise of its plenary power to establish a "general court of appeal". A "general court of appeal" may also properly undertake other legal functions, such as the rendering of advisory opinions. There is no constitutional bar to this Court's receipt of jurisdiction to undertake an advisory role.
The reference questions are within the scope of s. 53 of the Supreme Court Act . Question 1 is directed, at least in part, to the interpretation of the Constitution Acts, which are referred to in s. 53(1) (a). Both Questions 1 and 2 fall within s. 53(1) (d), since they relate to the powers of the legislature or government of a Canadian province. Finally, all three questions are "important questions of law or fact concerning any matter" and thus come within s. 53(2) . In answering Question 2, the Court is not exceeding its jurisdiction by purporting to act as an international tribunal. The Court is providing an advisory opinion to the Governor in Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian federation. Further, Question 2 is not beyond the competence of this Court, as a domestic court, because it requires the Court to look at international law rather than domestic law. More importantly, Question 2 does not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations of the legislature or government of Quebec, institutions that exist as part of the Canadian legal order. International law must be addressed since it has been invoked as a consideration in the context of this Reference.
The reference questions are justiciable and should be answered. They do not ask the Court to usurp any democratic decision that the people of Quebec may be called upon to make. The questions, as interpreted by the Court, are strictly limited to aspects of the legal framework in which that democratic decision is to be taken. Since the reference questions may clearly be interpreted as directed to legal issues, the Court is in a position to answer them. The Court cannot exercise its discretion to refuse to answer the questions on a pragmatic basis. The questions raise issues of fundamental public importance and they are not too imprecise or ambiguous to permit a proper legal answer. Nor has the Court been provided with insufficient information regarding the present context in which the questions arise. Finally, the Court may deal on a reference with issues that might otherwise be considered not yet "ripe" for decision.
(2) Question 1
The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those principles must inform our overall appreciation of the constitutional rights and obligations that would come into play in the event that a clear majority of Quebecers votes on a clear question in favour of secession.
The Court in this Reference is required to consider whether Quebec has a right to unilateral secession. Arguments in support of the existence of such a right were primarily based on the principle of democracy. Democracy, however, means more than simple majority rule. Constitutional jurisprudence shows that democracy exists in the larger context of other constitutional values. Since Confederation, the people of the provinces and territories have created close ties of interdependence (economic, social, political and cultural) based on shared values that include federalism, democracy, constitutionalism and the rule of law, and respect for minorities. A democratic decision of Quebecers in favour of secession would put those relationships at risk. The Constitution vouchsafes order and stability, and accordingly secession of a province "under the Constitution" could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional framework.
Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order. A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.
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. Democratic rights under the Constitution cannot be divorced from constitutional obligations. Nor, however, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.
The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole. A political majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.
The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution" and not to usurp the prerogatives of the political forces that operate within that framework. The obligations identified by the Court are binding obligations under the Constitution. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.
(3) Question 2
The Court was also required to consider whether a right to unilateral secession exists under international law. Some supporting an affirmative answer did so on the basis of the recognized right to self-determination that belongs to all "peoples". Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of people at international law where "a people" is governed as part of a colonial empire; where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. 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 internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the "National Assembly, the legislature or the government of Quebec" do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.
Although there is no right, under the Constitution or at international law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Even if granted, such recognition would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.
(4) Question 3
In view of the answers to Questions 1 and 2, there is no conflict between domestic and international law to be addressed in the context of this Reference.
Cases Cited
Referred to: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Re References by Governor-General in Council (1910), 43 S.C.R. 536, aff'd [1912] A.C. 571; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; De Demko v. Home Secretary, [1959] A.C. 654; Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445; Attorney‑General for Ontario v. Attorney-General for Canada, [1947] A.C. 127; Muskrat v. United States, 219 U.S. 346 (1911); Reference re Powers to Levy Rates on Foreign Legations and High Commissioners' Residences, [1943] S.C.R. 208; Reference re Ownership of Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Education System in Island of Montreal, [1926] S.C.R. 246; Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54; Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Reference re Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Re the Initiative and Referendum Act, [1919] A.C. 935; Haig v. Canada, [1993] 2 S.C.R. 995; R. v. S. (S.), [1990] 2 S.C.R. 254; Switzman v. Elbling, [1957] S.C.R. 285; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Boucher v. The King, [1951] S.C.R. 265; Reference re Alberta Statutes, [1938] S.C.R. 100; Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; R. v. Oakes, [1986] 1 S.C.R. 103; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Roncarelli v. Duplessis, [1959] S.C.R. 121; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Reference re Education Act (Que.), [1993] 2 S.C.R. 511; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Adler v. Ontario, [1996] 3 S.C.R. 609; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Mahe v. Alberta, [1990] 1 S.C.R. 342; R. v. Sparrow, [1990] 1 S.C.R. 1075; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49.
Statutes and Regulations Cited
Ala. Code 1975 § 12-2-10.
Bill of Rights of 1689 (Eng.), 1 Will. & Mar. sess. 2, c. 2.
Canadian Charter of Rights and Freedoms, ss. 2 , 3 , 4 , 7 to 14 , 15 , 25 , 33 .
Charter of the United Nations, Can. T.S. 1945 No. 7, Arts. 1(2), 55.
Constitution Act, 1867 , preamble, ss. 91 , 92(14) , 96 , 101 .
Constitution Act, 1982, ss. 25 , 35 , 52(1) , (2) .
Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol No. 2, Europ. T.S. No. 5, p. 36.
Del. Code Ann. tit. 10, § 141 (1996 Supp.).
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Art. 1.
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, Art. 1.
Magna Carta (1215).
Statute of the Inter-American Court of Human Rights (1979), Art. 2 .
Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. 5, c. 4 [reprinted in R.S.C., 1985, App. II, No. 27].
Supreme Court Act, R.S.C., 1985, c. S-26, ss. 3 , 53(1) (a), (d), (2) .
Treaty establishing the European Community, Art. 228(6).
Union Act, 1840 (U.K.), 3-4 Vict., c. 35 [reprinted in R.S.C., 1985, App. II, No. 4].
United States Constitution, art. III, § 2.
Authors Cited
Canada. Legislature. Parliamentary Debates on the subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Provincial Parliament of Canada. Quebec: Hunter, Rose & Co., 1865.
Cassese, Antonio. Self-determination of peoples: A legal reappraisal. Cambridge: Cambridge University Press, 1995.
Conference on Security and Co-operation in Europe. Concluding Document of the Vienna Meeting 1986, Vienna 1989. Ottawa: Department of External Affairs, 1989.
Conference on Security and Co-operation in Europe. Final Act, 14 I.L.M. 1292 (1975).
de Smith, S. A. "Constitutional Lawyers in Revolutionary Situations" (1968), 7 West. Ont. L. Rev. 93.
Doehring, Karl. "Self-Determination". In Bruno Simma, ed., The Charter of the United Nations: A Commentary. Oxford: Oxford University Press, 1994.
European Community. Declaration. Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, December 16, 1991, 31 I.L.M. 1486 (1992).
Favoreu, Louis. "American and European Models of Constitutional Justice". In David S. Clark, ed., Comparative and Private International Law: Essays in Honor of John Henry Merryman on his Seventieth Birthday. Berlin: Duncker & Humblot, 1990, 105.
Hogg, Peter W. Constitutional Law of Canada, 4th ed. Scarborough, Ont.: Carswell, 1997.
Jennings, Robert Yewdall. The Acquisition of Territory in International Law. Manchester: Manchester University Press, 1963.
MacLauchlan, H. Wade. "Accounting for Democracy and the Rule of Law in the Quebec Secession Reference" (1997), 76 Can. Bar Rev. 155.
Pope, Joseph, ed. Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act. Toronto: Carswell, 1895.
United Nations. General Assembly. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970.
United Nations. General Assembly. Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6, 9 November 1995.
United Nations. World Conference on Human Rights. Vienna Declaration and Programme of Action, A/CONF.157/24 (Part I), 25 June 1993, chapter III.
Wade, H. W. R. "The Basis of Legal Sovereignty", [1955] Camb. L.J. 172.
Wheare, Kenneth Clinton. Federal Government, 4th ed. London: Oxford University Press, 1963.
REFERENCE by the Governor in Council, pursuant to s. 53 of the Supreme Court Act , concerning the secession of Quebec from Canada.
L. Yves Fortier, Q.C., Pierre Bienvenu, Warren J. Newman, Jean-Marc Aubry, Q.C., and Mary Dawson, Q.C., for the Attorney General of Canada.
André Joli-C{oe}ur, Michel Paradis, Louis Masson, André Binette, Clément Samson, Martin Bédard and Martin St-Amant, for the amicus curiae.
Donna J. Miller, Q.C., and Deborah L. Carlson, for the intervener the Attorney General of Manitoba.
Graeme G. Mitchell and John D. Whyte, Q.C., for the intervener the Attorney General for Saskatchewan.
Bernard W. Funston, for the intervener the Minister of Justice of the Northwest Territories.
Stuart J. Whitley, Q.C., and Howard L. Kushner, for the intervener the Minister of Justice for the Government of the Yukon Territory.
Agnès Laporte and Richard Gaudreau, for the intervener Kitigan Zibi Anishinabeg.
Claude-Armand Sheppard, Paul Joffe and Andrew Orkin, for the intervener the Grand Council of the Crees (Eeyou Estchee).
Peter W. Hutchins and Carol Hilling, for the intervener the Makivik Corporation.
Michael Sherry, for the intervener the Chiefs of Ontario.
Raj Anand and M. Kate Stephenson, for the intervener the Minority Advocacy and Rights Council.
Mary Eberts and Anne Bayefsky, for the intervener the Ad Hoc Committee of Canadian Women on the Constitution.
Guy Bertrand and Patrick Monahan, for the intervener Guy Bertrand.
Stephen A. Scott, for the interveners Roopnarine Singh, Keith Owen Henderson, Claude Leclerc, Kenneth O’Donnell and Van Hoven Petteway.
Vincent Pouliot, on his own behalf.
//The Court//
The following is the judgment delivered by
The Court --
I. Introduction
1 This Reference requires us to consider momentous questions that go to the heart of our system of constitutional government. The observation we made more than a decade ago in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 (Manitoba Language Rights Reference), at p. 728, applies with equal force here: as in that case, the present one "combines legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity". In our view, it is not possible to answer the questions that have been put to us without a consideration of a number of underlying principles. An exploration of the meaning and nature of these underlying principles is not merely of academic interest. On the contrary, such an exploration is of immense practical utility. Only once those underlying principles have been examined and delineated may a considered response to the questions we are required to answer emerge.
2 The questions posed by the Governor in Council by way of Order in Council P.C. 1996-1497, dated September 30, 1996, read as follows:
1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
2. 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?
3. 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?
3 Before turning to Question 1, as a preliminary matter, it is necessary to deal with the issues raised with regard to this Court's reference jurisdiction.
II. The Preliminary Objections to the Court's Reference Jurisdiction
4 The amicus curiae argued that s. 101 of the Constitution Act, 1867 does not give Parliament the authority to grant this Court the jurisdiction provided for in s. 53 of the Supreme Court Act, R.S.C., 1985, c. S-26 . Alternatively, it is submitted that even if Parliament were entitled to enact s. 53 of the Supreme Court Act , the scope of that section should be interpreted to exclude the kinds of questions the Governor in Council has submitted in this Reference. In particular, it is contended that this Court cannot answer Question 2, since it is a question of "pure" international law over which this Court has no jurisdiction. Finally, even if this Court's reference jurisdiction is constitutionally valid, and even if the questions are within the purview of s. 53 of the Supreme Court Act , it is argued that the three questions referred to the Court are speculative, of a political nature, and, in any event, are not ripe for judicial decision, and therefore are not justiciable.
5 Notwithstanding certain formal objections by the Attorney General of Canada, it is our view that the amicus curiae was within his rights to make the preliminary objections, and that we should deal with them.
A. The Constitutional Validity of Section 53 of the Supreme Court Act
6 In Re References by Governor-General in Council (1910), 43 S.C.R. 536, affirmed on appeal to the Privy Council, [1912] A.C. 571 (sub nom. Attorney-General for Ontario v. Attorney-General for Canada), the constitutionality of this Court's special jurisdiction was twice upheld. The Court is asked to revisit these decisions. In light of the significant changes in the role of this Court since 1912, and the very important issues raised in this Reference, it is appropriate to reconsider briefly the constitutional validity of the Court's reference jurisdiction.
7 Section 3 of the Supreme Court Act establishes this Court both as a "general court of appeal" for Canada and as an "additional court for the better administration of the laws of Canada". These two roles reflect the two heads of power enumerated in s. 101 of the Constitution Act, 1867 . However, the "laws of Canada" referred to in s. 101 consist only of federal law and statute: see Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, at pp. 1065‑66. As a result, the phrase "additional courts" contained in s. 101 is an insufficient basis upon which to ground the special jurisdiction established in s. 53 of the Supreme Court Act , which clearly exceeds a consideration of federal law alone (see, e.g., s. 53(2) ). Section 53 must therefore be taken as enacted pursuant to Parliament's power to create a "general court of appeal" for Canada.
8 Section 53 of the Supreme Court Act is intra vires Parliament's power under s. 101 if, in "pith and substance", it is legislation in relation to the constitution or organization of a "general court of appeal". Section 53 is defined by two leading characteristics ‑‑ it establishes an original jurisdiction in this Court and imposes a duty on the Court to render advisory opinions. Section 53 is therefore constitutionally valid only if (1) a "general court of appeal" may properly exercise an original jurisdiction; and (2) a "general court of appeal" may properly undertake other legal functions, such as the rendering of advisory opinions.
(1) May a Court of Appeal Exercise an Original Jurisdiction?
9 The words "general court of appeal" in s. 101 denote the status of the Court within the national court structure and should not be taken as a restrictive definition of the Court's functions. In most instances, this Court acts as the exclusive ultimate appellate court in the country, and, as such, is properly constituted as the "general court of appeal" for Canada. Moreover, it is clear that an appellate court can receive, on an exceptional basis, original jurisdiction not incompatible with its appellate jurisdiction.
10 The English Court of Appeal, the U.S. Supreme Court and certain courts of appeal in Canada exercise an original jurisdiction in addition to their appellate functions. See De Demko v. Home Secretary, [1959] A.C. 654 (H.L.), at p. 660; Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445 (Man. C.A.), at p. 453; United States Constitution, art. III, § 2. Although these courts are not constituted under a head of power similar to s. 101 , they certainly provide examples which suggest that there is nothing inherently self-contradictory about an appellate court exercising original jurisdiction on an exceptional basis.
11 It is also argued that this Court's original jurisdiction is unconstitutional because it conflicts with the original jurisdiction of the provincial superior courts and usurps the normal appellate process. However, Parliament's power to establish a general court of appeal pursuant to s. 101 is plenary, and takes priority over the province's power to control the administration of justice in s. 92(14). See Attorney-General for Ontario v. Attorney-General for Canada, [1947] A.C. 127 (P.C.). Thus, even if it could be said that there is any conflict between this Court's reference jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in favour of Parliament's exercise of its plenary power to establish a "general court of appeal" provided, as discussed below, advisory functions are not to be considered inconsistent with the functions of a general court of appeal.
(2) May a Court of Appeal Undertake Advisory Functions?
12 The amicus curiae submits that
[translation] [e]ither this constitutional power [to give the highest court in the federation jurisdiction to give advisory opinions] is expressly provided for by the Constitution, as is the case in India (Constitution of India, art. 143), or it is not provided for therein and so it simply does not exist. This is what the Supreme Court of the United States has held. [Emphasis added.]
13 However, the U.S. Supreme Court did not conclude that it was unable to render advisory opinions because no such express power was included in the United States Constitution. Quite the contrary, it based this conclusion on the express limitation in art. III, § 2 restricting federal court jurisdiction to actual "cases" or "controversies". See, e.g., Muskrat v. United States, 219 U.S. 346 (1911), at p. 362. This section reflects the strict separation of powers in the American federal constitutional arrangement. Where the "case or controversy" limitation is missing from their respective state constitutions, some American state courts do undertake advisory functions (e.g., in at least two states ‑‑ Alabama and Delaware ‑‑ advisory opinions are authorized, in certain circumstances, by statute: see Ala. Code 1975 § 12-2-10; Del. Code Ann. tit. 10, § 141 (1996 Supp.)).
14 In addition, the judicial systems in several European countries (such as Germany, France, Italy, Spain, Portugal and Belgium) include courts dedicated to the review of constitutional claims; these tribunals do not require a concrete dispute involving individual rights to examine the constitutionality of a new law ‑‑ an "abstract or objective question" is sufficient. See L. Favoreu, "American and European Models of Constitutional Justice", in D. S. Clark, ed., Comparative and Private International Law (1990), 105, at p. 113. The European Court of Justice, the European Court of Human Rights, and the Inter‑American Court of Human Rights also all enjoy explicit grants of jurisdiction to render advisory opinions. See Treaty establishing the European Community, Art. 228(6); Protocol No. 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Europ. T.S. No. 5, p. 36; Statute of the Inter-American Court of Human Rights, Art. 2. There is no plausible basis on which to conclude that a court is, by its nature, inherently precluded from undertaking another legal function in tandem with its judicial duties.
15 Moreover, the Canadian Constitution does not insist on a strict separation of powers. Parliament and the provincial legislatures may properly confer other legal functions on the courts, and may confer certain judicial functions on bodies that are not courts. The exception to this rule relates only to s. 96 courts. Thus, even though the rendering of advisory opinions is quite clearly done outside the framework of adversarial litigation, and such opinions are traditionally obtained by the executive from the law officers of the Crown, there is no constitutional bar to this Court's receipt of jurisdiction to undertake such an advisory role. The legislative grant of reference jurisdiction found in s. 53 of the Supreme Court Act is therefore constitutionally valid.
B. The Court's Jurisdiction Under Section 53
16 Section 53 provides in its relevant parts as follows:
53. (1) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning
(a) the interpretation of the Constitution Acts;
. . .
(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised.
(2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question.
(3) Any question concerning any of the matters mentioned in subsections (1) and (2), and referred to the Court by the Governor in Council, shall be conclusively deemed to be an important question.
17 It is argued that even if Parliament were entitled to enact s. 53 of the Supreme Court Act , the questions submitted by the Governor in Council fall outside the scope of that section.
18 This submission cannot be accepted. Question 1 is directed, at least in part, to the interpretation of the Constitution Acts, which are referred to in s. 53(1) (a). Both Question 1 and Question 2 fall within s. 53(1) (d), since they relate to the powers of the legislature or government of a Canadian province. Finally, all three questions are clearly "important questions of law or fact concerning any matter" so that they must come within s. 53(2) .
19 However, the amicus curiae has also raised some specific concerns regarding this Court's jurisdiction to answer Question 2. The question, on its face, falls within the scope of s. 53 , but the concern is a more general one with respect to the jurisdiction of this Court, as a domestic tribunal, to answer what is described as a question of "pure" international law.
20 The first contention is that in answering Question 2, the Court would be exceeding its jurisdiction by purporting to act as an international tribunal. The simple answer to this submission is that this Court would not, in providing an advisory opinion in the context of a reference, be purporting to "act as" or substitute itself for an international tribunal. In accordance with well accepted principles of international law, this Court's answer to Question 2 would not purport to bind any other state or international tribunal that might subsequently consider a similar question. The Court nevertheless has jurisdiction to provide an advisory opinion to the Governor in Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian federation.
21 Second, there is a concern that Question 2 is beyond the competence of this Court, as a domestic court, because it requires the Court to look at international law rather than domestic law.
22 This concern is groundless. In a number of previous cases, it has been necessary for this Court to look to international law to determine the rights or obligations of some actor within the Canadian legal system. For example, in Reference re Powers to Levy Rates on Foreign Legations and High Commissioners' Residences, [1943] S.C.R. 208, the Court was required to determine whether, taking into account the principles of international law with respect to diplomatic immunity, a municipal council had the power to levy rates on certain properties owned by foreign governments. In two subsequent references, this Court used international law to determine whether the federal government or a province possessed proprietary rights in certain portions of the territorial sea and continental shelf (Reference re Ownership of Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86).
23 More importantly, Question 2 of this Reference does not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations of the National Assembly, legislature or government of Quebec, institutions that clearly exist as part of the Canadian legal order. As will be seen, the amicus curiae himself submitted that the success of any initiative on the part of Quebec to secede from the Canadian federation would be governed by international law. In these circumstances, a consideration of international law in the context of this Reference about the legal aspects of the unilateral secession of Quebec is not only permissible but unavoidable.
C. Justiciability
24 It is submitted that even if the Court has jurisdiction over the questions referred, the questions themselves are not justiciable. Three main arguments are raised in this regard:
(1) the questions are not justiciable because they are too "theoretical" or speculative;
(2) the questions are not justiciable because they are political in nature;
(3) the questions are not yet ripe for judicial consideration.
25 In the context of a reference, the Court, rather than acting in its traditional adjudicative function, is acting in an advisory capacity. The very fact that the Court may be asked hypothetical questions in a reference, such as the constitutionality of proposed legislation, engages the Court in an exercise it would never entertain in the context of litigation. No matter how closely the procedure on a reference may mirror the litigation process, a reference does not engage the Court in a disposition of rights. For the same reason, the Court may deal on a reference with issues that might otherwise be considered not yet "ripe" for decision.
26 Though a reference differs from th