WRITTEN RESPONSE OF THE ATTORNEY GENERAL OF CANADA
TO QUESTIONS FROM THE SUPREME COURT OF CANADA
WRITTEN RESPONSE OF THE ATTORNEY GENERAL OF CANADA
TO QUESTIONS FROM THE SUPREME COURT OF CANADA
IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C. 1985, Chap. 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.
INTRODUCTION
1. At the close of oral arguments by the Attorney General of Canada, the interveners and the amicus curiae in this Reference, the Supreme Court of Canada convened the parties to appear on Thursday, February 19, 1998, to respond to questions from the Court.
2. On February 19, 1998, at 11:00 a.m., the judges of the Court, speaking through the Chief Justice, asked a series of questions directed to the Attorney General of Canada and to the amicus curiae, respectively. One question was directed to both the Attorney General of Canada and to the amicus curiae.
3. With regard to the questions directed to the Attorney General of Canada, counsel for the Attorney General of Canada provided an immediate oral response to most of the questions, and completed or supplemented those responses where appropriate with additional oral submissions at 3:00 p.m. that same day. Counsel for the Attorney General of Canada and the amicus curiae were also granted the right by the Court to provide definitive written responses to the questions asked respectively of them within fifteen days of the hearing. The following written response of the Attorney General of Canada sets out the position of the Attorney General of Canada on the questions put by the Court.
4. The questions put to the Attorney General of Canada by the Court are answered in this written response in the same order in which they were originally put. They have been numbered for convenience. In the course of the oral proceedings on February 19, several judges asked supplementary questions. These are dealt with as necessary in the body of the responses to the principal questions.
FIRST QUESTION POSED BY THE COURT
[TRANSLATION] Is the right of a people to self-determination part of customary or treaty-based international law? In the affirmative, has it also been incorporated into the domestic law of Canada? What are the consequences for the jurisdiction of our Court with respect to Question 2?
5. It is respectfully submitted that the right of self-determination is part of customary law because this right has an "erga omnes" character.
6. As mentioned in para. 161 of the factum of the Attorney General of Canada, the International Court of Justice recognized the "erga omnes" character of the right of self-determination in East Timor (Portugal v. Australia), [1995] I.C.J. Rep. 90 at 102, para. 29. The International Court of Justice defined the "erga omnes" character of a norm or obligation in Barcelona Traction, [1970] I.C.J. Rep. 4 at 32-33, paras. 33-36, stating that norms or obligations "erga omnes" are those in respect of which all states have a legal interest. The Court stated that such obligations derive, for example, (...) from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination". Since the right of self-determination is part of customary law, it will be applied by Canadian courts to the extent that it does not conflict with Canadian domestic law (as stated in para. 206 of the factum of the Attorney General of Canada).
7. That said, the right of self-determination is also referred to in certain treaties (including Articles 1 and 55 of the Charter of the United Nations and Article 1 of the two 1966 Covenants). These instruments are discussed at length in the factum of the Attorney General of Canada, at paras. 132 and 139 in particular. Given the "erga omnes" character of the right of self-determinatiion, Canadian courts take the principles set out in these treaties into account as customary law in accordance with the jurisprudential principles discussed in our factum at paras. 206-207.
206. It is clear from Canadian cases that customary international law is applicable in Canada to the extent that it does not conflict with existing Canadian law. [...]
207. [...] Canadian courts ascertain the relevant rule of customary international law, "adopt" or incorporate" it into domestic law (except to the extent that that rule is contrary to domestic law) and then apply it in a given case. A relatively recent example of the application of this approach is the Newfoundland Continental Shelf Reference [...]
8. The Attorney General of Canada accordingly submits that the principles of customary law relating to the right of self-determination are applicable in the present case, since they do not conflict with the applicable Canadian domestic law. Since these principles of customary law can be "incorporated" into domestic law by Canadian courts, it is respectfully submitted that Canadian courts unquestionably have jurisdiction to apply them.
9. More generally, and contrary to the amicus curiae’s contention, the Attorney General of Canada submits that this Court has jurisdiction to consider Question 2 for the reasons set out in paras. 17 to 24 of her reply. This argument concludes as follows:
24. [...] the Attorney General of Canada submits that even if a specific connection is required between an issue of international law and the Canadian legal system there clearly is such a connection in this case. Consequently, Question 2 in any event comes within the terms of s. 53 of the Supreme Court Act. It must be emphasized that, in considering Question 2, the Supreme Court is sitting not as an international tribunal but as the highest Canadian court, acting within the scope of its competence.
10. Self-determination is central to Question 2 of the Reference and, as the Attorney General of Canada has maintained throughout these proceedings, it includes no right of secession outside the context of colonies, and possibly that of peoples under alien domination or subject to gross oppression, which is not the case of Quebec. The Attorney General of Canada therefore respectfully asks this Court to answer Question 2 of this Reference in the negative.
SECOND QUESTION POSED BY THE COURT
[TRANSLATION] According to the Toronto Star (98/2/15, p.A1), the Attorney General of Canada is reported to have said that following a "yes" vote in a referendum:
"One would be dealing with an extraordinary set of circumstances not comprehended, in our opinion, within the existing constitutional framework."
"One would probably acknowledge the extraordinary nature of the situation and determine what process would be pursued at that point."
Some have said that the comments of the Minister might indicate that she thinks that there is no legal answer to Question 1 and that Part V of the Constitution Act, 1982 would not apply.
Can you tell us what effect that might have, in the circumstances, on our discretion to answer or not to answer Question 1?
11. The second question asks whether the comments of the Minister to the Toronto Star might indicate that she believes that there is no legal answer to Question 1 of the Reference and that Part V of the Constitution Act, 1982 would not apply to the secession of Quebec. The Attorney General of Canada, in a news release issued on February 17 that was read verbatim into the Court record in response to the Court’s question on February 19, 1998, stated:
I do not wish to get into a debate that would lead us into litigating the Supreme Court Reference outside the Court. The federal government’s position is set out in our factum and our reply, and was repeated in Court on Monday [February 16, 1998]. The federal position is that the Constitution applies and I fully support that position.
12. Counsel for the Attorney General of Canada also read into the record para. 85 of the factum of the Attorney General of Canada and paras. 52 and 53 of the Attorney General of Canada’s reply. The position of the Attorney General of Canada has been from the outset of this Reference, and continues to be, that the Constitution of Canada applies to the secession of a province from Canada. Moreover, as paras. 87 to 92 of the factum of the Attorney General of
Canada affirm, the secession of a province would necessarily require constitutional amendments, and, whether before or after Patriation of the Constitution in 1982, such changes have always had to be accomplished through the prevailing constitutional framework. Since 1982, it is Part V of the Constitution Act, 1982 that sets out the procedures that govern the process of constitutional change in this country. Part V identifies the institutions and prescribes the requirements necessary to achieve constitutional amendments.
13. The report in the Toronto Star on February 16, 1998 of the Minister’s remarks has no bearing on this Reference. The Minister’s statement of February 17, 1998, confirms and endorses the Attorney General of Canada’s position as set forth in her factum and reply. In no circumstances can this newspaper report be taken as indicating that Question 1 should not be answered by this Court. Question 1 is a legal question of the utmost concern to all Canadians, and one that the Governor in Council has submitted to this Court for its hearing and consideration. The Attorney General of Canada submits that this Court must answer the questions and requests that this Court give the answer to Question 1 that is set out in para. 211 of the factum and repeated in para. 101 of the reply of the Attorney General of Canada — namely that under the Constitution of Canada, neither the National Assembly, legislature nor government of Quebec can effect the secession of Quebec from Canada unilaterally.
THIRD QUESTION POSED BY THE COURT
Does the position of the Attorney General mean that secession can only take place in compliance with the formal procedures set out in Part V of the Constitution [and in the preamble (as the Chief Justice subsequently modified the question)], or are there other ways in which a secession might also be carried out consistently with our constitutional law as a whole?
14. The position of the Attorney General of Canada is that the secession of a province could only be accomplished through amendments to the Constitution of Canada, and that the applicable rules are to be found in Part V of the Constitution Act, 1982.
15. The Constitution Act, 1982 vests Canadian institutions with complete authority to make all necessary changes to the Constitution of Canada. As was affirmed in the Quebec Veto Reference, the Constitution Act, 1982 "contains a new procedure for amending the Constitution which entirely replaces the old one in its legal as well as in its conventional aspects".
16. The Constitution Act, 1982 prescribes the means by which constitutional amendments are to be accomplished. Section 52(3) of the 1982 Act provides that constitutional amendments "shall be made only in accordance with the authority contained in the Constitution of Canada". The Constitution Act, 1982, which forms part of the Constitution of Canada, contains a specific chapter devoted to this purpose, entitled "Part V: Procedure for Amending Constitution of Canada".
17. The position of the Attorney General of Canada is that Part V contains a detailed, comprehensive set of procedures for effecting constitutional amendments, and that these procedures now govern the process of constitutional change in Canada. The secession of a province is constitutionally possible, but would have to be carried out in conformity with Part V. (See factum of Attorney General of Canada, paras. 86-91.)
18. The Attorney General of Canada accepts the existence of certain fundamental, unwritten constitutional principles and their relevance in considering the application of the Constitution of Canada to the secession of a province. Such principles form part of the Constitution of Canada, as alluded to in a question posed by Mr. Justice Gonthier. Indeed, both the factum and the reply of the Attorney General of Canada expressly refer to unwritten constitutional principles such as federalism, democracy and the rule of law as having an important bearing in assessing the constitutionality of any future secession process. The existence and on-going relevance of such principles have been affirmed repeatedly by the Supreme Court of Canada — most recently in the Provincial Court Judges’ Reference.
19. The Attorney General of Canada submits that unwritten constitutional principles are relevant in the present context in at least two ways. First and foremost, they serve to demonstrate the unconstitutionality of unilateral secession. As the Attorney General of Canada states at para. 75 of her factum:
The unilateral secession of a province from Canada would run counter to this country’s tradition of constitutional government, to its regard for the rule of law and its respect for the rights of citizens, to the duty of Canadian courts to defend the Constitution, and to the federal principle which the Constitution enshrines.
20. Beyond this, the Attorney General of Canada submits that these very principles are reflected in and reinforce the application of the constitutional amending formula to the secession of a province. They would operate to inform and guide the Constitution’s application to an attempt to effect secession, just as they do to the more ordinary process of constitutional interpretation. As stated in the reply of the Attorney General of Canada (para. 67):
[T]he Constitution of Canada already embodies, reflects and harmonizes the very principles that need to be brought to bear on the process of constitutional change. As Canadian courts have long and frequently recognized, values of democracy, federalism and the rule of law are essential underpinnings of Canada’s constitutional structure. Far from superseding or supplanting the terms of the Constitution, such values are found in the Constitution’s specific amending provisions and reinforce their application.
21. To expand upon this point, the Attorney General of Canada submits that the rule of law is reflected in provisions such as s. 52(1) of the Constitution Act, 1982 which provides for the Constitution’s supremacy, and in the stipulation in s. 52(3) that constitutional amendments are to be made only in accordance with the authority contained in the Constitution. Likewise, the democratic principle infuses and is reflected in the very terms of Part V, which ensures that constitutional amendments enjoy the support of the people affected by them — this support being expressed by resolutions adopted by the relevant representative institutions. So also is the federal principle embodied in the structure and logic of Part V. The degree of provincial consent varies with the nature of the amendment and its impact on the federation as a whole. In the same way, although outside of Part V, the involvement of aboriginal Canadians is assured through the provisions of s. 35.1 of the Constitution Act, 1982 where their interests are directly affected.
22. Fundamental constitutional values are thus fully reflected in the Constitution, and in Part V specifically. They will properly continue to assist with and structure its interpretation and application, even to a change as fundamental as secession. What such values cannot do is supersede or supplant the Constitution. Unwritten constitutional principles are of the Constitution, not above it. (See reply of the Attorney General of Canada, para. 61.)
23. This is the answer to any suggestion that secession represents a constitutional change of such an extraordinary nature as to remove it from the scope of Part V entirely — or even beyond the reach of the Constitution itself. Such suggestions, advanced by the amicus curiae and in certain academic writings concerning this Reference, are of recent vintage. Indeed, prior to this, the proposition that the Constitution of Canada would apply to secession was largely uncontroversial. (See authors cited in factum of Attorney General of Canada at para. 111.) The recent contrary arguments, typically framed in terms of fundamental or "super-ordinate" constitutional principles, are not merely novel legally; they would deny the post-1982 constitutional reality of Canada’s full sovereignty in relation to constitutional amendments.
24. The amicus curiae relies on the "principe d’effectivité" as an unwritten constitutional norm to displace the terms of the Constitution. The full response of the Attorney General of Canada to this argument is set out in her reply at paras. 57-67. For present purposes, it is sufficient to repeat that unwritten constitutional principles cannot be used to justify ignoring the express terms of the Constitution; and to note that, in any case, the "principe d’effectivité" not only has never been recognized as a fundamental constitutional principle by Canadian courts, but even stands in direct conflict with many such principles that have been recognized, most notably the rule of law.
25. In recent writings, Professor MacLauchlan and Professors Howse and Malkin have suggested that Part V of the Constitution Act, 1982 might not apply to the secession of a province. Professor MacLauchlan contends that Part V assumes the on-going existence of Canada and was never intended to apply to the secession of a province. Professors Howse and Malkin claim that the Part V amending procedures "cannot be used so as to confer constitutionality on the act of secession itself". These authors’ conclusions as to the non-applicability of Part V to secession do not alter their common view that unilateral secession would be unconstitutional; instead, their conclusions lead them to posit means outside of Part V for effecting the departure of a province. In the case of MacLauchlan, this would be through the federal executive power of recognition of foreign states; in the case of Howse and Malkin, it would be through a dual requirement of federal consent coupled with the consent of all Canadians (the latter seemingly to be expressed through a binding national referendum).
H.W. MacLauchlan, "Accounting for Democracy and the Rule of Law in the Quebec Secession Reference" (1997) 76 Can. Bar Rev. 155.
R. Howse & A. Malkin, "Canadians Are a Sovereign People: How the Supreme Court Should Approach the Reference on Quebec Secession" (1997) 76 Can. Bar Rev. 186.
26. These arguments are based on false assumptions. Professor MacLauchlan’s argument presupposes that secession is a matter primarily governed by international law — a demonstrably false assumption according to the opinions of the experts both of the Attorney General of Canada and of the amicus. For their part, Professors Howse and Malkin assume that Canada cannot, as a sovereign nation, divest itself of, or relinquish sovereignty over, part of its territory. This is not so. As a fully sovereign nation, Canada can cede sovereignty over part of its territory.
27. As for the specific non-Part V routes to secession proposed by Professors MacLauchlan and Howse and Malkin, it is difficult to understand on what basis these mechanisms could or should supersede the express terms of Part V. The very purpose of Part V was to provide a defined, certain and comprehensive process for achieving constitutional change.
28. In the course of oral questions from the Court, Madame Justice L’Heureux-Dubé referred to the argument of Professor Frémont who, with his co-author, F. Boudreault, take arguments based on unwritten constitutional principles one step further. They contend that, because the Constitution cannot be the instrument of its own destruction, secession is constitutionally impossible:
[D]es principes supraconstitutionnels feraient que l’ordre constitutionnel canadien serait tout simplement incapable d’ingérer la sécession du Québec. Il serait alors lui-même condamné à procéder à sa propre révolution.
Thus, they argue, the only way to accomplish secession is through extra-legal means.
J. Frémont & F. Boudreault, "Supraconstitutionnalité canadienne et sécession du Quebec" (1997) 8 N.J.C.L. 163 at 203.
29. This argument is based on the fundamentally incorrect assumption that the Constitution of Canada would not survive the secession of a province. While the secession of a province would incontestably alter Canada as a political entity and would represent a profound change to the country as we know it, it would not destroy the Constitution itself. This is in sharp contrast with the type of constitutional amendments, considered by the foreign case law discussed in the Frémont / Boudreault article. The Frémont / Boudreault thesis is also inconsistent with the comprehensive and plenary nature of Canada’s constitutional amending procedures. These procedures, the Attorney General of Canada submits, are capable of accommodating all constitutional change.
30. For these reasons, the Attorney General of Canada fundamentally disagrees with all assertions to the effect that unwritten constitutional principles preclude the applicability of Part V — much less the Constitution itself — to the secession of a province. While there is no denying either the existence and relevance of such principles or the profound constitutional alteration that the secession of a province would represent, the prospect of secession cannot alter existing constitutional realities. The fact remains that Part V of the Constitution contains a comprehensive set of procedures for effecting constitutional change. Indeed, the Attorney General of Canada submits that the Constitution’s fundamental principles and underlying values support and reinforce the application of Part V as the proper means for effecting a province’s departure from Canada.
31. Finally, it is necessary to distinguish unwritten constitutional principles such as those referred to above from such an exceptional "saving" doctrine as necessity. That doctrine is discussed below in relation to the fourth question. Suffice it to say that the doctrine of necessity is manifestly not a constitutional option that may be looked to in advance by governmental authorities or the courts in assessing — much less in seeking to avoid — the requirements of the Constitution of Canada.
32. In summary, Part V of the Constitution Act, 1982 provides a defined and detailed framework for effecting future constitutional change, including the possible secession of a province.
FOURTH QUESTION POSED BY THE COURT
Assuming that Part V is the only legal means of effecting secession, what would happen if Part V fails, e.g., if after a clear expression of Quebec’s will to secede, Ottawa or one or more provinces refuses to negotiate in good faith towards separation? What if good faith negotiations simply reached an impasse over an intractable issue like the division of territory?
33. The Government of Canada has said, on numerous occasions, that Quebecers will not be held in this country against their will, and that should Quebecers clearly express an unambiguous desire to leave Canada, the federal government would respect their choice. (See response to fifth question posed, below.) The Attorney General of Canada notes that none of the provincial and territorial interveners in this Reference have expressed a different view.
34. There is no contradiction between pledging to respect the clearly-expressed popular will of Quebecers, on the one hand, and insisting that any change to Quebec’s constitutional status — and the process leading to such change — be governed by the Constitution of Canada and the rule of law. In making the political commitment not to hold Quebecers in Canada against their clearly-expressed will, the Government of Canada has never suggested that the Constitution and the rule of law could be ignored. To have done so would have breached the Government of Canada’s obligation to respect, uphold and defend the Constitution as the supreme law of Canada, and its responsibilities towards all Canadians.
35. The Attorney General of Canada unequivocally rejects the argument that to insist upon an orderly and legal process within a constitutional framework would place Quebecers in a legal "strait-jacket" and defeat their democratic will, or the amicus curiae’s suggestion that insistence on constitutional requirements would be a recipe for chaos. Such assertions are based on the assumption that constitutional government and the rule of law, on the one hand, and democratic values, on the other, are mutually exclusive and that, at least in the case of Quebec secession, they are in fundamental conflict. This assumption is false. As numerous decisions of the Supreme Court of Canada have recognized, the rule of law is an indispensable condition of democratic society, establishing a non-arbitrary and stable framework within which democratic processes can operate. It is not respect for the rule of law but the willingness to ignore it that represents the true threat to democratic values.
36. Regarding the possible "failure" of the Part V process to achieve a constitutional amendment authorizing the secession of the province of Quebec, the Attorney General of Canada offers the following observations. First, it is not Part V that would have "failed" if a constitutional amendment did not achieve the required resolutions of assent but rather, the particular proposal under consideration.
37. More fundamentally, the Attorney General of Canada submits that it is wrong and unfounded in law to brandish the spectre of political impasse as a reason to dispense with or ignore applicable constitutional norms. The operation of constitutional requirements cannot simply be suspended or discarded out of fear for their impact on the very political environment they are intended to govern. To subject the Constitution’s application to possible political eventualities is to turn the notion of constitutional governance on its head. In any case, the hypothesis of political impasse in the present context is simply that — a hypothesis.
38. The Government of Canada believes that Quebecers and all Canadians have a right to exercise democratic choices in a legal framework governed by the Constitution. That is the very reason for the present Reference. The prospect of future political events that may or may not come to pass cannot be used to overthrow the right to informed democratic choice within a legal framework, much less to discard the protections that the Constitution itself secures for all citizens.
39. The "impasse" that has been hypothesized must be understood, not as a temporary failure to achieve support for a proposed set of amendments, but, at a minimum, as a manifest and persistent political deadlock. Assuming that such a scenario were to come about, the Attorney General of Canada submits that the Constitution of Canada would continue to govern and would provide the means for a solution. Any move towards secession would have to respect the Constitution’s underlying principles and be carried out in accordance with its terms. To the extent that something less than full compliance with Part V might in the extreme be permitted by the courts, this would only be in circumstances of demonstrable exigency, and then, in furtherance of the Constitution’s underlying principles — the first imperative being to preserve the rule of law and secure the Constitution’s basic values.
40. This raises the issue of the doctrine of necessity, noted in the response to the previous question. By definition, such a doctrine applies only in exceptional, unforseeable circumstances, in order to avoid a legal vacuum. The contours of its potential future application can therefore not be described or predicted in advance.
41. In any case, any possible resort to the doctrine of necessity is a remedial eventuality that might only be invoked by a court in extremis. It is manifestly not a constitutional option that may be looked to in advance by governmental authorities in assessing — much less in seeking to avoid — the requirements of the Constitution of Canada.
42. More particularly, the remedial doctrine of necessity, which provided support for the measures taken by this Court in the Manitoba Language Reference to preserve the rule of law, cannot be invoked by governments in advance to oust provisions of the Constitution that are clearly intended to apply. Not only would this contravene the clear terms of s. 52 of the Constitution Act, 1982; it would deprive Canadians of the benefit of the predictability and certainty of the rules set out in Part V. (See para. 61 of the reply of the Attorney General of Canada.) As this Court stated in the Manitoba Language Reference:
The doctrine of necessity is not used [...] to support some law which is above the Constitution; it is, instead used to ensure the unwritten but inherent principle of rule of law which must provide the foundation of any constitution.
[...]
[T]he courts will not allow the Constitution to be used to create chaos and disorder.
Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 766.
43. The Attorney General of Canada submits that it would be well beyond the scope of this Reference to hypothesize as to scenarios that might trigger resort to the saving doctrine of necessity and the outcome that application of this doctrine might produce. What can be said with certainty is that any move towards secession would be governed by the Constitution of Canada, would have to respect the Constitution’s underlying principles and would have to be carried out in accordance with its terms.
44. Finally, it must be pointed out that the risks of a political impasse, with its attendant consequences, are far greater if one is operating outside the framework of the rule of law and the Constitution than under it. Indeed, it is precisely when political or social processes break down, and when civil institutions are threatened, that the fundamental protections secured by the Constitution become most important. If governments are not expected to adhere to the rule of law in such circumstances, or if they purport to place themselves above it, citizens and groups will have been denied, at the most critical moment, the very protections the Constitution was designed to secure.
FIFTH QUESTION POSED BY THE COURT
(a) On what ground is Ottawa constitutionally permitted to concede, as it has done here, that the people of Quebec have the ultimate right to decide their own political future?
(b) Does the Constitution impose a duty on the federal government to oppose such claims by any province on the ground of the fundamental principle of federalism?
(c) Does such a concession by Ottawa in a judicial context like this one have any binding legal effect?
(d) If so, should the other provinces have a say in whether such a concession is made?
(a) On what ground is Ottawa constitutionally permitted to concede, as it has done here, that the people of Quebec have the ultimate right to decide their own political future?
45. The acknowledgment by political actors that a secession is possible and might, in certain circumstances, be effected under the Constitution of Canada is not a concession that there is a right of secession. Counsel for the Attorney General of Canada read into the Court record on Thursday, February 19, 1998, para. 77 of the factum and para. 53 of the reply of the Attorney General of Canada. These paragraphs do not question the right of Quebecers to express themselves in a consultative referendum, but do state emphatically that, while the outcome of a referendum may carry great political weight, this does not alter the legal reality that a referendum is not a prescribed mechanism for constitutional change and cannot, in and of itself, alter the basic constitutional principles and legal rules by which all Canadians are governed or the constitutional protections which they enjoy.
[46. A referendum on a matter as important and far-reaching as the secession of a province from Canada would have a potential impact on the whole federation and might ultimately affect the scope of federal authority. This means that all governments — provincial and federal — must be in a position to weigh, assess and consider the results of the referendum. No one provincial government has a monopoly over any decision-making that could result from such a referendum.]
47. Counsel also referred to the statement of September 26, 1996 of the then-Attorney General of Canada, the Honourable Allan Rock (Case, vol. V, tab 44) in which he affirmed that "[t]he leading political figures of all our provinces and the Canadian public have long agreed that the country will not be held together against the clear will of Quebecers." Read in its context (Case, p. 1018), it is clear that this is an expression of public policy, not a concession that a referendum result would create a legal right or entitlement (as queried by Mr. Justice Bastarache in a supplementary question put to counsel for the Attorney General of Canada) for the provincial government to effect secession.
48. Nor has the Attorney General of Canada conceded that there is a legal right of self-determination at international law that would provide the political institutions of Quebec with a right to effect the unilateral secession of Quebec from Canada. Indeed, her position is quite the opposite. As was stated by Professor Cassese in his work, Self-Determination of Peoples: A Legal Reappraisal, cited in para. 197 of the factum of the Attorney General of Canada, "Although the inhabitants of Quebec — as much as all other inhabitants of Canada — may be deemed to have a continuing right to internal self-determination under the U.N. Covenants, they do not have a legal right, under international law, to secede from Canada." This is not to deny that there is a Quebec people in a sociological, historical and political sense, just as there may also be other groups living in Quebec and elsewhere in Canada that constitute a people in that sense, as the Attorney General of Canada noted in para. 91 of her reply.
(b) Does the Constitution impose a duty on the federal government to oppose such claims by any province on the ground of the fundamental principle of federalism?
49. The position of the Attorney General of Canada is that there is a duty upon all governments — both federal and provincial — to uphold the Constitution of Canada, and that unilateral secession would contravene the Constitution of Canada, including the federal principle. Indeed, it was partly in fulfillment of the Government of Canada’s duty to uphold the Constitution, in the face of assertions by the Government of Quebec that its proposed secession process is not governed by Canadian law, that the issue was brought before this Court. The Attorney General of Canada refers this Court to paras. 71 to 74 of her factum dealing with the federal nature of the Constitution of Canada, and in particular to para. 75, in which she affirmed that the unilateral secession of a province from Canada would run counter to this country’s tradition of constitutional government, to its regard for the rule of law and its respect for the rights of citizens, to the duty of Canadian courts to defend the Constitution of Canada, and to the federal principle which the Constitution enshrines.
50. The Attorney General of Canada also points out that the federal principle is embodied in the constitutional amendment procedures set out in Part V of the Constitution Act, 1982. It is clear that, with the exception of the limited power of unilateral amendment granted to Parliament under s. 44 and to the provincial legislatures under s. 45, amendments are made with the participation and concurrence of both the houses of Parliament and the provincial legislative assemblies.
(c) Does such a concession by Ottawa in a judicial context like this one have any binding legal effect?
51. The Attorney General of Canada has already emphasized that no concession has been made that there is a right of secession that can negate or override the Constitution of Canada and, in particular, the application of its amendment procedures. Even if a government were ever to make such a concession, it would have no binding legal effect on this Court, which is required to apply the terms of the Constitution of Canada.
52. It should also be emphasized that the acknowledgement of the possibility of secession does not mean that there is a constitutional convention recognizing the existence of a right of secession, still less a convention recognizing that unilateral secession can ever be an option under the Constitution of Canada. A constitutional convention can only be recognized in circumstances where the stringent tests laid down by this Court in the Patriation Reference and the Quebec Veto Reference have manifestly been met. This is not the case in the present circumstances. The most important element for establishing a convention — that the actors must consider themselves to be bound by the rule in question — is missing since there is a total lack of acknowledgment by the federal government and the governments of the other provinces of a right of secession for Quebec. At most, the statements of the relevant political actors show an acceptance of the political reality that secession might occur and that Quebecers would not be kept in Canada against their clearly-expressed will. In any event, a constitutional convention recognizing a right of secession would not be legally binding; nor could it contradict the express terms and procedures of the Constitution itself.
On the absence of such a constitutional convention, see Professor Jeremy Webber’s article, "The Legality of a U.D.I. under Canadian Law", (1997) 42 McGill L.J. 281, at 302-304.
(d) If so, should the other provinces have a say in whether such a concession is made?
53. The provinces, of course, have an interest in any recognition of a right of secession but, again, no concession has been made that a right of secession exists.
SIXTH QUESTION POSED BY THE COURT
Is the government of Canada required to oppose secession in order to protect the rights of Canadians affected by the secession unless it obtains the approval of those affected or a mandate from the people of Canada to effect secession?
54. The Attorney General of Canada re-affirms that it is the duty of the Government of Canada — and of all federal and provincial governmental institutions and public authorities — to respect and uphold the Constitution of Canada and to preserve and maintain the rule of law. The Constitution is the supreme law of Canada and no person or institution in Canada is above the law. This applies with respect to any secession process.
55. The Government of Canada recognizes that secession would, as the Attorney General of Canada stated in her factum in paras. s 79 and 80, be destabilizing, disruptive and fundamentally at odds with the goals of the existing state. Secession would involve a fundamental change to the existing constitutional order, notably in that it would end the authority of the Constitution over the seceding territory and, with it, the rights and protections enjoyed under the Constitution by the people of the seceding part.
56. Secession would, by definition, terminate the application of the Canadian Charter of Rights and Freedoms, as well as other fundamental guarantees and protections entrenched in the Constitution of Canada, to a territory that seceded from Canada. The Attorney General of Canada noted in her reply at para. 45 that this would not operate as an outright bar to constitutional amendments giving effect to secession. The Charter and other constitutional guarantees would, of course, have a bearing on events and processes leading to secession, particularly to the extent that governments would be bound to respect the Constitution of Canada, including the Charter, in their actions prior to or in the course of any secession process.
57. It is in part because the rights of Canadian citizens, minorities and aboriginal peoples stand to be affected by secession that the Government of Canada is seeking the confirmation by the Court in this Reference that the Canadian constitutional framework applies to a secessionist claim and that unilateral secession is illegal under the Constitution. Such confirmation will secure a framework that will allow the Government of Canada to be in a better position to take into account the rights of affected citizens and groups.
58. Affected Canadians are not only represented by the Government of Canada but by Parliament and the provincial legislatures. Both the houses of Parliament and the provincial legislative assemblies have a role to play under the constitutional amendment procedures set out in Part V of the Constitution Act, 1982.
59. The latter part of the Court’s question raises the issue of a "mandate from the people of Canada." The people of Canada depend upon the Government of Canada to ensure that the rules relating to any secession process are fair and the consequences are clear. As for the question of any requirement for a direct mandate from the people of Canada to effect secession, there is no constitutional requirement for the Government of Canada to hold a national referendum before proceeding with a constitutional amendment to effect the secession of a province from Canada under Part V of the Constitution Act, 1982. The Referendum Act (S.C. 1992, c. 30) authorizes the Government of Canada to hold a referendum on any question relating to the Constitution of Canada, where the Government considers that it is in the public interest to obtain by referendum the opinion of the Canadian electorate. Thus, a referendum is but one option amongst a range of policy options the choice of which must be left to the consideration of the Government of Canada.
60. In sum, there is no doubt that as a matter of basic principle, the Government of Canada has a general and continuing duty, as do other governments, to respect the Constitution and the rule of law, notably with respect to any secession process. In complying with this duty, however, it is both the prerogative and the responsibility of the Government of Canada to assess the prevailing public environment and examine the range of legal and policy options open to it, and to exercise its best judgment in determining what particular course of conduct to pursue in responding to the exigencies of the situation. At all times, the Government of Canada must be guided by the interests of Canadian citizens and by the fundamental principle of the rule of law, which is at the heart of our constitutional and democratic system.
SEVENTH QUESTION POSED BY THE COURT
What is your position with regard to the fiduciary duty owed to First Nations people if there should be a UDI? Do you consider your obligations to extend to consideration of territorial claims of First Nations people?
61. The Attorney General of Canada acknowledges the existence of constitutionally protected aboriginal and treaty rights and the Crown’s fiduciary relationship with aboriginal peoples, and further acknowledges that they give rise to obligations [which bind the Crown, both in right of Canada and in right of the provinces]. Moreover, the Attorney General of Canada recognizes the legal import of recent decisions of this Court, such as the Van der Peet trilogy and Delgamuukw, regarding the unique constitutional rights of the aboriginal peoples and the tests that must be met in complying with our fiduciary responsibilities.
R. v. Van der Peet, [1996] 2 S.C.R. 507.
R. v. NTC Smokehouse Ltd. [1996] 2 S.C.R. 672.
R. v. Gladstone [1996] 2 S.C.R. 723.
Delgamuukw v. British Columbia, (December 11, 1997), (S.C.C.) [unreported].
62. The position of the Attorney General of Canada is that a unilateral declaration of independence (UDI) would be illegal under the Constitution of Canada. The Attorney General of Canada agrees with aboriginal interveners that a UDI would clearly interfere with existing and on-going rights of aboriginal peoples and would be inconsistent with the present legal and constitutional position enjoyed by aboriginal peoples in Quebec.
[63. Aboriginal peoples in Canada have unique constitutionally protected rights. In addition, on several occasions, different Aboriginal peoples in Quebec have, through referendums, clearly and almost unanimously expressed their opposition to a UDI and their desire to remain in Canada.]
64. [Accordingly,] The Attorney General of Canada recognizes the relevance of aboriginal and treaty rights and of the fiduciary relationship to a consideration of any constitutional amendment under Part V that would have such profound consequences as the secession of a province.
65. Canada is fully committed to honouring its fiduciary responsibilities to aboriginal peoples in Quebec. As this Court has stated on previous occasions, these responsibilities, which flow from aboriginal and treaty rights, would have to be determined in their specific factual context. This would be true in the context of any attempted unilateral secession. (See also paragraph 44 of the Reply of the Attorney General of Canada.)
66. Most aboriginal claims are territorial in nature, as the source and exercise of aboriginal rights is generally closely tied to the land. The responsibilities of the Government of Canada would clearly require it to[make a serious and sustained effort to[(deal with) (take into account) territorial claims of aboriginal peoples] [ensure that territorial claims of aboriginal peoples are (addressed) (carefully considered) ] in the event of a proposed secession.
67. As the expert reports filed in this Reference clearly demonstrate, issues of territory and borders, including territorial claims, are very difficult and do not lend themselves to easy resolution. In order to consider these and other issues, it is essential first to confirm that the Constitution of Canada applies to secession, as such confirmation will provide the essential legal framework for a proper consideration of these important issues.
[68. Although four interveners representing aboriginal people appeared before the Court and presented their views, other interested parties, including other aboriginal groups in Quebec as well as most provincial governments, were not represented. It would be unfair to these parties, whose interests could be profoundly affected, to go beyond a general statement of principle on issues affecting aboriginal people, without having heard their representations.]
EIGHTH QUESTION POSED BY THE COURT
Should the Court consider the [amending] formula to be applied in the case of secession? What formula is appropriate?
69. Question 1 of this Reference asks whether the National Assembly, legislature or government of Quebec can, under the Constitution of Canada, effect the secession of Quebec unilaterally. This question does not ask how the secession of Quebec could be effected under the Constitution. The position of the Attorney General of Canada, as set out in her factum and reply and as pleaded in oral argument, is that to answer Question 1 it is necessary only to determine whether the unilateral secession of a province is possible under the Constitution of Canada.
70. Besides it being unnecessary to consider which amending formula would apply to secession, the Attorney General of Canada submits that it would be inappropriate to do so. To expand the compass of Question 1 in this way could work substantial unfairness to interests not represented in this Reference. Had the issue of which amending procedure might apply to the secession of a province been referred to this Court, some of the provinces and other potential interveners who chose not to appear might have decided otherwise, and the submissions of those parties and interveners that are participating might have been different.
71. The full arguments on which the Attorney General of Canada relies for not considering which amending formula might apply to the secession of a province are set out in her factum at paras. 116-119 and in her reply at para. 43. As well, the Attorney General of Canada reiterates the position set out at para. 41 of her reply, that the questions posed in this Reference arise prior to any secession process, and that to consider issues such as how the secession of a province might be effected under the Constitution of Canada would amount to stating a new question.
72. Beyond this, the Attorney General of Canada emphasizes that the question of which amending procedures might apply to the secession of a province is far from straight-forward. As noted in the reply of the Attorney General of Canada (para. 43), the position of various interveners before this Court, as well as the opinions contained in various academic writings, demonstrate a divergence of views as to which constitutional amending procedures might be engaged by the secession of a province. While such a lack of consensus may not in itself be sufficient reason for a court to refuse to pronounce upon a question properly before it, the concern is an important one where, as here, the issue has not been fully pleaded, where all those potentially interested have not made representations — and, indeed, where the question arguably does not even arise in answering the question posed.
NINTH QUESTION POSED BY THE COURT
What is your position with regard to the submission of the amicus that the principles of "auto-determination" and democracy [should have precedence], in light of the apparent impossibility of achieving the required unanimity for a constitutional amendment?
73. The Attorney General of Canada respectfully submits that, regardless of the amending procedure that would apply in the circumstances, it is wrong in law to use the possibility of a political impasse as a reason to ignore the applicable constitutional rules.
74. Furthermore, as was mentioned in the written response to the Court’s fourth question, it is not Part V that would have "failed" if a constitutional amendment proposal did not obtain the required resolutions of assent but rather, the particular proposal under consideration. The requirements set out in the Constitution cannot be suspended or disregarded out of fear of the possible consequences of applying them to the political environment they are intended to govern. To subject the application of the Constitution to political eventualities would constitute an about-face inconsistent with the very essence of constitutional government. At any rate, the hypothesis of a political impasse is no more than that — a hypothesis.
75. As was pointed out in oral argument, the amicus curiae is wrong to try to place the democratic principle in opposition to the principle of the rule of law, since neither can survive without the other. The democratic principle is expressed in various ways in our system of government, and it would be wrong to equate the democratic principle with majority rule as expressed in an election or referendum. Thus, as was submitted in oral argument, the enactment of a charter of rights, whether by Quebec or Canada, represents an exception to the power conferred by victory in an election; it is an agreement to remove from the reach of the majority of the day certain values deemed fundamental. As well, assertions or claims made in the name of the majority raise questions as to which part of the population of Quebec or of Canada is the relevant majority, and how that majority is to be determined.
76. Constitutional amendment procedures contain, by definition, special rules and requirements that are based in many respects on the same considerations that lead societies to limit the power of the majority of the day. It is believed that constitutional changes as profound as those, for example, affecting institutions, territory and protections of citizens and minorities, must be subject to requirements that reflect the value placed upon them.
77. Furthermore, the democratic principle finds expression in the Part V constitutional amendment procedure, since it is the legislative assemblies that must pass the resolutions contemplated by Part V. This is an expression of the democratic principle consistent with our parliamentary system of government.
78. As for the principle of self-determination, it is well settled that there is no right of secession outside the context of colonies, and possibly that of peoples under alien domination or subject to gross oppression, which is not the case of Quebec, as the amicus curiae has recognized.
79. In summary, the Attorney General of Canada respectfully submits that the Court should answer the three questions submitted by the Governor in Council in this Reference in the manner suggested in para. 211 of the Attorney General of Canada’s factum. Not to answer these extremely important legal questions would leave not only governments but also the citizens and communities of Canada without any guidelines for dealing with all the other important issues relating to the secession of a province from Canada, such as the impact of the Charter of Rights and of rights of aboriginal peoples on the secession process. Finally, it is essential that all governments set an example and undertake to respect the rule of law at all times. It would be difficult to expect citizens to act in accordance with the law if governments themselves refuse to respect it. A society that wishes to be free and democratic cannot undermine the rule of law, a principle that underlies and reinforces the fundamental rights and freedoms of that society.
All of which is respectfully submitted.
DATED at Ottawa, this 6th day of March 1998.