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AG CANADA'S FACTUM
PART III
ARGUMENT

QUESTION 1

56. The first question submitted by the Governor in Council in this Reference is as follows:

Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

57. The Attorney General of Canada submits that the answer to this question is "No". No institution of the province of Quebec can, under the Constitution of Canada, unilaterally effect the secession of Quebec from Canada.

I. OVERVIEW

58. Canada is a federal state founded on constitutional government and subject to the rule of law. The Constitution of Canada is the supreme law of Canada. The courts have a duty to defend and uphold the Constitution and to ensure that the federal principle is respected – that neither level of government exceeds its constitutional mandate.

59. The secession of a province from the Canadian federation would affect the very structure and scope of the Constitution and would inevitably have an impact on the federation as a whole. It would require amendments to the Constitution of Canada.

60. Part V of the Constitution Act, 1982 sets out the procedures and identifies the relevant institutions for amending the Constitution of Canada. The only Part V procedure permitting unilateral constitutional amendments by a province is found in s. 45, which applies only to amendments to the constitution of a province.

61. The secession of a province of Canada could under no circumstances be achieved by a mere amendment to the constitution of the seceding province. It could not, therefore, be achieved through the provincial unilateral procedure in Part V.

62. There being no vehicle for unilateral constitutional amendments by a province other than s. 45, it follows that, under the Constitution of Canada, no institution of the province of Quebec could unilaterally effect the secession of Quebec from Canada.

II. THE CANADIAN CONSTITUTIONAL FRAMEWORK

63. The Attorney General of Canada submits that the following constitutional principles serve as the starting points for analysis of the issues raised in the first question in this Reference:

A. Constitutional Government

64. Canada is a federal state founded upon constitutional government. The Constitution of Canada is the supreme law of Canada, providing the ultimate legal framework by which Canadians govern themselves. It represents the source of legal authority for both federal and provincial orders of government; it describes the role of key institutions and the limits on their powers; and it determines the legal relationships between levels and institutions of government, and between the citizen and the state. In short, as Dickson J. (as he then was) observed in Hunter v. Southam Inc., the Constitution's function is "to provide a continuing framework for the legitimate exercise of governmental power."

Constitution Act, 1982, s. 52(1), being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3.

Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 155.

K.C. Wheare, Modern Constitutions (London: Oxford University Press, 1966).

65. Constitutions are, by their very nature, intended to be enduring and pre-eminent, and not to be lightly or casually cast aside. Constitutions are superior to ordinary laws, such that inconsistent laws or governmental action will be found invalid. Further, special procedures, outside of the ordinary legislative process, are typically required to amend them. As the Supreme Court of Canada has observed in respect of Canada's Constitution:

"[The Constitution of Canada] is, as s. 52 of the Constitution Act, 1982 declares, the 'supreme law' of the nation, unalterable by the normal legislative process and unsuffering of any laws inconsistent with it."

Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 745 [hereinafter Manitoba Language Reference].

B. The Rule of Law

66. Constitutional government is predicated upon the rule of law, a concept which the Supreme Court of Canada has described as "convey[ing] [...] a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority." The rule of law assumes that adherence to a basic framework of constitutional precepts is essential to the maintenance of stability and order.

Reference Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 at 805-06 [hereinafter Patriation Reference].

67. The rule of law is one of the cornerstones of democratic society, and underlies the protection and development of other fundamental values. The rule of law protects the rights of all citizens, helping to safeguard individual freedom and the equality of everyone before the law. Democratic decisions are carried out through and under the law and are shaped by it. Without the rule of law, there is a high risk of uncertainty, instability and arbitrariness in the exercise of governmental power. The rule of law is "an indispensable element for ensuring that government remains servant."

J.A. Corry & J.E. Hodgetts, Democratic Government and Politics, 3d ed. (rev.) (Toronto: University of Toronto Press, 1959) at 96.

S.A. De Smith, Judicial Review of Administrative Action, 5th ed. (London: Sweet & Maxwell, 1995) at 563.

68. The rule of law has been recognized as an essential aspect of Canada's constitutional tradition. Having been incorporated by the preamble to the British North America Act, 1867, it is now referred to expressly in the preamble to the Constitution Act, 1982. Indeed, the Supreme Court of Canada has observed that "the principle is clearly implicit in the very nature of a Constitution":

"The founders of this nation must have intended, as one of the basic principles of nation building, that Canada be a society of legal order and normative structure: one governed by rule of law. While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution."

Manitoba Language Reference, supra at 750-51.

see also: Roncarelli v. Duplessis, [1959] S.C.R. 121.

C. The Role of the Courts

69. Canadian courts are the guardians of the Constitution, charged with ensuring that the rule of law prevails. This principle has been consistently affirmed, perhaps most clearly in the following passage from Amax Potash Ltd. v. Government of Saskatchewan:

"[...] it is the high duty of this Court to insure that the legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power."

Amax Potash Ltd. v. Government of Saskatchewan, [ 1977] 2 S.C.R. 576 at 590.

see also: Hunter v. Southam Inc., supra at 155.

The Queen v. Beauregard, [1986] 2 S.C.R. 56 at 71-72.

70. Similarly, in the Manitoba Language Reference, the Court spoke of the "mandate of the judiciary to protect the Constitution" and of the courts' "duty of ensuring that the government complies with the Constitution" and "that the constitutional law prevails."

Manitoba Language Reference, supra at 745.

see also: Patriation Reference, supra at 841, 877.

D. The Federal Nature of the Constitution of Canada

71. The federal nature of the Constitution of Canada is another important feature of Canada's constitutional order that is of direct relevance to the present Reference. The federal principle precludes any member of the federation from making significant changes to the federation unilaterally, and requires that governmental authority be exercised in a manner consistent with the country's federal make-up.

Reference Re Authority of Parliament in Relation to the Upper House, [ 1980] 1 S.C.R. 54 [hereinafter Senate Reference].

Patriation Reference, supra at 905-06.

K.C. Wheare, Federal Government, 4th ed., (London: Oxford University Press, 1963) at 53-55.

72. In federal states, the constitution generally plays the essential role of setting out the terms under which the constituent parts have united to form a single federal union. Each order of government is legitimate and sovereign within its own sphere of responsibilities with citizens being represented at both levels.

Wheare, Federal Government, supra at 10, 13-14.

73. However, there is, as the Supreme Court of Canada noted in the Patriation Reference, no "standardized federal system from which particular conclusions must necessarily be drawn." For Canada, there is only the Canadian federal system with its unique federal make-up and own specific features as set out in the Constitution.

Patriation Reference, supra at 806.

R.L. Watts, "Contemporary Views on Federalism" in B. de Villiers, ed., Evaluating Federal Systems (Capetown: Juta & Co., 1994) 1 at 8-10.

74. One of the consequences of the federal principle in Canada is that no single governmental institution – whether at the central or provincial level – can claim plenary authority over the population of a given province or an exclusive right to speak on its behalf. In the case of the province of Quebec, neither the House of Commons nor the National Assembly can claim to be the exclusive representative or the exclusive voice of Quebecers.

E. Conclusion

75. 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. These are not mere theoretical abstractions; they are fundamental entitlements of all Canadians. As the Supreme Court of Canada has observed:

"The Constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled."

A.G. Nova Scotia v. A.G. Canada, [1951] S.C.R. 31 at 34.

76. Among the most basic of the constitutional entitlements of Canadians is the right to communicate their views to government. One of the vehicles for communication (although by no means the only one) is a consultative referendum.

77. The Attorney General of Canada does not question the authority of the government of Quebec to consult Quebecers through a consultative referendum or the right of Quebecers to express themselves in this way. However, in Canada, a referendum is not a formal mechanism for constitutional change. The outcome of a referendum vote 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.

III. THE CONSTITUTION OF CANADA AND SECESSION OF A PROVINCE

78. The first question in this Reference concerns the legal capacity of the institutions of the province of Quebec, under the Constitution of Canada, to effect the unilateral secession of that province from Canada. The Attorney General of Canada submits that the following specific features of the Constitution of Canada are directly relevant to the consideration of this issue:

Constitution Act, 1867, ss. 5, 6, 58-63, 65-68, 82-84, 86-87, 92, 92A, 93, 98-101, 133.

Constitution Act, 1982, ss. 38-49.

A. The Extraordinary Nature of Secession

79. Secession involves the breaking away of part of an existing independent state in an attempt to form a new state. This necessarily occurs at the expense of the territorial integrity and political unity of the existing state. Secession is destabilizing, disruptive and, in almost all cases, fundamentally opposed to the goals of the existing state, whether unitary or federal. It is, by its very nature, extraordinary.

80. Secession represents a fundamental alteration to the existing constitutional order. It would terminate the very authority of the constitution over the seceding territory and, with it, the protections and rights enjoyed under that constitution by the people of the seceding part.

81. In a federal state, secession would remove federal institutions from the seceding territory and would inevitably affect the federation as a whole. Secession would break the original political commitment to form a union, jeopardizing the network of mutual relationships, obligations, undertakings and expectations that the decision to unite federally had generated and fostered.

Wheare, Federal Government, supra at 85-87.

82. It is therefore not surprising that states rarely provide for secession in their constitutions. The break-up of the country is ordinarily not contemplated as part of the original terms of union; to the contrary, a constitution generally looks to the continued existence of the union. The constitutions of most countries are silent on the issue of secession and, in a number of cases, preclude it. Even in those very rare instances where a state constitution recognizes secession as possible, certain key conditions must first be met. There is no general willingness to accept secession regardless of the circumstances, let alone on terms determined solely by the unit proposing to secede.

P.J. Monahan & M.J. Bryant with N.C. Côté, Coming to Terms with Plan B: Ten Principles Governing Secession (Toronto: C.D. Howe Institute Commentary, June 1996) at 6-19.

B. Secession in the Context of the Constitution of Canada

83. The Constitution of Canada does not, on its face, address the secession of a province from the rest of Canada. It does not prohibit secession, nor does it expressly permit or provide for it.

84. This is not surprising, since a central objective of Confederation was to bring together the then-province of Canada (composed of Canada East and Canada West) and the provinces of Nova Scotia and New Brunswick in a single federal union. Moreover, the Constitution's silence regarding secession places Canada squarely within the ranks of most other countries, whose constitutions are, as indicated, similarly silent on the matter.

Constitution Act, 1867, preamble, s. 5.

85. While the Constitution does not expressly provide for secession, it is the position of the Attorney General of Canada that the Constitution of Canada is capable of accommodating any alteration to the federation or its institutional structures, including even such an extraordinary change as the secession of a province.

Constitution Act, 1982, s. 52(3).

Part V of Constitution Act, 1982, "Procedure for Amending Constitution of Canada"; see discussion below.

C. Secession and the Need for Constitutional Amendment

86. As reflected in the terms of the first reference question, the starting point for examining the legality of any purported unilateral secession of Quebec must be the terms of the Constitution itself. It is fundamental to Canada's constitutional order that such a major alteration to the federation as the secession of a province would have to be accomplished by constitutional means.

87. The Constitution of Canada has no provision dealing expressly with the secession of a province. The powers granted to the provinces and their institutions by the terms of the Constitution do not include the power to secede unilaterally from the Canadian federation. The secession of a province would therefore necessarily require constitutional amendments.

88. Section 52 of the Constitution Act, 1982, after declaring the supremacy of the Constitution (s. 52(1)), provides:

"52(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada."

Constitution Act, 1982, s. 52.

89. Nothing changed in this regard with the Patriation of the Constitution of Canada in 1982. The significance of Patriation was to vest Canadian institutions with full and exclusive authority to effect all changes to our country's Constitution, eliminating the role of the United Kingdom Parliament in the process.

Canada Act 1982 (U.K.), 1982, c. 11

90. While Patriation altered the method by which constitutional amendments may be achieved, it did not affect the fundamental capacity of the Constitution of Canada to accommodate change. However, whether before or after 1982, such changes have always had to be accomplished through the prevailing constitutional framework, which has never included the power of a province to secede unilaterally from the federation.

91. Part V of the Constitution Act, 1982, entitled "Procedure for Amending Constitution of Canada", contains a comprehensive set of procedures for effecting constitutional change. These procedures replaced all those powers previously vested in the United Kingdom Parliament. It also carried forward those more narrowly defined powers of amendment that could be exercised by the Parliament of Canada or the provincial legislatures on their own. There is no doubt that these procedures now govern the process of constitutional change in this country, as was confirmed by the Supreme Court of Canada in the Quebec Veto Reference:

"The Constitution Act, 1982 is now in force. Its legality is neither challenged nor assailable. It contains a new procedure for amending the Constitution which entirely replaces the old one in its legal as well as in its conventional aspects."

Reference Re Objection to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793 at 806 [hereinafter Quebec Veto Reference].

see also: P.W. Hogg, Constitutional Law of Canada, 3d ed. (supplemented) (Toronto: Carswell, 1992) at 4-4.

D. Part V of the Constitution Act, 1982

92. Part V identifies the institutions and prescribes the requirements necessary to achieve constitutional amendments.

(i) Institutional Participants

93. The first reference question identifies the National Assembly, legislature and government of Quebec as institutions of that province potentially relevant to an attempt to effect Quebec's unilateral secession from Canada. The relevance of these institutions of the province to an attempted unilateral secession arose in light of Quebec's Draft Bill (An Act respecting the sovereignty of Québec) and Bill 1 (An Act respecting the future of Québec), which purported to authorize the National Assembly to effect the secession of the province.

Draft Bill, Case, vol. I, tab 1 at 16.

Bill 1, Case, vol. III, tab 21 at 461.

94. The respective authority of a province's institutional participants in relation to secession can be determined only by reference to the Constitution itself. Part V of the Constitution Act, 1982 identifies the relevant institutional participants for the purposes of amending the Constitution. These are, principally, the legislative houses – meaning, at the federal level, the House of Commons and the Senate (suspensive veto only); and at the provincial level, the provincial legislative assemblies.

Constitution Act, 1982, ss. 38, 41, 42, 43.

95. In certain limited circumstances, unilateral constitutional amendments – by Parliament at the federal level and by legislatures at the provincial level – are possible. (The term "Parliament" denotes the involvement of the House of Commons, the Senate and the Governor General, while the term "legislature" encompasses both the provincial legislative assembly and the Lieutenant Governor.) In no case, however, does Part V authorize either federal or provincial governments – meaning the executive authority of government – to effect or assent to constitutional amendments.

Constitution Act, 1982, ss. 44, 45.

96. The institutions of the province of Quebec have no legal authority beyond that contained in the Constitution of Canada. It follows from Part V that the National Assembly and the legislature of Quebec are the only provincial institutions of Quebec with the status of formal constitutional participants in the amendment process, and that the executive government of Quebec has no such status under any circumstances.

(ii) The Various Part V Procedures

97. Part V sets out five different procedures for constitutional amendment, depending on the nature or subject-matter of the proposed change. These procedures are:

  1. the general (or "7/50") procedure, which requires the assent of the House of Commons, the Senate (suspensive veto only) and the legislative assemblies of two-thirds of the provinces representing 50% of the population of the provinces: s. 38 (or s. 42 if the matter is not subject to provincial opting out);
  2. the unanimity procedure, which requires the assent of the House of Commons, the Senate (suspensive veto only) and the legislative assemblies of all of the provinces: s. 41;
  3. the "some-but-not-all provinces" (or "bilateral") procedure, which requires the assent of the House of Commons, the Senate (suspensive veto only) and the legislative assemblies of those provinces that are affected by the amendment of provisions not applying to all provinces: s. 43;
  4. the federal unilateral procedure, permitting amendment by Parliament alone (i.e., the House of Commons, Senate and Governor General): s. 44; and
  5. the provincial unilateral procedure, permitting amendment by a provincial legislature alone (i.e., the legislative assembly and lieutenant governor): s. 45.

98. For the purposes of answering the first question raised in this Reference, the Attorney General of Canada submits that it is necessary to focus only on the provincial unilateral procedure in s. 45. This is because, of the five procedures set out in Part V, only s. 45 provides for unilateral amendments by a province. Thus, if unilateral secession by a province is not possible under s. 45, it is not possible at all under the Constitution of Canada.

E. Application: The Scope of Unilateral Amendments Under Section 45

99. The Attorney General of Canada submits that the constitutional amendments that would be required to effect the secession of a province from Canada cannot be brought within the terms of the unilateral provincial amending procedure set out in s. 45 of the Constitution Act, 1982.

100. Section 45 allows for unilateral amendments by a province only in limited circumstances. It provides:

"45. Subject to s. 41, the legislature of each province may exclusively make laws amending the constitution of the province."

Constitution Act, 1982, s. 45.

101. As was the case with its predecessor provision (s. 92(1) of the Constitution Act, 1867, which was repealed in 1982), amendments under s. 45 must relate to the "constitution of the province". In the O.P.S.E.U. case, the Supreme Court of Canada considered the meaning of this phrase in the context of the earlier provision. After an extensive discussion, Beetz J. for the majority summarized as follows:

"[...] an enactment can generally be considered as an amendment of the constitution of a province when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1), such as the office of the Lieutenant-Governor and, presumably and a fortiori, the office of the Queen who is represented by the Lieutenant-Governor."

O.P.S.E.U. v. Ontario (A.G.), [ 1987] 2 S.C.R. 2 at 40 [hereinafter O.P.S.E.U.].

see also: A.G. Quebec v. Blaikie, [ 1979] 2 S.C.R. 1016.

102. Earlier, Beetz. J. had emphasized the need for s. 92(1) to be read carefully, lest an overly-broad interpretation undermine the federal balance. In defending this approach, he wrote:

"[...] Ontario is not a unitary state. It is an integral part of a federal one and provisions relating to the constitution of the federal state, considered as a whole, or essential to the implementation of the federal principle, are beyond the reach of the amending power bestowed upon the province by s. 92(1)."

O.P.S.E.U., supra at 39.

103. The Attorney General of Canada submits that the interpretation of the phrase "[c]onstitution of the province" under former s. 92(1) of the Constitution Act, 1867 is directly applicable to the identical phrase in s. 45 of the Constitution Act, 1982. Although Beetz J. expressly refrained from deciding this matter in the O.P.S.E.U. case, he did observe that "[ i] t may well be thought that the coming into force of the amending procedure has not altered the power of the province to amend its own constitution."

O.P.S.E.U., supra at 33.

see also: H. Brun & G. Tremblay, Droit constitutionnel, 2d ed. (Cowansville, Quebec: Yvon Blais, 1990) at 216-17.

Hogg, supra at 4-26.

104. The phrase "constitution of the province" as used in s. 45 must be understood in the context of the references to "the Constitution of Canada" contained in all of the other Part V procedures (ss. 38, 41, 43 and 44). The position of the Attorney General of Canada is that for a matter to fall within the "constitution of a province" and thus to be a valid unilateral amendment by a province under s. 45, the amendment must generally relate to matters internal to the province and its institutions. As Professors Brun and Tremblay state:

"La partie de la Constitution du Canada qui peut être modifée par simple législation provinciale est donc celle que, selon l'esprit, l'on peut considérer comme relevant de la Constitution interne de la province étant donné qu'elle porte essentiellement sur l'organisation et le fonctionnement des institutions de la province. Par contre, les éléments qui seraient jugés être des conditions fondamentales de l'union fédérative échapperaient au pouvoir constituant provincial."

Brun & Tremblay, supra at 218.

105. While subject to important limitations, the scope of the s. 45 power is not insignificant. However, it is not necessary for present purposes to canvass all of the specific matters that might fall within s. 45. It is sufficient to examine whether the secession of a province from Canada could, under any circumstances, come within the terms of s. 45. The Attorney General of Canada submits that it cannot.

Hogg, supra at 4-27-28.

Senate Reference, supra at 74.

106. In the O.P.S.E.U. case, Beetz J. observed that, under s. 92(1) of the Constitution Act, 1867, it was "uncertain, to say the least, that a province could touch upon the power of the Lieutenant-Governor to dissolve the legislature, or his power to appoint or dismiss ministers, without unconstitutionally touching his office itself." He then went on to raise "the wider proposition" that

"[...] the power of constitutional amendment given to the provinces by s. 92(1) of the Constitution Act, 1867 does not necessarily comprise the power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system."

O.P.S.E.U., supra at 47.

107. The secession of a province from Canada would constitute a profound alteration to Canada's constitutional order. While such a far-reaching constitutional change is possible, it would clearly lie beyond the authority of a province to effect unilaterally under s. 45. In this sense, Patriation has not changed the basic constitutional position: it has never been possible under the Constitution of Canada for the institutions of a province to remove that province from Canada by unilateral action.

108. The position of the Attorney General of Canada is that the secession of a province from the Canadian federation – whatever this might entail and however it might be accomplished – could under no circumstances be achieved by a mere amendment to the constitution of the seceding province. Secession would inevitably have an impact on the federation as a whole and would necessitate amendments to the Constitution of Canada that are beyond the scope of s. 45.

109. The necessary involvement of other Canadian institutions in any secession process is not only mandated by the terms of the Constitution but inheres in the very concept of federalism itself. Although it is entirely consistent with Canada's federal nature that the Constitution should provide the provinces with the unilateral power to amend their own constitutions in respect of matters wholly internal to the province, it is no less essential that this power be a limited one, confined to matters of provincial concern. Indeed, the need for the Constitution to prevent unilateral changes to the federation lies at the heart of the federal principle.

110. To paraphrase the words of Beetz J. in O.P.S.E.U., secession would affect "the implementation of the federal principle or [...] a fundamental term or condition of the union", since it would, among other things, involve the removal of federal legislative powers over the province purporting to secede. In fact, secession would affect Canada's territorial sovereignty itself. Clearly, these and other matters flowing from a potential secession could not be achieved by mere amendments to a provincial constitution.

O.P.S.E.U., supra at 40.

111. Various scholars share the view that the secession of a province would necessarily require amendments to the Constitution that are beyond the scope of s. 45. Although differing as to which specific constitutional provisions would be affected by a potential secession and which amending formulas might be engaged, these scholars all agree that the secession of a province from Canada would inevitably involve some procedure for amendment other than the unilateral provincial one under s. 45. For example, Professor Woehrling has written that "[l]e pouvoir de modification constitutionelle de la législature provinciale ne permet manifestement pas à celle-ci de réaliser la sécession de la province par simple loi provinciale."

J. Woehrling, "Les aspects juridiques d'une éventuelle sécession du Québec" (1995) 74 Can. Bar Rev. 291 at 310.

Brun & Tremblay, supra at 236.

P.J. Monahan, "The Law and Politics of Quebec Secession" (1995) 33 Osgoode Hall L.J. 1.

N. Finkelstein & G. Vegh, The Separation of Quebec and the Constitution of Canada, (North York, Ontario: York University Centre for Public Law and Public Policy, 1992).

Hogg, supra at 5-31.

112. The Attorney General of Canada agrees with this position. Under the Constitution of Canada, the purported removal of a province from Canada could not be achieved unilaterally by the institutions of that province alone.

113. This is demonstrated in the present context by the three key powers that the Government of Quebec has consistently identified as the indicia of sovereignty: the exclusive power to enact all laws, to levy all taxes and to conclude all treaties applying to Quebec. The exclusive exercise of these powers – envisaged both by Quebec's Draft Bill and Bill 1 – would clearly lie outside the competence of a province under the Constitution of Canada. It would require more than a mere amendment to the province's constitution to remove these powers from the federal sphere.

114. In sum, secession would necessarily require a constitutional amendment beyond the unilateral power of a province under s. 45 of the Constitution Act, 1982 and would therefore involve institutional participants beyond those of the province of Quebec alone. While the National Assembly of Quebec would be a necessary participant in any such constitutional amendment process, other Part V participants would also have a role.

115. Section 45 of the Constitution Act, 1982 having thus been ruled out as a means for effecting the unilateral secession of a province, and there being no other unilateral provincial procedure under Part V, the Attorney General of Canada submits that no institution of the province of Quebec can, under the Constitution of Canada, unilaterally effect the secession of Quebec from Canada. It follows that the first question stated in this Reference should be answered in the negative.

IV. NO NEED TO ADDRESS OTHER ISSUES

116. The first reference question asks this Court to determine whether the Constitution of Canada permits any of the institutions of Quebec to effect unilaterally the secession of Quebec from Canada. It is the position of the Attorney General of Canada that it is neither necessary nor appropriate to go beyond this issue in responding to the first reference question. In particular, it is respectfully submitted that this Court need not consider arguments as to which of the amending procedures under the Constitution of Canada or what other constitutional principles might apply in the event of a potential secession.

117. The first reference question is expressly limited to the issue of whether it is possible for Quebec to secede unilaterally from Canada under the Constitution of Canada. The Attorney General of Canada submits that this question is fully answered by the conclusion that unilateral secession is not possible under the Constitution of Canada. It is neither necessary nor appropriate to go beyond the express terms of the question stated to deal with issues that "fall outside the intended scope of the Reference." As Lamer C.J. observed on behalf of the majority of the Court in the G.S.T. Reference when discussing the proper approach to a reference:

"Intervener status is not granted to allow the intervener to raise an entirely new set of issues which are not addressed by the principal parties. This principle is even stronger in reference cases, where the scope of the appeal is governed by specific questions posed by the Lieutenant-Governor or the Governor General in Council."

Reference Re Goods and Services Tax, [1992] 2 S.C.R. 445 at 487.

see also: Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at 555.

Reference Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198 at 1290.

118. Moreover, without the participation of many of the provinces, it would not be appropriate for this Court to address issues that are outside the express terms of the reference questions. In particular, if this Court were to embark on a broader examination of other issues relating to the constitutional amending procedures, it would be deprived of the views of many of the provinces on matters that affect them directly. Although these provinces decided not to participate in this Reference based on the questions that were referred by the Governor-in-Council, they might well wish to express their views on the separate question of which amending procedure or procedures might govern a potential secession of a province.

119. In sum, the position of the Attorney General of Canada is that it is not necessary for the purposes of this Reference to become immersed in – much less to resolve – the issues of what constitutional provisions could, would or would likely be affected by secession, or which amending procedures or other constitutional principles might be engaged.

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