Introduction
Quebec’s secessionist movement is one of the oldest of the sort in any democratic country. Yet, it has not been in such a dire state for decades. Both past strategies and recent internal struggles can account for this situation, but the legal framework for secession that has been put in place in Canada since 1998 has also contributed to it.
In spite of these evolutions, the situation in Quebec continues to raise interest in other parts of the world, particularly in plurinational democratic states such as the UK, Spain or Belgium, which have also had to wrestle with secessionist dynamics for decades. Comparisons between Quebec, Scotland , Catalonia , the Basque Country or the Belgian Flanders have almost become a cottage industry. Yet, social, economic, political and legal differences abound between these regions, even if they all share a minority or minorized status within a larger federal or decentralized polity.
Of all secessionist challenges, the ones that typically tend to draw the most attention in Quebec are those that take place in Scotland and in Catalonia . Catalonia is close to Quebec in that its national language is a minority one in Spain, as is French in Canada, but unlike French, Catalan has little reach outside of Catalonia. Secessionist movements in both regions rely on strong cultural nationalist assumptions, even though Catalonia’s significant place in Spanish economy allows it to credibly add an economic layer to its secessionist claims. On the other hand, Quebec and Catalonia have significantly different legal regimes, Quebec’s secessionist wishes being grasped by a legal regime largely anchored in the common law tradition. In that, it is much closer to Scotland than it is to Catalonia.
Conversely, Quebec secessionists’ quest for independence has been intensely scrutinized in both Scotland and Catalonia . Actually, Quebec is invoked as much as an anti-model than as a model, and very often, the complexities of that province’s situation are obscured in passing.
That being said, the primary focus of this paper is not comparative; it rather seeks to provide its readers with an overview of some of the main political and legal hurdles currently faced by the Quebec independence movement. It may be that some lessons can be drawn for secessionist parties in other parts of the world; I will leave to the judgement of my readers. However, the fact remains that Quebec’s contested quest towards independence has inspired to a large extent many significant political and legal developments in the manner of addressing secessionist claims. Be it only for that, it is worth re-examining it.
I will first revisit the domestic legal framework applicable to a provincial secession attempt since the seminal 1998 opinion of the Supreme Court of Canada in Reference re Secession of Quebec,1 which was a major game-changer in the debate over Quebec’s potential secession (1), notably by refusing to characterize an act of secession as purely legal or political (2), by emphasizing the need for clarity both in the process and the outcome of referendums on secession (3), and by triggering legislative reactions which largely amount to symbolic politics (4). I will then examine the potential impact of Scotland’s recent referendum process on the strategy of the Quebec secessionist movement (5), and recent political events that have revealed deep rifts within Quebec’s nationalist movement, and that may have significantly reduced its appeal in key parts of the electorate (6). Last, I will look at an alleged new legal foundation for secession , i.e. a so-called right to decide distinct from the right to external self-determination (7).
The 1998 Secession Reference as a Game-Changer
In order to better understand the domestic legal framework applicable to Quebec’s potential secession, two preliminary observations must be made.
Firstly, as a matter of principle, referendums entail no legal effect in Canadian constitutional law. This flows from the principle of parliamentary supremacy, which Canada inherited from the UK. Under this principle, no legislature, be it federal or provincial, may abdicate its legislative powers in favour of another body, even if that body is the “people”.2 The outcome of a referendum is thus merely consultative and, consequently, it does not bind any legislator; the British constitutional tradition clearly favours the sovereignty of parliament over that of the people.
Secondly, prior to the enactment of the Constitution Act, 1982,3 the constitution of Canada did not contain any formal amending procedure; amendments were then governed by other legal and conventional rules.4 It now contains such a procedure, but no provision expressly addresses the hypothesis of a provincial secession . This is worth noting, since the constitutional changes that led to the integration of amending procedures in the constitution took place after the first Quebec referendum on secession in 1980. Thus, even if the amendments brought about by the Constitution Act, 1982 (over Quebec’s objections) were largely triggered by the turmoil that surrounded this first referendum , it was not deemed appropriate to include a “secession clause” in the constitution, perhaps for fear of legitimizing ex ante secession attempts. As a result of this, no clear and transparent legal framework was in place when the second referendum on secession was held in 1995, which led to a near-death experience for Canada.
It is against this legal backdrop that post-1995 legal evolutions must be assessed. The most important certainly lies in the Supreme Court of Canada’s advisory opinion in Reference re Secession of Quebec,5 which arguably represents the Court’s most significant contribution to contemporary global jurisprudence. It is beyond the scope of this comment to provide an in-depth analysis of this opinion; it shall therefore suffice to identify a few highlights, which all point to the conclusion that the Court then integrated into the Canadian constitution a judicially elaborated secession clause, albeit an imperfect one.
Secession as a Political and Legal Fact
One is the rejection of a long-standing secessionist claim that the alleged silence of the Canadian constitution regarding the secession of a province meant that it did not preclude a province from seceding, and that, as a result, secession was a purely political act located outside the law’s ambit. In other words, this claim was somehow based on the idea that the secession of a province could not be characterized as an “ordinary” amendment of the constitution, because of the magnitude of the changes involved. The Supreme Court held instead that the secession of a province clearly required a formal constitutional amendment, while declining to specify which amending formula would be applicable.6 Should Quebec ever opt for secession, this finding could prove a thorny issue, in addition to having tremendous consequences on the concrete feasibility of secession under domestic law. Even assuming that the negotiating teams of the governments involved in post-referendum discussions, which would involve at least the federal and Quebec governments, agree on the modalities of secession , the constitution’s amending procedure would require the ratification of such agreement not only by the federal Parliament and the Quebec National Assembly, but also by the legislative assemblies of all provinces affected. This is where the identification of the relevant amending procedure becomes critically important. On the one hand, there is the so-called general amending formula, requiring the consent of the federal Parliament and “of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces”7; on the other hand, there is the unanimity procedure that generally applies to the amendment of the country’s foundational institutions.8 Opinions differ as to which procedure would be applicable. However, even though both are quite demanding in terms of the degree of provincial assent required, the second one renders extremely difficult, if not impossible outright, substantial modifications. This is already the case when political actors are not facing a crisis such as that which would arise as a result of a provincial vote for secession. In the context of a major unity crisis, and even though the executive power tightly controls the legislative power whenever the government involved is a majority government, there is always a risk of deliberations going out of control and legislatures rebelling. This is to some extent what happened when the Meech Lake accord, which would have recognized Quebec as a “distinct society”, collapsed in 1990. This agreement had been prompted by a desire to induce Quebec to sign the 1982 Constitution, which, while legally applicable to the province, had never, and still has not, been accepted by its successive governments. This Quebec-centred focus triggered a “why not me?” syndrome among other provinces and groups such as Aboriginal peoples, which soon formulated their own particular constitutional claims. In other words, asymmetrical arrangements risk creating ripple effects that may lead to their ultimate failure. Thus, while elite accommodation strategies involving executive actors may succeed, they sometimes risk being overturned by legislative assemblies if elected representatives feel that popular support for them is insufficient or vanishing. After the 1995 Quebec referendum , another hurdle was even added to the internal procedure that must be followed in the federal Parliament for the consideration of multilateral constitutional amendments (such as those that would be required in the case of secession): no federal minister may table a motion authorizing such an amendment if a majority of provinces has not consented to it, and this majority must include Quebec, Ontario, British Columbia and at least two Atlantic and two Prairie provinces.9 This regional veto statute could further complicate the constitutional amendment process that should theoretically “crown” a successful...