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Unwritten Constitutional Principles in Canada
525
dog high court decision-making in Canada as it does elsewhere in the world,
was the principal factor pushing the Court in this direction.
45
The Secession Reference was, by most every indicator, a legally momen-
tous occasion. After the near loss for federalist forces in the 1995 Quebec ref-
erendum on sovereignty (49.2 percent voted yes to secession, 50.58 percent
voted no), the federal Liberal government identified a two-pronged strategy by
way of a response, one political and the other legal.
46
The first was to encour-
age the provinces to think about reform of the federation.
47
The second was to
refer constitutional questions to the Supreme Court of Canada regarding the
unilateral secession of Quebec from the federation.
48
Three short questions were referred to the Court: is unilateral secession
lawful under the Canadian Constitution; is it condoned under international
law; and should there be a conflict between national and international law,
which legal order takes precedence? The questions were drafted in such a
way as to prompt self-evident responses. Prima facie, a unilateral declaration
of independence (UDI) is not authorized by the amending formulae in Part V
of the 1982 Constitution. Whatever international law might have to say on the
matter, in Canada’s dualist system international law would not have suprem-
acy over national constitutional law. So the questions were expected to elicit
predictable answers from the court. So much so that international law profes-
sor Alain Pellet described himself as “shocked” by the questions asked. They
were so biased he declared in the course of a television interview, that if they
had been submitted to the International Court of Justice, there would be talk
about manipulation of jurisdiction.
49
This is one of the reasons why the government of Quebec refused to rec-
ognize the jurisdiction of the court over such matters. Questions concerning
the terms upon which Quebec could secede were matters that Quebecers,
alone, had authority to decide. These were not questions susceptible to legal
answers. Quebec political leadership, moreover, did not expect to gain much
sympathy from Canada’s federally appointed apex court. In the advertising
campaign conducted contemporaneous with the hearings, the governing
Parti Quebecois invoked the image of the leaning Tower of Pisa to infer that,
45
See Dixon and Stone, Chapter
1
in this book.
46
The referendum was styled by the governing Parti Quebecois as being a vote on “partnership.”
47
Resulting in the Calgary Declaration of 1997, which outlined seven principles for discussion
among nine provinces and the federal government (not including Quebec). See “Calgary
Declaration” (September 14, 1997)
www.exec.gov.nl.ca/currentevents/unity/unityr1.htm
ac-
cessed February 27, 2017 and David Schneiderman, “Introduction”, Supra note 42, 5.
48
The background to the Reference can be found in David Schneiderman, “Introduction,”
Supra note 42.
49
Sauvageau et al., Supra note 34, 103.
526
David Schneiderman
when the Supreme Court decides constitutional questions, it leans in a decid-
edly federalist direction. This was a sweeping attitudinal narrative that had
been pushed by Quebec political and legal elites since the 1960s: that justices
appointed by the federal government (under s. 96) could not be expected to
rule against the interests of the appointing authority.
50
The Supreme Court
was compelled, by reason of Quebec’s absence, to appoint Quebec City law-
yer André Jolicoeur as amicus in order to make arguments that the Quebec
government would have made had it been present. The predictability of the
outcome also helps to explain the desultory nature of the proceedings. No
members of the court asked any questions of legal counsel during oral argu-
ment, giving rise to depictions of the justices as “nine clams.”
51
The legiti-
macy of the Court, in other words, hung in the balance. The justices would
seemingly do whatever it took to maintain and, if need be, restore the Court’s
reputation.
If most court watchers were certain about the outcome, the reasons issued
by the court were unexpected. In regard to the first critical question, the
Court declared that UDI would be unconstitutional because it ignored the
Constitution’s amending formula. It said nothing further about what level of
consensus would be required.
52
In so doing, the Court, significantly, would
not rule out constitutional breakup by the withdrawal of a constituent unit of
the federation. The Court opined that international law would not condone
a UDI by Quebec and, on the question of conflict international law could
not trump national constitutional law. It is in the course of answering the first
question that the court articulated a new constitutional duty to negotiate. “If a
clear majority answering a clear question” decided to pursue secession, other
provinces and the federal government had a constitutional duty “to acknowl-
edge and respect” that decision by entering into good faith negotiations.
The Court began, early in its reasons, to identify unwritten constitutional
principles out of which the constitutional duty to negotiate could be derived.
53
These unwritten principles underlying the Constitution – federalism, democ-
racy, constitutionalism and the rule of law, and protection of minorities – were
50
Andrée Lajoie, Pierrette Mulazzi and Michele Gamache, “Political Ideas in Quebec and the
Evolution of Canadian Constitutional Law’ in Ivan Bernier and Andrée Lajoie (eds.),
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