Nov 18, 2014

Reference Re Secession of Quebec

Reference re Secession of Quebec, [1998] 2 SCR 217

Facts: Quebec wanted to split as a unilateral state from Canada.

Issue: Under the constitution/international law, could Quebec effect secession unilaterally? Would the constitution or international law take precedence?

Held: Unilateral secession would be unconstitutional and would impose a reciprocal obligation on all parties to Confederation (i.e. the minority) to negotiate constitutional changes to respond to that desire.

Ratio: There are four unwritten principles under which the constitution operates: federalism, democracy, constitutionalism and the rule of law, and respect for minorities.

Reasoning:


    ·(1) Federalism


    Recognizes a level of autonomy of the provincial governments so provinces can self-govern while facilitating the national political process as a whole


    ·(2) Democracy


    The right to vote gives us the majority rule, a fundamentally rooted concept connected to our goals to self-govern


    However, democracy is a continuing discussion of compromise and negotiation where consenting and dissenting views between the majority and minority in order to fully express issues


    ·(3) Constitutionalism and the Rule of Law


    The rule of law is a “fundamental postulate of our constitutional structure” (Roncarelli)


    (i) Law is supreme over the acts of both governments and private individuals; (ii) Rule of law requires the creation and maintenance of an actual order of positive laws which preserve and embody more general principles of normative order (i.e. one law for all); and (iii) The relationship between the state and individual must be regulated by law (Manitoba Language Rights Reference)


    From the preamble of the Constitution Act, 1867, the rule of law requires that all government action must comply with the law, including the Constitution itself (and thus protects rights)


    ·(4) Minority Rights


    Minority rights are protected by the Constitution Act, 1867 with specific provisions directed at language, religion and education


    Minority rights also affect Federalism and Democracy:


    Democracy: Majority rule still requires the negotiation and compromise with the minority


    Federalism: The Charter protects minority rights by protecting individuals from the government. This allows provinces to keep minority and individual cultures and autonomy separate from other province or the nation as a whole