(Quebec Secession Reference (1998)

On September 30, 1996, the Governor in Council (i.e. the Cabinet) referred 3 questions to the Supreme Court, basically these said:

(1) Under the Constitution of Canada, can the Government of Quebec unilaterally effect secession of Quebec from Canada?

(2) Does international law give the Government of Quebec the right to secede? E.g. does the right to "self-determination under international law give the government of Quebec this right?

(3) In the event of a conflict between domestic and international law, on this point, which would take precedence?

The Court's answer to both (1) and (2) was "no". It therefore held it to be unnecessary to answer (3).

On Question #1, unilateral secession in itself would be unlawful, because it would violate the constitutional principles of federalism; (para 57-59) ; democracy (para 61-69 ;88); constitutionalism and rule of law (para 72-
77); and protection of minorities (para 79). BUT these principles taken together lead court to reject the two "absolutist propositions" (para 90-93).

Quebec cannot dictate terms of secession because democracy cannot simply trump other principles; however there is a political obligation on the part of Canadian representatives to "bargain in good faith" if the "clear majority" of Quebec population decides to secede in response to a "clear question". This negotiation would have to take account of the four principles.

On Question #2 , right to unilateral secession is again unlawful because of importance international law attaches to respecting the constitutions and territorial integrity of sovereign states,(para 111-112) UNLESS there are exceptional circumstances

These exceptional circumstances in which the right to self-determination gives rise to the right to secede exist (para 126) if the component part is a "people" (para 123) and they have been "denied internal self-
determination" (para 132), i.e. have been subject to colonial or alien domination , subjugation or exploitation.

Quebecers may be a "people" but they do not lack internal self determination. Therefore there is no automatic legal right to secede following a Yes vote in a referendum.