Quebec sovereignty threat remains very real

The matter of Quebec's right to secede, legal or otherwise, from Canada has gained new relevance with an International Court of Justice ruling this summer in favour of Kosovo's secession from Serbia. The court stated in part that Kosovo's "declaration of independence of the 17th of February 2008 did not violate general international law."

(Michael Behiels, Ottawa Citizen) Friday, September 03, 2010

A number of commentators, including the Canadian government and Liberal MPs Stéphane Dion and Bob Rae, contend that the ruling does not and should not be considered as precedent for a possible future unilateral declaration of independence by the Quebec National Assembly. Of course, secessionist politicians and academics state just the contrary. The answer is indeed not clear.

The Canadian government and Canadians need to remain vigilant when it comes to the behaviour of the Bloc Québécois leader, especially his attempts to sell the prospect of Quebec secession to our American neighbours.

Jacques Parizeau and Gilles Duceppe are convinced that the Canadian Supreme Court's 1998 ruling in the reference regarding the secession of Quebec is supportive of their goal. They remain firmly convinced that a unilateral declaration of independence by the Quebec National Assembly is legal under international law and now argue that the ICJ's decision supports their position. They also believe that Quebec independence would be recognized first by France and then soon thereafter by the United States.

While these assumptions are highly delusional given French President Nicolas Sarkozy's and the U.S. government's long stated positions, Canadians must be reminded that the secessionist movement in Quebec, while in abeyance, remains the most serious threat to national unity.

The 1998 Supreme Court ruling was initially hailed as a wise and prudent one, one that resolved the secession crisis and set in motion the demise of the Québécois secessionist movement. Commentators' responses, in both the federalist and secessionist camps, were exclusively political in nature. Both sides wanted to claim a political victory and the court obliged them.

Since then analysts have evaluated more rationally the substance of the Supreme Court's advisory opinion. One thing is now clear: The court's ruling was a highly "politicized" decision -- the justices wanted to appease their master in Ottawa by ruling a unilateral declaration of independence illegal, in Canadian and international law, while simultaneously appeasing the Québécois majority with a stealth-like recognition of Quebec as a distinct society, one of Canada's two majorities.

The emerging consensus is that the Quebec secession ruling is highly problematic because of its deliberate ambiguity and ingrained paradoxes.

Why? Because the justices constructed a very questionable legal obligation for Ottawa and the other federal stakeholders to negotiate with a secessionist Quebec government on two conditions:

1. That the referendum question was on secession and only secession;

2. That there was a clear majority of voters in favour of secession.

This legal obligation to negotiate secession is not the same thing as the legal right to secession, a legal right that, according to the Supreme Court, did not exist under Canadian law or under international law. This important and crucial distinction has never stopped the Québécois secessionists, including Gilles Duceppe, from exploiting the Supreme Court's problematic ruling.

The Supreme Court justices manufactured this questionable and paradoxical legal obligation to negotiate out of a "rarefied air," to use the felicitous expression of John D. Whyte, a highly respected legal scholar and constitutional adviser to the province of Saskatchewan on the case.

Research and analysis by legal, constitutional, and political science scholars of the case reveals a range of problems. These scholars, with some nuances, arrive at essentially the same conclusion. The Supreme Court justices used a questionable selection of unwritten constitutional principles -- federalism, democracy, constitutionalism and the rule of law, and minority rights -- to formulate what can be considered a highly "revolutionary" doctrine of political legitimacy. This doctrine of political legitimacy, at the end of the day, encourages and enables the secessionist government of Quebec to trump the rule of law and the Constitution as well as the other three unwritten principles -- democracy, federalism, and minority rights.

Not only does the ruling oblige federal stakeholders to negotiate secession with a provincial government, the Supreme Court then stated that the obligation to negotiate was non-justiciable. They have washed their hands of any role in the highly explosive negotiation process.

In short, the defenders of the Constitution and Canada's territorial integrity would have no recourse to the Supreme Court to challenge any and all aspects of the referendum process, the results of the vote, the determination as to what constitutes a clear majority, which stakeholders are allowed at the negotiating table, the substance of the negotiations, and what amending formula should be used to ratify any secession agreement. That is, if such an improbable agreement is ever concluded between the parties at the table.

In short, it is now apparent that the 1998 reference, and the federal Clarity Act of 2000 that embedded the decision in law, will enable political legitimacy to trump all of the Court's unwritten constitutional principles -- the rule of law, democracy, federalism, and minority rights. No wonder the Québécois secessionists have been so quick to embrace the International Court of Justice's ruling in the case of Kosovo's unilateral declaration of independence.

Canadians have every reason to worry. Perhaps it is time for another reference on the issue of Quebec secession. One that would permit the Supreme Court justices to clarify many of the ambiguities and paradoxes of their ruling in the first reference case.

Michael Behiels is University Research Chair, Canadian Federalism and Constitutional Studies, at the University of Ottawa.