Legality, Legitimacy, Decisionism and Federalism: An Analysis of the Supreme Court of Canada's Reasoning in Reference Re Secession of Quebec, 1998

Abstract

In 1998, the Supreme Court of Canada delivered its now world famous decision concerning certain questions relating to the secession of Quebec from Canada. The nine justices unanimously held that a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative, and that the other participants would then be duty bound to engage in discussions to address this attempt to radically change the constitutional order. This decision was held up as a success by both the separatists and those opposed to secession. However, as this paper attempts to demonstrate, at the end of the day, politicians were, in some fashion, the losers, for the true winners were the members of the population of both Quebec and Canada.

The wisdom of the Court lies in its refusal to endorse empirically false depictions of Quebec as a homogeneous and unanimous “nation” or “people”, thus allowing for a new understanding of the manner in which, in the context of a federation, a citizen’s sense of identification develops. By the same token, it repudiated the positivist account of the Constitution offered by the Attorney General of Canada, one that equated legitimacy with conformity to the strict letter of Canada’s fundamental law. In other words, the Court succeeded in drawing a nuanced path of solution, because it purposely refused to mobilize monistic understandings of both identity and constitutional law.

Keywords: Secession, Canada, constitutional law, identity, monism, nationalism, pluralism, cultural essentialism, unwritten principles, unwritten constitution, legal epistemology