Department of Justice

REFERENCE TO THE SUPREME COURT OF CANADA
SUMMARY OF THE GOVERNMENT OF CANADA'S POSITION

The Government of Canada submitted the Reference to the Supreme Court of Canada as a direct result of the position repeatedly taken by the current Quebec Government -- that it has a right to take Quebec out of Canada unilaterally, that international law sanctions such a process, and that Canadian laws and courts have no role to play in the process. The Government of Canada believes that there is no basis in Canadian or international law for this claim of the Government of Quebec.

Any attempt at unilateral secession by Quebec's governing institutions would have grave consequences for all Canadians, with particularly serious consequences for Quebecers. It would create the greatest uncertainty for the average citizen, business or institution in Quebec. Individual Quebecers would be uncertain what laws applied and who would guarantee their rights. Since such an action -- by its nature -- would be done without the consent of the Government of Canada, Quebec would likely find itself without recognition by all or most of the international community, and unable to manage its relations with sovereign states.

Given the seriousness of the questions, the Government of Canada has asked the Supreme Court to clarify the issue of unilateral secession so that Quebecers and other Canadians can understand clearly the legal framework that would govern any process that could possibly lead to secession. Should any such changes to our country ever occur, they would have to take place in a clear and orderly manner respecting the rule of law, and must be fair to all Quebecers and all other Canadians.

Therefore, on September 26, 1996, the Government of Canada referred three questions to the Supreme Court of Canada:

Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

The factum outlines the Government of Canada's legal arguments. These arguments will be further elaborated upon during the oral hearings for the case.

SUMMARY OF FACTUM SUBMITTED BY
THE ATTORNEY GENERAL OF CANADA

On February 28, 1997, the Government of Canada filed its written argument (called a factum) with the Supreme Court of Canada. The Government's arguments are supported by an Experts' Report on state practice and international law which carefully examines all cases of new states created since 1945 (summarized in a separate document). The four portions of the factum described below include a statement of facts and the Government of Canada's position on each of the three questions before the Court.

I. Statement of Facts

The Statement of Facts provides a context for this Reference. In it, the Government of Canada outlines certain actions and statements of the current Quebec Government since it came to power in 1994 - that it can, and will if it so chooses, use a unilateral declaration of independence to take Quebec out of Canada. The Quebec Government has maintained this position both before and after the referendum of October, 1995.

Key actions of the Quebec Government in this regard include the tabling of An Act respecting the sovereignty of Québec and the introduction of An Act respecting the future of Québec in the Quebec National Assembly. Both bills provided that the National Assembly could unilaterally declare Quebec to be a sovereign country.

Since the referendum, the Quebec Government has argued that the Constitution and courts would have no role to play in an attempted secession and that it could resort to a unilateral declaration of independence. The Quebec Government has maintained its position in statements by the current Premier and the Attorney General of Quebec to the effect that there could be resort to a unilateral declaration of independence.

II. Question One - Canadian Constitutional Law

The first question asks whether the governing institutions of Quebec have a right to take Quebec out of Canada unilaterally under the Canadian Constitution. The Government of Canada believes that the Constitution must be respected in all cases, but especially in a process as serious as the possible secession of a province. Under the Constitution of Canada, such a change in the structure of our country could not be undertaken unilaterally.

The Canadian Constitutional Framework

The Constitution is Canada's supreme law, providing the ultimate legal framework by which Canadians govern themselves. Constitutions cannot be lightly or casually set aside.

The Constitution is based on the rule of law, one of the cornerstones of democratic government. The rule of law protects the rights of all citizens, helping to safeguard individual freedom and the equality of everyone before the law. Without this protection, there is a high risk of uncertainty, instability and arbitrariness in the exercise of governmental power.

The courts are the guardians of the Constitution. They are responsible for ensuring that the rule of law prevails and that other central pillars of Canada's constitutional framework are upheld.

The Constitution sets out a federal structure. A federation is a union which creates two orders of government, both of which are legitimate and sovereign within their own spheres of responsibility. Citizens participate directly at both levels of government and interact with both sets of institutions. No single order of government - whether federal or provincial - can claim the exclusive authority of the population or the exclusive right to speak on its behalf.

The Constitution of Canada and the Secession of a Province

Unilateral secession involves the breaking away of part of an existing state in an attempt to form a new state. This necessarily occurs at the expense of the territorial integrity and political unity of the existing state. Secession is destabilizing, disruptive and, in almost all cases, fundamentally opposed to the goals of the existing state, whether unitary or federal. It is, by its very nature, extraordinary. Onlyy a very few countries' constitutions recognize secession as possible and then only if certain conditions are met.

As is the case for most countries, the Canadian Constitution neither prohibits secession nor provides for it. The Government of Canada believes that the Constitution is capable of accommodating any change to the federation or its institutional structures, including even such an extraordinary change as the secession of a province.

The Canadian Constitution specifies the procedures necessary to make constitutional amendments and sets out a number of amending formulas that apply in different circumstances. There is only one procedure that permits amendments by a province acting alone and it applies only to matters internal to the province and its institutions.

The secession of a province from Canada clearly involves more than a mere change in matters internal to a province and its institutions and would by its very nature affect the Canadian federation as a whole. Since there is no other mechanism for unilateral constitutional amendments by a province, it follows that there is no right of Quebec's governing institutions to effect unilaterally the secession of Quebec from Canada under the Canadian Constitution.

III. Question Two - International Law

The second question asks whether the governing institutions of Quebec have a right to take Quebec out of Canada unilaterally under international law and whether the right of self-determination includes a right to unilateral secession. The Government of Canada believes that Quebecers, like other Canadians, exercise their right of self-determination within Canada. The right of self-determination does not imply a right to secession. While the concept of self-determination has evolved over time, it has never included a right to secede from democratic independent states.

International Documents

The first international document setting out a right of self-determination was the 1945 Charter of the United Nations. Under the Charter, self-determination does not imply a right of secession for regions of independent states.

Over time, self-determination developed into a principle guiding the internal and external aspects of a people's right to determine their political status as well as their social, economic and cultural development.

For example, the 1966 International Covenants on economic, social and cultural rights, and on civil and political rights provide that all peoples have a right to self-determination. However, the Covenants provide that self-determination must be achieved in conformity with the Charter of the United Nations which guarantees the territorial integrity of independent states. Thus, the Covenants do not provide groups with a right to secede unilaterally from existing states.

All subsequent international documents are equally clear in stating that the principle of self-determination should not be seen as authorizing any action which would dismember or impair the territorial integrity or political unity of sovereign and independent states with governments representing the whole people without distinction.

At each stage in the development of the right to self-determination two guiding principles have remained constant.

First, the right of self-determination can only be exercised by the entire population of a state except in the case of colonies and possibly by peoples under alien domination or subject to gross oppression. This right has an external dimension (peoples in independent states may determine without interference by other countries their form of government and international status) and an internal dimension (the people of a state have a right to a government representing the whole of them without distinction).

Second, the right of self-determination cannot impair the territorial integrity of existing democratic states with governments representing all of the people without distinction.

Therefore, the Government of Canada believes that there is no right to unilateral secession from an independent state that has a government that represents the whole of its people without distinction.

State Practice

International law may also develop through customary international law -- rules and principles that are not contained in treaties. So-called "state practice", or how states act, is a crucial element in the development of customary international law. For unilateral secession to become a right in customary international law, states would have to accept consistently that groups have a right to secede unilaterally from independent states and to believe that international law required states to act in a manner that respects such a right.

State practice does not support unilateral secession outside the context of colonies, and even there unilateral secession has been very rare. Since 1945, there has been only one example of a successful unilateral secession of a territory that was not a colony -- namely, that of Bangladesh -- which was achieved only after military intervention by India. Other attempts at unilateral secession outside the colonial context have failed for lack of international support or recognition and particularly for lack of support by the state from which it purported to secede.

Since 1945, no new non-colonial state formed by way of secession, including Bangladesh, has been admitted to the United Nations without the consent of the state from which it was seceding. These conclusions are supported by the Experts' Report which was prepared for the Government of Canada by two distinguished international law scholars.

Self-Determination: A Right Fully Enjoyed by Quebecers Within Canada

Quebec is in no way a colony, nor is it subject to foreign occupation or gross oppression. Quebecers participate in the Canadian constitutional framework on a basis of full and complete equality. They can freely make their own political choices through both their federal and their provincial governmental institutions. Quebecers can pursue their economic, social and cultural development through those same federal and provincial institutions.

Thus, the current institutions in Canada are in full compliance with the requirements set out in international law on self-determination, that a state must provide a government representative of the entire people. Quebecers are represented in all federal legislative institutions. Quebec representation accounts for a quarter of the seats in the House of Commons and an equivalent proportion of the seats in the Senate. In addition, three of the nine judges who sit on the Supreme Court of Canada must be from Quebec. Further, under the Canadian federal system, Quebecers are represented in their provincial National Assembly which exercises many important powers and enjoys a large measure of autonomy in economic, social and cultural matters, including linguistic matters.

It is the position of the Government of Canada that Quebecers, and all other Canadians, fully exercise the right of self-determination within Canada and that the governing institutions of Quebec have no right under international law to effect the unilateral secession of Quebec from Canada.

IV. Question Three - Conflict Between Domestic and International Law

The third question asks whether Canadian or international law takes precedence if there is a conflict between them regarding the right of Quebec's governing institutions to take Quebec out of Canada. The Government of Canada believes that there is no conflict as neither body of law provides a right to unilateral secession. However, if the Supreme Court were to find there is a conflict, the federal government argues that domestic law would prevail.

Generally, international law is applied by international courts and domestic law is applied by domestic courts. On occasion, domestic courts may face situations in which they are asked to apply international law as part of domestic law. There are two categories of international law that Canadian courts consider: treaties and customary international law.

Treaties must be incorporated by Parliament directly into a Canadian statute for them to be part of Canadian law. The provisions in international treaties referring to the right of self-determination have not been incorporated directly into Canadian legislation. Therefore Canadian courts cannot apply them, although these provisions may in substance also become part of customary international law.

Customary international law may be adopted by Canadian courts but only if there is no conflict between the international rule and the domestic one. In the case of a conflict, Canadian courts are bound to apply domestic law.

Accordingly, if there were a conflict between domestic and international law on the right of Quebec's governing institutions to secede unilaterally from Canada, Canadian courts would apply domestic law.