The Amending Formula, Meech Lake, and the Quebec Secession Reference: The Difficulties of Provincial Secession

Abstract

The Quebec Secession Reference, rendered by the Supreme Court of Canada,affirmed the position held by the Government of Canada, which claimed that a referendum on sovereignty is not a sufficient legal instrument, in of itself, to effect the removal of a province from the current constitutional order. The Reference also maintains that a constitutional amendment is necessary in order for the province to legally secede. Moreover, it is the opinion of the Court that a referendum on sovereignty is the formal consultation of the people, by their government, with the purpose of determining the province‟s democratic intent to remove itself from the Canadian Federation. However, a successful referendum on sovereignty does not constitutionally empower a province to amend the Constitution independent of the relevant institutions as defined in the amending formula. In fact, the Court informs us that while a referendum on sovereignty is the expression of the democratic will of the people within that given province, it does not allow for the exclusion of the extra-provincial stakeholders within the Canadian federation. This thesis endeavours to understand, in detail and overall scope, the various legal options and limitations available to a province seeking to remove itself from the Canadian Federation. Central to this understanding is the assumption that provincial secession may only be achieved by way of a constitutional amendment, and that a unilateral declaration of independence is not within the jurisdictional power of any provincial legislature on its own. This thesis demonstrates the amending formula is the primary deterrent to any secessionist plan. Therefore, in order to have a comprehensive understanding of the constitutional impediments to secession, and to legitimate the position that the amending formula is the primary secession deterrent, this paper will attempt to delineate the relevant jurisdictional capacities of both the provincial and federal governments during a potential secession process. In order to determine why the question of secession was presented to the Supreme Court in the first place, it is necessary to provide a historical overview and a synoptic review of the Constitutional patriation process, the Meech Accord, the 1995 Quebec Referendum, and the Quebec Secession Reference. These events are critical to understanding why Quebec has demonstrated uneasiness with the idea of Canada as shared by the rest of the country. After presenting the historical overview, an examination of the legal difficulties associated with provincial secession will follow. In addition, the actions and statements of the political actors during the Reference will be examined in order to comprehend the motives of both secessionists and federalists. Finally, we will determine that political action has forced Canada to discuss and examine the legality of this issue. This paper will weigh the legal practicalities involving a referendum result that requires the governments of both Canada and the province of Quebec to negotiate terms regarding secession and whether a consensus would likely follow. Ultimately, the Canadian Constitution and its amending formula provides for the possibility of provincial secession, however, political consensus on the terms of secession would be extremely difficult to achieve. It is also possible the constitutional acceptance of Quebec as a distinct society would have avoided the threat of a secession process altogether.