P.J. Monahan & M.J Bryant with N.C. Cote'

THE SILENCE of the federal government during two Quebec referendums has left the Parti Quebecois free to describe how it would achieve secession. Maintaining this silence is irresponsible and will lead to chaos if Quebec tries to declare independence unilaterally.

The Parti Quebecois's claim that Canadians outside Quebec have no right to participate in establishing ground rules for the next referendum finds no support in the laws and practices of other states that have dealt with secession. (see note)

A sensible approach is for the federal government to take a leadership role in setting clear ground rules in advance of any future referendum. These rules should be based on the following (condensed) principles:

Secession is possible under Canadian law if it is done so as to respect the rule of law.

Secession can only occur if it is supported by the province's electorate in a consultative referendum on a clear question conducted transparently and fairly. A majority of 50 percent plus one is sufficient to trigger secession negotiations. Any negotiated agreement should be ratified by the relevant provincial populations in a second referendum.

Partition is legally and logically compatible with secession and should be possible if residents in a defined area express a desire to remain a part of Canada.

The fiduciary obligation of the Crown to the aboriginal peoples of Canada must be respected. They should be directly represented in any secession negotiations and entitled to remain within Canada if they desire .

A secession would necessitate some immediate constitutional changes, but otherwise the existing constitution should remain intact. (In other words, reorganization of the country's institutions should not be attempted simultaneously.)

The federal government has several options for ensuring the application of these principles, including:

Referring the issue of secession and its process to the Supreme Court of Canada for a ruling on constitutionality.

Asking Parliament to enact contingency legislation setting out ground rules for a secession process. This legislation should , among other things, establish who would negotiate on behalf of Canada. A special negotiating authority could be set up comprising, say, 21 persons, nine appointed by the federal government, nine by the provinces, and three by the aboriginal peoples. To avoid chopping up the complex tradeoffs of a negotiated settlement, Parliament and the provinces could agree ahead of time to consider it without amendment.

Asking a blue-ribbon panel, of Canadians and non-canadians to draft this legislation.

Obtaining a mandate for its actions from the Canadian people, preferably through an election (rather than a national referendum or a constituent assembly).

All these recommendations offer pitfalls. But to make no plan would leave Quebecers with no clear idea of the consequences of a "yes" vote in a sovereignty referendum and the Canadian government without a strategy or a mandate for responding to a majority "yes" vote.



1) The authors examined 89 constitutions . Of these 82 do not permit secession under any circumstances. The remaining 7 place hurdles on eligibility, acceptance level, drafting the question, vote scrutiny, etc.

"Quebec's claim - that the terms and conditions governing secession are a matter for its National Assembly alone to decide - is simply unknown in the constitution of any other country." pp. 7& 8

2) Mr. P.J. Monahan is a Professor of Law At Osgoode Hall Law School and served as constitutional advisor to Ontario Premier D. Peterson..

M.J.Bryant is an associate, McCarthy Tetrault (Toronto) law firm & Lecturer in law, Kings College, London.

N.C. Cote' is a member of the Ontario Bar and LL.M candidate Osgoode Hall, York University

INTERNET USE courtesy of C.D. HOWE INSTITUTE. 125 Adelaide St.E. Toronto, M5C 1L7. (tel.: 613 238 4333).

Print copies available from the C.D. Howe Institute or Renouf Publishing, Ottawa