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