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Federalism and Secession

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Edited By Jorge Cagiao y Conde and Alain-G. Gagnon

The controversial issue of secession has received little attention from experts of federalism. The best federal studies either evade it or dismiss it in a few lines. However, the issue of secession has been present throughout the history of federations. This book is one of the first to explore the complex relationship between federalism and secession.

The authors whose work is presented here recognize the potential of federalism as a way to organize relations between several different states, peoples, nations or territories under the same government. However, they are not naïve or idealist about the ability of the federal idea to succeed in the complex situations in which it is applied. In some cases success seems assured (the United States, Switzerland, Germany, etc.), and the merits of federalism can be showcased. But there are also failures (the former Yugoslavia, or more recently Brexit) and semi-failures that have generated turbulence in recent years in devolutive systems (Scotland in the United Kingdom, Catalonia in Spain) or federative systems (Québec in Canada).

This book provides a nuanced portrait of the issue of secession in federal contexts and lays the groundwork for questioning the still too fragile legacy of the great thinkers of federalism.

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4 From referendum to secession – Québec’s self-determination process and its lessons: DAVE GUÉNETTE AND ALAIN-G. GAGNON

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From referendum to secession – Québec’s self-determination process and its lessons*

Dave Guénette and Alain-G. Gagnon**

Introduction

Over the past 50 years, the debate on Québec’s ability to declare its independence from the rest of Canada has shaped the political and constitutional life of the country. From the election of René Lévesque’s Parti Québécois in 1976, to the referendums of 1980 and 1995, not to mention the Reference re Secession of Québec1 and the federal parliament’s Clarity Act,2 the constitutional question of Québec’s sovereignty has been part of the Canadian political landscape.

Québec is thus a kind of figurehead among western democracies. It is a modern and developed state that is trying to obtain its national independence, not in time of war or because of severe political oppression, not to put an end to a colonial grip on its land or to free itself ←147 | 148→of an antidemocratic political system, but for reasons that are first and foremost cultural, identity-based, linguistic and economic. In this sense, and despite the lack of success of its two referendum attempts, the Québec nation still has to be acknowledged as playing a pioneering role with respect to minority nations’ recognition to external self-determination right, from both academic and practical points of view.

On one hand, from the academic perspective, a great deal has been written on minority nations’ right to secede. That literature not only refers to Québec’s experience, but is also intended to be applicable across the board. Those writings can be divided into two categories, depending on whether the right to independence in multinational states is approached head on,3 or whether the right to self-determination is made into a formal stake to be taken into account when analysing ways of living together (vivre-ensemble) in multinational societies.4 While we are not claiming that the case of Québec is the source of all of this literature, it is nonetheless an inescapable point of reference, providing food for thought in many respects.

On the other hand, from a practical point of view, since the Québec referendums on sovereignty-association in 1980 and sovereignty-partnership in 1995, other minority nations in political contexts that are, all in all, similar to that of Québec, have also taken secessionist steps. Naturally, Scotland springs to mind, where a referendum on ←148 | 149→self-determination was held in 2014, as does Catalonia, which also held a referendum on independence in 2014, followed by an “election-referendum” on the same question in 2015, and by another referendum on self-determination in 2017. In their long marches toward sovereignty, both the Scots and the Catalans have been inspired by the Québec process, what can be learned from it, and the obstacles it has brought to light.5

For these reasons, the Québec experience and its process – although incomplete – of accession to sovereignty have to be taken into account. Yet, while the secessionist movements in Scotland and Catalonia today are inevitably inspired by that experience, they also inform the debates more broadly with respect to minority nations’ right to self-determination within multinational democratic societies.

It is clear that the lessons from Québec, Scotland and Catalonia – and also possibly those of the Flemish and the South Tyrolians, for instance – share strong similarities and contribute to a more representative sampling of self-determination process experiences for minority nations in multinational contexts. They certainly participate in some sort of dialogue in which the practical experience of one specific case can be shown to have concrete influence on the debates within other independentist movements.

Based on this observation, Québec’s self-determination process is both chronologically and substantially an essential reference with respect to two distinct, but complementary, dimensions. Indeed, in light of the Scottish and Catalan experiences, we believe it is useful to divide the lessons of the Québec case according to whether they are related to (1) the constitutional capacity of Québec’s institutions to hold a referendum or to (2) Québec’s ability to declare its independence from the rest of Canada. These two dimensions will be the subjects of this chapter.

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1 The constitutional capacity of Québec’s institutions to hold a referendum – A stake little debated or opposed

As has been shown by the Scottish and Catalan independentist processes, the constitutional capacity of a minority nation to hold a referendum within its borders should not be taken for granted. While, in Scotland, the holding of a referendum had first to be approved by the British government through the Edinburgh Agreement,6 in Catalonia, both the Spanish government and the Constitutional Court firmly decline to grant that prerogative to the autonomous community.7 Thus, it seems essential to discuss the constitutional capacity of Québec’s institutions to hold a referendum. For this, we will look at (1.1) the historical and (1.2) legal dimensions authorizing self-determination referendums in Canada.

1.1 The historical dimensions leading to referendums on the sovereignty of Québec

In order to understand the context surrounding the referendums on the independence of Québec, as well as their legal foundations, we first have to examine (1.1.1) the history of referendum practices in Québec and Canada prior to the debates on secession, and then focus on (1.1.2) the 1980 and 1995 referendums on the sovereignty of Québec.

1.1.1 Referendum practices in Québec and Canada prior to the debates on secession

The primary pillars of Québec’s ability to hold referendums within its borders find their roots in practices that date from 1867 in the province, and in the rest of Canada. Indeed, “for historical and contextual reasons, referendums, in general, and the Québécois’ right to choose their political status, in particular, have been exercised, de facto, in a manner freed, in many respects, from the institutional mechanism set out in the formal ←150 | 151→Constitution”.8 It can thus be noticed that long before there was any question of holding a referendum to consult the population of Québec on the province’s independence, direct democracy practices took place in Canada. Those had for consequence to establish, both legally and politically, the foundations of Québec’s capacity to hold referendums.

That being said, we should note that referendums have been relatively rare, at both the federal and provincial levels. As jurists Henri Brun, Guy Tremblay and Eugénie Brouillet have said: “Constitutional regimes inspired by the British model are generally not very familiar with operating techniques derived from direct democracy.”9 Since referendum practices have not been used very often in the Canadian political system, they are not very institutionalized or subject to precise rules, unlike, for example, in Switzerland.

Historically, referendums were held in Canada in 1898 – on prohibition10 – and in 1942 – on conscription.11 A third pan-Canadian referendum also took place in 1992 to consult the population on the Charlottetown Accord.12 Thus, a total of only three pan-Canadian referendums were held in the first 150 years of Canada. Even today, the country has only a “limited referendum Act”,13 namely, An Act to Provide for Referendums on the Constitution of Canada.14 This shows the low degree of institutionalization of its referendum practices. Consequently, ←151 | 152→some ambiguity hangs over the referendum process in Canada, with respect to both its legal foundations and organization, and also regarding the interpretation of the results.15

A similar phenomenon can be observed at the provincial level, even though referendum practices have been a little more frequent there.16 For example, “Saskatchewan, Manitoba and Alberta adopted referendum legislation at the beginning of the twentieth century”17 to provide a framework for direct democracy practices, and some provinces now make their approval of amendments to the Constitution subject to the prior holding of a provincial referendum.18 Moreover, the great majority of provinces now “have a provision for the enactment of a plebiscite”.19

In the case of Québec, four provincial referendums have been held up to now.20 The first, which was in 1919 and concerned prohibition, was made possible “because of a special legislation”.21 It thus established an important precedent, even though, at the time, Québec did not have a specific legislative framework governing its own direct democracy practices. It was only 50 years later that a bill by the Union nationale, which was then the party in power in the Québec National Assembly, proposed instituting a formal legislative framework on referendums.22 Abandoned by the Liberal government that succeeded the Union nationale, such a law was not adopted until 1978, under the government of the independentist Parti québécois.23 This was the legal framework for ←152 | 153→three successive referendums in Québec, including those of 1980 and 1995 on the province’s sovereignty.24

What can be learned from referendum practices in Québec and Canada, even before the debates on secession, is that, despite their relative rarity, and even though there has been a lack of a formal legal and constitutional framework for holding them, recourse to this democratic tool remains possible for political actors both at the provincial level and in the central government. We can now turn our attention to the study of Québec’s referendums on independence.

1.1.2 The 1980 and 1995 referendums on Québec sovereignty

At the turn of the 1970s, the Québécois had been called upon to make their opinion known through referendums only three times in their entire history, namely, in 1898, 1919 and 1942. Nonetheless, from 1966 to 1977, the idea of “using a referendum to resolve the eternal constitutional debate surfaced from time to time”.25 That political project of external self-determination, inspired by the coming to power of René Lévesque’s government in 1976, was embodied through the adoption of the Referendum Act on June 23rd, 1978,26 which led to the holding of the first referendum on Québec sovereignty on May 20th, 1980.

Québec thus voted on its government’s “sovereignty-association” proposal. The outcome, while it was not what the independentist forces hoped, had the merit of allowing the Québécois to express themselves on their constitutional and political future. At the end of a 35-day referendum campaign, 59.56 % of Québécois voted against independence, while 40.44 % endorsed the independentist proposal, in a vote in which the participation rate was 85.61 %.27

However, beyond these results, it is more specifically the process that retains our attention, notably since the Québec government was able to take action alone and autonomously, requiring neither consultation with ←153 | 154→nor authorization from Ottawa. Formally, the process was carried out within Québec’s institutions. It began with a debate that lasted over 36 hours, spread over 17 days, in the National Assembly, during which all of the representatives from all political inclinations had the opportunity to express their opinions.28 In the referendum campaign that followed, the leader of the “Yes” camp was René Lévesque, Premier of Québec, and the head of the “No” camp was Claude Ryan, leader of the Official Opposition in the province.29

One of the consequences of the debate taking place exclusively among Québec political actors was that the central government, while it did not contest Québec’s ability to hold the referendum, nonetheless refused “to bend to the system of national committees established by the Referendum Act”.30 The Superior Court of Québec31 and the Council of the referendum32 finally ruled in its favour, allowing actors from Ottawa to intervene in the referendum campaign without observing the conditions set out in the legislation adopted by the National Assembly.

A significant precedent was thus established, according to which the Québec government can, in an autonomous manner, hold a referendum on the province’s sovereignty within its institutions and without prior agreement from Ottawa. However, the central government can embrace the referendum strategy that it wishes and act as it likes, without concern for Québec’s legislative framework.

In line with this precedent, from a procedural point of view, the 1995 referendum on sovereignty had a lot in common with that of 1980. Formally, it took place between Québec’s political actors – it included a 35-hour debate in the National Assembly and the formation of a “Yes” camp led by the Premier (Jacques Parizeau) and a “No” camp headed by the leader of Québec’s Official Opposition (Daniel Johnson).33 Once again, the central government refused to bend to Québec’s legal norms, but did not try to block the holding of the referendum.

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It is, however, with respect to the outcome that the 1995 referendum proved to be very different from that of 1980. In 1995, the “No” option barely won, with 50.58 % of the votes, against 49.42 % for the “Yes”, with a higher participation rate of 93.52 %.34 The effect of that result was to encourage the federal authorities to change strategies in response to the Québécois’ self-determination process.35

At the end of this brief historical examination of Québec’s ability to hold a referendum on its constitutional and political future, a few conclusions have to be drawn. To begin with, despite the scarcity of direct democracy practices in Canada, referendums have been held a number of times on a wide range of questions at both the federal and provincial levels since the 1867 constitutional pact was signed. Thus, when Québec decided to give itself a formal legal framework regarding direct democracy, in order to eventually declare its independence, it seemed difficult if not impossible to try to deny it that prerogative. Consequently, the 1980 and 1995 referendums, as well as the formal debates, took place strictly within Québec’s institutions. Yet, the central government intervened in its own manner in those referendum campaigns, without complying with the provincial laws on the matter.

1.2 The legal aspects allowing self-determination referendums in Canada

At a time when Québec’s self-determination process was picking up pace, not only did historical precedents seem to make it possible to hold a referendum in the province, but the legal framework in which it was evolving also seemed to be leaning in that direction. Indeed, Canadian constitutional law and its written, customary and conventional sources, as well as its sometimes obsolete and silent nature, were to have consequences on Québec’s self-determination process. It is thus within that context specific to Canada that we have to define the scope of political authorities with respect to referendum practices. The special nature of Canadian constitutional law requires that we look at what is formally provided for in the texts, but also what the unwritten sources of the Constitution say. To this end, we will discuss (1.2.1) the absence of ←155 | 156→constitutional restrictions on holding a referendum and (1.2.2) practices regarding direct democracy.

1.2.1 The absence of constitutional restrictions on holding referendums

In the written Constitution, tools of direct democracy are not mentioned. As jurist Patrick Taillon says, “[f] rom the origin of the Canadian federation in 1867 to today, the texts of the Canadian Constitution have always been silent on the possibility of holding referendums: both with respect to amending the Constitution and with respect to the adoption of federal and provincial legislation, the texts are based on a strictly representative conception of democracy.”36 While this silence of the texts is in no way an isolated case in Canadian constitutional law,37 it also in no way prohibits or makes it more legally difficult to use referendum tools. In this respect, to assess the legality of referendums under Canadian law, we have to take into account not only the constitutional provisions that could inform us on this matter, but also the case law on this issue that has been produced by highest Canadian courts over the years.

First, with respect to the constitutional provisions that may not directly concern the possibility of holding a referendum, but that can be interpreted in that way, there are three sections that are especially relevant. According to Patrick Taillon’s reasoning, section 45 of the Constitution Act, 198238 – which concerns the ability of each province to unilaterally amend its own constitution – section 92 (16) of the Constitution Act, 1867 – concerning the legislative power of the provinces in “all Matters of a merely local or private Nature in the Province” – and section 129 of the same Act – dealing with the continuity of the legislative norms in effect prior to the 1867 Confederation – all probably can be seen as granting provinces the constitutional capacity to hold referendums.39 Together, ←156 | 157→these provisions constitute a solid juridical foundation establishing the legality of referendums by Québec’s government.

Regarding case law, the Judicial Committee of the Privy Council in London and the Supreme Court of Canada – which took over in 1949 as court of last resort in Canadian law – both rendered decisions in which they approved, to a certain extent, recourse to referendums. To begin with, in 191940 and 1922,41 the Judicial Committee rendered important decisions, the outcome of which is that it is possible for the provinces to “add certain special features of direct democracy to their parliamentary regime”.42 Later, the Supreme Court of Canada confirmed this interpretation, notably in the Haig43 and Libman44 decisions, and then even more explicitly, in 1998, in its Reference re Secession of Québec. Upholding once again the validity of the Québec’s Referendum Act, as well as “the authority of the provinces to consult their own electors as they saw fit”,45 it not only sealed the debate on the capacity of political actors to hold referendums, but also reiterated the democratic legitimacy of such processes. In this matter, constitutional practices also support this argument.

1.2.2 Constitutional practices with respect to referendums

In parallel with the text of the Constitution and constitutional case law, practices also lead to the conclusion that it must be possible, under Canadian law, to hold referendums. Indeed, “[a] lthough it was neither intended nor anticipated by the framers of the Constitution, referendums have developed – alongside the Constitution – thanks to an evolution in political practices and have been consolidated by acknowledgement of the courts”.46 These precedents, which date from before the debates on Québec’s secession, also contributed to establishing the foundations for the legality of referendums on sovereignty in 1980 and 1995.

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As we argued in 1.1.1, prior to the debates on the secession of Québec, referendums had taken place in Canada, Québec and other Canadian provinces, and referendum legislation had been adopted in some provinces to provide a framework for direct democracy. Together, these practices and legislative mechanisms formed a collection of precedents that, although apart from the Constitution, formed the first embryos of direct democracy in Canada. They are now part of Canada’s constitutional culture, and their legality was not open to debate when Québec’s government announces its intention to hold a referendum on sovereignty.

These precedents are thus highly significant. One of the consequences of the composite, heteroclite and dispersed nature of Canadian constitutional law is that simple precedents can have real, tangible impact. As jurist Allan C. Hutchinson says, the Canadian constitution is a “baffling mish-mash of texts, customs, conventions, ideals, and cases”.47 In this sense, given the nature of Canadian constitutionalism, it is very likely that if Québec’s ability to hold a referendum had been challenged, the legislative precedents and past practices regarding direct democracy, on both the federal and provincial levels, would have contributed to the acknowledgement of this prerogative for Québec.

In summary, the study of these historical and legal dimensions shows that there is no ambiguity concerning Québec’s proven capacity to hold self-determination referendums within its borders. The historical practices regarding referendums in Canada, their status as constitutional precedents, the tacit recognition of this capacity by the central government when the 1980 and 1995 referendums were held and the overall constitutional framework all point in favour of this interpretation. This is why we say that it is an issue that does not give rise to any debate or opposition in Canada. However, the situation is quite different when we turn to the possibility that Québec could declare its independence.

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2 Québec’s constitutional ability to declare its independence – An issue far less consensual

Since there has never really been a question of challenging the possibility that Québec could consult its population by referendum, the debates in Canada have been more around the Québec nation’s ability to declare independence. At least since the very close results of the 1995 referendum, (2.1) federal institutions have demonstrated a degree of activism in response to Québec’s self-determination process. One of the notable effects of that activism has been (2.2) to transform the constitutional debate and to give rise to new questions about the requirements to be met and procedures to be complied with during such a process.

2.1 The activism of federal institutions

Right after the 1995 referendum, in which the independentist movement was only 50,000 votes from obtaining an absolute majority, the Canadian government reacted on a number of fronts. As Henri Brun, Guy Tremblay and Eugénie Brouillet put it, “[t] he fact that the sovereigntist option came so close to victory incited the federal authorities to review their strategic positions”.48 While it is true that the federal government demonstrated some openness by recommending that Parliament adopt a motion in the House acknowledging Québec as a “distinct society”,49 and by giving the province’s legislative assembly a veto over certain constitutional amendments,50 it also hardened the tone with respect to Québec’s independentist project. As part of its action, (2.1.1) it began by asking the Supreme Court of Canada to rule on the constitutionality of a secession declaration by Québec. After receiving an answer from the Court that was, all in all, highly nuanced, (2.1.2) it turned to the Parliament of Canada, where it got the Clarity Act adopted.

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2.1.1 The Reference re Secession of Québec and the conciliation of strongly diverging interests by the Supreme Court of Canada

In Canadian law, there is a procedure that allows the executive power to consult the judicial power to obtain its opinion on legal and constitutional issues. At the federal level, section 53 of the Supreme Court Act51 enables the central government to ask such questions to the highest court in the land. Although the opinions of the Supreme Court – its references – are formally consultative, they nonetheless have a significant degree of normative force and political authorities do act accordingly with them.

It is therefore in virtue of this procedure that “in September 1996, the federal government turned to the Supreme Court of Canada”52 to ask it whether, under Canadian constitutional law and international law, Québec could proceed unilaterally with secession from the rest of Canada. The Québec government, wishing to avoid giving any legitimacy to a process in which a federal institution would rule on Québec’s right to declare independence, decided not to take part in the debate before the Supreme Court: “The Quebec government refused to participate in what it saw as nine federally appointed people deciding on the right to self-determination of the Quebec people.”53

Two years later, on August 20th, 1998, the Supreme Court of Canada released its decision through the Reference re Secession of Québec. Of great legal and instructive value, that reference by the Supreme Court was – and continues to be – the subject of significant research and analysis, and has had clear international impact.54 In order to study and summarize the lessons of that reference, we need to look, first, at the underlying principles of the Constitution on which the Court bases it reasoning, and ←160 | 161→then, second, at their application in the context of a province wanting to secede.

Since it found itself facing absolute silence from the constitutional texts regarding the stakes involved in secession,55 the Court had to construct its argumentation on unwritten sources of the Constitution. It asserted that “[b] ehind the written word is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principles. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based.”56 The Court continued, indicating that federalism, democracy, constitutionalism and the rule of law, and the protection of minorities are four of the most fundamental constitutional principles in Canada, adding that they “function in symbiosis” and that “[n]o single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other”.57 We are thus facing norms of equal weight in that they embody the over-determining principle of equi-primacy, establishing that no actor can discard any of those principles in order to give its position an advantage.

After a detailed examination of each of those four principles,58 the Court applied them to Québec’s self-determination process. Its reasoning can be summed up as follows: “The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.”59 When comes time to define what would constitute a clear question, a clear answer and negotiations in good faith,60 the Court refuses to give its opinion since it calls such issues ←161 | 162→political: “The Court has no supervisory role over the political aspects of constitutional negotiations. Equally, the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so.”61

Political scientist François Rocher thus draws essentially three lessons from this Supreme Court opinion: (1) “a plan to secede – or to amend the Canadian constitutional order – is legitimate if it is the fruit of the popular will expressed in a referendum free of ambiguities with respect to both the question asked and the outcome obtained through a referendum”, (2) “the democratic legitimacy of the secessionist plan requires, in exchange, a constitutional duty for Canada to negotiate” and (3) “the Court does not intend to give a further opinion on these questions and places in the hands of the political actors the responsibility of judging whether ambiguities have been eliminated in accordance with their assessment of the circumstances”.62 In summary, therefore, if a referendum on the sovereignty of Québec obtains the clear support of the population, in response to a clear question, the political authorities of Québec and Canada will have the constitutional duty to negotiate in good faith.

With that decision, the Supreme Court thus truly reconciled extremely diverging interests. Its highly nuanced argument has generally been well received, both in Québec and in the rest of Canada. There is also every indication that it resulted from a conscious effort on the part of the Court: “After the Reference re Secession of Québec, a number of authors pointed out the care taken by the Supreme Court to make its argument acceptable to legal stakeholders in Québec”.63 For example, according to jurist Frédéric Bérard:

The Reference re Secession of Québec is, in the eyes of many, a nuanced and meticulously shaded response to the complex stakes involved in the secessionist dynamic. By confirming the symbiosis between democracy, rule of law, constitutionalism, protection for minorities and federalism, many ←162 | 163→could argue that, in some respects, the Supreme Court of Canada succeeded in slicing through a Gordian knot that had until then been impossible to untie.64

Political scientist François Rocher and jurist Elisenda Casanas Adam focus, on their part, on the reception of the Supreme Court’s arguments, both in Québec and in English Canada, as well as on the maintenance of its neutrality as constitutional arbiter:

Thus, the Reference appeared as the fruit of balanced reasoning, while preserving the legitimacy of the judicial power. The Supreme Court succeeded the considerable feat of declaring that unilateral secession by Québec was illegal while opening the door to a process that could, theoretically, translate into its departure following negotiations conducted in good faith. Both audiences targeted by the Reference could draw from it arguments strengthening their positions. The Court’s status as arbiter was not brought into question.65

2.1.2 The Clarity Act and the federal parliament’s declaration that it was both party and judge in the constitutional dispute

Faced with the subtlety and openness of the Supreme Court’s reference, the Government of Canada turned to the federal parliament to give effect to that decision. In Patrick Taillon’s words: “Not having completely persuaded the Supreme Court of the appropriateness of their claims based on the rule of law, the federal authorities reacted to the Court’s opinion by enacting legislation.”66 Through that act,67 the federal parliament declared that it was both party to and arbiter of that constitutional dispute. Considering that “the House of Commons, as the only political institution elected to represent all Canadians, has an important role in identifying what constitutes a clear question and a clear majority sufficient for the Government of Canada to enter into negotiations in relation to the secession of a province from Canada”,68 the ←163 | 164→federal parliament adopted a law giving the House the power to determine, prior to a referendum, whether the question is clear,69 and, following the referendum, whether a clear majority was attained.70

Two major problems – at least – arise from this piece of legislation: (1) the House of Commons’ role as arbiter, when considering that its neutrality can be challenged, and (2) the a posteriori verification of the clarity of the outcome of the referendum. First, with respect to the schizophrenic role of the House of Commons, it is highly problematic to grant wholly and solely to a federal political institution the absolute, discretionary right to judge the clarity of the referendum question and results. As jurist Stephen Tierney says, “the Supreme Court of Canada confirmed that the determination of the question’s clarity was to be left to the ‘political actors’. The court did not, however, suggest that this issue should be resolved exclusively by actors at federal level.”71 In this sense, we share the position that “[w] hile the House of Commons can, undoubtedly, express a given political opinion, it certainly does not have the constitutional competency to make a unilateral decision or ruling on that question”.72

Second, the a posteriori assessment of the clarity of the referendum outcome is problematic because of the ambiguity that it entails,73 but also and above all for its dubiousness with respect to the democratic principle. With that a posteriori verification mechanism, “federal political authorities manage both to change the rules of the democratic game in the midst of playing, owing to a break with the conventional rule of 50 % plus one, and to grant themselves, at the same time, an extraordinary ability to rewrite, or at least clarify, the rules of the game once the referendum has been completed”.74 Thus, through that law, which was supposed to “give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Québec Secession Reference”,75 the federal parliament instead set up a legislative ←164 | 165→mechanism claiming to allow it to decree – unilaterally and arbitrarily – a priori the clarity of the referendum question and a posteriori the clarity of the outcome. In this sense, the Clarity Act “is notable for bad faith that is obviously in contradiction with the lessons of the Court”76 and the underlying constitutional principles.

For these reasons, we agree with Patrick Taillon when he uses the expression from clarity to arbitrariness to describe the effects of the federal Clarity Act. Moreover, in response to that law – of which the democratic purposes seem to be more than questionable – the Québec National Assembly adopted the Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Québec People and the Québec State.77 That act acknowledges the political importance of the Reference re Secession of Québec, and then denounces the “policy of the federal government designed to call into question the legitimacy, integrity and efficient operation of its national democratic institutions”, in particular, through the adoption of the Clarity Act.78 Québec’s political authorities thus preferred to respond in a political manner to the Clarity Act by enacting a Québec law, rather than by challenging the federal law in court.

Nonetheless, that Québec law has not been spared from criticism. Adopted by the Québec National Assembly, it asserts that “[t] he Québec people, acting through its own political institutions, shall determine alone the mode of exercise of its right to choose the political regime and legal status of Québec”,79 without referring to the constitutional duty to negotiate. The law also establishes that, when a referendum is held, “the winning option is the option that obtains a majority of the valid votes cast, namely 50 % of the valid votes cast plus one”,80 that percentage being seen as sufficient to meet the clarity requirement applying to the result.

Thus, while it is true that both the federal and the Québec political authorities received the Reference re Secession of Québec favourably, they ←165 | 166→also both adopted legislation designed to give effect to it in which they offer very different interpretations, thus marking the lack of consensus on the requirements that have to be met for Québec to be able to eventually declare sovereignty. In this sense, the activism of federal institutions that followed the 1995 referendum moved the constitutional debate forward and gave rise to new questions.

2.2 The contemporary evolution of the debate and some unanswered questions

The Reference re Secession of Québec was unquestionably a turning point in Québec’s self-determination process. To begin with, it resolved a few issues of great importance, in particular, that of Québec’s ability to secede from the rest of Canada so long as certain conditions are met – clear question, clear response and prior negotiations. However, the Reference also caused new issues to emerge, including the one (2.2.1) concerning the threshold of the popular majority required for Québec to declare independence, and the one related to (2.2.2) the ambiguity surrounding the duty to negotiate and the applicable constitutional amendment process.

2.2.1 The threshold of the popular majority required for Québec to declare independence

The Supreme Court discusses the concept of clear majority at length in its reference, the expression of that majority being supposed to constitute the effective point of departure for a self-determination process: “a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize”.81 By refusing to state explicitly what form such a clear majority should take,82 the Court leaves this fundamental element floating. Consequently, the political powers in Ottawa83 and ←166 | 167→Québec84 rushed to intercept the ball and adopt – contradictory – legislation on referendum clarity.

Thus, from the uncertainty of whether Québec had the ability to declare independence, the debate evolved towards what would constitute a clear majority allowing it to do so. The Supreme Court decision makes it difficult to know whether it gives precedence to a clear majority in the quantitative sense – in other words, a qualified majority – or whether the clarity has to be interpreted with a more qualitative criteria. Nonetheless, despite this ambiguity, the Court provided a significant element of the answer in its reference when it noted: “we refer to a ‘clear’ majority as a qualitative evaluation. The referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves.”85

In this way, the Court states the principle according to which, to be clear, the majority must not leave any doubt as to the expression of the democratic will. According to some, to be free of ambiguity, “[t] he qualitative and quantitative dimensions would therefore be, in a way, symbiotic”86 in the analysis of the clarity of referendum results. While this point of view is defendable, we have to observe that, in its reference, the Supreme Court never mentions a clear majority in the quantitative sense of the term.

Yet, the justices consciously chose to use the term clear and not qualified, to refer to the required majority.87 For this reason, therefore, while the terms and formulation used by the Supreme Court do not have the effect of expressly setting aside the possibility of a clear majority in the sense that it should be qualified, a literal interpretation points in another direction. A clear majority should therefore be one that is supported by 50 % + 1 of the population and that is obtained in a context in which the free expression of the democratic will of the people was possible. The ←167 | 168→clarity of the results – in other words, their lack of ambiguity – would therefore more depend upon the social, political and legal context in which the majority is obtained.

The clear majority in the qualitative sense that the Supreme Court refers to could very well be on a continuum encompassing a simple majority, an absolute majority and a qualified majority. While a simple majority requires only obtaining the most votes (for instance, if there are more than two options on the ballot), an absolute majority requires obtaining 50 % + 1 of the votes. Finally, a qualified majority requires support that is higher than 50 % + 1 of the votes. For example, 55 or 60 % of the votes could be required for an option to be considered having won.

In that sense, a clear majority is more demanding than a simple majority or an absolute majority because it is accompanied by additional qualitative criteria, but remains quantitatively easier to attain than a qualified majority. The additional requirements allegedly making it possible to ensure the clarity of the referendum results thus act as guardians of the legitimacy of the expression of the popular will. We could therefore think that a high rate of voter turn-out during a referendum free of irregularities in which the population has to answer a clear question and in which the governments agreed ahead of time on the basic rules of the process, coupled with an absolute majority of 50 % + 1, would constitute a clear majority. Only this kind of majority would be likely to comply with the constitutional principles of federalism, rule of law and democracy.

Therefore, since it is the expression of that clear majority of Québécois in favour of independence that would lead to the duty to negotiate between the “two legitimate majorities”88 in Canada, it seems indispensable that those two agree on the meaning to be given to referendum clarity. In other words, the unilateralism that has until now characterized the actions of the provincial and federal political actors with respect to Québec self-determination process no longer seems realistic. It also appears that the process adopted in Scotland should guide the behaviour of the stakeholders during a new referendum on sovereignty: “the recent Scottish adventure reveals, surely ironically, the degree to which London ←168 | 169→and Edinburg seem, at least implicitly, to have followed in extenso the teachings of the highest court in Canada.”89

Consequently, the elements constituting the clear majority required by the Supreme Court should, in an ideal scenario, be established in a consensual manner by Québec and Ottawa, just as they should also be determined and known prior to the referendum. Only if these conditions are met will it be possible for a clear majority of Québécois to express their will freely, while complying with the underlying principles of federalism and democracy, thereby giving rise to a duty to negotiate.

2.2.2 The ambiguity surrounding the duty to negotiate and the process of constitutional amendment

As soon as a clear majority of Québécois express themselves in favour of independence, thereby triggering the secession process, there is procedural ambiguity related to the steps involved in that process. Once again, following the Supreme Court’s reasoning, we can identify at least two major stages in that process: negotiation, by the political actors, of the terms of secession; and then ratification of a secession agreement through the amendment of the Constitution of Canada.

With regard to the negotiation stage, the Court leaves no ambiguity as to its compulsory nature. While it rejects the possibility that Québec could declare its independence unilaterally, at the same time, it provides for the obligation that the rest of Canada negotiate if there is a “winning” referendum. In the words of the Court, such a referendum “would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire”.90

It is not so much the content of the negotiations that is important here,91 but rather the procedural stakes that are entailed, that is, which parties are required to participate and the framework for the negotiations. Regarding the actors participating in the negotiations, there is major debate over whether the process should be bilateral or multilateral. In other ←169 | 170→words, should the negotiations be exclusively between the governments of Québec and Canada, or should they also include the nine other provinces? The Court does not say. Indeed, the Court first mentions that a winning referendum in Québec would “place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations”,92 but then adds that the discussions should take place between “the representatives of two legitimate majorities, namely, the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be”.93 It is therefore impossible to determine with certainty whether the Court opts for bilateralism or multilateralism in the negotiations intended to lead to an agreement on the terms of secession. Jurist Frédéric Bérard raises, however, an interesting point by asserting that the other provinces could delegate their roles in the negotiations to the federal government so as to facilitate that stage of the process.94

It remains difficult to predict or structure the way the negotiations would be conducted. Despite the fact that they have been held on a number of times over the years, “constitutional conferences are a kind of unidentified legal object in Canadian law. Their initiation, conduct, participants and binding nature remain the matters of many questions”.95 Nonetheless, without going too deeply into this topic, the Supreme Court has established that “[t] he negotiation process must be conducted with an eye to the constitutional principles we have outlined, which must inform the actions of all the participants in the negotiation process”.96

If those political actors were to come to an agreement on the terms for the secession of Québec,97 that agreement would have to be ratified as a formal amendment of the Constitution in order to come into effect and thereby comply with domestic law.98 The question that then arises is ←170 | 171→simple: what constitutional amendment procedure would make it possible to officialise the secession of Québec? Since the Canadian constituent process is extremely diversified, there are a number of competing theses that merit our attention.

Because the Court has already rejected unilateralism with respect to secession, the procedures for amendment by an ordinary law of the federal government99 or the provinces100 must be excluded. The bilateral amendment procedure101 seems useful in that it would echo the expression “representatives of two legitimate majorities”102 that the Court uses in the Reference re Secession of Québec. However, it seems unlikely that the federal government and the governments of the English-speaking provinces would decide to take that path. The “normal” procedure, known as 7/50,103 requiring the agreement of the federal parliament and of seven provinces accounting for at least 50 % of the population of Canada, could then apply104, since it represents the residual procedure for constitutional amendment. It has even been defended that there could be an implicit, sui generis amendment procedure uniquely and specifically for settling the case of secession.105

In light of the Supreme Court’s lessons in Reference re Senate Reform,106 there are nonetheless good reasons to believe that the preferred amendment procedure would be unanimity.107 Even though the secession of a province is not a matter directly targeted by section 41 of the Constitution Act, 1982, such a secession would have major structural consequences on the topics listed in that section. “It seems obvious that the secession of the province of Québec would lead to a ←171 | 172→change in the composition of the Supreme Court, on which a minimum of three justices from Québec must sit. Next, by definition, the secession of any province would have an impact on the duties of the Lieutenant Governor. The same goes for the amending formulas provided in the Constitution Act, 1982.”108 In this sense, even in the absence of political consensus or confirmation by the Supreme Court, we think that the amendment procedure requiring the unanimity of the federal parliament and the ten provinces would probably be the one most applicable to the Québec secession scenario under Canadian law.

In short, in the second part of this chapter, we have seen that the debate over Québec’s ability to declare independence is an issue on which there is no consensus in Canadian constitutional law. In the end, it was the Supreme Court that put an end to these polemics, affirming that the expression of a clear majority of the people of Québec, in response to an equally clear referendum question, would provide the legitimacy needed by Québec’s political actors to start down the path to secession. Despite that confirmation of the ability of the Québec nation to secede under certain conditions, a number of questions regarding the self-determination process still remain with no clear answers. In particular, there is the meaning to be given to the concept of clear majority, how the negotiation process should be conducted, and what constitutional amendment procedure would make Québec’s sovereignty effective.

Conclusion

We sought here to highlight the various components of Quebec’s self-determination process. To do this, we divided our demonstration into two parts, a first on the ability of Quebec to hold a referendum on its territory, then a second on its ability to declare its sovereignty from the rest of Canada. This two-part reasoning first allowed us to establish that never Quebec’s jurisdiction to hold a referendum on self-determination has really been called into question, whereas the possibility of the Quebec people declaring their independence has given rise to many debates, just as it remains the subject of important questions today.

To this end, it is easy to see that the Quebec process stands out from those that took place in Catalonia and Scotland. With regard to ←172 | 173→the Catalan case, the central government relied on the constitutional framework in place, providing for the indissoluble unity of the Spanish nation, the “common and indivisible homeland of all Spaniards109”, as well as on the exclusive competence of the Central state to set in motion a referendum process110, to thwart any attempt at secessionist steps by the Catalan people. In its case law, the Spanish Constitutional Court has so far ranked with the arguments of the central government111, thus making the Catalan’s self-determination process ever more difficult.

In the meantime, the political elites in Scotland – another significant comparable case for the Québécois and Catalan nations – have mentioned the possibility to hold a second referendum on independence, in response to Brexit. Faced with this possibility, the Secretary of State for Scotland, who is also a member of the British government, said: “We know what the process is for a referendum. There would have to be the equivalent of the previous Edinburgh agreement112”, thus confirming the political and legal importance of the 2014 precedent on the matter.

This way, the United Kingdom gives the example, both in its legal foundations and in the actions of its political actors, with regards to the way to orchestrate good conciliation of the constitutional principles that a multinational democracy should embrace in relation to a minority nation’s desire for self-determination. It is only in such circumstances that the people of a minority nation will be fully able to make free political choices and to determine its constitutional future, within the limits of the principles of democracy and constitutionalism.

In contrast, when the existing constitutional order and the political actors participating in it opt for a dynamic and structure of domination with regard to a minority nation seeking emancipation, the conciliation of the principles of democracy, rule of law and federalism is impossible. In such contexts, the multinational state loses its legitimacy within the borders of the minority nation, and that nation then becomes free to ←173 | 174→reject the constitutional straightjacket113 that denies its inherent right to self-determination and political equality.


* This chapter is a slightly modified version of Guénette, D., Gagnon, A.-G., “Del referèndum a la secessió – El procés quebequès d’accés a la sobirania i les seves lliçons en matèria d’autodeterminació” – “Du référendum à la sécession: le processus québécois d’accession à la souveraineté et ses enseignements en matière d’autodétermination”, Revista Catalana de Dret Públic, n°54, 2017, p. 100–117.

** The authors are respectively postdoctoral fellow at McGill University and professor of political science at Université du Québec à Montréal.

1 Reference re Secession of Québec, [1998] 2 S.C.R. 217.

2 An Act to Give Effect to the Requirement for Clarity as Set out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference, S.C. 2000, c. 26.

3 Patten, A., “Democratic Secession from a Multinational State”, Ethics, vol. 112, n° 3, 2002, p. 558; Weinstock, D., “Constitutionalizing the Right to Secede”, Journal of Political Philosophy, vol. 9, n°2, 2001, p. 182; Dumont, H., El Behroumi, M., “La reconnaissance constitutionnelle du droit de demander la sécession dans les États plurinationaux”, in Gagnon, A.-G., Noreau, P. (eds.), Constitutionnalisme, droits et diversité. Mélanges en l’ honneur de José Woehrling, Montreal, Thémis, 2017, p. 461; Cagiao y Conde, J., “Pluralisme national et autogouvernement: vers une constitutionnalisation du droit d’autodétermination?”, CRIDAQ Conference, Université Laval, October 3rd, 2016; Beaud, O., “La sécession dans une fédération et son rapport avec le pacte”, CREQC Conference, Université du Québec à Montréal, January 17th, 2017.

4 See, for example, the research institute: Politics in Fragmented Polities: Cohesion, Recognition, Redistribution and Secession, Bolzano, June 14th-27th, 2015; see also Mathieu, F., Guénette, D., “Empowering Minorities’ Societal Culture Within Multinational Federations”, in Steytler, N., Arora, B., Saxena, R. (eds.), The Value of Comparative Federalism. The Legacy of Ronald L. Watts, London, Routledge, 2020, p. 102, in which the authors make the right to external self-determination one of the six pillars of their societal culture index.

5 Bérard, F., Beaulac, S., Droit à l’indépendance. Québec, Monténégro, Kosovo, Écosse, Catalogne, Montreal, XYZ, 2015; Rocher, F., Casanas Adams, E., “L’encadrement juridique du droit de décider: la politique du confinement judiciaire en Catalogne et au Québec”, in Taillon, P., Brouillet, E., Binette, A. (eds.), Un regard québécois sur le droit constitutionnel. Mélanges en l’ honneur d’Henri Brun et de Guy Tremblay, Cowansville, Éditions Yvon Blais, 2015, p. 877; Beauséjour, A., “Les référendums sur la souveraineté de l’Écosse et de la Catalogne. Le Renvoi relatif à la sécession du Québec en comparaison”, Master’s thesis, Université de Montréal, 2015.

6 Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland, October 15, 2012: www.gov.scot/Resource/0040/00404789.pdf.

7 See for example: S.T.C. 31/2015, BOE n°64, p. 190 and S.T.C. 32/2015, BOE n°64, p. 213.

8 Taillon, P., “Le référendum comme instrument de réforme paraconstitutionnelle au Québec et au Canada”, in Seymour, M. (ed.), Repenser l’autodétermination interne, Montreal, Thémis, 2016, p. 269–270 (our translation).

9 Brun, H., Tremblay, G., Brouillet, E., Droit constitutionnel, 6th ed., Cowansville, Éditions Yvon Blais, 2014, p. 98 (our translation).

10 Directeur général des élections du Québec, La consultation populaire au Canada et au Québec, 3rd ed., p. 14: www.electionsquebec.qc.ca/documents/pdf/dge_6350.3_v.f.pdf.

11 Ibid., p. 15.

12 We will come back to this referendum in sections 1.1.2 and 1.2.2 to explore in greater detail what it contributed regarding Québec’s constitutional capacity regarding referendums.

13 Marquis, P., “Referendums in Canada: The effect of populist decision-making on representative democracy”, 1993: publications.gc.ca/Collection-R/LoPBdP/BP/bp328-e.htm.

14 An Act to Provide for Referendums on the Constitution of Canada, S.C. 1992, c. 30. As its name indicates, this act can be used only to provide a framework for a referendum on the Constitution; its vocation is therefore not to govern all direct democracy practices in Canada.

15 Guénette, D., “Le référendum constitutionnel dans les sociétés fragmentées – L’expérience canadienne, son ambigüité et ses conséquences”, in Binette, A., Taillon, P. (eds.), La démocratie référendaire dans les ensembles plurinationaux, Québec, Presses de l’Université Laval, 2018, p. 181.

16 Marquis, P., op. cit.

17 Brun, H., Tremblay, G., Brouillet, E., op. cit., p. 98 (our translation).

18 Constitutional Amendment Approval Act, R.S.B.C. 1996, c. 67; Constitutional Referendum Act, R.S.A. c. 25.

19 Marquis, P., op. cit.

20 Directeur général des élections du Québec, “Référendums”: www.electionsquebec.qc.ca/francais/provincial/resultats-electoraux/referendums.php (our translation).

21 Brun, H., Tremblay, G., Brouillet, E., op. cit., p. 98.

22 Ibid., p. 98.

23 Ibid., p. 99.

24 The third Québec referendum to be held since 1980 is the one on the Charlottetown Accord. Even though it was a pan-Canadian consultation, the Québec government insisted on (and obtained that) it be held under the Referendum Act, CQLR c. C-64.1. In formal terms, therefore, two referendums were held on the same date.

25 Directeur général des élections du Québec, La consultation populaire, op. cit., p. 26.

26 Ibid., p. 27.

27 Brun, H., Tremblay, G., Brouillet, E., op. cit., p. 113.

28 Directeur général des élections du Québec, La consultation populaire, op. cit., p. 37–38.

29 Ibid., p. 39.

30 Brun, H., Tremblay, G., Brouillet, E., op. cit., p. 112 (our translation).

31 Boucher v. Mediacom, [1980] S.C. 481.

32 Boucher v. Mediacom, Council of the referendum, May 16th, 1980.

33 Directeur général des élections du Québec, La consultation populaire, op. cit., p. 51.

34 Ibid., p. 56.

35 We will come back to this in section 2.1.

36 Taillon, P., “Le référendum comme instrument”, op. cit., p. 270–271 (our translation).

37 Guénette, D., “Le silence des textes constitutionnels canadiens – Expression d’une Constitution encore inachevée”, Les Cahiers de droit, vol. 56, n°3–4, 2015, p. 411.

38 Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. That section replaced section 92.1 of the Constitution Act, 1867, (U.K.) Vict. 30 & 31, c. 3, but is nonetheless in legal continuity with it.

39 Taillon, P., “Le référendum comme instrument”, op. cit., p. 274–275.

40 In Re the Initiative and Referendum Act, [1919] A.C. 935.

41 R. v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128.

42 Pelletier, B., La Modification Constitutionnelle au Canada, Scarborough, Carswell, 1996, p. 167 (our translation).

43 Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995.

44 Libman v. Québec (Attorney General), [1997] 3 S.C.R. 569.

45 Haig v. Canada (Chief Electoral Officer), op. cit., 1006.

46 Taillon, P., “Le référendum comme instrument”, op. cit., p. 290 (our translation).

47 Hutchinson, A. C., “Constitutional Change and Constitutional Amendment. A Canadian Conundrum”, in Contiades, X. (ed.), Engineering Constitutional Change. A Comparative Perspective on Europe, Canada and the USA, New York, Routledge, 2013, p. 51, 53.

48 Brun, H., Tremblay, G., Brouillet, E., op. cit., p. 116 (our translation).

49 Canada, House of Commons, Statements by Members, November 29th, 1995, p. 16971.

50 An Act respecting Constitutional Amendments, S.C. 1996, c. 1.

51 Supreme Court Act, S.C.R. 1985, c. S-26.

52 Rocher, F., Casanas Adams, E., op. cit., p. 899 (our translation).

53 Des Rosiers, N., “From Quebec Veto to Quebec Secession: The Evolution of the Supreme Court of Canada on Quebec-Canada Disputes”, Canadian Journal of Law & Jurisprudence, vol. 13, n°2, 2000, p. 171, 172.

54 See Mathieu, F., Guénette, D. (eds.), Ré-imaginer le Canada – Vers un État multinational?, Québec, Presses de l’Université Laval, 2019; Bérard, F., “De la réceptivité des enseignements de la Cour suprême à l’échelle internationale: impacts et répercussions du Renvoi sur la sécession du Québec”, in Binette, A., Taillon, P. (eds.), op. cit.

55 Brouillet, E., “Le fédéralisme et la Cour suprême du Canada: quelques réflexions sur le principe d’exclusivité des pouvoirs”, Revue québécoise de droit constitutionnel, vol. 3, 2010, p. 60, 61.

56 Reference re Secession of Québec, op. cit., par. 49.

57 Ibid., par. 49.

58 Ibid., par. 49–82.

59 Ibid., par. 88.

60 Taillon, P., Deschênes, A., “Une voie inexplorée de renouvellement du fédéralisme canadien: l’obligation constitutionnelle de négocier des changements constitutionnels”, Les Cahiers de droit, vol. 53, n°3, 2012, p. 461.

61 Reference re Secession of Québec, op. cit., par. 100.

62 Rocher, F., “Les incidences démocratiques de la nébuleuse obligation de clarté du Renvoi relatif à la sécession du Québec”, in Binette, A., Taillon, P. (eds.), op. cit. (our translation).

63 Mathieu, C., Taillon, P., “Le fédéralisme comme principe matriciel dans l’interprétation de la procédure de modification constitutionnelle”, McGill Law Journal, vol. 60, n°4, 2015, p. 763, 786 (our translation).

64 Bérard, F., “De la réceptivité”, op. cit. (our translation).

65 Rocher, F., Casanas Adams, E., op. cit., p. 906 (our translation).

66 Taillon, P., “De la clarté à l’arbitraire: Le contrôle de la question et des résultats référendaires par le Parlement canadien”, Revista d’estudis autonòmics i federals, n°20, 2014, p. 13, 15 and 16 (our translation).

67 An Act to Give Effect to the Requirement for Clarity as Set out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference, op. cit.

68 Id., Preamble.

69 Ibid., art. 1.

70 Ibid., art. 2.

71 Tierney, S., Constitutional Referendums, London, Oxford University Press, 2012.

72 Taillon, P., “De la clarté à l’arbitraire”, op. cit., p. 22 (our translation).

73 Ibid., p. 36.

74 Ibid., p. 37–38 (our translation).

75 This is the official title of the Clarity Act.

76 Bérard, F., “Du caractère lénifiant de la règle de droit interne en matière d’accession à l’indépendance: les impacts du renvoi relatif à la sécession du Québec”, in Seymour, M. (ed.), op. cit., p. 245, 262 (our translation).

77 An Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Québec People and the Québec State, CQLR, c. E-20.2.

78 Ibid., Preamble.

79 Ibid., art. 3.

80 Ibid., art. 4.

81 Reference re Secession of Québec, op. cit., par. 150.

82 Ibid., par. 100.

83 An Act to Give Effect to the Requirement for Clarity as Set out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference, op. cit., art. 2.

84 An Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Québec People and the Québec State, op. cit., art. 4.

85 Reference re Secession of Québec, op. cit., par. 87.

86 Bérard, F., “Du caractère lénifiant”, op. cit., p. 255 (our translation).

87 Rocher, F., “Les incidences démocratiques”, op. cit.: “[t] he reference gives precedence to obtaining a clear majority ‘in the qualitative sense’, but it does not define the meaning to be given to that passage. It does not use the term ‘qualified’ majority, even though it is widely employed, which would have had the effect of setting a threshold that would go beyond the 50 percent of votes plus one” (our translation).

88 Reference re Secession of Québec, op. cit., par. 93.

89 Bérard, F., “Du caractère lénifiant”, op. cit., p. 263 (our translation).

90 Reference re Secession of Québec, op. cit., par. 88 (our emphasis).

91 In other words, for example, the stakes pertaining to “economic issues, the debt, minority rights, Aboriginal peoples and territorial borders”: Dion, S., “Le Renvoi relatif à la sécession du Québec: des suites positives pour tous”, Revue québécoise de droit constitutionnel, vol. 6, 2016, p. 3, 8 (our translation).

92 Reference re Secession of Québec, op. cit., par. 88 (our emphasis).

93 Ibid., par. 93 (our emphasis).

94 Bérard, F., “Du caractère lénifiant”, op. cit., p. 257–258.

95 Guénette, D., “La modification constitutionnelle au Canada – Quelle procédure pour quelle Constitution?”, Revue belge de droit constitutionnel, vol. 21, n°4, 2015, p. 417, 448 (our translation).

96 Reference re Secession of Québec, op. cit., par. 94.

97 Such an agreement would have to be of a form similar to that of the Meech Lake Accord or the Charlottetown Accord.

98 Dion, S., “L’originalité canadienne en matière de référendums: l’expérience des référendums nationaux et d’autodétermination”, in Binette, A., Taillon, P. (eds.), op. cit.: “According to the Court, the Constitution of Canada must be amended for secession to be in compliance with the law” (our translation).

99 Constitution Act, 1982, op. cit., art. 44.

100 Ibid., art. 45.

101 Ibid., art. 43.

102 Reference re Secession of Québec, op. cit., par. 93.

103 Constitution Act, 1982, op. cit., art. 42.

104 Woehrling, J., “Les aspects juridiques d’une éventuelle sécession du Québec”, Canadian Bar Review, vol. 74, n°2, 1995, p. 294.

105 Tremblay, G., “La procédure implicite de modification de la Constitution du Canada pour le cas de la sécession du Québec”, Revue du Barreau, vol. 58, 1998, p. 423.

106 Reference re Senate Reform, [2014] 1 S.C.R. 704.

107 Constitution Act, 1982, op. cit., art. 41.

108 Bérard, F., “Du caractère lénifiant”, op. cit., p. 258 (our translation).

109 Spanish Constitution, art. 2.

110 Ibid., art. 149 (32).

111 S.T.C. 31/2015, BOE n° 64, p. 190 et S.T.C. 32/2015, BOE n° 64, p. 213.

112 Carrell, S., “Theresa May lays down independence vote challenge to Nicola Sturgeon”, The Guardian, March 3rd, 2017: www.theguardian.com/politics/2017/mar/03/theresa-may-lays-down-independence-vote-challenge-to-sturgeon?CMP=fb_gu.

113 Tully, J., “Liberté et dévoilement dans les sociétés multinationales”, Globe. Revue internationale d’ études québécoises, vol. 2, n°2, 1999, p. 1.