The recent so-called Sponsorship Scandal(1) has shaken confidence in the federal Liberal government. It is but one more issue that certain partisan groups and individuals can point to in criticism of Canadian federalism under its present structure. Canadians who are even moderately informed of current events and Canadian history are familiar with Quebec-separatist’s discontent with that province’s “status” (or perceived lack thereof) within the Canadian federation. Less well known, but just as passionate in their cause, are the western-Canadian separatists who believe that the western provinces would be better off on their own as independent states or as part of a new federation consisting of only western provinces. Some people who I have spoken to even believe that the west would be better off as an American state.
Several groups and political parties have been founded in the west whose mandate is to lead western provinces, individually or severally, out of the Canadian federation. Examples include: the Alberta Independence Party(2); the Separation Party of Alberta(3); the Republic of Alberta(4); the Western Canada Concept(5); the BC Independence Party(6); the Unity Party of British Columbia(7); the Western Independence Party of BC(8); One Ten West(9); BC Home Rule(10); Home Rule for Western Canada(11); and more.
Issues of western discontent that I have heard uttered include under-representation of western citizens in the federal parliament, eastern-politico arrogance and dismissive attitudes toward the west, tax equalization inequity amongst the provinces, and the notoriously controversial federal gun control legislation(12). My personal opinions on these issues are immaterial to the focus of this article and I decline to express them. My goal is to explore whether the express objective of these groups, viz. unilateral secession from the Canadian federation, is even possible. By possible, I mean legally possible, as anything is theoretically possible, but I doubt these groups or their followers have provincial independence garnered through civil war in mind.
Some of the claims made about what these groups will achieve, given enough electoral support, are entirely ridiculous in my mind. For example, the Unity Party of British Columbia claims that under its rule “:the BC Constitution would form the basis of all law in BC by giving the people control of government, and would assert British Columbia’s independence within Canada.”(13) This statement is a legal oxymoron; for as long as a province remains “within” the Canadian federation, the Constitution of Canada is paramount and any conflicting provision within a provincial law, i.e. constitution, would be of no force or effect(14).
Most of these groups purport that if a majority of residents of the province(s) that the group aspires to represent elects the separatist party, then it could effect unilateral secession of that geographical area from the Canadian federation. In other words, they profess that they could, once elected, withdraw the province(s) from Canada, forming an independent state with, or without, the concurrence of the federal government and the rest of Canada’s provinces. The claim, and the plan, sounds very familiar to me. In fact, it has been attempted in Quebec, as many will remember.
In 1995 the separatist Parti Quebecois government led by Premier Jacques Parizeau held a sovereignty referendum which was defeated by the narrowest of margins”?50.6% no; 49.4% yes. But what if the referendum had succeeded by a narrow margin; say 51%? Would that have been enough for the then government of Quebec to effect unilateral secession? That was a question that many Canadians, including the federal government wanted answered.
On September 30, 1996 the federal government of the day referred the following three questions to the Supreme Court of Canada:
1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
2. 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?
3. 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?
In the resulting fifty-three page decision(15), the Supreme Court of Canada held that the answers to questions one and two was “no” and in light of those results, there was no need for the court to answer the third question. The court utilized four fundamental and organizing principles of the Canadian Constitution in addressing the questions: federalism; democracy; constitutionalism and the rule of law; respect for minorities. It held that a referendum resulting in a clear expression by the people of Quebec of their will to secede from Canada could not in itself bring about unilateral secession according to the law. A foritori a narrow margin of 51% could not. The court stated: “…we refer to a ‘clear’ majority as a qualitative [as opposed to quantitative] 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.” In an attempt to clarify the law in Canada with regard to the requirement of a clear expression of democratic will as elucidated by the Supreme Court of Canada, the federal government passed the so-called Clarity Act(16) in 2000.
If a provincial sovereignty referendum were to result in a clear expression of democratic will of the provincial electorate to succeed from Canada, that result would merely give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. The secession of any province, or provinces, from Canada would require an amendment to the Canadian Constitution, which in turn would require negotiation on the part of every province and the federal government. However, there is no legal obligation on the other provinces and federal government to reach agreement with regard to the desires of a province to secede from the federation. In other words, a legal obligation to negotiate would arise, but not a legal obligation to conclude an agreement. In effect, each province and the federal government would have a veto against the secession of any other province merely by withholding agreement on the requisite Constitutional amendments.
The court also found that there is no legal right to effect unilateral secession under international law. International law recognizes the right of peoples to self-determination, but only when that right is exercised within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states. Only where that is not possible (part of a colonial empire, subject to alien subjugation, or denied any meaningful exercise of the right to self-determination) would the right of unilateral secession arise under international law”?a situation that is not present in Canada because there is an entrenched framework for Constitutional amendment of the Constitution of Canada(17). Although the secession of a province or provinces could only be legally achieved through Constitutional amendments that would require the agreement of every province and the federal government, it is theoretically possible for a province to succeed from the Canadian federation so international law would not interfere with that of Canada.
In short, it would be very difficult for a province to legally effect secession from Canada. It would require clear, not merely simple, majority support and the negotiated concurrence of every province and the federal government. Further, there is clearly no right in Canadian or international law for any province or provinces to unilaterally secede from the federation. I don’t find it difficult to understand why the general public would believe what separatist groups hold out that they can achieve with enough electoral support. However, I do wonder whether those groups have omitted to undertake even a cursory examination of the law regarding secession; or whether they have done so and choose to continue promises of unilateral secession or other arguably illegal goals to their followers in spite of the state of the law.
14 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52(1): “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”; for a copy of this statute, email the author.
15 Reference re Succession of Quebec,  2 S.C.R. 217; for a copy of this decision, email the author.
16 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; for a copy of this statute, email the author.
17 Supra note 14 at ss. 38-49.
Wayne E. Benedict has a varied career history and strong links to the Canadian labour movement. He is working part-time toward his Bachelor of Human Resources and Labour Relations at AU. He is a fulltime first-year student of the University of Saskatchewan College of Law. For a more detailed writer bio, see The Voice writers’ feature page under ‘About The Voice’. If you would like to send article-feedback to Wayne, he can be reached at firstname.lastname@example.org