Following the close referendum result in the 1995 referendum, the Government of Canada initiated a reference to the Supreme Court to question the legal issues surrounding lateral secession. The Quebec government chose not to participate in the decision, so André Jolicoeur was assigned as anamicus curiaeby the Court.
- Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
- 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?
- 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?
- Quebec cannot secede from Canada unilaterally; however, a clear vote on a clear question to secede in a referendum should lead to negotiations between Quebec and the rest of Canada for secession.
- International law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their parent state.
- There is no conflict between domestic and international law, so there was no need to answer this question.
The amicus curiae argued that s. 53 of the Supreme Court Act, which allows the referral of constitutional questions on both federal and provincial law, was ultra vires the Constitutional power to establish a general court of appeal under s. 101 of the Constitution Act, 1867. The Court held that power to pass this section must fall under the “General Court of Appeal” head of power in 101 and thus, s. 53 will only be intra vires if a "General Court of Appeal" can properly undertake an advisory function and have original jurisdiction. No constitutional bar to original jurisdiction or on advisory opinions, such as in those in the American constitution, could be found.
Alternatively, it was argued that this was purely a matter of international law over which the Supreme Court had no jurisdiction. The Court dismissed this argument; it was not acting as an international tribunal (i.e. not trying to bind other states), but rather issuing an advisory opinion on the application of international law to domestic affairs.
Finally, it was argued that this was entirely a political decision and was not justiciable; the amicus curiae argued that this was not a legal question at all, but a question for the people of Quebec to make. The Court acknowledged that this was a political issue and that they were not trying to usurp the power of the people, but there are also legal questions which can be asked and answered, so they felt capable of answering those questions.
Following this, the Court lays out two specific types of questions that they will not answer:
- questions that fall outside the proper role of the courts; and
- questions that fall outside of the Court's expertise: interpretation of the law.
The Court proceeds to talk about four unwritten principles of the Constitution that can be relied upon as hard law:
- the rule of law,
- democracy, and
- the protection of minorities,
but make it clear that this list is not exhaustive and that no principle is more important than any of the others. The Court particularly stresses the importance of federalism in Canada, and the idea of balancing between the unity and diversity of the provinces. They say that the unwritten principles lead to the conclusion that three main things must happen for secession to occur:
- there must be a clear question;
- there must be a clear majority answer to the question; and
- if these are met, then there is a duty for the entire nation to negotiate in good faith.
Only after these three steps have been satisfied can secession be seriously considered. After this, the Clarity Act made it clear that it is Parliament who decides if something is a “clear majority”.
Moving to the argument of the amicus curiae, the Court does not consider the principle of effectivity. They say that such a power does exist, but arguing that you can separate if you have the power to do so misses legal issue; the question is whether you can legally secede, not whether you can do so by force. They also mention that seceding by force would play a large role in international recognition of the new nation.
The Court found that Quebec cannot, despite a clear referendum result, invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation; the vote would have no legal effect on its own and could not push aside the unwritten principles in the other provinces or in Canada as a whole.
The Court states that self-determination is about nations, and not specific people inside the nation unless they are subjugated or oppressed, which is not the case in Quebec. They talk about the importance of national sovereignty in international law, and how only colonies and oppressed states generally receive international backing for their sovereignty. It is impossible to say that Quebec is not well represented in the Canadian government. However, the Court does not rule on whether or not the Quebecers are "people" in the international law sense, because even if they were they would still have to pursue secession under the legal framework, and even if they are "a people" it is clear that they are not oppressed.
As the Court found no conflict between laws, they chose not to answer this question.
There are at least four equal and interrelated unwritten principles of the Constitution that can be relied upon as hard law in legal arguments:
- constitutionalism and the rule of law, and
- the protection of minorities.