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45-570: Reference Re Manitoba Language Rights , [1985] 1 S.C.R. 721, was a reference question posed to the Supreme Court of Canada regarding provisions in the Manitoba Act stipulating the provision of French language services in the province of Manitoba. The Court heard the appeal in June 1984 and gave its ruling a year later, on June 13, 1985. Four questions were asked: The Court found that

90-419: A constitutional amendment. Only an amendment through section 45 (on the right of provincial legislatures to make laws amending their own constitutions) would allow for unilateral constitutional amendments, they argued, but that section would not apply to the question of secession. To attempt to secede unilaterally (that is, without negotiations) would violate the constitution on two grounds. First, it would violate

135-489: A new state by other countries would validate the separation. It further claimed that the doctrine of effectivity is part of constitutional conventions through its practice in other parts of the commonwealth. Several aboriginal interveners submitted facta on their right to stay in Canada based on treaties and their right to self-determination, further noting that they have already held two referendums, which decided against

180-416: A plan if secession was approved in a referendum. In response to the bill and the referendum result, several legal actions were initiated by opponents to the independence of Quebec questioning the legality of secession. In 1996, Parti Québécois leader Lucien Bouchard announced his government would make plans to hold another referendum when he was confident that the "winning conditions" were there, pointing to

225-482: A reference jurisdiction in their constitutions. In the case of Papua New Guinea, their constitutional convention immediately prior to independence took counsel from Canadian legal academics on the use of the reference jurisdiction. Other jurisdictions, notably Australia and the United States, eschew reference jurisdiction for their courts. In the United States, the case or controversy clause of Article III of

270-428: A right could only be exercised unilaterally under certain circumstances, under current international law. The court held that: The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or

315-408: A right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Since

360-549: A “peoples” under the Charter of the United Nations , the right to self-determination under that Charter applies to colonized, oppressed, etc. peoples and therefore does not apply to Quebec. It further claimed that since there is no international law barring separation then there must be an implied right to do so. The primary argument was that the doctrine of effectivity gave them authority to secede. That is, recognition of

405-590: Is a landmark judgment of the Supreme Court of Canada regarding the legality, under both Canadian and international law , of a unilateral secession of Quebec from Canada . Both the Quebec government and the Canadian government stated they were pleased with the Supreme Court's opinion, pointing to different sections of the ruling. Following the election of a majority of Parti Québécois (PQ) Members of

450-477: The Canadian Charter of Rights and Freedoms were also opposed by Quebec, although not necessarily based on rejection of their content but to the manner of their adoption and lack of amendments specific to Quebec in the package. (Also, at that time, Quebec had a more complete Quebec Charter of Human Rights and Freedoms , which had been adopted in 1975.) Subsequently, two attempts were made at amending

495-548: The Constitution Act, 1867 , and the Manitoba Act, 1870 , did require both languages and that those laws that were not in both languages were of no force and effect. However, they were deemed temporarily valid for a time until translations could be re-enacted in order to avoid a legal vacuum in Manitoba and to ensure the continuity of the rule of law. This reference was the first time that the courts in Canada had used

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540-830: The Judicial Committee of the Privy Council of the United Kingdom, sitting in London. The Judicial Committee served as the highest court for the British Empire and Commonwealth. Many federal reference questions were appealed to the Judicial Committee, which had the final say and could overrule the decision of the Supreme Court. The provincial governments, under their respective Constitutional Questions Acts , are able to submit questions to

585-546: The Supreme Court Act . It attempted to analogize the use of the US political question doctrine to the Canadian constitution. Furthermore, the question is speculative and premature as there are no substantive facts at question. Second, it focused on the second question, claiming that the Supreme Court of Canada had no jurisdiction over interpreting international law. The submission said that though Quebec could be considered

630-487: The rule of law by ignoring the authority of the constitution as supreme law of the country, and second, it would violate Canadian federalism by acting with powers allocated only to the federal government. The amicus curiae 's submission argued several points. First, it argued that the reference was invalid; the question is purely a political one and thus is outside the authority of the Court to answer under section 53 of

675-601: The Canadian constitution (the Meech Lake Accord in 1987–1990 and the Charlottetown Accord in 1992) that, it was hoped, would have caused the Quebec legislature to adopt a motion supporting the revised constitution. Following the failure of both of these to pass, there was a widespread sense in the mid-1990s that the Constitution of Canada was not fully legitimate because it had not yet received

720-473: The Canadian constitution. Those four interrelated and equally important principles or values are: They held that these pieces cannot be viewed independently but all interact as part of the Constitutional framework of Canada. The answer to the second question, which concerned Quebec's right under international law to secede, gave the opinion that the international law on secession was not applicable to

765-443: The Judicial Committee, those reference questions could be appealed directly to the Judicial Committee, by-passing the Supreme Court. Since the abolition of appeals to the Judicial Committee, there is a right of appeal from the provincial courts to the Supreme Court on a provincial reference. The government of the United Kingdom has the power to refer questions to the Judicial Committee of the Privy Council. This power served as one of

810-534: The National Assembly (MNAs) in the 1976 Quebec provincial election , the party formed a government and, in 1980, held an independence referendum . The government of the Province of Quebec asked the province's population if it should seek a mandate to negotiate sovereignty for Quebec coupled with the establishment of a new political and economic union with Canada. The referendum resulted in the defeat of

855-437: The Supreme Court of Canada regarding secession. There were an unprecedented 15 interveners . However, the Quebec government refused to take part and was not represented. In its place the Court appointed André Jolicoeur as an amicus curiae to present the argument Quebec may have made, had they participated. The federal government’s submission argued that the only way a province could secede from Canada would be through

900-425: The Supreme Court since 1892. Prior to the abolition of appeals to the Judicial Committee, many of the earlier federal references went on appeal from the Supreme Court to the Judicial Committee. Since the abolition of appeals, the Supreme Court decision is the final say on a federal reference. The provincial governments have the power to refer legal issues to their courts as well. Prior to the abolition of appeals to

945-592: The Supreme Court, but these challenges have been rejected, most recently in the Reference re Secession of Quebec in 1998. Pursuant to the ruling of the Judicial Committee of the Privy Council in Attorney-General of Ontario v. Attorney-General of Canada (References Reference) [1912] A.C. 571, the role of the courts in references is not judicial as such, but one of advising the executive branch of government. There have been over 75 federal references to

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990-413: The United Nations , are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad. The Supreme Court further stated that: Quebec could not, despite a clear referendum result, purport to invoke

1035-623: The United States Constitution limits federal courts to hear only actual cases; advisory opinions are not permitted at the federal level (although some state constitutions do provide for such opinions). Likewise, the Australian Constitution has a similar requirement in Chapter III of the Constitution . Reference re Secession of Quebec Reference Re Secession of Quebec , [1998] 2 SCR 217

1080-453: The court saw no conflict between Canadian law and international law on the question (neither would allow Quebec to secede unilaterally), it considered it unnecessary to answer the question. The decision has been regarded as a model discussion in international law for questions of separation between national political entities, particularly in relation to the results of a referendum . The Quebec government of Lucien Bouchard stated that it

1125-409: The date of the hearing. Parties to the reference file detailed written submissions on the legal issues raised by the reference, supplemented by factual records if necessary. After all written submissions have been filed, the Court holds an oral hearing on the reference questions. At the conclusion of the hearing, the Court typically reserves its decision. At a later date, the Court releases its opinion on

1170-403: The federal Cabinet may submit a question to the Supreme Court of Canada by means of an order-in-council . Once the questions have been submitted to the Court, the Court has complete control over the process to be followed. The reference is treated in the same way as an appeal. The Attorney General of Canada is entitled to appear before the Court and to make submissions. The Attorneys General of

1215-549: The formal approval of Quebec. In 1994, the Parti Québécois was re-elected and announced that it would be initiating a second referendum to take place in 1995. This time, the question was on sovereignty with an optional partnership with Canada. The "no" side won by only a narrow margin. Prior to this referendum, the National Assembly of Quebec had adopted a bill relating to the future of Quebec that laid out

1260-433: The government of Canada and that of the other provinces would have to negotiate after a winning referendum on secession. This would make a unilateral declaration of independence unnecessary. The Canadian government of Jean Chrétien stated that it was pleased with the court's opinion. The Supreme Court had made it clear that Quebec could not declare independence unilaterally. Any obligation of Canada to negotiate with Quebec

1305-548: The inspirations for the reference power under the Supreme Court Act. There has been one reference directly under this power to the Judicial Committee which related to Canada, concerning the Labrador boundary dispute between Canada and Newfoundland , which at that time was an independent dominion, not part of Canada. Other Commonwealth countries, such as India, South Africa, and Papua New Guinea also have implemented

1350-522: The legislatures of the provinces. Up until this point, all amendments had taken place by means of Acts of the British Parliament, since the Canadian constitution was, strictly speaking, a simple statute of that Parliament. Colloquially, the switch to a domestic amendment procedure was known as patriation . The particular amending formula adopted in 1982 was opposed by the then-government of Quebec. Other concomitant constitutional changes such as

1395-953: The most important positions in the federal Cabinet. During the 8 years prior to June 1997, the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of

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1440-718: The political cost of losing a third referendum. In reaction to Bouchard's stated plans, Prime Minister Jean Chrétien initiated a reference on the legality of a unilateral declaration of independence by a Canadian province. On September 30, 1996, the Cabinet of Jean Chrétien (i.e., the Governor in Council) approved Order in Council PC 1996–1497 under Section 53 of the Supreme Court Act , referring three questions to

1485-400: The power to create a "General Court of Appeal for Canada", but does not define the jurisdiction of the Court. When Parliament created the Supreme Court of Canada in 1875, it gave the federal Cabinet the power to refer questions to the Supreme Court for the Court's opinion. That provision has been carried forward and is now found in the current Supreme Court Act . Under that provision,

1530-420: The provinces and territories are entitled to notice of a reference and may appear on it. Interested parties are able to apply for intervener status to make submissions during the hearing. When necessary, the Court may appoint an amicus curiae to submit a factum to support a particular view. Once the parties have been determined, the Court sets out a timetable for the filing of written submissions, and for

1575-403: The provincial Superior Court or Court of Appeal. The process is very similar to the federal government reference questions. Once the provincial Court of Appeal has given its decision on the reference question, the government or other parties to the reference have the right under the Supreme Court Act to appeal the decision to the Supreme Court of Canada. Prior to 1949, appeals lay directly from

1620-425: The provincial courts of appeal to the Judicial Committee of the Privy Council. This right of direct appeal allowed litigants to by-pass the Supreme Court, so many provincial reference cases were never heard by the Supreme Court. The Supreme Court was then required to follow the decision of the Judicial Committee. There have been challenges to the power of the federal government to confer the reference jurisdiction on

1665-414: The reference, in the form of a detailed written judgment. Individual judges of the Court are entitled to dissent from the majority opinion, in the same way as with judgments in appeals. The opinion given by the Supreme Court is in the form of a judicial decision but is not legally binding; nevertheless, no government has ever ignored the opinion. Prior to 1949, there was an appeal from the Supreme Court to

1710-408: The remedy of a delayed declaration of invalidity. Despite its exceptional origins, this remedy has grown to become a preferred one in Canadian public law . Manitoba was given a generous period of time to translate the laws and, in 1992, the court was still extending this grace period to be decided by the parties. Reference question The Constitution Act, 1867 , gives the federal Parliament

1755-478: The right to secede was meant for peoples under a colonial rule or foreign occupation . Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally. For close to 40 of the last 50 years, the Prime Minister of Canada has been a Quebecer. During this period, Quebecers have held from time to time all

1800-473: The separation of the aboriginal peoples from Canada. Their factum attacked the attorney general's factum on the basis that it completely ignored the role of aboriginal people within the constitution. The court addressed the three questions in order. First, they stated that, under the Canadian Constitution (and with Quebec being a party to it since its inception), unilateral secession

1845-402: The situation of Quebec. The court pointed out that international law "does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their 'parent' state." The Supreme Court of Canada's opinion stated that the right of a people to self-determination was expected to be exercised within the framework of existing states, by negotiation, for example. Such

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1890-535: The sovereignty option, with 59.6% voting no on sovereignty. The PQ was nevertheless re-elected in 1981, this time promising not to hold a referendum. In 1982, the federal government petitioned the Parliament of the United Kingdom in London to amend Canada's constitution so that, in the future, all further amendments would take place by means of a process of consent involving only the Parliament of Canada and

1935-451: The stability of relations between sovereign states. and that A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination , and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity. The court stated in its opinion that, under international law,

1980-552: Was not legal. However, should a referendum decide in favour of independence, the rest of Canada "would have no basis to deny the right of the government of Quebec to pursue secession." Negotiations would have to follow to define the terms under which Quebec would gain independence, should it maintain that goal. In this section of the judgement they stated that the Constitution is made up of written and unwritten principles (based on text, historical context, and previous constitutional jurisprudence) and that there are four fundamental tenets of

2025-419: Was very pleased with the opinion of the Supreme Court. Premier Bouchard stated publicly that the court had validated the referendum strategy that the sovereigntists had adopted with René Lévesque . Quebec was most satisfied when the court made it clear that the question of Quebec's political status was above all a political question, not a legal one. It also liked the fact that the Supreme Court made it clear that

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