Article Volume 21:3

Can Quebec Separate

Table of Contents

Can Quebec Separate ?

David Matas *

Introduction

The separation of Quebec from Canada is a primary plank in the
platform of the Parti Quebecois, the official opposition in the
legislature of the Province of Quebec. If one day the P.Q. should
form the government of Quebec, it will propose to the National
Assembly a law authorizing it to request from Ottawa the transfer
of powers to Quebec.’ Until recently, the position of the party was
that if Ottawa should oppose separation, Quebec would separate
unilaterally, without a referendum on the issue of separation. Whe-
ther separation occurred unilaterally or by agreement with Ottawa,
the party would submit to the Quebec electorate, by way of
referendum, a proposed constitution for its approval. 2

However, at its recent congress held in November, 1974, the
party changed its proposed process of separation. If Ottawa were
not to object to separation, there would still be no referendum on
separation submitted to the Quebec voters. If Ottawa were to
object, then the question of separation would be presented to the
voters by means of a referendum; only if the voters in this refer-
endum supported separation in the face of Ottawa’s objections
would Quebec unilaterally separate from Canada.
If the voters
favored separation, there would be a second referendum on a
proposed constitution.

The P.Q. proposals raise the question whether the party is
legally entitled to do what it proposes to do. The platform assumes
that Ottawa and Quebec can together effect a separation, regardless
of the opinions of the other provinces. It further assumes that
Quebec can unilaterally effect a separation provided it has the
popular support of its electorate as manifested in a referendum.
Whether or not these assumptions are correct is only of academic
or political interest if the P.Q. does not become the government of
Quebec. However, if the P.Q. should form the government and, in

* Of the firm of Norton, O’Sullivan, Schwartz and Associates, Winnipeg.
‘Le Devoir, Nov. 18, 1974, p.2.
2 Globe and Mail, Sept. 26, 1974.
3 Supra, f.n.1.

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particular, should declare unilaterally that it is separate from Canada
and start legislating in areas of federal jurisdiction, the question of
the legality of its proposals will become of real, immediate and
practical importance.4

The Present Constitution

Canada’s present constitution does not expressly allow a province
to separate, either unilaterally or in consort with Ottawa. This is
not to say that it could not have been allowed: it is not perverse
for a constitution to provide for a right to secede, even unilaterally.
Indeed, another constitution legislated by Britain (as is Canada’s
British North America Act), the West Indies Act,5 does give that
right.

The West Indies Act associates six 6 West Indian states with
England.7 The Act gives the United Kingdom Parliament responsibili-
ty over external affairs, defence and citizenship, while the associated
states have legislative responsibility over all other matters.’

A state may terminate the status of association with the United
Kingdom through a special procedure.9 In order to terminate, the
state legislature must pass a bill supporting termination by a two-
thirds majority.10 If the bill passes the legislature, it must be sub-
mitted to a referendum and supported by two-thirds of the votes
cast.” Once termination is approved by referendum, the royal assent
is given and the status of association is terminated as from the date
provided in the termination bill.’2 No legislation or Order in Council
must emanate from the United Kingdom in order to effect the
termination.

Nor does the Canadian constitution contain an implied power
of separation. British Columbia, Prince Edward Island and New-
foundland were entitled to be admitted to Confederation without
legislation by the British Parliament, through British Orders in

opinion.

4R. A. Mayer, Legal Aspects of Secession (1968) 3 Man.LJ.61, states a contrary

5 West Indies Act, 1967, c.4 (U.K.).
6-Antigua, Dominica, Grenada, Saint Christopher Nevis and Anguilla, Saint

Lucia and Saint Vincent.

7Supra, f.n.5, s.1.
8 Ibid., s.2.
9 Ibid., s.10.
“o Ibid., Sch.2, s.2(b).
11 Ibid, Sch2, s.2(c).
12 Ibid., s.10.

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CAN QUEBEC SEPARATE?

Council, after addresses from the Canadian Parliament and the
provincial legislatures. However, once admitted by addresses and
Orders in Council, as British Columbia and Prince Edward Island
in fact were, these provinces were not entitled to leave by other
addresses and Orders in Council. The admitting Orders in Council
took effect as if they had been enacted by the United Kingdom
Parliament, and they could only be reversed by an Act of that
Parliament.’ 3 Rupert’s Land and the Northwest Territories were
also admitted to Canada by a British Order in Council after an
address from the Canadian Houses of Parliament. 14 The Parliament
of Canada is entitled to establish, by legislation, new provinces out
of these territories.’5 However, once a province is established by
the Canadian Parliament under this power, as were Alberta and
Saskatchewan, the Canadian Parliament is not competent to alter
the Act establishing the province. 16 Only the United Kingdom Par-
liament could effect such an alteration.

Even if the express power of entry could be interpreted as an
implied power of exit for those provinces that could have been
admitted to Confederation without British legislation 17 or that
were admitted to Confederation without British legislation,’8 the
implied power of exit would not apply to Canada’s original provinces.
These provinces were expressly united by the B.N.A. Act,’ 9 and
only an express amendment could repeal the unification. When
Nova Scotia wished to leave Confederation in 1868, it did not feel
free to do so without amendment to the B.N.A. Act. It requested
such an amendment from Britain, and when the request was
refused,20 it carried on as part of Confederation. 21

Amendment at Home

For a province to separate in conformity with statute law, the
Canadian constitution has to be amended. The constitution can be
amended either in Canada (for some types of amendments), or

13 British North America Act, 1867, 30-31 Vict., c.3, s.146 (U.K.).
14 Order in Council of Her Majesty, Queen Victoria, 23 June 1870, pursuant

to Rupert’s Land Act, 1868, 31-32 Vict., c.105.

15 British North America Act, 1871, 34-35 Vict., c.28, s.2 (U.K.).
16 Ibid., s.6.
17 B.C., P.E.I., Nfld., Sask., Alta., Man.
18 B.C., P.E.I., Sask., Alta.
19 Supra, f.n.13, s.3.
20 1868 Journals of N.S., App.No.9, pl.
21 A full account of this affair may be found in 1869 Can. Sess. Paper No.9.

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in England (for all types of amendments). Because the restricted
powers of amendment given to the provincial legislatures and the
Canadian Parliament by the B.N.A. Acts do not, as will be shown
infra, allow separation to be effected in Canada, separation by
amendment must be effected in Britain.

The provincial legislatures have the exclusive power to amend
their own constitutions, except as regards the office of Lieutenant-
Governor.22 This power does not encompass a power to separate.
First of all, a separation would involve an amendment of the office
of Lieutenant-Governor, as his power of reservation of bills for the
signification of the pleasure of the Governor-General would dis-
appear.23 More importantly, separation is not just an amendment
to the constitution of the separating province: it is an amendment
to the constitution of Canada.

The Canadian Parliament has exclusive power to amend the
constitution of Canada.24 While some provisions of the constitution
are expressly excluded from this power, the power to amend the
office of Governor-General is not one of them. Because the power
to amend the office of Lieutenant-Governor is expressly excluded
from the provinces’ power to amend, and because Parliament has
exclusive power to legislate on those matters coming within the
class of subjects expressly excepted from the provincial powers,2
Parliament can amend the office of the Lieutenant-Governor of a
province. Nonetheless, Parliament’s power of amendment is not
broad enough to effect a separation.

This is because the power of amendment does not allow Parlia-
ment to transfer the powers within its jurisdiction. The authority
to legislate over enumerated subject matters is given to it exclusively,
and cannot be abandoned. The power to amend is not a power to
alter the whole nature of that which is amended.26 No matter what
changes are to be made in the Canadian constitution, Parliament
alone can legislate on the enumerated heads of subject matter
within its exclusive jurisdiction.2
7 Certainly, the amendment power

22B.N.A. Act, 1867, supra, f.n.13, s.92(1).
23 Ibid., ss.55, 90.
24 Ibid., s.91(1).
23 Ibid., s.91(29).
26″… the amendments that may be made under sub-sec. 1 [of s.92 of the
B.N.A. Act, 1867] must necessarily be such that they do not purport to destroy
or take away or give to others the law making powers of the legislature”:
Re Initiative and Referendum Act [1917] 1 W.W.R. 1012, 1022 (Man.C.A.) per
Richards S.A.

27 Ibid., 1017 ,per Howell J.A.

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CAN QUEBEC SEPARATE?

was not intended to be used to substitute a new constitution for
the present one, but was intended merely to give Parliament power
to alter details of structure or machinery for the more efficient
operation of the constitution, the essential design and purpose
being preserved. Parliament can amend its constitution, but it
cannot destroy it.28 Although the Canadian Parliament can delegate
its powers, transfer of its powers to the provinces is not a delegation
but an abdication. 29

If the B.N.A. Act is repatriated and the amendment power
becomes that proposed in the Victoria Charter, as appears possible,
then clearly separation could be effected in Canada. The Charter
provides that amendments to the constitution that apply to one
of the provinces alone may be made when authorized by Parliament
and the legislature of the province to which the amendment appliesY0
Separation of a province from Confederation in reality applies to
that province alone; although other provinces may be politically or
economically affected by such an amendment, their own cons-
titutions are not altered. Because they would be legally or cons-
titutionally unaffected by such a change, the other provinces would
have no locus standi to object to such a change.3

1

Amendment Abroad

The only clear and unequivocal way for Quebec to separate
from Canada is for the United Kingdom Parliament to legislate
the separation. The United Kingdom would not legislate this separa-
tion without the consent of the Canadian federal government.
However, it would probably legislate separation on the request
of Quebec and Ottawa, even if all the other provinces besides Quebec
objected to the separation.

The position of the United Kingdom is that it will not amend
the constitution of a self-governing member of the Commonwealth
without the request of the government and legislature concerned.
However, it will not countenance the objection of another govern-
ment of the Commonwealth where the objector’s constitution is

28 Ibid., 1027-31 per Perdue J.A.
29A.G.N.S. v. A.G. Can. [1950] 4 D.L.R. 369 (S.C.C.).
30 Constitutional Conference Proceedings, Victoria, B.C., June 14, 1971, p.65,

art.50.

31 Report of the Joint Committee of the House of Lords and the House of
Comnons appointed to consider the Petition of the State of Western Australia,
1935, ix, para.9.

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not at issue. In a proposed separation of Quebec from Canada,
only the constitutions of Quebec and Canada would be affected;
therefore, the consent of Ottawa and Quebec would be required,
while the consent of the other provinces would be irrelevant.
Canada’s consent to Quebec’s request to depart from Confederation
would be as essential as would be Quebec’s consent to any proposal
by Ottawa that Quebec be evicted from Confederation. This approach
protects the United Kingdom Parliament from any appearance of
taking sides in a dispute.

When the state of Western Australia applied to the British
Parliament for separation from the Commonwealth of Australia,
a joint committee of the House of Commons and Senate concluded
that the United Kingdom Parliament was constitutionally incom-
petent to effect the separation because the Commonwealth was
opposed to the change 32 On the other hand, if the Commonwealth
government had joined in the request, it would not have mattered
that other states within the Commonwealth objected. 3 When Nova
Scotia applied to the British government requesting separation, the
government did deal with the request on its merits, despite the
objection of Ottawa to the request,34 and did take into consideration
the wishes of another province, New Brunswick .3 However, the
situation is distinguishable. The Nova Scotia request
to leave
indicated that not only at the time of the request, but also at the
time of Confederation the people of Nova Scotia did not wish to be
part of Confederation. The province claimed that representations to
the effect that Nova Scotia wished to be part of Canada had been
a fraud on the British Parliament enacting the union legislation.
Thus, the Nova Scotia address was not simply a request for repeal:
it was a claim that the original Act had not been validly made.
Such a claim had to be dealt with on its merits even though Ottawa
objected, whereas a simple request for severance would not have
been dealt with on its meritsY5

a

The fact that the British Parliament is not concerned with the
attitudes of the other provinces toward the separation of a sister
province does not mean that these provinces can make no effective
objection. For example, the federal government itself could refuse to
consent to a proposed separation because one or more provinces

32 Ibid., x, para.13.
33 Ibid., ix, para.9.
34 1868 Journals of Nova Scotia, App. No.9, p.2.
35
Sa Supra, f.n.31, 150.

ubid., p.4.

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CAN QUEBEC SEPARATE?

object to the separation. However, the fact that Ottawa refused to
obtain the consent of the other provinces when Newfoundland was
admitted into Confederation 36 or when title to resources was trans-
ferred to the western provinces3 7 suggests that Ottawa would not
insist upon provincial consent if it were itself prepared to agree to
the separation of Quebec from Canada.

Common Law Principles of Legality

Effectiveness

A unilateral secession by Quebec without an amendment to the
B.N.A. Act is not necessarily illegal. A seceding government will be
considered a legally valid government if it fulfils certain criteria
laid down by common law. One of the most important criteria is
that it must be in effective control of the territory it claims a right
to govern.38 Courts within the territory cannot refuse to give legal
validity to the acts of a regime in control of a territory over which
the courts have jurisdiction simply because the seceding regime is
illegal in terms of the constitution of the federation abandoned.
Whereas a court outside a seceding territory must determine the
view of its government as to whether or not the seceding government
is the lawful government and act upon that view, the courts within
a seceding territory do not have the luxury of relying on the
decision of another as to who is lawful government. They must
decide themselves.

It is an historical fact that in many countries there are regimes
recognized as lawful which derive their origins from unlawful acts.
The law must take account of that fact. However, a court does
not have to give effect to a secession as soon as it is proclaimed.
A court cannot give legal validity to a regime simply because it
seems likely to remain, nor can it assess which of two contending
parties is more likely to maintain control and support the likelier
of the two contenders. On the contrary, until such time as the
courts can predict with certainty that the secession has succeeded,
they must support the federation. If the courts held otherwise, they
would in effect be saying that the federation, by striving to assert
its lawful rights, was opposing the lawful ruler.

30 See 1949 Debates of the House of Commons, 1st Sess., vol.1, p.84 (Rt

Hon. L.S. St.Laurent), p.5 01 (Mr George Drew).

37 See 1930 Debates of the Senate, p.348-9.
3 8 Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645 (P.C.); rev’g [1968] 2

S.A.L.R. 284 (Rhodesia A.D.).

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Furthermore, if the courts were to legalize the acts of the regime
which they judged to be the likelier to succeed, they would, in
effect, be taking part in the dispute. Finding that the secessionist
regime is likely to succeed would be tantamount to joining the
secession; saying that it is probable that the secessionist regime
will not succeed means taking sides against the secession. The
courts must remain out of the political battle so that they can carry
on their primary tasks. 9

Thirdly, if the courts were to recognize the acts of a secessionist
regime simply because it seems likely to remain, they would be
adopting the legally repugnant doctrine that might makes right.40
The stronger of two contending parties is not entitled to the complete
support of the existing judiciary on the basis of strength alone.
Any other attitude on the part of the courts would encourage
instability.41

Fourthly, the attitude of the courts to the legality of a regime
can be a significant factor in determining the success of the regime.
A holding by a court that a government is likely to continue may be
a self-fulfilling prophecy.4 2

Just as one cannot say that a regime in control and likely to
remain is the legal regime, by the same token one cannot state
that the regime not in control and not likely to return is not the
legal regime. The constitution of a regime not in control can still
be the constitution of a territory. Kelsen states that in order for
a constitution to be valid, it must be effective. Effectiveness is a
necessary condition for validity of a constitution, although not a
sufficient condition. 43 However, Kelsen’s statement is not a rule
of law, but merely a theory about law. His statement is not pres-
criptive; it is descriptive. Using Kelsen’s theory to hold the cons-
titution of a federation invalid in a seceding territory would be
to confuse the science of law and law, and to confuse a statement
of jurisprudence with a legal norm.44 Kelsen’s legal theory, which
he intends to be positivist or pure, would be condemned on its
own terms if it were used as a source of law.45

39 Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, 737 per Lord Pearce.
40 See A.M. Honore, Reflections on Revolutions (1967) 2 Ir.J. (N.S.) 268.
41 Madzimbamuto v. Lardner-Burke [1968] 2 S.A.L.R. 284, 430 (R.A.D.) per
42 Contra per Beadle CJ., ibid., 322.
43Hans Kelsen, General Theory of Law and the State (1961), 119; Pure

Fieldsend A.JA.

Theory of Law 2d ed. (1967), 210.

44 General Theory, ibid., 163.
415J.M. Finnis, Pakistan (1972) A.S.C.L. 49, 53.

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When Rhodesia unilaterally declared independence from England,
the Privy Council held that the usurping regime was not the legal
regime. If it were certain to remain, it would be the legal regime;
however, Britain still claimed sovereignty over Rhodesia and was
taking steps to regain control. Until the courts could say with
certainty that these steps would not succeed, the usurping regime
was illegal. 40

If Quebec unilaterally declared itself separate from Canada
and the Quebec government was in complete control of the territory
of Quebec, and it appeared certain to remain in control, then the
separatist regime would be the legal regime even without any
amendment of the B.N.A. Act. If, on the other hand, the federal
government continued to claim its right to legislate for the province
of Quebec on matters coming within the classes of subjects presently
assigned exclusively to the Canadian Parliament, and either remained
in control of Quebec or, if not in control, took steps to regain
control that might possibly succeed, then a separatist regime would
not, by virtue of the principle of effectiveness, be legal.

Allegiance

A second principle that could lend validity to a unilaterally
seceding regime is the principle that the sovereign in possession is
entitled to the allegiance of its subjects.” The allegiance due is a
temporary allegiance for the purposes of administration of the
government and temporary protection of the public. It is not a
general allegiance due for all purposes4 8 Disloyalty to the seceding
regime is a crime not only insofar as the seceding regime
is
concerned, but also insofar as the federal regime is concerned, and
will be treated as such should the federal regime return to control.
Treasons committed against Henry VI of England were punished
under Edward IV, although Henry VI was considered a usurper by
Edward IV.

The duty of allegiance does not go so far as to require the
subject to actively resist attempts by the deposed sovereign to
return to power. However, if the citizen of a seceding province
does resist the return to control of the federal government, he
will not be guilty of treason in the eyes of the federal power. But
it would be confounding all notions of right and wrong to suggest

46 Supra, f.n.38.
47 Sir W. Blackstone, Commentaries on the Laws of England 15th ed.,
48 Supra, f.n.39, 726 per Lord Reid.

(1809), 77.

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that someone who did not resist the attempts of the federal regime
to return to power in the seceding territory was guilty, by that
act, of treason in the eyes of the federal regime.

The duty to obey the sovereign for the time being for the
purposes of the administration of government and protection of
the public is a duty both at common law and by English statute.49
The Canadian Criminal Code carries forward the defence to the
crime of resisting the return to power of the ousted sovereign.”
It does not explicitly carry forward the offence of disobeying the
sovereign -for the time being, but this offence may be implicitly
included in the Code. This is because a person who owes allegiance
to Her Majesty in right of Canada may be guilty of treason;5′ “Her
Majesty” is defined by the Canadian Interpretation Act as the
Sovereign of the United Kingdom, Canada and Her Other Realms; 52
and the relevant United Kingdom statute enacts that references
to the Sovereign shall be construed as references to the Sovereign
for the time being.”

Alternatively, if the offence is not set out in the Code, it remains
an offence as part of the criminal law of England incorporated into
Canadian law.5 4 No person may be convicted of common law or
British statutory offences,5 5 but these offences remain part of the law
of Canada nonetheless. The duties remain; only the penal sanctions
are removedP0 The fact that the duty to the sovereign for the time
being is, in the English statute, in the preamble to the law that
gives a defence to the subject resisting the rightful sovereign, and
in the Canadian Criminal Code the defence is re-enacted but without
the preamble, does not, of itself, remove the duty from Canadian
law. A codifying statute that omits a preamble must be construed
as if the preamble remained. 57

The loyalty that a citizen owes to a sovereign in possession does
not, however, require the courts to recognize a seceding regime
as lawful. The sovereign to whom the loyalty is owed is not just

49 Treason Act, 1495, 11 Henry VII, c.l. (U.K.).
50 Criminal Code, R.S.C. 1970, c.C-34, s.15.
51 Ibid., sA6(2).
52 R.S.C. 1970, c.I-22, s.28.
53 Interpretation Act, 1889, 52 & 53 Vict., c.63, s.30 (U.K.).
54 Supra, f.n.50, s.7(2).
55 Ibid., s.8.
56 J.E. Cote, The Introduction of English Law into Alberta (1964) 3 Alta L.R.

57 See Powell v. Kempton Park Racecourse Co. [1897] 2 Q.B. 242, 271 per

262, 275.

A.L. Smith L.T.

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the executive and the legislature. The sovereign includes the judiciary
as well. While the law may well require the subject to obey the
sovereign in possession, it does not require the repository of one
part of the sovereign power, the judiciary, to acquiesce in the
illegal assumption of power by the repository of another part of
the sovereign power. 58 Thus, until such time as the courts have
joined the secession, a seceding provincial government is not truly
a sovereign in possession within the meaning of the law of treason.

Necessity

A third principle that can lead to the recognition of acts of a
seceding regime is the principle of necessity. This general principle,
based upon an implied mandate from the lawful sovereign, recognizes
the need to preserve law and order in a territory controlled by a
usurper.59 If the ousted sovereign continues to legislate for the
seceding territory, then no legal vacuum would exist, and there is
therefore no implied mandate to fill it. Otherwise, such a vacuum
would exist and would have to be filled.

The principle of necessity does not require the recognition of all
legislation of the usurper. Only those laws that are directed to and
reasonably required for ordinary orderly running of the territory;
that do not impair the rights of citizens under the lawful cons-
titution; that do not, in intent or in fact, directly help the secession;
and that do not run contrary to the policy of the lawful sovereign,
will be recognized under this principle60 These criteria amount
to a test of public policy. Public policy in such a situation is a
particularly unruly horse, but it is one that the courts must ride.61
When Rhodesia unilaterally declared independence, the Privy
Council held 12 that the principle of necessity could not be invoked
to validate the laws of the usurping regime because British legisla-
tion 13 and a British Order-in-Council 6 expressly negated any implied
mandate that might have existed. The legislation and Order-in-
Council suspended the power of the Rhodesian legislature to legislate
for Rhodesia and gave that power to the British government. Lord
Pearce, in dissent, held that there was an implied mandate despite
the legislation and Order-in-Council because of a directive from the

58 Supra, f.n.41, 428 per Fieldsend A.TA.
59 Supra, f.n.39, 729 per Lord Reid.
60 Ibid., 732 per Lord Pearce (diss.).
61 See the remarks of Beadle C.J. in Madzimbamuto, supra, f.n.41, 331.
62 Supra, f.n.39.
63 Southern Rhodcsia Act, 1965, c.76 (U.K.).
64 Southern Rhode-ia Constitution Order, S.I. 1965/1952 (U.K.).

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lawful governor of Rhodesia, issued at the time of the Unilateral
Declaration of Independence, calling on all citizens to maintain law
and order in the country and carry on with their normal tasks.”
The directive was never countermanded.

A seceding government that has its law declared valid by virtue
of the doctrine of necessity is taking advantage of a necessity of its
own making.6 It should be pointed out that American cases which
declared valid the laws of the states that seceded from the union
at the time of the American civil war 67 were cases decided after
the secession was over. In none of them did the courts pass
judgment on the legality of the regime during the secession.”‘

However, the fact that a seceding government is taking advantage
of a necessity of its own making does not render its acts auto-
matically illegal. If its acts are entitled to retrospective validity after
the secession is over, they are entitled to contemporaneous validity. 9
It is a question of public policy whether during or after a secession
the courts should grant recognition to an act of a seceding govern-
mient.

The doctrine of necessity assumes particular importance where
sovereignty is divided. In a state with undivided sovereignty, the
lawful government can avoid the invoking of the doctrine by
legislating for the seceding territory. In a state with divided sover-
eignty, the lawful federal government cannot completely fill the
legal vacuum caused by the secession. It is restricted to legislating
on matters within the sphere of its limited sovereignty. Because
sovereignty is divided in the United States, the union was not
competent to legislate in all spheres at the time of the secession and
civil war. A legal vacuum was created, and the courts found it
necessary to recognize the acts of the seceding states as lawful in
order to fill that vacuum. In Rhodesia, on the other hand, where
sovereignty was not divided and the United Kingdom Parliament
had power to legislate for Rhodesia in respect of all subject matters,
no necessity arose to recognize the acts of the usurping Rhodesian
regime. Parliament instead used its power to provide what the
legal position was to be in Rhodesia during the usurpation.”0

G5 Supra, f.n.39, 737-8.
66 Supra, f.n.41, 330 per Beadle C.J.
67 See for instance Texas v. White 7 Wall. 700 (1868)
68 Supra, f.n.39, 728 per Lord Reid.
69 Ibid., 733 per Lord Pearce (diss.).
70 Ibid., 728.

(U.S. Sup. Ct.).

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In Canada, although the sovereign is, 1’ or may be72 indivisible,
sovereignty is divided. Parliament and the provincial legislatures
each have limited spheres of competence. The provincial legislatures
are not subordinate to the federal Parliament, 73 and they have
assigned areas of exclusive jurisdiction in respect of which Parlia-
ment cannot legislate. An emergency may allow Parliament to
legislate in relation to new and special aspects, arising out of the
emergency, of subjects otherwise assigned exclusively to a province.74
Unless this emergency power is invoked, some at least of the acts
of a seceding provincial government must, of necessity, be given
validity.

Self-determination

Marcel Chaput 75 and Claude Morin,*”

two Quebec separatist
advocates, both justify a claim that Quebec has a right to separate
by reference to the right of self-determination of peoples. Chaput
asserts that the United Nations Charter proclaims that right, and
suggests that Canada, as a signatory to the Charter, is bound
towards the Quebec people to honour that right.

The U.N. Charter does refer to the principle of self-determination
of peoples1
7 but does not assert that principle as one of the
principles which the Organization and Members shall follow.7 8
The reference is in fact a good deal more indirect than that. The
obligation on members is to develop friendly relations based on
respect for the principle of self-determination: the primary obliga-
tion is to develop friendly relations. A member that does not itself
respect the principle of self-determination is, perhaps, not entitled
to the same measure of friendliness as a member that does respect
the principle; members may even be justified in being unfriendly
to a member that violates the principle. However, there is no
positive obligation to be unfriendly to a member that does not

Viscount Dunedin.

71 In Re Silver Bros [1932] 1 W.W.R. 764, [1932] 2 D.L.R. 673, 679 (P.C.) per
72 F.R. Scott, Comment on In Re Silver Bros (1932) 10 Can.Bar Rev. 658,

73 Hodge v. R. (1884) 9 App. Cas. 117 (P.C.).
74 Fort Frances Pulp and Paper Co. v. Man. Free Press Co. [1923] A.C. 695

663.

(P.C.).

75 P. FOX (ed.), Politics: Canada (1962), 42.
76Le Jour, Sept. 26, 1974, p.5 .
77 Art.1(2), 55.
78 Art2..

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itself respect the principle of self-determination, and members
are not in violation of the Charter if they maintain good relations
with a member who does not respect the principle.

Secondly, the principle of self-determination set out in the
Charter was meant to apply only to colonial situations. The Charter
itself does not limit the principle to colonial situations, but the
document must be interpreted in light of the practice that has
grown up around it. Since the founding of the United Nations, the
principle has been invoked by its organs only in the colonial
context.7 9 The organization has come out against applying the
principle to secession of part of the metropolitan territory of a
member from the rest of the member’s territory. For example,
the United Nations was politically and militarily active in ending
the secession of Katanga from the Congo. Furthermore, U Thant,
Secretary General at the time of the attempted secession of Biafra
from Nigeria, rejected the right of Biafra to secede in particular,
and the right to secede in general.8 0 The U.N. General Assembly and
Committees at no time discussed the Nigerian civil war or the
statehood of Biafra.8 ‘ The situation could hardly be otherwise, for
the organization would find itself in an extremely difficult position
if it were to invite or justify attacks on its own members because
they were in violation of the principle of self-determination. One
international jurist has even gone so far as to say that to apply
the principle of self-determination to the French Canadians, along
with other people within the metropolitan boundaries of members,
is “obvious nonsense”.83

Even if the Charter does contain an obligation on members
to respect the principle of self-determination, and even if that
principle can be interpreted as applying to non-colonial situations,
Canada’s signing of the Charter and being a member of the United
Nations would not entitle its own citizens to benefit from that

79 Goodrich, Hambro and Simons, Charter of the U.N. 3d ed. (1969), 29-34.
80 Jan. 4, 1970, quoted in Rupert Emerson, Self Determination (1971) 65

AJ.I.L. 459, 464; 7 U.N. Monthly Chronicle 36. U Thant said:

“So, as far as the question of secession of a particular section of a Member
State is concerned, the United Nations’ attitude is unequivocable. As an
international organization, the United Nations has never accepted and does
not accept and I do not believe it will ever accept the principle of secession
of a part of its Member State.”

81 D. Ijalaye, Was Biafra at Any Time a State in International Law (1971)

65 A.J.I.L. 551, 556.

82Van Dyke in Human Rights (1970), quoted by Ved P. Nanda, Self

Determination in International Law (1972) 66 AJ.I.L. 321, 327.

83 Rupert Emerson, “Self Determination”, Proceedings A.S.I.L. (1966), 135, 137.

19751

CAN QUEBEC SEPARATE?

principle. Principles of the Charter become part of the law of
Canada only if they are enacted by Parliament or the provincial
legislatures, depending on the subject matter. The Canadian federal
executive has the power to undertake obligations on behalf of
Canada with other nations, but only Parliament and the legislatures
can perform those obligations. 4 The legislative arm of the Canadian
government can choose to perform the international obligations
that the executive has undertaken, or it can choose not to perform
them and leave Canada internationally in default. Until such time
as Canada enacts a right of self-determination, it may be in violation
of international obligations by not respecting a Quebec claim to
determine itself; nonetheless, Quebec has no legal right to assert
that claim against Ottawa.

Insofar as the right to self-determination is not a right founded
on the U.N. Charter but is a right based on international common
law, to which the Charter does nothing more than give expression,
then that law is part of the law of Canada, even if not legislated by
Parliament. Canadian courts acknowledge the existence of inter-
national common law and seek to determine what the international
rule is on any issue. Having found it, they will treat it as incorporated
into the domestic law insofar as it is not inconsistent with statute
law or domestic common law.85 However, the right of Quebec to
secede, if there does indeed exist such a right at international
common law, is inconsistent with Canadian statute law., e.g., the
B.N.A. Act. The B.N.A. Act takes precedence in Canada over inter-
national law.

Referendum

In light of the fact that the Parti Quebecois proposes to have
a referendum on separation before declaring unilaterally that Quebec
is separate from Canada, it is perhaps worth pointing out that a
referendum cannot validate a separation that would otherwise
be illegal. On the contrary, a referendum could invalidate a separa-
tion that would otherwise be legal. In the Canadian constitutional
system, sovereignty rests with Parliament and the provincial legis-
latures; it does not rest with the electorate.86 If Quebec can legally
separate, that separation must be effected by legislation by the
National Assembly. It cannot be effected by referendum.

84 Reference re Weekly Rest Act [1937] 1 W.W.R. 299, 307, 1 D.L.R. 673 (P.C.).
85 Reference re U.S. Military [1943] S.C.R. 483, 517 per Taschereau J.
80 Supra, f.n.26, 1022 per Richard S.A.

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The attempts of Nova Scotia to separate from Canada and of
Western Australia to separate from Australia both show that a
referendum is not sufficient to found a separation. In the case
of Nova Scotia, there was no referendum but 31,000 out of 48,000
electors signed a petition in favor of separation.8 7 There was no
question at the time what the will of the people was on the point:
a referendum against Confederation would have undoubtedly suc-
ceeded. In the case of Western Australia, the referendum that was
held showed the electorate to be in favor of separation by just
under a two-thirds majority.”8 However, in neither case did Britain
agree to legislate separation, despite the manifest popular support
for such a move.

Newfoundland was admitted to Confederation after a referendum
supporting entry. The majority vote in favor of entry actually
represented less than 50% of those entitled to vote.”9 However,
there was no provincial legislature in Newfoundland at the time.
A commission appointed by London and responsible to it governed
the island; 90 thus, a vote by referendum was considered the next
best alternative to a vote by the legislature. If there had been a
legislature, a vote by referendum would not have been necessary 91
or sufficient: the legislature itself would have been required to
vote. Even with the favorable referendum, the approval of the
Canadian Parliament to Newfoundland’s entry was still necessary.
A law would be invalid which stated that separation would take
effect if approved of by a majority of those voting in a referendum.
Furthermore, the law would be invalid even if a statute passed
by the legislature itself effecting separation would have been valid.
The Manitoba Initiative and Referendum Act of 1916, which provided
for laws to take effect when approved of by referendum, was found
by the Manitoba Court of Appeal to be beyond the powers of the
2 The legislature could amend its
provincial legislature to enact
own constitution, but it could not create a completely new constitu-
tion based, not on the sovereignty of the legislature, but on that
of the people.

87 192 House of Commons Debates, June 16, 1868, p.3, col.1665-8 (U.K.).
s Supra, f.n.31, viii, para.6.
89 462 House of Commons Debates, Mar. 2, 1949, p.5, col.394 (U.K.).
9o See Newfoundland Act, 1933, 24 & 25 Geo. 5, c.2 (U.K.).
91 Supra, f.n.13, s.146.
92 Supra, f.n.26, 1022 per Richards J.A. The decision of the Manitoba Court
of Appeal was affirmed by the Privy Council on another point: see In re The
Initiative and Referendum Act [1919] 3 W.W.R. 1, 48 D.L.R. 18.

1975]

CAN QUEBEC SEPARATE ?

It is clear from the above that the National Assembly of Quebec
cannot transfer the responsibility for any decision regarding separa-
tion from itself to the electorate. However, it can make its own
decision conditional on support from the electorate shown by
way of referendum. A legislature can make the coming into effect
of a law conditional upon the happening of a certain event, such
as the favorable vote of the people 3 This is seen in the separation
procedure set out for the West Indies Associated States: first, a
law in favor of separation must be passed; only after the law is
passed, and before the royal assent is given, does the referendum
take place.”

Conclusion

Canada has had in the past a provincial political party elected
to power on a platform which it was legally unable to realize.
The Alberta Social Credit party of 1935 was elected on a platform
of social credit that was, when legislated, in part disallowed by
the Governor-General in Council, and in part held ultra vires by the
courts.9 5 The party carried on as the government of the province
despite its inability to realize its philosophy. A similar fate may
await the Parti Quebecois.

If the P.Q. should come to power and declare separation
unilaterally, the courts will be put in an extremely difficult position.
Each party to the dispute will be anxious to have the courts on its
side. The courts may, for example, be tempted to give a wider scope
to the doctrine of necessity than the letter of the law allows,96
or they may hesitate to rely on the doctrine of necessity at all
because of the almost unmanageably wide discretion it gives the
courtsY7 Nonetheless, the decisions that the courts must make in
such a situation are decisions that can be made according to
established legal principles. They must not become mere exercises
of prejudice or inclination by the individual judge.

93 Supra, f.n.26, 1018 per Howell J.A.
04 Supra, f.n.5, Sch.2, s.2.
9 Re Alberta Bills [1938] 3 W.W.R. 337, 4 D.L.R. 433 (P.C.); aff’g. [1938]
96 Supra, f.n.39, 734 per Lord Reid.
97 Supra, f.n.41, 331 per Beadle C.I.

S.C.R. 100.