What was the Reference re Secession of Quebec?

The Reference re Secession of Quebec is the 1998 Supreme Court of Canada advisory opinion on the constitutional rules governing any potential Quebec secession from Canada. The reference was submitted by the federal government on September 30, 1996 (after the close 1995 referendum), and the Court issued its unanimous opinion on August 20, 1998. The reference is one of the most consequential constitutional rulings in Canadian history.

The federal government asked the Court three questions. First, can Quebec unilaterally secede under the Canadian Constitution? Second, can Quebec unilaterally secede under international law? Third, in case of conflict between domestic and international law, which prevails? The Bloc Québécois and the Quebec government argued the federal government's reference was illegitimate and refused to participate; the Court appointed an amicus curiae (André Joli-Coeur) to argue Quebec's position.

The Court held that neither the Canadian Constitution nor international law permits unilateral secession by Quebec or any other Canadian province. However, the Court also held that if a clear majority of Quebecers voted Yes on a clear question in favour of secession, the federal government and other provinces would have a constitutional duty to negotiate the terms of secession in good faith. The Court grounded its ruling in four unwritten constitutional principles: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.

The Reference re Secession produced two important consequences. First, the federal Clarity Act (Bill C-20, in force June 29, 2000) set out the federal interpretation of 'clear majority' and 'clear question' as the conditions for any future federal negotiation of secession. Second, the Quebec National Assembly passed Bill 99 (the Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, in force December 7, 2000) asserting Quebec's view that the question of Quebec sovereignty is decided by Quebecers alone. The two bills sit awkwardly alongside each other, with the legal framework for any future secession negotiations remaining untested. The Reference also influenced international constitutional thinking, with its framework cited in independence cases involving Scotland, Catalonia, Kosovo, and other jurisdictions.