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Constitutional Theory and The Quebec Secession Reference

Published online by Cambridge University Press:  09 June 2015

Sujit Choudhry  and
Robert Howse
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Extract

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 13 , Issue 2: SECESSION , July 2000 , pp. 143 - 169
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2000

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References

1. Reference re Secession of Quebec, [1998] 2 S.C.R. 217 [hereinafter Quebec Secession Reference] Google Scholar; Cairns, A.C., “The Quebec Secession Reference: The Constitutional Obligation to Negotiate” (1998) 10:1 Constitutional Forum 26Google Scholar; Editorial, “Court Answers Succeed” The Kitchener-Waterloo Record (25 August 1998) A6Google Scholar; Greschner, D., “The Quebec Secession Reference: Goodbye to Part V?” (1998) 10:1 Constitutional Forum 19Google Scholar; Joffe, P., “Quebec's Sovereignty Project and Aboriginal Rights” (1999) 7 Canada Watch 6Google Scholar; Legault, J., “How to deny Quebec's right to self- determination: With the Supreme Court's opinion, we have entered the realm of colonial federalism” The Globe and Mail (21 August 1998) A19Google Scholar; Monahan, P.J., “Doing the Rules: An Assessment of the Federal Clarity Act in Light of the Quebec Secession Reference ” (2000) 135 C.D. Howe Institute Commentary 3Google Scholar; Monahan, P.J., “The Public Policy Role of the Supreme Court of Canada in the Secession Reference ” (1999) 11 N.J.C.L. 65Google Scholar; Morin, J., “L'avis de la Cour supreme: Une sécession légitime et réalisable… en théorie” Le Devoir (31 August 1998) A7Google Scholar; Morton, T., “A ticket to separate: Has the Supreme Court curbed separatism? No, says Ted Morton” Ottawa Citizen (22 August 1998) B7Google Scholar; Oliver, P., “Canada's Two Solitudes: Constitutional and International Law in Reference re Secession of Quebec ” (1999) 6:1 Int'l J. on Minority and Group Rights 65Google Scholar; Ryan, C., “What if Quebeckers voted clearly for secession? While the Supreme Court did a good job of defining broad principles, it left a great contradiction hanging in the air” The Globe and Mail (27 August 1998) A19Google Scholar; Simpson, J., “Court finds the right tradeoff” The Globe and Mail (25 August 1998) A12Google Scholar; Turp, D., “Globalizing Sovereignty” (1999) 7 Canada Watch 4Google Scholar; Walker, W., “Difficult Questions Remain for the Politicians to Resolve” The Toronto Star (21 August 1998) A9Google Scholar; Whyte, J.D., “The Secession Reference and Constitutional Paradox” in Schneiderman, D., ed., The Quebec Decision: Perspectives on the Supreme Court Ruling on Secession (Toronto, ON: Lorimer, 1999) 130 Google Scholar; Woehrling, J., “Unexpected Consequences of Constitutional First Principles” (1999) 7:1-2 Canada Watch 18Google Scholar; Young, R.A., “A Most Politic Judgment” (1998) 10:1 Constitutional Forum 14.Google Scholar

2. The foremost work here is Morton, F.L. & Knopff, R., The Charter Revolution and the Court Party (Peterborough, ON: Broadview Press, 2000).Google Scholar

3. Some notable exceptions are: Bakan, J., Just Words: Constitutional Rights and Social Wrongs (Toronto, ON: University of Toronto Press, 1997)CrossRefGoogle Scholar; Beatty, D., Constitutional Law in Theory and Practice (Toronto, ON: University of Toronto Press, 1995)CrossRefGoogle Scholar; Devlin, R.F., ed., Canadian Perspectives on Legal Theory (Toronto, ON: E. Montgomery Publications, 1991)Google Scholar; Devlin, R.F., “Some Recent Developments in Canadian Constitutional Theory with Particular Reference to Beatty and Hutchinson” (1996) 22:1 Queen's L.J. 81Google Scholar; Dyzenhaus, D. , “The New Positivists” (1989) 39 U.T.L.J. 361Google Scholar; Fudge, J., “The Public/Private Distinction: The Possibilities of and the Limits of the Use of Charter Litigation to Further Feminist Struggles” (1987) 25:3 Osgoode Hall L.J. 485Google Scholar; Horwitz, P., “The Sources and Limits of Freedom of Religion in a Liberal Democracy: Section 2(a) and Beyond” (1996) 54:1 U.T. Fac. L. Rev. 1Google Scholar; Hutchinson, A. & Petter, A., “Private Rights/Public Wrongs: The Liberal Lie of the Charter ” (1988) 38:3 U.T.L.J. 288Google Scholar; Hutchinson, A.C., Waiting for Coraf: A Critique of Law and Rights (Toronto, ON: University of Toronto Press, 1995)Google Scholar; Macklem, P., “Constitutional Ideologies” (1988) 20:1 Ottawa L. Rev. 117Google Scholar; Macklem, P., “Normative Dimensions of an Aboriginal Right of Self-Government” (1995) 21:1 Queen's L.J. 173Google Scholar; Monahan, P.J. & Petter, A., “Developments in Constitutional Law: the 1985-86 Term” (1987) 9 Supreme Court L. R. 69Google Scholar; Monahan, P., Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Scarborough, ON: Carswell, 1987)Google Scholar; Réaume, D. & Green, L., “Education and Linguistic Security in the Charter” (1989) 34:4 McGill L.J. 777Google Scholar; Ryder, B., “The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations” (1991) 36:2 McGill L.J. 309Google Scholar; Schneiderman, D., “Economic Citizenship and Deliberative Democracy: An Inquiry Into Constitutional Limitations on Economic Regulation” (1995) 21:1 Queen's L.J. 125Google Scholar; Slattery, B., “A Theory of the Charter ” (1987) 25:4 Osgoode Hall L.J. 701Google Scholar; Weinrib, L., “Limitations on Rights in a Constitutional Democracy” (1996) 6 Caribbean L. Rev. 428.Google Scholar

4. Baker v. Carr, 369 U.S. 186 (1962).

5. Wechsler, H., “Toward Neutral Principles of Constitutional Law” (1959) 73:1 Harv. L. Rev. 1.Google Scholar

6. Bickel, A.M., The Least Dangerous Branch: the Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962).Google Scholar

7. Redish, M.H., “Judicial Review and the ‘Political Question’” (1984) 79 Nw. U.L. Rev. 1031.Google Scholar

8. Tushnet, M., “Principles, Politics, and Constitutional Law” (1989) 88:1 Mich. L. Rev. 49.Google Scholar

9. 5 U.S. (1 Cranch) 137 (1803), 31 U.S. (6 Pet.) 515 (1832) [hereinafter Marbury].

10. Dworkin, R.M., Freedom's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996) at 33-34.Google Scholar

11. See generally, Gunther, G. & Sullivan, K., Constitutional Law, 13th ed. (Westbury, NY: Foundation Press, 1997) at 20-27.Google Scholar

12. Alexander, L. & Schauer, F., “On Extrajudicial Constitutional Interpretation” (1997) 110:7 Harv. L. Rev. 1359.Google Scholar

13. Fiss, O.M., “Foreword: The Forms of Justice” (1979) 93:1 Harv. L. Rev. 1.Google Scholar

14. Tushnet, M.V., “The Hardest Question in Constitutional Law” (1996) 81:1 Minn. L. Rev. 1Google Scholar; Devins, N. & Fisher, L., “Judicial Exclusivity and Political Instability” (1998) 84:1 Va. L. Rev. 83Google Scholar. To some extent, the American debate over the scope and extent of Marbury is inapplicable to Canada, because there is clear support in both the constitutional text and in the Canadian constitutional tradition, for the practice of judicial review. Section 52(1) declares the Constitution Act, 1982 to be the supreme law of Canada, and provides that laws inconsistent with it are of no force or effect; moreover, the status of the Constitution Acts as enactments of the Imperial Parliament justifies judicial review as a means to pursuing the traditional goals of parliamentary supremacy and legislative intent. By contrast, since Alexander Bickel's examination of the question in the Least Dangerous Branch, there is a broad consensus that neither the text of the U.S. Constitution nor the intent of the framers expressly or impliedly authorizes judicial review. Judicial review must therefore be justified as a matter of first principle. Nevertheless, the institutional questions raised by Marbury with respect to the interpretive responsibility of courts are relevant to the Canadian context, because the scope and extent of judicial review are open to differing interpretations.

In this connection, we mention the important work of Slattery, Brian. In “A Theory of the Charter,” supra note 3Google Scholar, Slattery argues for a theory of judicial review in Canada in which courts, executives and legislatures all share the responsibility of interpreting the Canadian Charter of Rights and Freedoms. Moreover, he suggests, barring exceptional circumstances, that judicial interpretations of the Charter may not even be supreme. Slattery in effect resists a conception of judicial review in Canada that would be identical to a broad reading of Marbury in the United States. Slattery's argument is novel, because it is premised not only on the institutional considerations at play in the American discourse, but on the nature of law itself. For Slattery, the very idea of law is that it possesses a normative force that makes it a guide for conduct, a standard for evaluation, and a reason for compliance, in the minds of the persons to whom it is addressed. The role of coercive sanctions to ensure compliance with the law is secondary, or parasitic. In the constitutional context, this means that the rules of constitutional law are addressed primarily not to the courts that enforce them, but to political institutions that are bound by them. Inasmuch as coming to terms with constitutional norms is an inherently interpretive act, Slattery accordingly argues that executives and legislatures have an important role to play in constitutional interpretation, and that the power of courts to interpret the Constitution is not exclusive. Moreover, since political institutions are presumed to give due consideration to constitutional questions in arriving at their decisions, Slattery suggests that their constitutional interpretations be given deference in certain circumstances defined by relative institutional competence.

15. We draw this account from Michelman, F., “Normative Theory in Legal Scholarship: Moral and Related Political Philosophy” [unpublished].Google Scholar

16. E.g., Posner, R.A., The Economics of Justice (Cambridge, MA: Harvard University Press, 1981).Google Scholar

17. E.g., Dworkin, R.M., Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978)Google Scholar; Michelman, F., “Constitutional Welfare Rights and A Theory of Justice ” in Daniels, N., ed., Reading Rawls: Critical Studies on Rawls' A Theory of Justice (Oxford: Basil Blackwell, 1975).Google Scholar

18. Epstein, R.A., Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985).Google Scholar

19. Michelman, , supra note 17, section 2 at 2.Google Scholar

20. Set against this background, the debate between non—interpretivists and interpretivists—between scholars who endorsed the reliance in adjudication on substantive principles of political morality not expressed in the written text of the Constitution ( Grey, T.C., “Do We Have an Unwritten Constitution?” (1975) 27:3 Stan. L. Rev. 703)Google Scholar and those who did not ( Black, Justice H.L., “The Bill of Rights” (1990) 35 N.Y.U. L. Rev. 865)Google Scholar can easily be seen as part of the larger debate over Legal Realism.

21. Posner, R.A., “The Problematics of Moral and Legal Theory” (1998) 111:7 Harv. L. Rev. 1637.Google Scholar Also see the following commentaries on Posner's lecture in the same issue of the Harvard Law Review: Dworkin, R.M., “Darwin's New Bulldog” (1998) 111:7 Harv. L. Rev. 1718Google Scholar [hereinafter Darwin's New Bulldog]; Fried, C., “Philosophy Matters” (1998) 111:7 Harv. L. Rev. 1739Google Scholar; Nussbaum, M.C., “Still Worthy of Praise” (1998) 111:7 Harv. L. Rev. 1776.Google Scholar

22. Sunstein, C.R., “Incompletely Theorized Agreements” (1995) 108:7 Harv. L. Rev. 1733Google Scholar; Sunstein, C.R., Legal Reasoning & Political Conflict (New York: Oxford University Press, 1996)Google Scholar [hereinafter Legal Reasoning]; Fallon, R.H. Jr., “Foreword: Implementing the Constitution” (1997) 111:1 Harv. L. Rev. 54.Google Scholar

23. E.g., Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961) (the rule of recognition)Google Scholar; Kelsen, H., General Theory of Law and State, trans. Wedberg, A. (Cambridge, MA.: Harvard University Press, 1945) (the grundnorm).Google Scholar

24. E.g., Taking Rights Seriously, supra note 17 at 344; Dworkin, R.M., Law's Empire (Cambridge, MA: Belknap Press, 1986).Google Scholar

25. E.g., the view of the German Constitutional Court that certain articles of the German Basic Law are unamendable (see Kommers, D.P., The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, NC: Duke University Press, 1989) at 76).Google Scholar

26. Katyal, N.K., “Judges as Advicegivers“ (1998) 50:6 Stan. L. Rev. 1709.Google Scholar

27. Knopff, R. & Morton, F.L., Charter Politics (Scarborough, ON: Nelson Canada, 1992) at 130.Google Scholar

28. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Constitution Act, 1982].

29. Section 52(2) of the Constitution Act, 1982, provides that:

The Constitution of Canada includes:

(a) the Canada Act 1982, including this Act;

(b) the Acts and orders referred to in the schedule; and

(c) any amendment to any Act or order referred to in paragraph (a) or (b).

Note, though, that the Supreme Court of Canada held in New Brunswick Broadcasting Co. v. Nova Scotia, [1993] 1 S.C.R. 319 that s. 52(2) should not be read exhaustively (i.e., that “includes” is not synonymous with “means”), and as a consequence, that the doctrine of parliamentary privilege constituted part of the Constitution of Canada. The source of this unwritten rule was the preamble to the Constitution Act, 1867 (U.K), 20 & 31 Vict., c. 3, which states that the Constitution of Canada is “a Constitution similar in Principle to that of the United Kingdom.”

30. Taking Rights Seriously, supra note 17 at ch. 4.

31. For a similar account, see “A Theory of the Charter,” supra note 3.

32. Schauer, F., “Constitutional Invocations” (1997) 65:4 Fordham L. Rev. 1295.Google Scholar

33. Schauer, F., “Easy Cases” (1985) 58:1 S. Cal. L. Rev. 399.Google Scholar

34. Habermas, J., Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996)Google Scholar; Dyzenhaus, D., “The Legitimacy of Legality” (1996) 46:1 U.T.L.J. 129.Google Scholar

35. Quebec Secession Reference, supra note 1 at para. 32, quoting s. 52(2) of the Constitution Act, 1982, supra note 28 and Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 [hereinafter Provincial Judges Reference] at para. 92.

36. E.g., Taking Rights Seriously, supra note 17 at ch. 2.

37. Provincial Judges Reference, supra note 35 at para. 93.

38. Hogg, P.W., Constitutional Law of Canada, Student ed. (Scarborough, ON: Carswell, 2000) at c. 1.7 and 1.9.Google Scholar

39. Quebec Secession Reference, supra note 1 at para. 49.

40. Ibid. at para. 50; the second quotation is from OPSEU v. Ontario (A.G.), [1987] 2 S.C.R. 2 at 57.

41. Quebec Secession Reference, supra note 1 at para. 52.

42. Ibid. at para. 53, citing Provincial Judges Reference, supra note 35 at para. 104.

43. Ibid. at para. 32.

44. As will became apparent, our account of dualist interpretation differs sharply from Ackerman's, Bruce account of dualist democracy in We the People, Vol. 1: Foundations (Cambridge, MA: Belknap Press of Harvard University Press, 1991).Google Scholar

45. Quebec Secession Reference, supra note 1 at para. 69.

46. Compare this account with Ackerman's in We the People, supra note 44—ours is almost a mirror image of his dualist account.

47. Quebec Secession Reference, supra note 1 at para. 98 [emphasis in original].

48. Ibid. at para. 100.

49. Ibid. at para. 88. Also see ibid. at para. 90: “The conduct of the parties in such negotiations would be governed by the same constitutional principles which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.”

50. Ibid. at para. 90.

51. Ibid. at para. 92 [emphasis in original]. The Court went on to say (in ibid. at para. 92) that “[t]he continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.”

52. Ibid. at para. 88. It is noteworthy that “[w]hile the negotiators would have to contemplate the possibility of secession,” the Court clearly envisions that the negotiations may not reach agreement (ibid. at para. 97). Also see ibid. at para. 96: “No one can predict that course that such negotiations might take. The possibility that they might not lead to an agreement amongst the parties must be recognized.” Thus, the Court never endorses the proposition that, at the end of the day, good faith in negotiation extends to actually offering or acceding to secession. The possibility of impasse, even in the case that the constitutional principles are respected by all parties to the negotiations, clearly implies that these principles do not contain a decision-rule able to break such an impasse. An example of such a decision-rule would be that Quebec must be offered secession if it agrees to terms consistent with the four principles. But the Court clearly preferred to accept the possibility of an impasse, with a judgment on the responsibility for the impasse to be left to the world community, than to tilt even that far in implying a right to secede. On these points, see Special Senate Committee on Bill C-20 Debates, (8 June 2000) (R. Howse), online: Proceedings of the Special Committee on Bill C-20 www.parl.gc.ca/36/2/parlbus/commbus/senate/com-e/clar-e/04ev-e.htm.

53. Ibid. at para. 94 [emphasis in original].

54. Ibid. at para. 100.

55. Ibid.

56. Ibid. [emphasis added].

57. Ibid. at para. 101.

58. Ibid. at para. 102.

59. Ibid. at para. 100.

60. Ibid. at para. 101.

61. Ibid.

62. For example, see the judgment of the Constitutional Court of South Africa in Certification of the Constitution of South Africa, 1996 (Re), [1996] S.A.J. No. 19, where that court measured the compliance of the Final South African Constitution with a list of “constitutional principles” spelled out in the Interim Constitution.

63. Sager, L.G., “Fair Measure: The Legal Status of Underenforced Constitutional Norms” (1978) 91:6 Harv. L. Rev. 1212 at 1213.Google Scholar

64. Ibid. at 1240.

65. This understanding of the importance of constitutional politics—by necessity, a politics of principle—amounts to a rejection of the view that politics is merely about registering and aggregating the preferences of citizens. See generally, Cohen, J., “Deliberation and Democratic Legitimacy” in Hamlin, A. & Pettit, P., eds., The Good Polity: Normative Analysis of the State (New York: Basil Blackwell, 1989)Google Scholar; Cohen, J., “Procedure and Substance in Deliberative Democracy” in Benhabib, S., ed., Democracy and Difference: Contesting the Boundaries of the Political (Princeton, NJ: Princeton University Press, 1996)Google Scholar; Elster, J., “The Market and the Forum” in Elster, J. & Hylland, A., eds., Foundations of Social Choice Theory (New York: Cambridge University Press, 1986)Google Scholar; Sunstein, C.R., “Preferences and Politics” (1991) 20 Phil. & Publ. Affairs 3 at 20.Google Scholar

66. For interesting discussions of this issue in the American context, see Strauss, D.A., “Presidential Interpretation of the Constitution” (1993) 15 Cardozo L. Rev. 113Google Scholar; Brest, P., “The Conscientious Legislator's Guide to Constitutional Interpretation” (1975) 27:3 Stan. L. Rev. 585.Google Scholar

67. Bill C-20, 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, 2d Sess., 36th Parl., 1999 (as passed by the House of Commons 15 March 2000) [emphasis added].

68. Katyal, , supra note 26.Google Scholar

69. Sunstein, C.R., One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard University Press, 1999).Google Scholar

70. Compare Nixon v. United States, 506 U.S. 224 (1993) (various justices expressing the view that Congressional interpretations of the term “trial” in the Impeachment Clause are subject to judicial review in extreme circumstances, such as the adoption of Senate rules providing for automatic convictions without any formal proceedings).

The question of whether the Court will second-guess interpretations of the rules governing secession adopted by the political actors is distinct from another issue—whether the Court will enforce the provisions of Part V of the Constitution Act, 1982 to ensure that the correct amending formulas are applied to effectuate constitutional change. Unfortunately, the judgment is extremely ambiguous on this point. On the one hand, the failure of the Court to mention the amending procedures in Part V, coupled with its disavowal of any supervisory role in constitutional negotiations, suggests that unwritten norms subject to political interpretation alone will guide the process of secession. The centrality of referenda to constitutional change, despite the lack of any textual support for that view, also lends support to this interpretation. On the other hand, the Court does consider constitutional changes as drastic as secession to still fall within the definition of a constitutional amendment (Quebec Secession Reference, supra note 1 at para. 84), and emphasizes that secession will require an amendment (Ibid. at para. 97). Coupled with the Court's reference to “the applicability of various procedures to achieve lawful secession” (Ibid. at para. 105), the Court might be suggesting that Part V will be engaged. However, even here, the Court does not identify the relevant amending formula, or even refer to Part V explicitly, suggesting that the existing formulas may be inadequate.

71. We owe this point to Amir Sperling.

72. This point was suggested to us by Annalise Acorn.

73. Quebec Secession Reference, supra note 1 at para. 1.

74. Ibid. at para. 67

75. Ibid.

76. Quebec Secession Reference, supra note 1 at para. 33.

77. Ibid. at paras. 87, 92, 88. For a discussion of the challenge for constitutional interpretation posed by the coming apart of legitimacy and legality, and the need to have recourse to an adjudicative approach of the kind we describe in in this article, see Howse, R.J. & Malkin, A., “Canadians are a sovereign people: how the Supreme Court should approach the reference on Quebec secession” (1997) 76 Can. Bar Rev. 186.Google Scholar

78. Legal Reasoning, supra note 22 at 46.

79. One Case at a Time, supra note 69 at 11-12.

80. Darwin's New Bulldog, supra note 21.

81. General Motors of Canada Ltd. v. City National Leasing Ltd., [1989] 1 S.C.R. 641; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; De Savoye v. Morguard Investments Ltd., [1990] 3 S.C.R. 1077; Hunt v. T & N Plc, [1993] 4 S.C.R. 289.