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From Québec Veto to Québec Secession: The Evolution of the Supreme Court of Canada on Québec-Canada Disputes

Published online by Cambridge University Press:  09 June 2015

Nathalie Des Rosiers
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The Supreme Court of Canada has changed its approach in dealing with the complex symbolic issues surrounding Quebec’s role in the Canadian constitution as shown in two decisions: The Quebec Veto Reference (1982) and the Quebec Secession Reference (1998). This paper argues that, in the matter of Quebec/Canada disputes, the court should, as they did in the second decision, see themselves more as a forum for public debate than as simply a place for rule imposition. Process-oriented suggestions as well as framing principles are therapeutically better answers in this matter.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 13 , Issue 2: SECESSION , July 2000 , pp. 171 - 183
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2000

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References

1. [1998] 2 S.C.R. 217.

2. Ibid. at para. 88.

3. Cairns, Alan C., “The Secession Reference: the Constitutional Obligation to Negotiate” (1998) 10(1) Const. Forum 26 -30Google Scholar, reproduced in Schneiderman, D., ed.,The Quebec Decision: Perspectives on the Supreme Court Ruling on Secession (Toronto: James Lorimer & Company Ltd., 1999) 143 Google Scholar.

4. Martin, Rob, “Treating the Constitution like a Toy” Ottawa Citizen (22 August 1998) B3 Google Scholar.

5. See Mullan, David, “It will stand the test of time” (1999 Spring) Pub. L. 100Google Scholar. See also Des Rosiers, N. , “The Court as the Real Winner” (Conference paper, Faculty of Law, Queen's University, Oct. 1998)Google Scholar [unpublished].

6. Lucien Bouchard continues to describe the Supreme Court of Canada judges as the federal government's judges: “nine judges of its [the federal government's] own Supreme Court, nine persons whose federalist faith is not in doubt,” in “Premier Lucien Bouchard reflects on the Ruling” in Schneiderman, D., ed., The Québec Decision, supra note 3 at 95 Google Scholar.

7. I use here “nationalist” or “separatist” to identify the Québécois who generally support the idea that Québec should become a separate country from Canada.

8. For a critical analysis of the submissions of the amicus curiae, see Ryder, B., “A Court in Need and A Friend Indeed: An Analysis of the Arguments of the Amicus Curiae in the Quebec Secession Reference” (1998) 10(1) Const. Forum 9Google Scholar.

9. A review of the federalist position can be found at Leclair, J., “Impoverishment of the Law by the Law: a Critique of the Attorney General's Vision of the Rule of Law and the Federal Principle” (1998) 10(1) Const. Forum 1Google Scholar.

10. This argument was designed to “scare” Québécois who are luke-warm toward the secession: they may not want to participate in an illegal movement. See Young, R.A., “A Most Politic Judgement” (1998) 10(1) Const. Forum 14-18 at 14 Google Scholar. For an explanation as to the reasons of such unanimity, see Young, R.A., ibid. at 18 Google Scholar. See also the commentary by Woehrling, José, “The Supreme Court's Ruling on Quebec's Secession: Legality and Legitimacy Reconciled by a Return to Constitutional First Principles” in Mellon, H. & Westmacott, M., eds., Political Dispute and Judicial Review—Assessing the Work of the Supreme Court of Canada (Toronto, ON: Nelson, 1999) 83 Google Scholar.

11. For an explanation as to the reasons of such unanimity, see Young, R.A., ibid. at 18 Google Scholar.

12. I describe Québec as a minority in its relationship to Canada: as the only province with a francophone majority, as the only province whose constitutional assent was not secured in the 1982 constitutional reform. Therefore, I would disagree that Québec is a province like the nine others and I have found it helpful to use the image of minority vs. majority analysis in understanding Québec-Canada disputes. This paper uses this image but, in my view, it is not an essential aspect of the argument, i.e., one could disagree that Québec is a minority, while recognizing that the issues posed by Québec Secession speak to the unique constitutional history of the province.

13. One may also use the word “translators” to describe the role of judges: translating one party's position to the other. Courts often reframe issues brought up by one party so that the other side may understand it better. Further work need to be done in attempting to understand such a function.

14. Courts may also act as “facilitators” through their educational function. They may allow parties to better understand each other such that the tribunal's role in resolving the dispute is minimized.

15. The descriptive has been developed by Wexler, D.B. & Winick, B.J., “Therapeutic Jurisprudence as a New Approach to Mental Health Law Policy Analysis and Research” (1991) 45 U. Miami L. Rev. 979Google Scholar. See also Wexler, D.B. & Winick, B.J., Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham, NC: Carolina Academic Press, 1996)Google Scholar.

16. See Wexler, D.B., “Reflections on the Scope of Therapeutic Jurisprudence” (1995) 1 Psychol. Pub. Pol'y & L. 220 at 225 Google Scholar.

17. See, for example, Shuman, D.W., “Therapeutic Jurisprudence and Tort Law: A Limited Subjective Standard of Care” (1992) 46 SMU L. Rev. 409Google Scholar; Feldthusen, B., “The Civil Action for Sexual Battery: Therapeutic Jurisprudence?” (1993) 25 Ottawa L.R. 203Google Scholar; Des Rosiers, N., Feldthusen, B. & Hankivsky, O., “Legal Compensation for Sexual violence: Therapeutic Consequences and Consequences for the Judicial system” (1998) Psychol. Pub. Pol'y & L. 433Google Scholar; and, Des Rosiers, N. & Langevin, L., L'indemnisation des victimes de violence sexuelle et conjugale (Cowansville, P.Q.: Les Éditions Yvon Biais Inc., 1998)Google Scholar.

18. The Therapeutic Jurisprudence movement can be understood as a companion to all the new questions surrounding the re-thinking of the adversarial model and the emergence of a restorative justice, or transformative justice model. See Law Commission of Canada, From Restorative Justice to Transformative Justive (Discussion Paper) (Ottawa: Law Commission of Canada, 1999)Google Scholar; see also, Carson, D., “Therapeutic Jurisprudence: An Alternative Approach to Issues Affecting the Criminal Justice System” in McGuire, J. & Rowson, B., eds., Does Punishment Work?, (London, U.K.: The Institute, 1996) at 72-76 Google Scholar; Harland, A., “Towards a Restorative Justice Future” in Galaway, B. & Hudson, Joe, eds., Restorative Justice: International Perspectives (Monsey, NY: Criminal Justice Press, 1996) at 505-07Google Scholar; and, Schopp, R.F., “Integrating Restorative Justice and Therapeutic Jurisprudence.” (1998) 67 Rev. Jur. U.P.R. 665Google Scholar.

19. See for a compendium, Wexler, D.B., ed., Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Durham, NC: Carolina Academic Press, 1990)Google Scholar; Winick, B.J., “On Autonomy: Legal and Psychological Perspectives” (1992) 37 Vill. L. Rev. 1705Google Scholar; Perlin, M.L., Mental Disability Law: Cases and Materials (Durham, NC: Carolina Academic Press 1999)Google Scholar; Sales, B.D. & Shuman, D.W., eds., Law, Mental Health, and Mental Disorders (Pacific Grove, CA: Brooks/Cole Publishing Company 1996) at 163-66Google Scholar; and Winick, B.J., Therapeutic Jurisprudence Applied: Essays on Mental Health Law (Durham, NC: Carolina Academic Press 1997)Google Scholar.

20. See Aponte-Toro, Roberto, “Sanity in International Relations: An Experience in Therapeutic Jurisprudence” (1999) 30 U. Miami Inter-American L. Rev. 659Google Scholar.

21. For an earlier attempt published in French, see Des Rosiers, N., “La gérance de l'incertitude en droit constitutionnel,” in Mackaay, Ejan, ed., Les incertitudes du droit/Uncertainty and the Law, (Montréal, P.Q.: Les éditions Thémis, 1999)Google Scholar.

22. The Therapeutic Jurisprudence approach is fairly young and I cannot claim that the description that I give is shared by all its proponents. See for a variety of points of view regarding the insights that Therapeutic Jurisprudence can bring: Wexler, D.B. & Winick, B.J., supra note 15Google Scholar.

23. Kavanagh, K., “Don't Ask, Don't Tell: Deception Required, Disclosure Denied” (1995) 1 Psychol. Pub. Pol'y, & L. 142 at 150-56Google Scholar.

24. Walman, E.A., “The Evaluative-Facilitative Debate In Mediation: Applying The Lens of Therapeutic Jurisprudence.” (1998) 82 Marq. L. Rev. 155 at 162-63Google Scholar.

25. Shiff, A.R. & Wexler, D.B., “Teen Court: A Therapeutic Jurisprudence Perspective” (1996) 32 Crim. L. Bull, at 342-57Google Scholar.

26. Des Rosiers, N., Feldthusen, B., & Hankivsky, O., supra note 17Google Scholar; Greer, A., O'Regan, M., & Traverso, A., “Therapeutic Jurisprudence and Patients' Perceptions of Procedural Due Process of Civil Commitment Hearings” in Law in a Therapeutic Key, supra note 15 at 926 Google Scholar; Simon, L.M.J., “A Therapeutic Jurisprudence Approach to the Legal Processing of Domestic Violence Cases” (1995) 1 Psychol. Pub. Pol'y & L. at 43-79 Google Scholar. For a judge's perspective see, Town, M.A., “Court as Convener and Provider of Therapeutic Justice” (1998) 67 Rev. Jur. U.P.R. 671Google Scholar.

27. Tyler, T.R., “The Psychological Consequences of Judicial Procedures: Implications For Civil Commitment Hearings” (1992) 46 SMU L. R. 433Google Scholar.

28. Des Rosiers, N., Feldthusen, B., & Hankivsky, O., supra note 17Google Scholar; Simon, L.M.J., supra note 26Google Scholar.

29. Des Rosiers, N., Feldthusen, B., & Hankivsky, O., supra note 17 at 444 Google Scholar.

30. Ibid. at 448.

31. Simon, L.M.J., supra note 26Google Scholar; for the implications for the role of the lawyer see: Patry, M.W., Wexler, D.B., Stolle, D.P., & Tomkins, A.J.. “Better Legal Counseling Through Empirical Research: Identifying Psycholegal Soft Spots and Strategies.” (1998) 34 Cal. W. L. Rev. 439Google Scholar.

32. See among others, Maxwell, K. E., “Preventive Lawyering Strategies to Mitigate the Detrimental Effects of Clients' Divorces on their Children” (1998) 67 Rev. Jur. U.P.R. 137Google Scholar.

33. Town, M.A., supra note 26Google Scholar.

34. See Law Commission of Canada, supra note 18Google Scholar; Schopp, R.F., supra note 18Google Scholar.

35. See Des Rosiers, N., “Federalism and Judicial Review” in Westmacott, M. & Mellon, H., eds., Challenges to Canadian Federalism, (Scarborough, ON: Prentice-Hall Canada Inc., 1997)Google Scholar. Others have described it as a “dialogue”: see Hogg, P.W., “The Charter Dialogue Between Courts and Legislatures” Law Times (29 January 1996) 10 Google Scholar.

36. Leclair, J., “The Supreme Court, The Environment, and the Construction of a National Identity: R. v. Hydro-Québec ” (1998) 4 Rev. Const. Studies. 372Google Scholar.

37. This is essentially the function of section 1 of the Canadian Charter of Rights and Freedoms. See for a further exploration of such a role: Des Rosiers, N., supra note 21Google Scholar.

38. Ibid.

39. Ibid.

40. To give an example of when the courts have not used a “therapeutic” process in constitutional law will help explain what I mean by listening to the voice of the parties. In the context of aboriginal rights, in the case of R. v. Van der Peet, [1996] 2 S.C.R. 507, the majority of the S.C.C. established the date of contact with the European culture as the date at which an aboriginal right must have existed to be constitutionally protected. The Aboriginal claimant must prove that at the time of contact with the European culture, there was in existence an aboriginal practice which was integral to the aboriginal culture. For example, she must prove that her band fished as a primary mode of subsistence at the time of its contact with the European culture, or an Aboriginal must establish that his band was engaged in trade at such time. This is an example where the court does not “hear” the Aboriginal perspective. For the Aboriginals, to have their right defined by the date of contact with the European culture is symbolically unacceptable (See the dissent of Madam Justice MacLachlin at page 625). Why should they define themselves through the travels of the Europeans? Why should they have noticed at what time the European had entered into their lives? Why should they have recorded that fact?

41. For the importance of law that addresses the pluralism of interests, see Rosenfeld, M., Just Interpretations: Law between Ethics and Politics (Berkeley: University of California Press, 1998) ch. 7Google Scholar.

42. A previous separatist Premier from Québec has so described the process of Canada/Québec discussions.

43. Supra note 21.

44. See R. v. Sparrow, [1990] 1 S.C.R. 1075.

45. [1982] 2 S.C.R. 793.

46. This historical “coup de force” is a major symbolic barrier to a Québec/Canada reconciliation. See Young, R.A., supra note 10Google Scholar.

47. This expression is the one found in section 1 of the Canadian Charter of Rights and Freedoms to allow a government to justify the constitutionality of a statute that would otherwise infringe a right prescribed in the Charter, such as freedom of expression. See for a general explanation of such an analysis, Hogg, P.W., Constitutional Law of Canada, 4th ed. (Toronto, ON: Carswell, 1996)Google Scholar; and Des Rosiers, N., supra note 35Google Scholar.

48. Young, R.A., “Québec Secession and the 1995 Referendum” in Westmacott, M. & Mellon, H., eds., supra note 35Google Scholar.

49. “While both submissions [from Québec] seek the same answer to the constitutional question, they are alternative ones, as they have to be, for not only are they quite distinct from each other, they actually contradict one another,” supra note 45 at 801 Google Scholar.

50. Supra note 45 at 814. [emphasis added]

51. Edwards Books and Art v. R., [1986] 2 S.C.R. 713.

52 Supra note 1 at 227.

53. Supra note 1 at 244.

54. Ibid.

55. For a commentary on the scope of such obligation, see Grescher, D., “The Québec Secession Reference: Goodbye to Part V?” (1998) 10(1) Const. Forum 19Google Scholar; and, Cairns, A.C., supra note 3Google Scholar.

56. See for a process seeking to achieve a similar objective: Klotz, J.A., Wexler, D.B., Sales, B.D., & Becker, J.V., “Cognitive Restructuring Through Law: A Therapeutic Jurisprudence Approach to Sex Offenders and the Plea Process” (1992) 15 U. Puget Sound L. Rev. 579Google Scholar.

57. Martin, R.A., supra note 6 at 98 Google Scholar.

58. On December 10, 1999, the federal government introduced a bill in the House of Commons attempting to prescribe the conditions of “clarity” required for the obligation to negotiate to arise (An Act to give effect to the requirements of clarity as set out in the opinion of the Supreme Court) The Québec government replied by introducing its own bill proclaiming the right of the Québec people to decide alone, the “nature, scope and mode of exercise of its right to self-determination” (sect. 3, Bill 99, An Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the Quebec state) (December 15, 1999).

59. Ryan, C., What if Quebecers Voted Clearly for Secession? in Schneiderman, D., ed., supra note 3 at 150 Google Scholar.

60. Young, R.A., supra note 10Google Scholar.