Reference Re Secession of Quebec - Submissions

Submissions

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 argue for the sovereignist side.

The federal government's submission argued that the only way a province could secede from Canada would be through a constitutional amendment. Only an amendment through section 45 would allow for unilateral amendments. However, that section does not apply here. To attempt to secede unilaterally would violate the constitution on two grounds. First, it would violate 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 only allocated to the federal government.

The amicus curiae's submission argued several points. First, they 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 52 of the Supreme Court Act. They 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, they focused on the second question, claiming that the ability to separate comes from international law. They argued that the "peoples of Quebec" had a right to self-determination under the Charter of the United Nations and thus can secede given the consent of a majority of the Quebec peoples. They further claimed that since there is no international law barring separation then by convention there must be an implied right to do so. Their primary argument was that the doctrine of effectivity gave them authority to secede. That is, recognition of a new state by other countries would validate the separation. They further claimed that the doctrine of effectivity is part of the constitutional convention through its practice in other parts of the commonwealth.

Several aboriginal interveners submitted facta on their right to stay in Canada based on aboriginal treaties and their right to self-determination, further noting that they have already held two referendums where they decided against the separation of the aboriginal peoples from Canada. Their factum attacked the Attorney General's factum on the basis that they completely ignored the role of the aboriginal people within the constitution.