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“Making Public Law, ‘Public’: An Analysis of the Quebec Reference Case and its Significance for Comparative Constitutional Analysis”

Published online by Cambridge University Press:  17 January 2008

James T. Mchugh
James T. Mchugh
Affiliation:
Associate Professor of Political Science and Chair of the Legal Studies Program, Roosevelt University, Chicago, and Adjunct Professor, The John Marshall Law School, Chicago; Ph.D., Queen's University (Canada), 1991.
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Extract

The Supreme Court of Canada's advisory opinion in Reference re Secession of Quebec, 1998 (also known, more simply, as the “Quebec reference case”) has been the subject of much interpretation and comment, because of its obvious implications for the future of Canada.1 However, it offers an arguably wider opportunity to consider the role of the judiciary within a liberal democracy. The professional nature of the legal process and its practitioners often has made legal and judicial institutions, to most of the public, distant and alien components of the political system. The technical aspects of many areas of law (such as contracts, torts, and civil procedure) may, in fact, make this area of public concern seem unapproachable to the average citizen; indeed, some legal practitioners may prefer that the law remain that way. That mystique often is transferred to the realm of constitutional law, where the use of technical terms (including Latin words and phrases) may serve, intentionally or not, to insulate legal arguments and proceedings from public scrutiny.2

Type
Articles
Information
International & Comparative Law Quarterly , Volume 49 , Issue 2 , April 2000 , pp. 445 - 462
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. A brief sample of these commentaries include Dycus, Stephen, “Quebec Independence and United States Security: A Question of Continuing Rights and Duties” (1998) 15 Ariz.J. Int'l. & Comp.L. 187Google Scholar; Rayfuse, Rosemary, “Reference re Secession of Quebec from Canada: Breaking Up Is Hard to Do” (1998) 21 U.N.S.W.L.J. 834Google Scholar; Thomas, Manisha, “Canadian Ruling on Quebec Secession” (1998) 5 Hum.Rts.Trib. 23Google Scholar; Woehrling, Jose, “Les Aspects juridiques d'une eventuelle secession du Québec” (1995) 74 Revue du Barreau Canadien 293Google Scholar; Young, Robert A., “The Political Economy of Secession: The Case of Quebec” (1994) 5 Const.Pol.Econ. 221.CrossRefGoogle Scholar

2. This general issue, including its semantic and cultural aspects, is explored in McHugh, James T., “Is the Law ‘Anglophone’ in Canada?” (1993) 23 Am.Rev.Can.Stud. 407CrossRefGoogle Scholar. An interesting comment on the origins of the persistent use of Latin terms within the legal lexicon is offered in Wright, Robert F., Medieval Internationalism (1930), pp.189–190.Google Scholar

3. A general expression of that concern can be found in Brennan, Gerard, “Courts, Democracy and the Law” (1991) 65 Austl.L.J. 32.Google Scholar

4. This problem and suggestions for a more normative approach to comparative law that acknowledge these cultural and theoretical influences are addressed in Van Hoecke, Mark and Warrington, Mark, “Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law” (1998) 47 Int'l. & Comp.L.Q. 495.CrossRefGoogle Scholar

5. A comparative and historical analysis of this objective is provided in Baister, Stephen, “The Court as Educator: The Social Courts System of the German Democratic Republic” (1997) 18 J. Legal Hist. 47.CrossRefGoogle Scholar

6. These problems are addressed in Hathaway, George H., “Plain Language: Clarity v. Legalese in the Law” (1998) 77 Mἰch.B.J. 198.Google Scholar

7. This ideal is suggested in Post, Robert C., “The Constitutional Concept of Public Discourse” (1990) 103 Harv.L.Rev. 601.CrossRefGoogle Scholar

8. This objection is raised in Coleman, Jules L., “Truth and Objectivity in Law” (1995) 1 Legal Theory, 33CrossRefGoogle Scholar; Li Feldman, Heidi, “Objectivity in Legal Judgments” (1994) 92 Mich.L.Rev. 1187.CrossRefGoogle Scholar

9. This educational objective within the legal and judicial systems is discussed in Rainey, R. Randall, “Educating for Justice: A Reply” 11 St. Louis U.Pub.L.Rev. 521.Google Scholar

10. That argument is offered, from a comparative perspective, in Alen, A., “Nationalism-Federalism-Democracy: The Example of Belgium” (1993) 5 Eur.Rev.Pub.L. 41.Google Scholar

11. These broader social topics remain a central concern for many legal scholars, as revealed in Post, Robert, “Democracy, Popular Sovereignty, and Judicial Review” (1998) 86 Cal.L.Rev. 429.CrossRefGoogle Scholar

12. Examples of sources cited by the Supreme Court of Canada, within this reference case (although other, uncited sources also probably influenced this process), include Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995); Doehring, Karl, “Self-Determination”, in Simma, Bruno*** (Ed.), The Charter of the United Nations: A Commentary (1994)Google Scholar; Favoreu, Louis, “American and European Models of Constitutional Justice”, in dark, David S. (Ed.), Comparative and Private International Law (1990), pp.105et seq.Google Scholar; Hogg, Peter W., Constitutional Law of Canada (1997)Google Scholar; Pope, Joseph*** (Ed.), Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (1895)Google Scholar, plus several other works of government publications and independent scholarship.

13. This extremely strong emphasis upon Canadian federalism has resulted in a great many scholarly studies. Some significant texts that emphasise various aspects of this theme include Peter Aucoin, The Centralization-Decentralization Conundrum: Organization and Management in the Canadian Government (1988); Black, Edwin R., Divided Loyalties: Canadian Concepts of Federalism (1975)Google Scholar; Cody, Howard, “The Evolution of Federal-Provincial Relations in Canada” (1977) 7 Am.Rev.Can.Stud. 55CrossRefGoogle Scholar; Krasnick, Mark R., Fiscal Federalism (1986)Google Scholar; Lalande, Gills, In Defense of Federalism: A View from Quebec (1978)Google Scholar; McRoberts, Kenneth, Misconceiving Canada: The Struggle for National Unity (1997)Google Scholar; Meekinson, J. Peter (Ed.), Canadian Federalism: Myth or Reality? (1977)Google Scholar; Prévost, Jean-Pierre, La Crise du Fédéralisme Canadien (1972)Google Scholar; Simeon, Richard, State, Society, and the Development of Canadian Federalism Diplomacy (1990)Google Scholar; Stevenson, Garth, Unfulfilled Union: Canadian Federalism and National Unity (1979)Google Scholar; Trudeau, Pierre Elliott, Le Fédéralisme et la Société Canadienne-Française (1967).Google Scholar

14. A seminal account of the motivations for, and creation of, Canada's federal union, is provided in Waite, P. B., The Life and Times of Confederation, 1864–1867 (1967), pp.104–116Google Scholar. The Upper Canada (Ontario) and Lower Canada (Quebec) rebellions of 1838 prompted an imperial mission, under Lord John Durham, that recommended a federal union of these two provinces (initially excluding the Maritime provinces and the Hudson's Bay Company lands of British North America) in the hope of assimilating French-speaking Canadians into the English-speaking population. It began a process that contributed to the Canadian confederation of 1867 and the present mistrust of Quebec towards the rest of Canada. An assessment of his report, and its legacy, is offered in Bertrand, Denis and Desbiens, d'Albert*** (Transl. and Eds), Le Rapport Durham (1990), pp.11–44.Google Scholar

15. Can.Const. (Constitution Act, 1867), ss.92–93. A contextual evaluation of Canada's federal-provincial, including the pivotal role of ss.91 and 92 of the Constitution Act of 1867, can be found in Brown, Gordon R., “Canadian Federal-Provincial Overlap and Government Inefficiency” (1994) 21 Publius 21.Google Scholar

16. Good accounts of the evolution of Quebec nationalism include Behiels, Michael D., Prelude to Quebec's Quiet Revolution (1985)Google Scholar; Clift, Dominique, Quebec Nationalism in Crisis (1982)Google Scholar, Dumont, Fernand, “La Culture québécoise: ruptures et traditions”, in Sarrazin, Jean, Glayman, Claude, Jérome, Micheline*** (Eds), Dossier Québec (1979), pp.59–69Google Scholar; Rioux, Marcel, Les Québécois (1974)Google Scholar; Thomson, Dale, Jean Lesage and the Quiet Revolution (1984)Google Scholar. The distinction between the concepts of nationalism as understood within Quebec and as understood within the rest of Canada is explored in McHugh, James T., “On the Difference Between ‘a Nation’ and ‘une nation’: Contrasting Concepts of Canadian and Québécois Nationalism”, in Kleist, Jürgen**** (Ed.), Canada Observed: Perspectives from Abroad and from Within (2000, forthcoming).Google Scholar

17. The political progress of this constitutional negotiation and the role of Quebec separatism in motivating that progress are discussed in Mahler, Gregory S., New Dimensions of Canadian Federalism: Canada in Comparative Perspective (1987), pp.57–83Google Scholar. The ideals of the Canadian Charter of Rights and Freedoms have become a central focus of Canadian legal and political discourse. Good overviews of the Canadian constitutional tradition, the Charter, the values they reflect, and their significance to Canadian society include Manfredi, Christopher, Judicial Power and the Charter Canada and the Paradox of Liberal Constitutionalism (1992)Google Scholar; McWhinney, Edward, Canada and the Constitution, 1979–1982 (1982).Google Scholar

18. More recent and accurate accounts of Quebec nationalism, the fears that prompt it, and its constitutional implications are provided in Dion, Léon, Á la Recherche du Québec (1987)Google Scholar; Fitzmaurice, John, Quebec and Canada: Past, Present, and Future (1985)Google Scholar; Morin, Jacques-Yvan and Woehrling, José, Demain, le Québec Choix Politiques et Constitutionnels d'un Pays en Devenir (1994).Google Scholar

19. The failed attempt to adopt the Meech Lake Accord (which would have established constitutional recognition of Quebec as a “distinct society within Canada”) and some of the consequences of that failure are recounted in Raymond Breton, Why Meech Failed: Lessons for Canadian Constitution-making (1992).

20. Analyses of the 1995 Quebec referendum and the events leading to it are provided inClarke, Harold D. and Kornberg, Allan, “Choosing Canada? The 1995 Quebec Sovereignty Referendum” (1996) 29 PS: Pol.Sci. & Pol. 676Google Scholar; Gill, Robert M., “The 1995 Referendum: A Quebec Perspective” (1995) 25 Am.Rev.Can.Stud. 409CrossRefGoogle Scholar; Mahler, Gregory S., “Canadian Federalism and the 1995 Referendum: A Perspective from Outside Quebec” (1995) 25 Am.Rev.Can.Stud. 449.CrossRefGoogle Scholar

21. [1998] 2 S.C.R. 217, 236–238. Scholarship that confirms this interpretation includes Craven, Greg, “Of Federalism, Secession, Canada, and Quebec” (1991) 14 Dalhousie L.J., 231Google Scholar; Gagon, Alain G. and Laforest, Guy, “The Future of Federalism: Lessons from Canada and Quebec” (1993) 48 Int'l.J. 470CrossRefGoogle Scholar, Manson, Peter A., “The Concept of Federalism in Canada” (1991) 16 Int'l. Legal Prac. 11.Google Scholar

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23. Monahan, Patrick J., “The Law and Politics of Quebec Secession” (1995) 33 Osgoode Hall L.J. 1.Google Scholar

24. Two examples of these writings include Kelebay, Yarema Gregory, “Quebec Report: The Real Face of Separatism” (1997) 31 Can.Soc.Stud. 117Google Scholar; Nielsen, Kai, “Positions on Sovereignty and Partition” (1996) 76 Dalhousie Rev. 226Google Scholar. A partisan interpretation of this controversy by the Canadian Government's principal advocate for its position is Dion, Stephane, “Why is Secession Difficult in Well-Established Democracies? Lessons from Quebec” (1996) 26 Brit. J.Pol.Sci. 269.CrossRefGoogle Scholar

25. This informal role of courts is addressed in Anderson, David A., “Democracy and the Demystification of Courts” (1995) 14 Rev.Litig. 627Google Scholar. The catalyst played by the press, within this process, is addressed in Kaye, Judith S., “The Third Branch and the Fourth Estate” (1998) 12 Media Stud.J. 74.Google Scholar

26. [1998] 2 S.C.R. 217, 244.

27. [1981] 1 S.C.R. 753, 769.

28. [1981] 1 S.C.R. 753, 773.

29. [1981] 1 S.C.R. 753, 775.

30. [1998] 2 S.C.R. 217, 251.

31. Grant, George, Lament for a Nation: The Defeat of Canadian Nationalism (1970)Google Scholar. Taylor, Charles, “Le pluralisme et le dualisme”, in Gagnon, Alain-G. (Ed.), Québec: État et société (1994), pp.61–84Google Scholar. Sandel, Michael J., Liberalism and the Limits of Justice (1982)Google Scholar. An excellent overview of these perceptions of political culture and ideology, including as they relate to Canada, is provided in Avigail Eisenberg, I., Reconstructing Political Pluralism (1995).Google Scholar

32. This oversimplified contention that relatively recently established societies can trace their ideological development to homogeneous social segments (or “fragments”) of the heterogeneous “mother country” that founded them influenced some initial assessments of the political culture of “New World” countries, like Canada. It was first advanced in Hartz, Louis (Ed.), The Founding of New Societies (1964)Google Scholar. Its application to Canada led to the generalised conclusion that the English-speaking and French-speaking populations of that country were the products of two different colonising “fragments”, with modern Quebec reflecting the influence of a conservative. Catholic, and authoritarian legacy, as suggested in Kenneth McRae, “The Structure of Canadian History”, in idem, pp.234–274; Horowitz, Gad, Canadian Labour in Politics (1968), pp.29–44Google Scholar. That assessment was influenced, however, by a superficial interpretation of Quebec's modern history, and it has been largely rejected. An excellent summary of this repudiation is provided in Forbes, F. D., “Hartz-Horowitz at Twenty” (1987) 20 Can.J.Pol.Sci. 292.CrossRefGoogle Scholar

33. Groulz, Lionel, Les Chemins de l'Avenir (1964)Google Scholar. Other nineteenth century authors reflected similar outlooks upon the national identity of French-speaking Canadians. Their opinions represented certain influential elites (particularly clerical ones) but not, necessarily, Quebec society, as a whole, as noted in Cornett, Norman E., “Lionel Groulx's Rationale for French-Canadian Nationalism” (1989) 18 Stud, in Religion, 407.CrossRefGoogle Scholar

34. This assertion is made, in greater detail, in McHugh, James T., “The Quebec Constitution” (1999) 28 Que. Stud. 1.Google Scholar

35. An analysis of the nature and dominance of liberal democratic values within Quebec, and in comparison with the rest of Canada, is provided in Dion, Léon, Nationalisme et Politique au Québec (1975)Google Scholar; Heintzmann, Ralph, “The Political Culture of Quebec” (1983) 16 Can.J.Pol.Sci. 3Google Scholar; Monière, Denis, Le Développement des Idéologies au Québec (1977).Google Scholar

36. [1998] 2 S.C.R. 217, 254.

37. [1998] 2 S.C.R. 217, 256.

38. US Const., Art. III, s.2.

39. Several United States Supreme Court decisions have affirmed this position, including Luther v. Borden, 48 U.S. 1 (1849); Colman v. Miller, 307 U.S. 433 (1939); Baker v. Carr, 369 U.S. 186 (1962). The express constitutional prohibition against federal American judicial reference cases was articulated definitively in Muskrat v. United States, 219 U.S. 346 (1911), especially at 362. Excellent overviews of this doctrine are provided in Bickel, Alexander, The Least Dangerous Branch (1986), pp.23–28, 69–71Google Scholar; Tribe, Laurence, American Constitutional Law (1988), pp.96–107Google Scholar. Perceptions of the increasingly “political” role of Canadian courts are addressed in Otis, Ghislain, “Les Obstacles constitutionnels à la Jurisdiction de la Cour Federate en Matiere Responsabilité Publique pour Violation de la Charte Canadienne” (1992) 71 Revue de Barreau Canadien 647.Google Scholar

40. This role is acknowledged in Cromwell, T. A., “Aspects of Constitutional Judicial Review in Canada” (1995) 46 S.C.L. Rev. 1027.Google Scholar

41. [1998] 2 S.C.R. 217, 229.

42. This issue is addressed, from a comparative perspective, in Massey, Calvin R., “The Locus of Sovereignty: Judicial Review, Legislative Supremacy, and Federalism in the Constitutional Traditions of Canada and the United States” (1990) Duke L.Rev. 1229CrossRefGoogle Scholar, and Note, “Nationalism, Self-Determination, and Nationalist Movements: Exploring the Palestinian and Quebec Drives for Independence” (1997) 20 B.C. Int'l. & Comp.L-Rev. 85.Google Scholar

43. This ability of a society to secure an expression of self-determination without, necessarily, achieving the full sovereignty of independence is evaluated in Hill, Mitchell A., “What the Principle of Self-Determination Means Today” (1995) 1 J.Int'l. & Comp.L. 119Google Scholar; Johansson, Lars, “Raison d'Etar. The State as a Vehicle for Self-Determination” (1996) 2 U.C. Davis J.Int'l. L. & Pol'y. 295Google Scholar; Kolodner, Eric, “The Future of the Right to Self-Determination” (1994) 10 Conn.J.Int'l.L. 153.Google Scholar

44. [1998] 2 S.C.R. 217, 252.

45. Advocacy of that role can be found in Collier, Charles W., “The Use and Abuse of Humanistic Theory in Law” (1991) 41 Duke Law Journal 191CrossRefGoogle Scholar; Cottrol, Robert J., “Legal Scholarship and Interdisciplinary Inquiry” (1992) 38 Loyola L.Rev. 83Google Scholar; Tushnet, Mark, “Interdisciplinary Legal Scholarship: The Case of History-in-Law” (1996) 71 Chi.-Kent L.Rev. 909.Google Scholar

46. These tools are discussed, within a different context, in Rosemary Owens, J., “Interveners and Amicus Curiae. The Role of the Courts in a Modern Democracy” (1998) 20 Adel.L.Rev. 193.Google Scholar

47. [1998] 2 S.C.R. 217, 252, with emphasis provided within the original text.

48. [1998] 2 S.C.R. 217, 258–259.

49. The tendency to regard the Canadian court system in this way has increased, greatly, as illustrated in Russell, Peter H., The Judiciary in Canada: The Third Branch of Government (1987).Google Scholar

50. These concerns are intimated, within a larger context, in Freeman, Samuel, “Political Liberalism and the Possibility of a Just Democratic Constitution” (1994) 69 Chi.-Kent L.Rev. 619.Google Scholar

51. Another evaluation of the role of the judiciary within the Canadian political system is offered in Miller, Mark C., “Judicial Activism in Canada and the United States” (1998) 81 Judicature 262.Google Scholar

52. One example of this alternative critical approach to the study and application of comparative law is Franklin, Daniel P. and Baun, Michael J. (Eds), Political Culture and Constitutionalism: A Comparative Approach (1995)Google Scholar. It complements more traditional approaches towards comparative law, as expressed within the “functional approach” towards this field, as most prominently represented by Zweigert, Konrad and Kötz, Hans, Introduction to Comparative Law (1987; trans. Weir, Tony)Google Scholar, and the more parochial “institutional approach”, as represented by Glendon, Mary Ann, Gordon, Michael W., and Osakwe, Christopher, Comparative Legal Traditions (1982)Google Scholar. An interesting commentary on this issue, from a Canadian perspective, is offered in Russell, Peter H., “Overcoming Legal Formalism: The Treatment of the Constitution, the Courts, and Judicial Behavior in Canadian Political Science” (1986) 1 J.L. & Soc'y 1.Google Scholar