Here’s what it would take for a province to lawfully separate from Canada

Open this photo in gallery:

Stéphane Dion was the minister who sponsored the Clarity Act in Parliament in 2000. He is currently Diplomat in Residence at the University of Montreal.

The vast majority of democratic states – including federations like the United States – prohibit secession, and all without exception prohibit unilateral secession, undertaken without a negotiated constitutional agreement with the state. The usual practice of states is not to recognize unilateral secessions outside the context of colonialism or the oppression of peoples. No state has become a member of the United Nations against the wishes of the predecessor state, or before the predecessor state has ceased to exist; this, for example, was the case of the new states that joined the United Nations following the dissolution of the former federation of Yugoslavia.

In only one case, that of Kosovo, did an entity manage to get significant – albeit still partial – international recognition against the will of the parent state. That case itself illustrates how difficult it is to secure international recognition via unilateral secession. Should Serbia recognize Kosovo, all other countries would follow suit. But as long as Serbia objects, one cannot see when Kosovo will be allowed to join the United Nations.

Konrad Yakabuski: Will 2026 be the year of Quebec sovereignty’s comeback?

Amid a wave of Canada-wide unity, Alberta’s separatism movement pushes back

It is as an indivisible country that the Parti Québécois leaders say they want to transform Quebec. One can suppose that indivisibility is also the project of the protagonists of Alberta’s independence; one would need to ask them.

A reason for this universal aversion to secession is the concern amongst existing states that their own territorial integrity could be challenged. Another obvious reason is the constant concern for international stability. Separatist movements are potential sources of grave disorder.

In addition to these considerations, there is a third element that opposes an automatic right to secession, an element fundamental to democracies: the right to citizenship. Democracy grants every citizen of a country citizenship rights throughout the country, with a passport that allows them to carry the rights inherent in this passport throughout the world. Each citizen obtains the right to transmit these rights to their children. These citizenship rights can be withdrawn only in very exceptional circumstances provided by law, related to very serious crimes such as, for example, treason.

This touches on the fundamental reason why both international law and state practice only recognize a right of secession in situations of colonization or blatant violations of human rights. In extreme circumstances in which a state refuses to treat a group of citizens as citizens, and tramples on their right to citizenship, those citizens may, in turn, have a legitimate claim to consider themselves no longer part of this oppressive state.

Open this photo in gallery:

In a democracy, no group of citizens, even when claiming to form a people or a nation, may take it upon itself to take the country away from other citizens. These rights inherent to citizenship derive from the Constitution, which is the law of laws, and, therefore, can only be revoked by amending the Constitution according to the procedure provided for this purpose.

Exceptionally in the democratic world, Canada allows the negotiation of such a constitutional amendment, in accordance with the process established by the Supreme Court of Canada’s opinion in 1998 and the Clarity Act enacted in 2000 by Parliament that gives effect to the Court’s requirements. The Supreme Court confirmed that “the secession of a province from Canada must be considered, in legal terms, to require an amendment to the Constitution, which perforce requires negotiation.”

The Court establishes a duty to enter into constitutional discussions for any request for a constitutional amendment duly initiated by a partner of the federation. Canada is a civilized federation where the partners agree to come to the table at the request of one of them. There is no obligation of results: after discussions, it might be found that the support is insufficient for the constitutional amendment to take place.

Claude Lavoie: Separatists think independence makes Quebec and Alberta richer. Really?

However, if the issue at stake is secession, then the Supreme Court requires an additional condition of democratic legitimacy for there to be an obligation to negotiate: the province must clearly demonstrate that its population wants secession. It would indeed have been odious to obligate partners of the federation to undertake negotiations on the loss of Canada for a part of the Canadian population, without having the assurance that it is indeed what this population clearly wants.

The constitutional obligation to enter into negotiations on secession could be precipitated only by “a decision of a clear majority of the population of Quebec on a clear question to pursue secession ...” The Supreme Court mentions the wish to no longer remain in Canada. The closer the question is to such wording, the clearer it is. Obviously, clarity cannot come from double-barrelled questions, a question that addresses something other than secession, nor that mixes in other considerations, or that only asks for a mandate to negotiate. It is because we want secession that we negotiate it; we do not negotiate it to discover if by chance we want it. The only way to know if a population wants secession is to ask them.

In its opinion, the Supreme Court mentioned the words “clear majority” no fewer than 17 times, and also referred to a “strong” majority (“l’ampleur de la majorité” in the French version). Furthermore, the Court refers to a “clear majority of the population of Quebec” – a concept that includes much more than the number of votes expressed.

In most referendums of external self-determination, the majority threshold needed for a decision was not an issue, as an overwhelming majority for secession was a certainty. In some cases, a threshold has been fixed in advance, sometimes following the applicable rules of constitutional amendments: in Iceland, it was three-quarters of votes cast; in Latvia, Lithuania and Slovenia, it was a majority of eligible voters; in Montenegro, 55 per cent of votes cast; in Nevis, two-thirds of votes cast.

Open this photo in gallery:

In Canada, the Supreme Court advised not to determine in advance what constitutes a clear majority: “It will be for the political actors to determine what constitutes ‘a clear majority on a clear question’ in the circumstances under which a future referendum vote may be taken.” This is very wise advice for such a huge and irreversible decision, one so difficult to negotiate. There is a qualitative dimension to assessing clarity, which begs for a political assessment to be done in the full understanding of the relevant circumstances. This is in line with the Canadian tradition of considering referendums as consultations, the consequences of which need to be evaluated in light of their results.

After a referendum that results in a majority for secession, it would be the government of the province that must first assess whether this majority is clear enough for it to invite the other partners in the federation to negotiate secession. To limit the risk of disagreement over the clarity of that majority, the provincial government needs only to avoid holding a referendum until it is reasonably assured of the existence of that clear majority, the referendum being the opportunity to formalize this consensus.

In the context of a clear support for secession, the obligation is to negotiate, which is not the equivalent of an obligation of result: “While the negotiators would have to contemplate the possibility of secession, there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached,” the Court said.

This negotiation must be done “within the existing constitutional framework.” That means that negotiations would have to be carried out within Canada’s constitutional framework and not between independent states. The government of the province would not have the right unilaterally to give itself the status of a government of an independent state. It would not have that right before, during, or after any negotiations that it might deem unsatisfactory. Difficulties during the course of negotiations would not give cause to claim such a right. At no time in the negotiation process would the government or legislative assembly of the province have the right to take away the constitutional rights of Canadians unilaterally.

Parti Québécois stays course on referendum despite Carney’s call for unity

All participants would be required to conduct their negotiations on secession in accordance with the four constitutional principles identified by the Court: “federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.”

The government of the province could not determine on its own what would and would not be negotiable. It “could not purport to invoke a right of self-determination such as to dictate the terms of a proposed secession to the other parties.” It would have the “right to pursue secession” via these negotiations founded on the above-mentioned principles “so long as in doing so, Quebec respects the rights of others.” These “rights of all Canadians both within and outside Quebec” are enshrined in the Constitution of Canada and, therefore, cannot be altered without constitutional amendments that might be both “radical and extensive.”

Negotiating secession would inevitably touch upon “many issues of great complexity and difficulty.” In particular, the Court mentioned issues related to the economy, minority rights, Indigenous peoples and territorial boundaries. For secession to comply with the law, the Constitution of Canada would need to be amended following the negotiated separation agreement.

As the Court did for the clear majority threshold, it chose not to determine in advance which of the formal constitutional amending procedures would apply to effect secession.

Open this photo in gallery:

After the 1998 Supreme Court opinion, the Parti Québécois government carefully avoided contradicting the Supreme Court in a legislative text. In 2000, the National Assembly of Quebec passed a law that does not explicitly claim the right to unilateral secession and is formulated in a way that is vague enough to be interpreted as a description of Quebec’s rights to internal self-determination within Canada. On April 9, 2021, the Quebec Court of Appeal ruled on the constitutionality of this law. It specified that this law could be declared unconstitutional if it is ever “invoked for purposes of a unilateral declaration of independence or for other purposes that are inconsistent with the current Canadian constitutional framework.”

The substance of the Clarity Act enacted by Parliament derives from the Supreme Court’s 1998 opinion. Closely following that opinion, the act deals with the clarity of the question, the clarity of the majority and those issues that must be discussed during negotiations. The Clarity Act forbids the Government of Canada from entering into negotiations on secession unless and until the House of Commons has concluded that there is clear support for secession, and from proceeding with a constitutional amendment on secession until it has been duly negotiated, within the constitutional framework. Such prescriptions clearly flow from the Court’s opinion.

The PQ has claimed that it will ignore the Clarity Act and declare independence anyway after a referendum that it would consider having won. There is not a single country in the world that would accept for itself such a unilateral procedure. But anyway, how would the secessionist government make this declaration effective? How would it impose its authority without the support of the law and of the federal government? It is important to understand that in practical terms, it is the secessionist government that makes the requests; it is the one that seeks to have all the powers granted by the Constitution to the federal institutions to be transferred to it.

Robyn Urback: ‘Serious governance’ will be the theme of Canadian politics in 2026

In fact, secession wouldn’t just need the federal government’s consent, but its active participation, if only for practical reasons. Means would have to be found to transfer tens of thousands of public servants from federal departments and Crown corporations to the provincial public service, as well as to revise the application of a vast array of laws and regulations and millions of tax returns, not to mention the question of federal Crown property, assets and liabilities.

The break-up of a modern state such as Canada could turn into an administrative nightmare. The Government of Canada’s assent and active participation in the break-up of the country could not be secured through a unilateral declaration of independence. Not only would unilateral secession be unlawful, it would also be a practical impossibility.

Canada is one of the very few democracies that recognizes its potential divisibility in law. But even in these few democratic states, secession is not recognized as a unilateral right, but as a possibility that requires an agreement duly negotiated within the constitutional framework resulting in an amendment to the Constitution.

This unprecedented break-up of a modern democratic state such as Canada would be a very grave and difficult thing to do – and an unreachable goal if pursued without clarity and outside the rule of law. However, lawful secession is possible in Canada. There would be no legal obligation to reach a secession agreement, but the political pressure would be strong not to keep in Canada a provincial population that clearly wanted to leave. This puts the secessionists in front of their greatest challenge: convincing the people of their province that they would be happier if they stopped being Canadians. Quite a challenge indeed!