Secession and Constitutional Principles: Working with the Supreme Court's Statement of Principles

Abstract

In the 1990s the Canadian Supreme Court was presented with the daunting challenge of assessing the legality of unilateral secession. It produced a ruling with the well-known conclusion that in the event of a clear expression of democratic will to secede, there was a duty on the part of all concerned to negotiate. There has been much debate about the idea of a duty to negotiate. Another aspect of the judicial decision that merits attention was the court's reliance on four principles (federalism, democracy, legitimacy and the rule of law, and respect for minorities) and their depiction of these principles. This essay reviews how the judiciary framed these principles and analyses the strengths and weaknesses of their conceptualisation. While the court's decision was a landmark in constitutional debates, the conceptual treatment of individual principles merits renewed attention, and various issues (such as the treatment of aboriginal peoples) warrant further reflection.