Quebec Secession was the subject of an historic judgment handed down by the supreme court of Canada on August 20, 1998. This question reached the court by a “reference” or “renvoi” initiated by the governor general, in effect a request by the Prime Minister and his cabinet for an advisory opinion. The judgment is not binding or enforceable by writs as in ordinary litigation, but is judicial advice given to the government of Canada.

The court held that, while the government of Quebec has no constitutional right to work a unilateral secession of the province from Canada, the people of Quebec enjoy a constitutional right to have a referendum at public expense and without interference, and that, if the people of Quebec clearly vote for independence, the government of Canada has a constitutional duty to negotiate in good faith to accommodate their expressed desire.

Canada, a dominion originally established under the authority of the British Empire, has by degrees become independent through organic statutes and constitutional conventions, yet even now is organized around the British Crown. This dominion is a legal instrument of alliance between many nations, peoples, languages, and cultures, spread out over the face of a great continent, so that they might live together in peace and friendship, share their prosperity, and aid each other in time of need. Canada is a confederation of ten provinces which are rich in natural resources, full of incredible beauty, and inhabited by an intelligent population.

The United States were established to accommodate two main civilizations, one commercial and modern in the North, the other agrarian and quasi-feudal in the South. Likewise, Canada was established to accommodate two main civilizations: the older French and Catholic, more European in outlook, the other founded by loyalist refugees from the American Revolution, and also by later English, Scottish, and Irish immigrants.

The original British North America Act of 1867 established a bilingual country with a bilingual government. In time, the French and Catholic civilization became a minority with a geopolitical center in Quebec, while Anglo-Canada became dominant in nine provinces. The people of Quebec refuse to be absorbed, and they intend to remain a distinct society—by constitutional accommodation with Anglo-Canada if possible, by independence if necessary.

At the moment, separatism is an active force in Quebec, mainly because a new constitution (the Canada Act of 1982) was imposed upon Quebec over the protest of her elected government. The Meech Lake Accord, an accommodation designed to repair the injury done in 1982, was approved by the Prime Minister of Canada and the premiers of all ten provinces in 1987 but was wantonly sabotaged in 1990 by politicians who acted from passion and prejudice against the French in Quebec.

I agree with Queen Elizabeth II, who said on her last visit in 1997 that Canada is precious. For this reason, I am anxious to see a calming of separatist feelings in Quebec, which can be accomplished only by moderation and justice.

I think that Anglo-Canada and Quebec can be easily reconciled by the immediate adoption of the Meech Lake Accord as originally negotiated in 1987. This much is owed as a debt of honor to Quebec. The process could be recommenced by resolution of the dominion Parliament, but I believe there is a shortcut which doesn’t open old political wounds.

The accord was defeated because of the mistaken belief that it had to be approved by all ten provinces within three years of proposal. This idea developed because the political leaders of the day inadvertently overlooked Section 42 of the Constitution Act of 1982, which disallows their assumption. The distinct society clause (which grants Quebec a special status) and most other elements of the accord received sufficient votes from seven provinces representing more than half the population within three years. It now appears that the items already approved by a sufficient number of provinces can be promulgated nunc pro tunc by the governor general on the advice of the Prime Minister of Canada. The remainder of the accord, requiring unanimous approval, can be adopted at leisure by the two provinces which have yet to give their assent.

In their recent judgment, the supreme court of Canada held that there is no right of secession in the Constitution Acts of 1867-1982. The court was right insofar as these organic statutes include no express right or constitutional mechanism for secession. Yet by implication, the court wholly repudiated the course taken by Abraham Lincoln against the South in I86I-1865. The justices understood the truth stated by President James Buchanan on the occasion of Lincoln’s election in 1860: “Our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in a civil war. If it cannot live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hands to preserve it.”

The supreme court of Canada has given advice to the Prime Minister of Canada not unlike the advice given by the House of Lords to James II in 1688. The Lords advised His Majesty to seek reconciliation by calling a free Parliament. James II did not take this advice, but there was a free Parliament anyway, which produced an extra-constitutional but peaceable transformation in government. This “Glorious Revolution” ushered in the reign of William and Mary. Upon this transformation, the Crown of Great Britain and of Canada now rests.

The supreme court of Canada did not quote what Sir William Blackstone said about the Glorious Revolution: “In these, therefore, or other circumstances which a fertile imagination may furnish, since both law and history are silent, it behooves us to be silent too, leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent though latent powers of society which no climate, no time, no constitution, no contract can ever destroy or diminish.” Even so, the judgment concludes by saying that, although there is no formal legal right of secession, “this does not exclude the possibility of an unconstitutional secession which might ripen into a secession de facto.”

Nor did the court comment on the remark about secession made by Jean-Claude Turcotte, cardinal archbishop of Montreal, on New Year’s Day 1998: “The supreme court can say what it wants. Even if they say that the right does not exist, if the people decide to do it, the people are sovereign.”

Let us hope that the danger of separation will induce an honorable reconciliation with Quebec. If this happens, as I ardently hope, Canada will become the moral leader of all nations.