I. Introduction
After the 1997 Quebec referendum on secession, which failed to pass by less than
one percent of the vote, the Canadian federal government sought to clarify questions
concerning the constitutionality any future provincial secession. Particularly given the
perception on the part of the federal government that the referendum’s near-success had
been the result of an intentionally ambiguous referendum question, and that the status of
Quebec after a successful referendum would have been constitutionally unclear, the federal
government had a strong interest in imposing its on rules and conditions on future secession
processes. To this end, in 2000 the Canadian Parliament passed what was popularly known
as the “Clarity Act,” which while permitting negotiated secessions in certain conditions
required significant before-the-fact approval of the secession process by the federal
government. The official title of this piece of legislation, however, provides the clue for why
this act should be of interest ro scholars of comparative law. The act was officially titled
“
An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme
Court of Canada in the Quebec Secession Reference.”
As its title suggests, the passage of the
Clarity Act was preceded by the government using the extremely unusual (in the context of
Canadian constitutionalism) practice of reference to the Supreme Court.
1
While Parliament
added a preamble and clarified some details,
2
the legislation hewed very closely to the
Supreme Court’s decision in Parliament’s reference.
3
This exercise of judicial power on an issue of very high salience and political
importance is difficult to classify according to conventional conceptions of judicial
independence. First of all, the power deployed by the Supreme Court of Canada in this case
1
See Bienvenu (2001); Hirschl (2002), 198-9
2
See Roach (2001), 155.
3
Reference Re: Secession of Quebec
2 S.C.R. 217, 161 D.L.R. (4th) 385
Convention