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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.47 Constitutional Principles in the Secession Reference

Jean Leclair

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

In Reference Re Secession of Quebec, 1998, the Supreme Court of Canada concluded that the unwritten constitutional principles of federalism and democracy dictated that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province gave rise to a reciprocal obligation on all parties to the federation to negotiate constitutional changes to respond to that desire. To understand this astonishing decision, the author first examines how, over time, in Canada and Quebec, issues of identity(ies), constitutional law, and democracy came to be formulated in absolutist terms, making political compromises next to impossible. Only then does he analyse the Supreme Court’s decision and attempts to explain why the latter chose to decide as it did.

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