After the 1995 self-determination referendum in Quebec, in which independence was rejected by a margin of just 1% of the votes, the Canadian government —at that time led by anti-independence Quebecois Jean Chrétien— asked the Supreme Court to clarify whether Quebec was allowed to unilaterally secede.
In response, the Court issued the 2 S.C.R. 217 opinion of 1998, which can be summarized in three main points. The first one, that Canadian law does not provide that Quebec can unilaterally secede, nor that the province can dictate to Canada the terms of its separation.
The second one, that Canada has no basis to reject Quebec’s independence under the democratic principle provided that a majority of Quebecois clearly show in a referendum that they want to split.
And the third one, that if this latter scenario does occur, the Canadian and the Quebec governments must enter into negotiations to agree on the terms of separation.
The opinion of the Supreme Court gave arguments to both sides, as evidenced by the fact that both the Canadian and the Quebec governments welcomed it.
The unionist camp felt that the Court had acknowledged that Quebec could not unilaterally secede, and furthermore, that the decision must be “clear”. In fact, the so-called Clarity Act was born out of this idea: approved by the Canadian Parliament in 2000, the law establishes that the wording of the question of any independence referendum should be clear enough, as should be clear any pro-independence majority.
The same year, the National Assembly of Quebec countered by passing the so-called Act 99, according to which the required “yes” majority in a referendum should be a mere 50% of the votes plus one.
The pro-secession camp was given by the Supreme Court a possibly wider victory, as it became admitted that independence is above all a political issue
The pro-secession camp, on the other side, was given by the Court a possibly wider victory, as it became admitted that independence is above all a political issue, and that democratic decisions made by a majority should prevail over whether the Canadian legal corpus explicitly admits the possibility of Quebec independence.
From “Ten countries that grant the right to independence.”
Self-Determination Advocates 