“Making Public Law, ‘Public’: An Analysis of the Quebec Reference Case and its Significance for Comparative Constitutional Analysis”

Abstract

The Supreme Court of Canada's advisory opinion inReference re Secession of Quebec, 1998(also known, more simply, as the “Quebec reference case”) has been the subject of much interpretation and comment, because of its obvious implications for the future of Canada.1However, it offers an arguably wider opportunity to consider the role of the judiciary within a liberal democracy. The professional nature of the legal process and its practitioners often has made legal and judicial institutions, to most of the public, distant and alien components of the political system. The technical aspects of many areas of law (such as contracts, torts, and civil procedure) may, in fact, make this area of public concern seem unapproachable to the average citizen; indeed, some legal practitioners may prefer that the law remain that way. That mystique often is transferred to the realm of constitutional law, where the use of technical terms (including Latin words and phrases) may serve, intentionally or not, to insulate legal arguments and proceedings from public scrutiny.2