The Quebec Secession Reference and the federal Clarity Act: the fascination with clarity and the value of ambiguity

Abstract

This article examines the ongoing relevance of the Supreme Court of Canada’s Reference re Secession of Quebec (1998) in managing tensions arising from the coexistence of multiple political communities within a single constitutional order. It explores the lessons to be learned from this landmark case in light of recent debates such as the Scottish independence referendum and Catalonia’s “right to decide”. The article argues that, while the Reference provides a valuable framework for analysing multinational democracies and federal systems, caution should be exercised when employing the political and legal grammar associated with the federal Clarity Act. The latter, enacted by the Canadian federal Parliament after the Quebec Secession Reference, purported to clarify the Supreme Court’s advisory opinion, but actually aimed to exert control over Quebec’s potential secession. By examining the historical, political and legal context, the present article highlights the divergence between the federal Clarity Act and the spirit of the Quebec Secession Reference. It underscores the need to reassess the legacy of these events and their relevance in managing political and legal tensions within multinational democracies. It also invites scholars and political actors interested in these issues to appreciate the significance of ambiguity and avoid overestimating the advantages of clarity.