constitutional law, Quebec, secession, Canada, Quebec Secession Reference, judges, Bruce Ackerman, courts, constitutional change
The Quebec Secession Reference addressed divisive issues with far-reaching implications for the Canadian constitutional order. Recently, commentators have called for a less traditional and more systematic approach to understanding the decision, and its place in the broader scheme of Canadian constitutionalism. Accordingly, this paper challenges the predominant narrative concerning the Quebec Secession Reference, which is largely judge-centred and shows little regard for the important historical, political, and popular forces so crucial to understanding the decision. The challenge is mounted through the work of Yale constitutional scholar Bruce Ackerman and his theory of constitutional moments. This paper uses Ackerman's criteria of higher-lawmaking and constitutional moments - signalling, proposal, mobilized popular deliberation and synthesis - as an analytical framework to advance a new understanding of the Supreme Courts decision. The author argues that the events surrounding the decision fit Ackerman s criteria fora "constitutional moment" and demonstrate that key aspects of the constitutional doctnne introduced in the decision - in particular the much heralded "duty to negotiate" - were shaped more by political and popular forces than by the Court itself. In exploring the implications of this analysis, the author re-assesses the academic commentary on the decision and recommends a new dialogical theory of constitutional adjudication that considers not just the courts and Parliament,but also the role of popular and political forces in constitutional change.
Jonathon W. Penney, "Deciding in the Heat of the Constitutional Moment Constitutional Meaning and Change in the Quebec Secession Reference" (2005) 28:1 Dal LJ 217.