Advisory opinions, juridical mischief and Canada’s contribution to the law of statehood

ABSTRACT

Canada is one of the few counties where the use of advisory opinions approaches that of the international level. The country’s most famous advisory is the 1998 Quebec Secession Reference, which became an authoritative source for international law on statehood and secession. It also showcases the peculiarities of the practice and offers lessons about the operations of law at its conceptual extremes. Because it required Canada’s Supreme Court to recast the country’s history and constitutionalism it shows how juridical mischief can be the wellspring of creativity and why the advisory opinion is the instrument par excellence for its introduction. Martti Koskenniemi finds similar narratives of false coherence and unresolved resolution are a hallmark of international law, suggesting a transnational pattern. John Borrows believes these patterns already shape Canada’s unresolved colonial constitutionalism and suggests they can also rehabilitate it.

KEYWORDS:

• Advisory opinions
• statehood
• secession
• international law
• Supreme Court of Canada

The Canadian experience with advisory opinions suggests that what can be problematic for conventional law may prove adaptive in a pluralist setting. While advisories remain something of an anomaly in many jurisdictions, they are at their most useful where legal structures are embryonic or evolving. By positioning judges as arbiters among competing political orders, a well-received advisory can effectively cantilever a legal solution into place when political affairs have reached a stalemate. Yet the advisory function carries within it a capacity for creativity that borders on mischief which means there is a price to be paid for tapping into the occasionally brilliant originality of the judiciary in this way. After initially serving as an instrument of imperial administration in Canada, advisories matured over time into a tool for refining and rebalancing federalism. Internationally, advisories are commonly used to establish guidelines for state conduct or as an alternate route to address conflict. Still, they operate in a factual no-man’s-land and their authority rests heavily on the judicial persona and the aura of legitimacy that surrounds a court’s traditional operations. That means the authority they wield is sourced in unconventional ways. Because it requires courts to operate outside the normal guardrails of the legal process, the advisory function is a tricky power to employ. A creeping reliance on Justices to serve as oracles of law rather than its adjudicators can tax the very legitimacy that makes this exercise possible. Although it identifies concerns with the practice the goal of this article is not to condemn the advisory function out of hand. Rather it is to address risks associated with such creativity and stress the importance of mindfulness in its use.

To explore the delicate relationship surrounding advisory powers the article examines a prominent Canadian advisory case—the 1998 Quebec Secession Reference opinion (hereafter the Secession Reference)¹—that has been described as the country’s ‘most significant contribution to contemporary global jurisprudence’.² As a heavy user of the advisory function (where it is known as the ‘reference power’ or a ‘reference case’), Canada is one of the few jurisdictions where the use of advisories approaches the international level.³ It is also a setting with significant legal pluralism, as the country supports a complex and evolving mix of common, civil and Indigenous law.⁴ These features make it a valuable case when it comes to exploring the dynamics behind international legal development. And yet while specific advisory opinions have drawn significant domestic and international attention, the advisory function itself remains under studied.⁵

The discussion therefore begins with a review of the use of advisory opinions domestically and internationally, including their usefulness for addressing thorny questions of law. It then reviews the context leading up to the Secession Reference and its eventual reception and identifies three issues with the opinion. First, it positioned the Court as a stealth constituent power. Second, it relied on tacit enforcement by de facto internationalism in a way that undercuts the democratic credentials the Justices sought to uphold. And third, it produced a formula that works by not working, since the state arbitration of clarity requirements tends to silence rather than resolve conflicts on secession. To show how the Court could be drawn into these difficulties the paper turns to two thinkers who draw connections between law’s creativity and its methods. Anishinaabe legal theorist John Borrows’ work on tricksterism and Marti Koskenniemi’s work on indeterminacy in international legal practice both address the sensitives involved in engaging this mode of law.

Read through a transnational legal lens then, the Court’s methods become more intelligible. Koskenniemi suggests narratives of false coherence and unresolved resolution serve as a hallmark of international law.⁶ Borrows finds similar patterns drive Crown-Indigenous relations under Canada’s unresolved colonial constitutionalism.⁷ Notably, both thinkers believe such patterns can, under the right circumstances, prove deeply transformative. The efforts behind the Secession Reference therefore illustrate what happens when the unsettled conditions of the international legal order are mirrored in a domestic setting. More specifically, the episode points to the way that mischief and trickiness can be the wellspring of legal creativity and explains why the advisory opinion is the instrument par excellence for their introduction. Because when the demands for legal innovation are high, the ‘mischief’ that advisories make possible offers one way to fill the gap. Still, the risks of a solomonic judgment going badly wrong can never be entirely dispelled from such moments. The willingness to accept advisories not only as authoritative but morally binding, even when that power arises in persuasiveness rather than precedent,⁸ marks the outer limits of law’s recognisable operations. This means the price of flexibility must be paid in terms of constant mindfulness of the institution’s own liabilities, because the popular legitimacy extended to those asked to play the role of law’s oracles is not bottomless.

Advisory opinions

Despite being the unsung workhorse of internationalism, the practice of giving advisory opinions is either banned or carefully circumscribed in several jurisdictions. The practice had its origins in common law tradition where early methods of providing legal advice to the sovereign shaded over centuries into an authoritative system of expert opinion.⁹ Yet today, commonwealth states like Australia rule out the practice, and after studying the Canadian experience constitutional reformers in New Zealand concluded it was not conducive to sound constitutionalism.¹⁰ In the US it has long been the rule that in the absence of a ‘case or controversy’ the Supreme Court should not engage in giving opinions. Inspired by this example, state-based US courts either pre-emptively excluded it or gradually extracted themselves from the practice wherever possible so that presently forty American states and all US federal courts avoid the practice. The only other jurisdiction in which advisory opinions carry comparable weight to Canada is the international order, where courts and tribunals sometimes operate as de-facto law-making bodies. Since there have been calls for international advisory powers to be expanded, and at least one instance where an international tribunal awarded itself the power,¹¹ understanding how it has operated in Canadian constitutionalism can be illuminating.

Starting from the earliest days of the American republic legal experts held that the advisory role highlights a tension between the conceptual purity of law taken in the abstract and the raw experience that makes up its actual practice. Two main concerns in the US context were that that the practice violated the separation of powers at the heart of American constitutionalism and simultaneously risked the sanctity of due process. Because it requires Justices to engage in high-level abstraction rather than specific arbitration, the advisory role omits the critical counterbalance of factuality that keeps law grounded and accountable.¹²

The American fears express a concern that advisory opinions permit a work-around on existing distributions of power that amounts to an unsanctioned reorientation of the constitutional order. When courts go ‘unhindered by the restraints of adjudication’, as Mel Topf explains in his study of the advisory role in American constitutionalism, it ‘permits the justices to expand judicial power substantively as well as procedurally’. He points to the ‘insidious aspect’ of the advisory function whereby a political dispute between two orders of political power is resolved by recourse to judicial authorities who overwrite the issue by ‘co-opting the power’ in dispute. In this way, the advisory function amounts to the ‘outright cancellation’ of public and political deliberation, and ‘invites legislative surrender’ on the issue.¹³ Because they require courts to ‘engage in abstract, rather than concrete review’,¹⁴ Topf argues, advisory opinions blur the line between politics and law. The upshot is a tendency to diminish and depoliticise civil discourse, while setting up a countermajoritarian ‘wise man theory of government’ that judicialises politics and politicises law.¹⁵

Such irregularities can rebound once someone’s due process rights are at stake, because an advisory opinion is always ‘rendered in a factual void’. A genuine disagreement prompts it, but there are no facts of the case, because there is no actual case. This absence of specific and particular facts imperils sound reasoning because it forces Justices to use imagination or anticipation to fill the evidentiary gap.¹⁶ The dangers of arriving at an ill-formed opinion and sticking by it are thus especially acute when it comes to the advisory function. The identification of truth in a conventional legal process rests on the presentation of contending viewpoints. In the advisory process, Justices effectively hear whomever they choose. That’s especially problematic since any court ‘that can ground a decision on a factual matrix of its own construction is an unfettered court’.¹⁷

Granted, the tendency has been for the advisory process to mimic the adversarial process, using briefs and oral arguments to simulate arbitration in the absence of concrete facts. However, the chief effect of this practice has been to collapse the distinction between conventional judicial conduct and the advisory function, until advisory opinions have come to occupy a status increasingly on par with arbitrated judgments.¹⁸ Yet in giving their opinion the Justices are not adjudicating anything, and any real decision that follows must occur elsewhere—such as in how an opinion shapes future legislation or conventional jurisprudence, or in its impact on day to day politics. Since the non-binding quality of such findings is ‘firmly established in theory and almost entirely ignored in practice’ the distinction between advice and decision carries minimal weight even for legal experts and is almost certainly lost on the average layperson.¹⁹ This slippage allows for the actual decision—and decision maker—to go missing in action, leaving the courts holding the bag.

While it drafts the courts—however involuntarily—into political and intergovernmental conflict, the advisory function simultaneously risks creating too high a claim for the voice of law. Conventional common law practice is based on a process of contestation, which means the result can be framed as a choice between two adversarial sets of arguments and evidence neither of which the Justices develop or present. This positions a judicial ruling as something short of perfect truth, downgrading it to a decision about which side presented the better argument under carefully stipulated circumstances. A judge evaluates and choses, wisely and carefully, but does not contend through argument. This framing conserves judicial legitimacy in an imperfect world made up of fallible courts and practitioners where decisions may need to be revisited, revised, or overturned. The advisory opinion, in contrast, sets up Justices ‘like some temple priesthood’ that ‘alone have the capacity to divine the true meaning’.²⁰ And because there is no decision involved, there is limited opportunity to reopen or appeal an advisory opinion, so that the ‘verdict’ that emerges is uncharacteristically final. In other words, Justices are forced out of the realm of conditional findings where legitimacy can be most effectively conserved and driven toward absolute claims rooted in a rhetoric of discovery. And that sets up troubling conditions for law itself.

Advisory opinions in Canada

Kate Puddister suggests the advisory power served ‘a uniquely Canadian purpose’ in the early days of domestic constitutionalism as a tool that federal authorities could use to ‘meddle with’ provincial affairs.²¹ The Canadian Supreme Court is required to address any reference question put before it by federal authorities, regardless of justiciability. This tends to entangle the Court in political stratagems of blame avoidance or political opportunism, making it a convenient place to offload politically fraught issues.²² This meddlesome capacity led the Canadian provinces to challenge its use, and in a 1912 judgment the Judicial Committee of the Privy Council (which served as Canada’s final court of appeal until 1949) found the practice legitimate on the grounds that British Justices had historically served a similar function and the resulting opinions were non-binding. Still, they acknowledged there was potential for legal and constitutional ‘mischief’ arising from its ‘indiscriminate and injudicious use’.²³

Tempering Puddister’s political read of the practice, Carissima Mathen’s study of Canadian advisory opinions suggests the function should be recognised as a rare but uniquely authoritative form of law. In Courts without Cases Mathen shows how Canadian advisories drifted beyond their original non-binding status to become a core element of Canadian constitutionalism. First transmitted to Canada as a form of Imperial oversight, these opinions quickly proved vital in arbitrating federalism, including in debates leading up to the 1982 patriation of the Constitution, where they served as a ‘key enabler’ of what Mathen calls constitutional ‘rupture’.²⁴ The cluster of related opinions that framed the period not only reoriented national politics, they reshaped the conditions under which all future constitutional change could take place. In their wake, the treatment of advisory opinions has been marked by increasing deference as a source of legal precedent.

Because the power to put a question to the Canadian Supreme Court is a monopoly of the federal executive, Mathen recognises the risk that institutional ‘capture’ can result when an apex Court is enlisted to serve the aims of the executive branch. This is always a complex prospect in a parliamentary setting where some coordination between branches of government is by design, and where political actors inevitably make strategic use of the legal options available. Yet taken as a whole, the record of opinions she surveys leads Mathen to conclude that the Courts’ evolving role as a ‘provider of answers’ under conditions of uncertainty ultimately justifies the country’s reliance on the instrument.²⁵

Mathen’s account shows why the Canadian comparison is a critical one for international law. Because it shows that the increasingly influential role of advisory powers in Canadian constitutionalism has been paralleled by an accelerating drift away from the status of advice and opinion and towards precedent and authority, and that pattern also appears at the international level. The capacity for such opinions to give precedent-shaping answers in the face of uncertainty and inter-sovereign disagreement means they represent an increasingly powerful form of legal voice. This alone merits attention to the methods that bring such law to life.

International advisories

For many scholars, the potential for advisory opinions to expand the body of international jurisprudence means they have become ‘too firmly established’ in international legal practice to be questioned.²⁶ Because they provide a workaround for an otherwise sluggish state system some see them as an underappreciated resource that offers a way to ‘rule through advice’, ‘preventively resolve conflict’ and address abstract or embryonic issues.²⁷ By providing an alternative to the cumbersome multilateralism required for difficult issues like climate change or humanitarianism, advisories offer a way to clarify legal obligations where action is pressingly needed.²⁸ And as the Secession Reference illustrates, they can even play a role in reshaping the law of statehood itself.²⁹ But while advocates work to capitalise on their use there remains a lingering awareness that ‘too liberal an approach’ could ‘menace judicial propriety’.³⁰

Martti Koskenniemi addressed the fascination with international advisory powers in an early essay, where he cautioned against using them to do an end run around state consent. He pointed to the way advisory activism by the International Court of Justice (ICJ) eroded the principle that states cannot be subject to arbitration without their agreement. The Court’s rationale for such activism—that it was not arbitrating but simply providing guidance to UN bodies—is a little too convenient. Because the abstraction that enables this evasion also opens the door to levels of idealism or utopianism that could, in the long run, imperil legal integrity. Koskenniemi also raised familiar concerns about jurisdictional meddling, saying that to ‘make abstract pronouncements on obscure points of the law, to fix one interpretation as valid among many plausible ones, is to legislate on that very point’.³¹

The effort to use advisories to resolve the unresolvable in internationalism, in Koskenniemi’s view, expresses a desire to make morality trump politics. By overtaxing the Court’s limited legitimacy in this way, he warns, the expansive use of advisories will leave the international legal order diminished. Writing at a time when early efforts were underway to have the ICJ address the use of nuclear weapons, he explained why taking up the question was a no-win scenario. Even contemplating their legitimate use would break a prevailing taboo, imperilling the court’s moral credibility. Banning them outright would be ineffective, undermining its political credibility. Considering the ‘futility, and indeed danger’ involved in delivering any opinion then, the entire effort could only amount to a poison pill for the Court’s authority. It either manifests its irrelevance by capitulation to the status quo or turns itself into ‘a panel for the declaration of (contested) moral truths, a board of high priests of right and wrong’.³²

The Court did ultimately address the question of nuclear weapons, and although it managed to return a kind of null finding, the larger results were in many ways as Koskenniemi anticipated. In taking up the question and then issuing an opinion so non-committal it pleased no one, the ICJ left international law no better off, while putting its own seriousness in doubt.³³ A similar response greeted the court’s advisory opinion on the Kosovo Unilateral Declaration of Independence (UDI), which found UDIs were neither ruled in nor out by international law while shedding little light on the conditions of legitimate statehood that prompted the request.³⁴ Even these disappointments did not diminish enthusiasm for advisories however, and the problem of ‘inflated expectations’ that Koskenniemi identified as fuelling their use shows little signs of abating.³⁵

Fed by such expectations, the tendency of international courts to expand their advisory activities has led to pushback that can signal the limits of a Court’s legitimacy.³⁶ Suggestions that such conflicts might be resolved by enhancing a courts’ fact-finding duties fail to grasp the problem at hand.³⁷ For when judges become investigators it collapses the division of labour upon which law is established. The prestige and credibility of the judicial persona rests on this divide, which is why the non-adversarial advisory role requires a delicate balancing act. Indeed, one of the most important lessons offered by the tentativeness of opinions on Kosovo or nuclear arms may be that ambiguities can persist in law without it being the Court’s role to banish them. Casting courts in the role of all-purpose ‘Mr. Fix It’, on the other hand, can turn the advisory function into an outright liability.³⁸

The argument for advisories

Given the concerns they pose around politicisation and propriety, the fact that advisory powers survive in domestic and international law calls for an explanation. Two features that contribute to their longevity have already been identified: their capacity to diffuse political disputes and resolve legal uncertainty. They also provide a way to sidestep cumbersome adversarial systems, raising the prospect of a speedy decision.³⁹ For these reasons the practice may prove especially appealing where the accelerating business of everyday life demands a level of predictability that can be difficult to secure where power is divided between co-sovereign entities. These considerations suggest the function meets a real need, even if it carries certain risks.⁴⁰ Moreover, when faced with the obligation to advise, apex courts generally acquit themselves well, and a carefully crafted opinion can thread the needle between activism and restraint in a manner that meets the political moment. The Secession Reference is often cited as an example of this capacity at work on the grounds that the Court’s ‘brilliant and innovative narrative of discovery’ worked to consolidate an historic pivot in popular opinion.⁴¹ Others point out the Court also knew just where to stop to preserve judicial legitimacy.⁴²

While their increasing influence can make claims around the non-binding status of advisory opinions sound like a tired rhetorical fig leaf, this quality remains an important key to their unique function. Because it is a reminder that the argument in an advisory opinion always lands somewhere slightly law-adjacent rather than squarely within the bounds of law itself. The distinction serves as an essential caution that if advisories are a form of proto-law, this ‘quiet law-making’ operation⁴³ does not always manifest in full purity or certainty. Ironically then the fragility of this mode of law may prove its greatest resource because it operates in a space between proper law and its nascent form. That means the real peril of the advisory function is not so much its political abuse, which it has long survived. It is the tendency to fold such opinions into conventional jurisprudence until their tentative and incomplete authority disappears.

Perhaps that is why the danger of overreach is never far from the advisory function, Possibly the most harm done to international advisory powers arose from the Nuclear Weapons case, which was criticised for approaching a non-liquet finding.⁴⁴ Because attempting to answer and coming up dry is about the worst possible outcome when it comes to the advisory role. This points to a more elusive function for such cases. Advisory opinions underwrite a larger faith in law as an institution that can bound the unknown into a coherent order. As will be seen, the concept of order lay at the heart of the Court’s argument in the Secession Reference. This feature helps explain why issues of conflict and uncertainty underpin the usefulness of advisory powers. Both represent a kind of threatening exteriority to law that courts work to hold at bay. These threats are at their most daunting when law is emergent.⁴⁵ In which case advisories reflect a generative capacity to law that reinforces the boundaries of law against its own inevitable incompleteness.

The Quebec Secession Reference case

Seeing the advisory power in a domestic setting can shed light on this increasingly influential practice because it highlights the extraordinary resourcefulness called for in addressing such tasks. The Secession Reference opinion remains one of the rare instances when the question of lawful secession was thoroughly explored by a Supreme Court. Unlike the later Kosovo opinion rendered by the ICJ, the Canadian Justices grasped the nettle and considered what law had to say about the compatibility of law and secession in the Canadian context.⁴⁶ The Court’s treatment of this difficult question has since acquired ‘emblematic status’ in the scholarship on secession.⁴⁷

By establishing legal minimums that any lawful secession from the Canadian union should meet, the case injected a concrete finding into the otherwise under-specified law of state birth. But it rests on questionable historical methods and offers limited real-world application. And even sympathetic commentators observed that the Justices had, in the process, invented previously unknown constitutional principles ‘from whole cloth’.⁴⁸ In the Secession Reference the Justices undertook an extraordinarily wide-ranging retelling of Canada’s history and constitutionalism. The resulting decision has been widely celebrated for its ‘solomonic’ and even-handed qualities.⁴⁹ Considering that the Canadian formula has never been fully tested in practice, perhaps its greatest contribution lies in the lessons it offers about the operations of law at its conceptual extremes.

The Canadian government’s request for an advisory opinion on the legality of Quebec secession came at the end of a fractious period in Canadian politics. From its earliest days French-English tensions have shaped the country’s institutional structure. This tension was layered over an equally formative history shaped around engagement with Indigenous communities that includes a 1763 British Royal Proclamation and the accompanying 1764 Treaty of Niagara which codified a special relationship with Indigenous peoples into Canadian law.⁵⁰ Similarly the Quebec Act of 1774 guaranteed a significant measure of administrative autonomy and political and religious rights for the largely Catholic province. When the Constitution Act of 1867 confederated the four original provinces almost a century later, the groundwork for a complex and evolving constitutional venture had been laid.⁵¹

By the time conservative French-Canadian Catholicism collapsed in the 1960s Quebec had become an increasingly restive partner in the Canadian union. Quebec nationalism surged in the late twentieth century culminating in the province’s first independence referendum in 1980. Patriation of the Canadian constitution followed in 1982 after the combined effect of the Patriation Reference and the Quebec Veto Reference opinions established that substantial provincial agreement was required to amend the constitution but Quebec’s agreement was not.⁵² The move vested power for all future changes in the Canadian state, finally and belatedly cutting ties with the Imperial parliament. Although the move was initially proposed by Quebec, it was driven through in such a way that the province opted out of the final agreement and to this day is not a signatory to the Canadian constitution. Redressing that omission fuelled an era of ‘megaconstitutionalism’ through the 1980s and 1990s that resulted in constitutional reform agreements that turned into one high stakes failure after another. In 1990 the Meech-Lake Accord collapsed when an Indigenous representative obstructed its approval in the Manitoba legislature on the grounds that the deal was reached without First Nations participation. Following more extensive consultations the Charlottetown Accord was voted down in a national referendum in 1992. A second Quebec independence referendum followed in 1995 and was defeated by less than one percent, suggesting that years of fruitless constitutional machinations had left the country more divided than ever.⁵³

Under threat of a third independence referendum, the federal government placed yet another reference question before the Supreme Court in 1996, this time seeking an opinion on the legality of Quebec’s unilateral secession under domestic and international law, including asking which order of law would take precedence. The expectation was that if it did not declare the Canadian union unbreakable, the Court would at least shore up federal authority vis-à-vis Quebec. Quebec declined to participate.

The Court found that nothing in Canadian or international law grounds a right to unilateral secession. The surprise came when it proceeded to craft terms for lawful secession out of an imaginative re-reading of Canadian history although it stopped short of identifying a specific amending formula. It held that the constitution was ‘more than a written text’ and suggested four principles underpinned the Canadian project. These were federalism, democracy, constitutionalism/the rule of law and respect for minorities.⁵⁴ Maintaining these principles meant that Quebec couldn’t unilaterally depart what had been mutually created. At the same time, legitimacy required that it couldn’t be forced to stay either if a clear preference for independence had been democratically expressed. The resulting formula—a clear and democratic preference for independence mandates negotiations on fair terms of exit—struck a delicate balance. The Court then promptly added that none of these issues were justiciable, insulating themselves from any further entanglement in the issue and shunting the question squarely back to the political realm.⁵⁵

The Justices admitted the four constitutional principles were ‘nowhere explicitly described in our constitutional texts’. So where did they get them? They explained that ‘a more profound investigation’ of the ‘context in which the Canadian union had evolved’ made it possible to identify ‘a sort of baseline’ against which the framers of Confederation in 1867 had ‘always operated’. Anticipating questions about why no one had articulated these principles at the time the Justices explained they were so obvious that they were ‘simply assumed’, and to have mentioned them ‘might have appeared redundant, even silly’.⁵⁶

Reception of the reference

The federal government responded to the opinion by promptly passing legislation empowering itself to vet all future independence referendums for clarity. Legal scholars reviewing the opinion were largely struck by the strangeness of it all, and expert reception fell into two main camps. The first considered the Justices’ arguments innovative to the point of oddity. The second hailed them as resourceful and constructive, and felt they delivered exactly what Canadian constitutionalism needed at that moment.

Richard Kay, for instance, commented that the Court ‘purported to act as an oracle of already binding law on a subject for which no such law exists’ and argued its willingness to offer a legal formula, while simultaneously declaring it non-justiciable, set up an untenable mix of law and politics.⁵⁷ Mark Walters pointed out that the Court’s position on justiciability could endanger its larger objective of offering a lawful treatment of the secession question, saying ‘if the Court has no supervisory jurisdiction over the legal rights and duties associated with secession, they why is it the case that these rights and duties are legal at all?’⁵⁸ Jean-François Gaudreault-DesBiens pointed to what he saw as the absurdity of the Court’s assigned task, asking how it could ‘give an opinion on an event that hasn’t happened yet?’ He then wryly attributed the Court’s extra-judicial ruminations to ‘the Operation of Some Mysterious and Unknown Force’ and concluded: ‘The Court invents the law’ when it had ‘no business’ doing so, as the principles in question have ‘no, or very little, pedigree in Canadian constitutional law’.⁵⁹ While generally sympathetic to the Court’s efforts, Alain Cairns argued the resulting formula showed serious weaknesses, including troublingly vague standards such around clarity and a failure to resolve how negotiations could take place with an independence-seeking province that was effectively both in and out of the constitutional union.⁶⁰

Others welcomed the sagacity of the Court’s opinion. Natalie Des Rosier, for example, praised its ‘therapeutic’ effects on Canadian constitutionalism.⁶¹ Sujit Choudhry and Robert Howse called it ‘stability-promoting’ and felt it addressed the ‘poverty of theory’ in Canadian constitutionalism.⁶² James Tully commended the Court’s ‘exemplary reasoning’ in affirming that a key condition for freedom in a multinational society is that it remain open to dissent and amendment.⁶³ Indeed, the opinion’s appearance stimulated something of a revolution in Canadian constitutional thought, overturning what Jean Leclair called the Court’s ‘impoverished view’ of Canadian law and federalism by revealing the ‘porosity’ of legal standards. Porosity here refers to the idea that courts should reflect the expectations of the communities they serve, and remain open to reinterpretation, on the grounds that legitimacy requires both ‘the possibility of dialogue’ among the parts of a political community and that the outcome be defensible ‘before society as a whole’. Turning to history thus made it possible for the Court to provide ‘objective responses to complex questions’. Citing the same ‘mystical foundations of authority’ that inspired Derrida’s legal theory he suggested that the indeterminacy that haunts all law can become a strength when it becomes a means to fulfil this larger mandate.⁶⁴

In the end, the overall view of the opinion settled out as largely positive, and for critics and advocates alike the advisory quality of the ruling largely dropped out of sight. Despite—or perhaps because of—what one of Canada’s foremost constitutional scholars, Peter Russell, calls its ‘creative statecraft’,⁶⁵ the case has today been accepted by the Canadian legal community as intelligible within, and compatible with, the framework of Canada’s common law constitutionalism. Alain Gagnon and Raffaele Iacovino also credit it with restoring the Court’s credibility in Quebec.⁶⁶ Indeed it would not be going too far to say the case is now considered an essential reference for understanding the core principles of Canadian constitutionalism, with Jeremy Webber characterising it as a ‘masterstroke’ of jurisprudence.⁶⁷ All the more reason, then, to consider how a non-binding opinion, permitted only because it could not be considered to carry special weight or authority, arrived at this central status.

More to the point, as with any opinion the content of the Secession Reference is not above scrutiny, and the tendency to regard it as such poses its own questions. One problem is that Canada lacks a definitive founding moment that could lend such principles the necessary authority.⁶⁸ By locating these constitutional origins in and around Confederation, the Justices solved their ‘sources’ problem by reimagining it as an American style founding moment, but at the expense of broader credibility. Canada wasn’t an independent state at Confederation, merely a dominion whose legal affairs remained under Imperial oversight. No constituent power instigated or validated the agreement, and tellingly, the change was implemented by British statute. The territory involved was also far from the continent-spanning entity Canada ultimately became. With only four of the eventual thirteen provinces and territories participating in 1867,⁶⁹ and no Indigenous participation, why should that event among others that helped shape the country be regarded as constitutionally privileged? In fact, Russell is adamant that Confederation ‘did not create Canada’, as the country was a going concern long before it took place.⁷⁰ Even if it represents an important waystation on the unfolding path of Canadian national history, as Russell would concede, why should the mindset of the men who framed Confederation determine the framework within which all future questions are addressed?

An even bigger problem concerns the halcyon glow with which the Justices remembered the origins of the Canadian union. The province literally ‘in question’ entered the British fold by force, yet this goes without discussion except to say that Quebec’s current place in Canadian politics means it does not qualify for a remedial right to secession. Similarly, Crown-Indigenous relations, which predate Confederation and remain troubled to this day, and which featured prominently in questions around Quebec secession, received minimal attention. Beyond that, there is plenty to suggest that the figures behind Confederation were openly anti-democratic and worked to establish partisan or elite systems of power based on property and patronage.⁷¹ As for their respect for minorities, the chief architect of Confederation, John A. Macdonald, once suggested that bringing Plains Cree to the edge of starvation was sound government policy, resulting in an artificial famine that killed thousands. He also disenfranchised Asian Canadians,⁷² instituted a system of compulsory residential schools designed to erase Indigenous cultures and insisted the ‘Aryan’ qualities of the country must be defended.⁷³ Whatever they might have felt about federalism and the rule of law, the idea that democracy or respect for minorities was close to the heart of these figures is difficult to maintain.⁷⁴ While it is true that Indigenous groups and la fracophonie forced constitutional concessions that shaped the country, the credit goes not to the framers’ vision but to those who resisted it. The best that could be said is that the Justices described a set of origins that today’s Canadians might wish they had. Claiming they actually did is a bridge too far.⁷⁵ Judicial interpretation that does not have to meet the standards of conventional jurisprudence should at least pass the smell test. The Court’s account of Macdonald’s political priorities simply doesn’t.

The peculiarity of the Justices’ approach is striking not simply because they took liberties with Canadian history and constitutionalism. Although Confederation is the Imperial statute at the origins of the country’s constitutionalism, the country does not generally adopt an originalist approach to law. Canada’s constitutionalism is characterised as that of a ‘living tree’ open to constant evolution.⁷⁶ While in some ways the Secession Reference is a textbook case of that evolution in action an advisory opinion is a non-binding mode of law and a tree that grows in this manner, theoretically at least, provides no special scaffolding for future growth. The Court’s decision to ground their constitutional innovation in supposedly foundational events and Confederation-era law, while basing intent on what these founders failed to say rather than what they did, stretches both originalism and ‘living tree’ interpretation to their respective limits.

If the four principles are manifest in the ongoing evolution of Canadian constitutionalism in a manner that can be accounted for under living tree constitutionalism, why was it necessary to project them backwards into the silences of founders?⁷⁷ Leclair characterised the Secession Reference as posing as a stark choice between a disablingly positivist view of law that plays deaf to its historical conditions and embracing the Court’s role as an authoritative interpreter of Canadian history.⁷⁸ But the problem is not that law should not evolve, or that Justices should not engage the history they inhabit. The problem is that when Justices become historians the history that results can be artificially conclusive. When it takes the form of an unchallengeable opinion issued in the anonymous voice of depersonalised Supreme Court authority, the potential for mischief is considerable.

Unorthodox methods: three issues

The tendency to remember Canada’s imperial origins in a flattering light is hardly unique to the Court, but it does set the conditions for other more striking innovations. The first is that it positions the court to operate as a stealth constituent power. This may not always be a bad thing if it unlocks an open-minded approach to law. But it does colour the discourse of popular democracy that the Court cited as a source of legitimacy. Second, despite its protestations around de facto considerations, the Court used international realities to frame the consequences of unilateralism. By deploying state recognition as a disciplining force on Quebec actions, the Court recruited the international order as an ally in its own domestic conflict. The third notable element of the Court’s resolution concerns the way it makes the manifold uncertainties around substate separatism disappear without resolving them.

Constituent power by stealth

One concern posed by advisory opinions is that they enable judges to act as a formative force on the legal and political structure, effectively a constituent power without the democratic credentials. While the Justices cited democracy as a core principle of Canadian constitutionalism, they simultaneously dismissed its power to serve as a founding force for law, insisting that it should not be understood as unconstrained popular sovereignty. Democracy can only exist, they explain, when mediated through an institutional framework that combines ‘moral values’ with a ‘constitutional structure’.⁷⁹

In this short statement, the Justices ploughed themselves into the middle of the paradox of constituent power. That paradox concerns the source of legitimacy when it comes to political foundations precisely because it’s unclear what comes first—the moral-institutional order, or the public will and popular authorisation of that order.⁸⁰ The problem is especially acute in the modern era because in the absence of natural law or transcendent morality, authority must be constructed not discovered, and that means its public, popular, or democratic provenance should be evident. The Justices attempted to dispatch the entire problem by maintaining that institutions come first as there’s no such thing as unmediated democratic expression. The difficulty is their solution is achieved by fiat, a move that triggers the archetypal legitimacy crisis of modern authority. Their argument is a performative exercise in undemocratic, top-down authority.

The Justices argued that because its constitutional roots lie in British legal tradition Canadian constitutionalism has an ‘historical lineage stretching back through the ages’. In which case the chicken-and-egg problem of constituent power proves conveniently moot. But the argument falters as soon as the historical narrative foregrounds a specific founding moment, and especially when the ‘ages’ that have passed since then amount to a brief 131 years.⁸¹ The Court was between a rock and a hard place on this point. For the purposes of legitimacy, it needed to ground its new principles in Canada’s short post-Confederation history.⁸² But it also needed to obscure those origins sufficiently that its oracular statements could be projected into the empty space of an absent constituent demos.

The solution reached was to fragment the constituent power into its federal components so that there is not one constituent people but several. These pluralist demoi then do not create but ‘consent’ to the Canadian system, in most cases through political representatives who commit on their behalf. The view of Canada’s constitutional democracy as an inherently pluralist venture is well established. The central value in the Justices’ account is not democracy, however, nor even diversity. It’s ‘orderliness’, secured through laws and institutions that shape the possibilities for democratic expression in a way that should ensure a ‘stable and predictable’ society. Anyone who prioritises popular sovereignty ahead of the institutions that organise consent in this manner simply ‘misunderstands the meaning of popular sovereignty’.⁸³ This argument allowed the Court slip into the place ordinarily held by popular authorisation in a constitutional democracy.

De facto internationalism

After dispatching popular sovereignty, the Justices next addressed claims that some part of succession is properly arbitrated in the international realm. They pointed out that while facts can sometimes make law, eventual legal status in the international realm cannot make the mode of secession retroactively lawful,⁸⁴ ruling out the idea that a successful secession could be self-validating.⁸⁵ But they liberally appealed to de facto considerations such as international recognition to shape their legal evaluation. In so doing, the Court ‘indirectly appointed the international community as the ultimate arbitrator’ over Canada-Quebec independence disputes.⁸⁶ To put it another way, if the ‘referendum-means-negotiations’ formula supplied the legal carrot, the Justices used internationalism as their de facto stick.

What’s notable is the way the Justices otherwise struggled with the role of the international in their reasoning. They reported they were ‘wary of entertaining speculation about the possible future conduct of sovereign states on the international level’. Yet were comfortable saying that the ‘ultimate success’ of secession and the ‘viability of a would-be state’ depends ‘as a practical matter, upon recognition’. They added that recognition is ‘guided by legal norms’ and that the international community is ‘likely’ to consider questions of legality and legitimacy. Any candidate for statehood that wasn’t seen as operating in good faith therefore ‘puts at risk’ the recognition it needs to succeed, even if these questions would be ‘evaluated in an indirect manner’. Under this account, internationalism serves to incentivises lawfulness on the grounds that it makes it ‘more likely to be recognised’.⁸⁷ This treatment of recognition is especially striking as there is no conclusively settled law on this point for them to even discuss.⁸⁸

In a post-Kosovo world where legal norms have not resolved questions around state recognition it is difficult to argue that it is the orderly process the Justices imagined.⁸⁹ In its absence, the Justices projected their own normative expectations outward into an international realm that does not necessarily share their parameters. Their use of the language of risk along with terms like ‘potentially’ and ‘likely’ factors of interest reveals just how speculative their discourse had become. The evaluation they are describing is indirect because it’s at least in part a political process rather than a purely legal one. Responding to the charge that in addressing such questions the Court was ‘purporting to act as an international tribunal’ they responded that given the subject matter, addressing international law was ‘not only permissible but unavoidable’.⁹⁰ Yet in stepping beyond domestic law into the realm of internationalism the Court entered the tricky terrain that Koskenniemi outlines, and predictably found itself sandwiched between the principled and pragmatic forces at play.

Solomonic evasion

Internationalism shapes the Secession Reference’s reasoning in one other way. Its requirement for clarity demonstrates a structural bias in favour of the sovereign state, more superficially, in favour of existing states. An aspiring state must demonstrate its democratic and political qualifications in impeccable terms. That standard does not apply to existing states for no better reason than that they already exist. The double standard is made especially stark when the Court specifies that popular sovereignty is not to be looked for in the authorisation of Canadian law, but that unambiguous democratic voice is a requirement for Quebec to reach the same standing. And while internationalism affirms the territorial integrity of existing states regardless of conduct, the Court relied on it to police the conduct of aspiring ones. This formula stacks the deck against political change.

Perhaps this is why the Court’s recommendations around clarity turn out to be more of a barrier than a neutral condition. While clarity represents a ‘certain normative ideal’ in law, what precisely that is, ironically, ‘remains unclear’.⁹¹ This might explain why the Justices quickly put themselves out of the business of arbitrating questions arising from their findings.⁹² In doing so, the Court set up a catch-22 arrangement. Substate groups that seek secession because they do not feel well represented within an existing order, can only succeed if they successfully represent their democratic preferences to that same state. And while the capacity to initiate the process is supposedly bound by law, the capacity to successfully conclude it is abandoned to politics.

Making lawful secession conditional on clarity means the process is always open to dispute. That in turn makes the Court’s formula all but impossible to execute, and the resulting disagreements can ‘continue interminably’.⁹³ The Canadian opinion was characterised as solomonic, suggesting an unexpectedly resourceful resolution under adverse conditions. Solomon’s most famous judgment concerned a baby claimed by two women, which he threatened to cut in half and apportion to each, prompting one to relinquish her claim thereby revealing the ‘true’ mother. It’s worth noticing that Solomon’s technique cannot truly resolve the issue because it is powerless to identify the actual birthmother. It merely dissolves the dispute and (hopefully) assigns the child to a suitable caregiver. The ruse only works because people stop caring about the difference.

Koskenniemi maintains there is a world of difference between a disagreement that is resolved and one that is driven out of sight.⁹⁴ The tendency is for supressed conflicts to become frozen in place, stranding participants in a jurisdictional no-man’s-land. And there is a further dimension of the Canadian opinion that evokes Koskenniemi’s analysis. Solomon’s judgment only works so long as no one puts it to the test. In this sense, it’s not a ruling or a resolution properly speaking. It’s a trick played on the litigants to get them to abandon their conflict. Carried out as ordered Solomon’s judgment would be horrific rather than wise. His ruling is like the doctrine of international law in that regard; it works by hiding its central operation.

This is the secret vulnerability behind the structural compromises that shape the international law of statehood, Koskenniemi believes. As evidenced in its Eurocentric leanings, it tends to favour already entrenched authority and finds solutions that keeps this privilege alive. Under such conditions there is ‘no closure, no ultimate reconciliation’. The absence of determinate findings in an advisory opinion creates a perpetual back and forth between normative and de facto arguments that locks an issue into conceptual limbo. The tension leaves any doctrine based on authoritative historical sources ‘unconvincing’ at the international level.⁹⁵ The Supreme Court’s reliance on selective history means a similar fragility surrounds its own approach. It does not offer a resolution of the problem, so much as the appearance of one.

Law at its creative extremes

The danger of Justices becoming oracles of law rather than its adjudicators is always implicit in the advisory function. But there is reason to believe the Canadian Supreme Court may have been especially vulnerable to such difficulties. John Borrows identifies a troubling track record for the Court when it comes to Indigenous rights, manifest in its selective use of history to shore up the authority of the Canadian state.⁹⁶ The tendency for Canadian courts to reimagine history in convenient ways can be understood as a species of tricksterism, Borrows says, one that enables the Canadian state to selectively accommodate or overturn the rights of Indigenous populations.⁹⁷ Yet he believes the Secession Reference points to a possible solution. Explicit acknowledgment of the paradoxes involved in law means the creative potential of the Court’s innovations can be harnessed to new ends. Because these tensions prove especially acute when it comes to practicing law in a pluralist setting, they point to the role of practitioners in balancing competing justifications. In this light Borrows’ solution echoes Koskenniemi’s work on the legitimacy challenges facing international law. If, as Borrows suggests, juridical mischief can yield results both troubling and inspiring then it’s not a simple matter of condemning its appearance in every case. What’s critical is being aware of its operation.

Borrows argues the Supreme Court adopted atypical methods to artificially limit or extinguish Indigenous rights or ensure they stay frozen at a ‘magic moment’ of contact with European cultures. He characterises the strategy as assigning an originalist approach for Indigenous peoples and living tree constitutionalism for everyone else. The practice muddies the judicial task by drafting Justices into the roles of ‘amateur historians’ equipped with the belief that ‘past intentions can be discerned’. And because it consigns Indigenous populations into the role of ‘past tense people’ it ‘regenerates colonialism’ with every decision.⁹⁸ For this reason, he finds the Court’s use of history serves a ‘trickster-like role’ in such cases. The concept Borrows is invoking is not a simple question of fraud or foolishness. While he offers a distinctive reading of tricksterism in a judicial context, his work points toward a long-standing wisdom practice that uses stories to awaken understanding and reveal a listener’s partial perspective. Such stories work by recentering something that has been pushed out of view to create artificial coherence. The Trickster is a figure that ‘simultaneously facilitated and frustrated’ Indigenous life, Borrows explains, by forcing a halt or interruption in conventional affairs. This disruptiveness meant ‘[i]ncongruity was his natural state’.⁹⁹

This quality may be especially important in law where, Borrows warns, the ‘background search for consistency’ has generated questionable results. The problem is that such efforts incentivise the creation of origin stories that anchor law in ‘underlying verities’ and ‘first causes’. This drive arises in the belief that ‘higher’ and ‘centralised’ sources of authority create ‘conditions for human flourishing’. But if courts craft origin stories only to later discover and apply them, what is really being achieved? In mandating a partial and incomplete account of reality as the only legitimate one, such practices risk turning law into a ‘false religion’ supported by ‘faulty’ reasoning. The resulting problems with authority have implications well beyond Crown-Indigenous relations because the outcome makes all legal measures suspect. Under the right circumstances, tricksterism should alert people to the complex and imperfect circumstances they inhabit. Without such awakening, single-mindedness can deepen into blindness.¹⁰⁰

Borrows finds unlikely inspiration in the Secession Reference precisely because of its trickiness. He sees fresh constitutional resources emerging from the way the Court switched up its methods to recast Canadian legal history. The effort not only opens the Court to the treatment of unwritten (oral) history so central to Indigenous law, it also sets a new baseline for Canadian legitimacy. That’s a potent instrument, because when it comes to Indigenous rights Borrows argues the Crown is itself in violation of the four principles it adopted to delimit Quebec independence. In a trickster-inspired spirit he goes on to suggest the Court should take the next logical step and declare Canadian law invalid pending reform. In essence, Borrows sees in the Secession Reference an avenue for calling the Court on its own inconsistencies. That means the opinion originally sought to preserve the country can, by virtue of its own incongruencies, serve to reconfigure it. Its sheer creativity forces awareness of the way history serves as a ‘grab bag’ of possibility from which Justices construct new understandings.¹⁰¹ If practitioners can appreciate the potential, as well as the irony, in that insight then Canadian constitutionalism might reap the benefits.

Navigating indeterminacy

Koskenniemi’s work on international law suggest that when the sources of law are uncertain, legal practitioners sometimes engage in a kind of ‘bricolage’ that repurposes available legal language and ideas in fresh ways. Indeed, he suggests that much of modern international law relies on lawyers successfully passing their work off as a legally driven exercise when its chief feature is indeterminacy.¹⁰² Because the Secession Reference addressed the question of how a new state could be born it engaged questions that span national and international jurisdictions, and the Justices liberally appealed to state recognition law and practice to frame their arguments. This suggests another dimension of mischief was in play. The Justices adopted methods familiar from international law to address a question in Canadian constitutionalism, one that despite their expertise and wisdom, could not be definitively resolved using existing domestic sources.

Koskenniemi sums up the quixotic task of international law in these terms because, as he explains, a liberal political order requires international law to operate ‘with one foot in crude pragmatism and the other in indeterminate theorizing’. The tension cannot be resolved but it can be navigated through speech acts that tap into the unique grammar of international legal argument. Such acts attempt to strike a balance between what he calls descending and ascending modes of argument. Descending argument is a utopianist, top-down, objectivist mode of argument driven by naturalism or high principle. Ascending argument is an apologist, bottom-up, voluntarist or de facto-driven mode of low politics. The ‘interminable’ effort to reconcile these two imperatives has a ‘structuring effect’ that distinguishes international law as a field.¹⁰³

To pursue law in the realm of the international, he suggests, is to find oneself drafted into this language and the compromises that attend its use. Because there is no winning side ‘relative indeterminacy’ shapes the possibilities of use, meaning this grammar has a reflexive aspect. ‘We do not say that peoples have a right to self-determination because we think so’, he explains, ‘Rather we come to think so because that is what we say’. Uncovering the tension at the heart of the operation therefore has a deconstructive, even ‘therapeutic’, effect by showing the original opposition as being ‘without foundation’. This cannot overcome the need for reconciliation, although it may make the incongruity of the experience and its accompanying sense of ‘professional failure’, more bearable.¹⁰⁴

More commonplace, however, is that in the absence of the kind of ‘inner coherence’ that strong argument requires, the tension is simply ‘removed or hidden from sight in order to maintain the system’s overall credibility’. One of the chief strategies Koskenniemi identifies is introducing reconciliation ‘under the guise’ of ‘general principles’ alongside established ‘custom’ the two of which are ‘made to seem indistinguishable’ until they create and simultaneously resolve the tension between ascending and descending arguments. The result is a legal doctrine that appears ‘both concrete and normative’ so long as no one looks too closely. The reality is this is an ‘ad hoc position’ a ‘hotchpotch of learned citation and naïve historicism’ that works by ‘disguising the arbitrariness of interpretation under fictions of textual clarity or juristic method’.¹⁰⁵

This ad-hoc-ery is amplified when it concerns statehood itself. Because it touches on the central subjectivity of international law, threats to the integrity of the state or its sovereignty go to the heart of the international legal order. That means ‘extraordinary difficulties’ result from any ‘attempt at a consistent application’ of the principle of self-determination.¹⁰⁶ The Canadian Supreme Court’s use of high principle to craft a lawful formula takes the form of a descending argument that leans towards utopianism. Advisory opinions tend to weigh heavily on that side of the ledger, reflecting a pull toward perfectionism that unbalances reconciliation and obscures the indeterminacy around questions of state. The Court’s efforts to ground these principles in unwritten constitutionalism might be understood as an effort to counterbalance utopianism with the pragmatism of custom. The combination marks a recognisable approach for law that operates at the threshold between domestic and international law. That would locate the unusual reasoning of the Secession Reference within the scope of Koskenniemi’s analysis.

The Secession Reference case is certainly solomonic in that it defused a looming political crisis. But as with Solomon’s famous baby-splitting tactic, subsequent practice suggests it is a difficult formula to apply in real life. It may be that its efficacy lies less in outlining requirements for lawful secession, and more in the way it dissolves the immediate conflict by mandating civility and coordinated action for all concerned. Koskenniemi notes that dispute resolution in international law often takes the form that ‘disputing States’ positions are interpreted so as to lose the conflict between them’, essentially defining the disagreement out of existence and making ‘the material dispute disappear’. Such solutions ‘are arrived at only by means of evasion’ he says, by making it appear that ‘at some point’ there had been ‘an interpretation on which everyone had agreed’ so that it seems like ‘nobody’s consent were overruled’.¹⁰⁷ The Supreme Court’s insistence that previously unrecognised constitutional principles at the origin of Canadian constitutionalism constitute a kind of latent sources doctrine for the country sounds like what Koskenniemi has in mind.

Both advisory opinions and international law face practitioners with an exceptional task. The expectation that law can deliver solomonic resolution while getting political leadership out of a jam sets up conditions for the creative repurposing of law and history. Borrows observes that law’s ‘sectarian nature’ should be understood as something ‘practiced along different devotional lines’. But adds that adopting that calling, or inheriting that language, is not a license to forget oneself. What he calls ‘metaphysical mischief’ involves the failure of practitioners ‘to self-reflexively interrogate’ the laws they work with, until they forget the indeterminacy of their task and the creativity of their own contribution. Such forgetting leads them to ‘claim authority in ways that appear neutral, natural and beyond question’.¹⁰⁸ The problem that Borrows and Koskenniemi identify is not simply that creative Justices selectively pull solutions from the grab bag of history, because such actions may signal resourcefulness. The problem is when these ‘strategies of evasion’¹⁰⁹ go unacknowledged. When the conditionality and contingency that inspired them are converted into natural and necessary truths, the process becomes mindless. At that point the capacity of law to reconcile and renew is diminished. Such law dabbles in tricksterism but forgets its central lesson: ‘Beware of the danger of a single story’.¹¹⁰

Conclusion

The Quebec Secession Reference opinion is one of the most extraordinary contributions to Canadian constitutionalism in the country’s history. It also has something to say about how law and politics coexist in the modern era. In the absence of hard facts opinions can be unpredictable, which makes it an unexpectedly creative mode of law. When combined with a legacy of imperialist self-justification or the embryonic fragility of international law, the scope for mischief is pronounced. Because they operate beyond tried-and-true legal practice, one thing that advisory opinions lack, ironically, is clarity. They are speculative and imaginative; contingent and indeterminate. And insofar as the Canadian Supreme Court engaged in questions around statehood, it becomes entangled in Koskenniemi’s dualistic universe which uses evasion and obfuscation to conceal a delicate legal balancing act at the heart of international law.

By leaning on storytelling and imagination, trickiness or solomonic pronouncements, the Canadian Supreme Court adopted methods that, on the face of it, appear unsuited to legal judgment. In developing their opinion, the Justices turned themselves into amateur historians who bounced between principled and pragmatic argument as circumstances required. Their findings set a standard for democratic legitimacy that the Canadian state has never met and according to the Justices, shouldn’t have to. At a minimum that leaves the Court open to charges of hypocrisy. Yet Borrows finds unlikely inspiration in the way the opinion opens law to fresh perspectives.

When law engages in stealth modes of reasoning the result can seem like an ‘abysmal fraud’¹¹¹ and the urge to disown it is intense. But that sacrifices the powerful lessons to be earned by coming face to face with the tricks we play on ourselves to make the world seem orderly and coherent. For Borrows, the valuable role the trickster plays in law is as a force that alerts us the imperfections of human judgment and the inadequacies of conventional authority. Its message is not to double-down on conceptual perfectionism, but to work on acknowledging the limited perspectives we inherit. The urge to root out hypocrisy, Judith Shklar explained, is born of moral insecurity. The real danger is not hypocrisy itself, which she calls a game for ‘giving mischief fine names’. It is the politics of purity that aims to erase such habits entirely. Because that’s when the ‘glamour of good ends’ leads into the ‘pretence’ that the ideological aspirations of the few ‘correspond to the moral and material interests of the many’. The hard truth is that in a pluralist setting like Canada, where all values can be disputed, the ‘politics of unreconciled political neighbors’ could ‘hardly survive’ without some measure of hypocrisy.¹¹²

For these reasons, the central point being made here is not about the judicialisation of politics, or the politicisation of the judiciary. Even if the Secession Reference took both into new territory, the potential was always there. Rather, by highlighting its debt to legal creativity in the form of advisory opinions, the argument opens a cautionary perspective on the law of statehood while showing how advisory powers tap that creativity in distinctive ways. The Secession Reference proved an imperfect vessel for statements on secession, but the alternative is not to ban advisory opinions or avoid the troubled terrain of international law. Indeed, both advisories and internationalism prove especially important where pluralism is involved, because they do something other law does not. Both establish a beachhead of conviction in unsettled factual and authoritative terrain. It says something about how much credibility is invested in law that this is even possible.

For Koskenniemi, the irregularities and evasions of international law are not evidence of carelessness or bad faith. They are the hallmarks of a constitutive practice that unfolds in the realm between absolutism and pragmatism. Much the same could be said of the Secession Reference opinion. As Carissima Mathen observed, advisory opinions show that the role of the courts is fundamentally to ‘provide answers, to declare what law is’.¹¹³ That role is both more pressing and more disquieting under conditions where final answers are not actually possible. Koskenniemi celebrates the effort to fulfil this task by identifying a ‘middle ground’ between competing perspectives but adds, for internationalism at least, law remains a ‘terrain of irreducible adversity’. There is no natural centre point to be found, only ways to divert disagreement away from outright conflict. When the resulting solutions primarily serve the interests of existing states under the guise of neutrality, mischief can also be the system’s undoing. Once ‘practice becomes ideology’,¹¹⁴ he warns, law itself becomes the problem, and Borrows’ Trickster becomes a mindless menace.

The sheer creativity of the Secession Reference may have been an adaptive approach under adverse circumstances. But the method is best used sparingly. Because when law becomes mischievous ‘there is no limit to the extent it can be used to justify’.¹¹⁵ The overuse of similar methods at the international level may explain why the transformative project of international law has struggled of late.¹¹⁶ Their use in the Secession Reference had the effect of highlighting a similar indeterminacy in Canadian constitutionalism.¹¹⁷ Those who followed the ruling closely suggest its most potent legacy may be the Justices’ method of reasoning from unwritten sources to new constitutional principles.¹¹⁸ Others suggest its ‘true contribution’ lies in the ‘institutional attitude’ the Court took by accepting the dignity of secessionist aspirations at face value. By reshaping the landscape upon which questions of statehood can even be addressed, the Justices’ appetite for innovation, whatever it’s form, may prove the real saving grace of their unconventional labours.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Federation for the Humanities and Social Sciences [grant number 435-2019-0164].

Notes

1 Reference re Secession of Quebec (1998) 2 SCR 217.

2 Jean-François Gaudreault-DesBiens, ‘The Law and Politics of Secession: From the Political Contingency of Secession to a “Right to Decide”? Can Lessons Be Learned from the Quebec Case?’ in Giacomo Delledonne and Giuseppe Martinico (eds), The Canadian Contribution to a Comparative Law of Secession (Springer International Publishing 2019) 36.

3 At one point, advisory opinions represented up to a quarter of the Supreme Court’s constitutional caseload. Carissima Mathen, Courts Without Cases: The Law and Politics of Advisory Opinions (Hart Publishing 2019) 5.

4 Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Hart Publishing, 2015); John Borrows, Recovering Canada: The Resurgence of Indigenous Law (University of Toronto Press, 2002).

5 Mathen (n 3) 6.

6 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press, 2005).

7 John Borrows, ‘Challenging Historical Frameworks: Aboriginal Rights, the Trickster, and Originalism’ (2017) 98 The Canadian Historical Review 114.

8 Consider, for example Peter McCormick’s discussion of Canadian Supreme Court authorship conventions. After making the point that advisory opinions are framed as part of a long-standing political ‘conversation’ with the federal authorities he hastens to add: ‘It is not that the government was not bound by the actual outcome of previous reference cases’ [italics added]. The only reason advisory cases are permissible under Canadian constitutionalism is because they were found to be non-binding in a 1912 challenge to the practice. Clearly there has been some slippage in this view throughout the years. See ‘“By the Court”: The Untold Story of a Canadian Judicial Innovation’ (2016) 53 Osgoode Hall Law Journal 1048, 1070, 1074.

9 Mathen (n 3) 31–35.

10 Kate Puddister, Seeking the Court’s Advice: The Politics of the Canadian Reference Power (UBC Press, 2019) 10.

11 Amelia Keene, ‘The Forgotten Potential of the Advisory Jurisdictions of International Courts and Tribunals as a Check on the Actions of International Organizations’ (2016) 14 New Zealand Journal of Public and International Law 67; Tom Ruys and Anemoon Soete, ‘“Creeping” Advisory Jurisdiction of International Courts and Tribunals? The Case of the International Tribunal for the Law of the Sea’ (2016) 29 Leiden Journal of International Law 155; Yoshifumi Tanaka, ‘Reflections on the Advisory Jurisdiction of Itlos as a Full Court: The Itlos Advisory Opinion of 2015’ (2015) 14 The Law and Practice of International Courts and Tribunals 318.

12 Mel Topf, A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions and Judicial Supremacy (Oxford University Press, 2011) 48–54.

13 Ibid, 172–3.

14 Puddister (n 10) 32.

15 Topf (n 12) 39.

16 Ibid, 48–52, 181.

17 Ibid, 171.

18 Mathen, for instance, calls them ‘substantively indistinguishable’ from conventional law, and points out that they are recorded as ‘cases’ in the Canadian Supreme Court records system, (n 3) 181, 213–14.

19 Topf (n 12) xviii, 167–71.

20 Ibid, 181.

21 Puddister (n 10) 22. Although the imbalance of early colonial days has corrected over time, questions over the use of federal courts to constrain provincial powers persist. See Paul Weiler, In the Last Resort: A Critical Study of the Supreme Court of Canada (Carswell/Methuen 1974); PW Hogg, ‘Is the Supreme Court of Canada Biased in Constitutional Cases’ (1979) 57 Canadian Bar Review 721; KM Lysyk, ‘Reshaping Canadian Federalism’ (1979) 13 University of British Columbia Law Review 1.

22 Puddister (n 10) 36, 40.

23 Why the Justices selected that term ‘mischief’ or what they meant it to imply is, regrettably, not explained in any depth. But since the case was prompted by a concern that advisories could be used pre-emptively to interfere in areas of provincial jurisdiction it seems reasonable to conclude that mischief can be understood as using the courts to circumscribe the lawful options of other political actors.

24 Mathen (n 3) 108.

25 Mathen (n 3) 7–8.

26 Mahasen M Aljaghoub, The Advisory Function of the International Court of Justice 1946 - 2005 (Springer, 2006) 237.

27 Jorge Contesse, ‘The Rule of Advice in International Human Rights Law’ (2021) 115 American Journal of International Law 367, 371; Keene (n 11); Akande Dapo, ‘The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice’ (1998) 9 European Journal of International Law 427.

28 Ariel Zemach, ‘Indeterminacy in the Law of War: The Need for an International Advisory Regime’ (2017) 43 Brooklyn Journal of International Law 1; Monica Feria-Tinta, ‘On the Request for an Advisory Opinion on Climate Change under UNCLOS before the International Tribunal for the Law of the Sea’ (2023) Journal of International Dispute Settlement 1; Richard Barnes, ‘An Advisory Opinion on Climate Change Obligations Under International Law: A Realistic Prospect?’ (2022) 53 Ocean Development & International Law 180; Jane A Hofbauer, ‘Not Just a Participation Trophy? Advancing Public Interests through Advisory Opinions at the International Court of Justice’ (2023) 22 The Law & Practice of International Courts and Tribunals 234; Laurence Boisson De Chazournes, ‘Advisory Opinions and the Furtherance of the Common Interest of Humankind’ in Laurence Boisson De Chazournes, Cesare Romano, and Ruth Mackenzie (eds), International Organizations and International Dispute Settlement: Trends and Prospects (Brill | Nijhoff, 2002).

29 Samantha Besson, ‘International Courts and the Jurisprudence of Statehood’ (2019) 10 Transnational Legal Theory 30, 37.

30 Barnes (n 28) 190. Carlos A Cruz Carrillo, ‘The Advisory Jurisdiction of the ITLOS: From Uncertainties to Opportunities for Ocean Governance’ in Froukje Maria Platjouw and Alla Pozdnakova (eds), The Environmental Rule of Law for Oceans (Cambridge University Press 2023) 250.

31 Martti Koskenniemi, ‘Advisory Opinions of the International Court of Justice as an Instrument of Preventive Diplomacy’ in Dr Najeeb Al-Nauimi and Richard Meese (eds), International Legal Issues Arising Under the United Nations Decade of International Law (Martinus Nijhoff Publishers, 1995) 612.

32 Ibid, 615–17.

33 The Court argued that it lacked the necessary information to make a definitive finding either way. Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 66. See also Richard Falk, ‘The Nuclear Weapons Advisory Opinion and the New Jurisprudence of Global Civil Society’ in Andersson Stefan (ed), On Nuclear Weapons: Denuclearization, Demilitarization and Disarmament (Cambridge University Press, 2019) 117.

34 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo [2010] ICJ Rep 403. Commentators called the opinion ‘an alarming precedent’ on the grounds that it offered tacit endorsement of unilateralism and set aside the UN’s own responsibilities in the region. See Marcelo G Kohen and Katherine Del Mar, ‘The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of “Independence from International Law”?’ (2011) 24 Leiden Journal of International Law 109, 124. Another argued that the court’s ‘hermitic silence’ on critical questions set a precedent ‘and a bad one’ by opening questions of secession without resolving them. See Theodore Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’ (2011) 24 Leiden Journal of International Law 73, 75. And another suggested the entire case might amount to a ‘poisoned chalice’ for the Court’s integrity. Hannum Hurst, ‘The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?’ (2011) 24 Leiden Journal of International Law 155.

35 Koskenniemi, ‘Advisory Opinions of the International Court of Justice’ (n 31) 617.

36 An advisory ruling on same-sex marriage by the Inter-American Court of Human Rights, for example, changed the course of an election in Costa Rica. A minor candidate was temporarily boosted to frontrunner by pledging to withdraw the country from the Court’s jurisdiction on the grounds it had overreached its authority in dictating family law. See Contesse (n 27).

37 Mark Angehr, ‘The International Court of Justice’s Advisory Jurisdiction and the Review of Security Council and General Assembly Resolutions’ (2009) 103 Northwestern University Law Review 1007.

38 Fisnik Korenica, ‘“Advise and Rule” or “Rule by Advising”: The Changing Nature of the Advisory Jurisdiction of the Constitutional Court of Kosovo’ (2020) 21 German Law Journal 1570, 1585; Christopher Greenwood, ‘Judicial Integrity and the Advisory Jurisdiction of the International Court of Justice’ in Giorgio Gaja and Jenny Grote Stoutenburg (eds), Enhancing the Rule of Law through the International Court of Justice (Brill | Nijhoff, 2014).

39 This feature may be governed by a law of diminishing returns however, as the closer advisories approach traditional arbitration, the slower the result. For more on timeliness see Mathen (n 3) 183–5.

40 For example, Barry Stayer warned that slavish adherence to such opinions undermines their usefulness. The Canadian Constitution and the Courts (Butterworths 1983) 292. J.F. Davison warned overly general questions produce weak answers. JF Davison, ‘The Constitutionality and Utility of Advisory Opinions’ (1938) 2 University of Toronto Law Journal 254, 279.

41 Jonathon W Penney, ‘Deciding in the Heat of the Constitutional Moment: Constitutional Meaning and Change in the Quebec Secession Reference’ (2005) 28 Dalhousie Law Journal 217.

42 Vuk Radmilovic, ‘Strategic Legitimacy Cultivation at the Supreme Court of Canada: Quebec Secession Reference and Beyond’ (2010) 43 Canadian Journal of Political Science 843.

43 Teresa Mayr and Jelka Mayr-Singer, ‘Keep the Wheels Spinning: The Contributions of Advisory Opinions of the International Court of Justice to the Development of International Law’ (2016) 27 Heidelberg Journal of International Law 425, 441.

44 Legality of the Threat or Use of Nuclear Weapons (n 33); Mariano Aznar-Gomex, ‘The 1996 Nuclear Weapons Advisory Opinion and Non Liquet in International Law’ (1999) 48 International and Comparative Law Quarterly 3; Jorg Kammerhofer, ‘Gaps, the Nuclear Weapons Advisory Opinion and the Structure of International Legal Argument between Theory and Practice’ (2010) 80 The British Yearbook of International Law 333.

45 Hersch Lauterpacht, ‘Some Observations on the Prohibition of “Non-Liquet” and the Completeness of Law’ in Martti Koskenniemi (ed), Sources of International Law (Routledge, 2000).

46 One scholar commented at the time that the ruling was significant not only for finding that Canada is divisible and destructible, but also that there are ‘legal rules governing such division and destruction’, and the case has been read as suggesting that ‘secession can be achieved lawfully’. See Mark Walters ‘Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and Its Lessons for the United Kingdom’ (1999) 62 Modern Law Review 371, 371, 390–2. Another contemporary commentator put it more bluntly, saying the Court effectively ‘laid down the rules for the break-up of the country’. See David Schneiderman, ‘Introduction’ in David Schneiderman (ed), The Quebec Decision: Perspectives on the Supreme Court Ruling on Secession (Lorimer, 1999) 1.

47 Christakis (n 34) 74. Nadia Verrelli and Neil Cruickshank, ‘Exporting the Clarity Ethos: Canada and the Scottish Independence Referendum’ (2014) 27 British Journal of Canadian Studies 195; Zoran Oklopcic, ‘The Migrating Spirit of the Secession Reference in Southeastern Europe’ (2011) 24 Canadian Journal of Law and Jurisprudence 347.

48 Webber (n 4) 260.

49 Richard S Kay, ‘The Secession Reference and the Limits of Law’ (2003) 10 Otago Law Review 327, 327.

50 For more on the Proclamation and its significance to Canadian constitutionalism see Brian Slattery, ‘The Royal Proclamation of 1763 and the Aboriginal Constitution’ in Terry Fenge and Jim Aldridge (eds), Keeping Promises: The Royal Proclamation of 1763, Aboriginal Rights, and Treaties in Canada (McGill-Queen’s University Press, 2015); John Borrows, ‘Constitutional Law from a First Nation Perspective: Self-Government and the Royal Proclamation’ (1994) 28 UBC Law Review 1. For more on Canada’s multicultural constitutionalism see James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, 1995).

51 The four original provinces were Ontario, Quebec, Nova Scotia, and New Brunswick.

52 The 1981 Patriation Reference halted a unilateral effort on the part of the federal government to bring about patriation without provincial support. Resolution to Amend the Constitution (1981) SCR 1 753. The 1982 Quebec Veto Reference, found that Quebec could not single-handedly obstruct the same process Re: Objection by Quebec to a Resolution to Amend the Constitution (1982) SCR 2 793.

53 For an overview of Canadian constitutional development including the role of Quebec, see Peter H Russell, Constitutional Odyssey (University of Toronto Press, 2004); Peter H Russell, Canada’s Odyssey: A Country Based on Incomplete Conquests (University of Toronto Press, 2017); Webber (n 4). For the role of megaconstitionalism see Peter H Russell, ‘The End of Megaconstitutional Politics in Canada’ (1993) 26 PS, Political Science & Politics 33.

54 Reference re Secession of Quebec (n 1) 220.

55 Ibid, 294.

56 Ibid, 220, 240, 253.

57 Kay (n 49) 329–30, 342.

58 Walters (n 46) 389.

59 ‘The Quebec Secession Reference and the Judicial Arbitration of Conflicting Narratives about Law, Democracy, and Identity’ (1999) 23 Vermont Law Review 793, 793, 818, 821, 839; ‘Underlying Principles and the Migration of Reasoning Templates: A Trans-Systemic Reading of the Quebec Secession Reference’ in Sujit Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press, 1st edn, 2007) 189.

60 ‘The Quebec Secession Reference: The Constitutional Obligation to Negotiate’ (1998) 10 Constitutional Forum 26, 26–29. For a well-rounded selection of contemporary writings, see also David Schneiderman (ed), The Quebec Decision: Perspectives on the Supreme Court Ruling on Secession (1999).

61 ‘From Telling to Listening: A Therapeutic Analysis of the Role of Courts in Minority-Majority Conflicts’ (2000) 37 Court Review 54.

62 ‘Constitutional Theory and the Quebec Secession Reference’ (2000) 13 Canadian Journal of Law and Jurisprudence 143, 144.

63 ‘Introduction’ in Alain Gagnon and James Tully (eds), Multinational Democracies (Cambridge University Press, 2009) 7.

64 ‘Impoverishment of the Law by the Law: A Critique of the Attorney General’s Vision of the Rule of Law and the Federal Principle’ (1998) 10 Constitutional Forum 1, 1–4, 7–8; Jacques Derrida, ‘Force of Law: The Mystical Foundation of Authority’ in Derek Attridge (ed), Acts of Literature (Routledge, 1992).

65 Russell, Canada’s Odyssey (n 53) 427.

66 Federalism, Citizenship, and Quebec: Debating Multinationalism (University of Toronto Press, 2007) 161. Jean Leclair argues that the poor reception of the Court’s Patriation Reference forced it to ‘back-pedal’, however elegantly, into a new approach. See ‘The Secession Reference: A Ruling in Search of a Nation’ (2000) 34 Revue Juridique Themis 885.

67 Webber (n 4) 53.

68 Ibid, 1–8; Catherine Frost, ‘Does Canada Have a Founding Moment?’ in David McGrane and Neil Hibbert (eds), Applied Political Theory and Canadian Politics (University of Toronto Press, 2019).

69 Indeed, before the year was out, Confederation faced its first attempt at secession, when a Nova Scotian election returned a massive coalition against the new union, taking 18 of the province’s 19 federal seats, and 36 of its 38 provincial seats. The province’s petition to the Colonial Office in London to exit Canada was refused. The argument that democracy was a core principle of the union seems at odds with this early episode, which the Court itself cited. Reference re Secession of Quebec (n 1) 243.

70 Russell, Canada’s Odyssey (n 53) 18.

71 Dennis Pilon, ‘The Contested Origins of Canadian Democracy’ (2017) 98 Studies in Political Economy 105.

72 Ibid, 115. Macdonald called the bill that achieved this measure ‘the greatest triumph of my life’. Although it’s likely he was less moved by its overt racism than by the power it gave him to make the franchise a tool of partisanship and patronage.

73 James W Daschuk, ‘Acknowledging Patriach’s Failures Will Help Canada Mature as a Nation’ (2015) Canadian Issues 39, 43; James W Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (University of Regina Press, 2014); Timothy J Stanley, ‘John A. Macdonald, “the Chinese” and Racist State Formation in Canada’ (2016) 3 Journal of Critical Race Inquiry 6.

74 As Russell put it, ‘the idea that a constitution to be legitimate must be derived from the people’ constituted ‘a dreadful heresy to our founding fathers’ who preferred to ‘cling to the traditional, elitist style of constitutional politics’. He adds the authors of Confederation also ensured there was ‘no place for the liberal principle of cultural diversity’ in their constitutional plans. See Russell, Constitutional Odyssey (n 53) 5, 15.

75 Janet Ajzenstat explains the ‘uncomfortable fact’ is that ‘Canadians have no shared sense of history’ making any attempt to found constitutionalism on a unified narrative wrongheaded. The Canadian Founding (McGill-Queen’s University Press 2007) 13.

76 Webber (n 4) 145–6. The living tree principle originated in a 1929 advisory opinion issued by the UK Judicial Committee of the Privy Council. See Edwards v Attorney General of Canada Judicial Committee of the Privy Council [1930] AC 124, [1929] UKPC 86.

77 Notably the Justices’ findings were unanimous and anonymous with authorship attributed simply to ‘the Court’. This Canadian innovation is predominantly associated with constitutionally weighty cases, and reference cases in particular, and works as an ‘accountability-cloaking device’ that obscures the specific origins of the voice of law. While not unique to this case, Peter McCormick calls the Secession Reference the ‘poster-child’ for the practice (n 8) 1054, 1070.

78 Leclair (n 66) 7.

79 Reference re Secession of Quebec (n 1) 256.

80 Martin Loughlin, ‘The Concept of Constituent Power’ (2014) 13 European Journal of Political Theory 218; Martin Loughlin and Neil Walker, ‘Introduction’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism (Oxford University Press, 2008).

81 Reference re Secession of Quebec (n 1) 247. Writing in 1998 the Justices dated Canada from Confederation in 1867.

82 This dating also served to distance Canadian constitutionalism from the problematic pre-Confederation imperialist history that brought both Quebec and Indigenous peoples under the Crown.

83 Reference re Secession of Quebec (n 1) 225, 256–60.

84 Ibid, 289.

85 Patrick Dumberry points out they hedged on this point when they acknowledged that illegal secession can end up in legal statehood. This muddled approach, he suggests, led the Court into ‘controversial statements’ that obscure the fundamentally political and discretionary features of international recognition. See ‘Lessons Learned from the Quebec Secession Reference before the Supreme Court of Canada’ in Marcelo G Kohen (ed), Secession (Cambridge University Press 2006) 437–8.

86 Gaudreault-DesBiens (n 2) 832.

87 Reference re Secession of Quebec (n 1) 223, 273–6, 289, 294.

88 Gëzim Visoka, Edward Newman and John Doyle, ‘Introduction: Statehood and Recognition in World Politics’ in Gëzim Visoka, John Doyle and Edward Newman (eds), Routledge Handbook of State Recognition (Routledge, 2020); Gëzim Visoka, ‘Statehood and Recognition in World Politics: Towards a Critical Research Agenda’ (2022) 57 Cooperation and Conflict 133; Thomas Grant, ‘How to Recognise a State (and Not): Some Practical Considerations’ in Christine Chinkin and Freya Baetens (eds), Sovereignty, Statehood and State Responsibility (Cambridge University Press, 2015); Mikulas Fabry, Recognizing States: International Society and the Establishment of New States since 1776 (Oxford University Press, 2010); James Crawford, The Creation of States in International Law (Oxford University Press, 2nd edn, 2006).

89 See, for instance, Fabry (n 88).

90 Reference re Secession of Quebec (n 1) 234–5.

91 Zoran Oklopcic, ‘Secession Reference and Its Intellectual Legacy: Sceptical Notes from the European Peripheries’ in Giacomo Delledonne and Giuseppe Martinico (eds), The Canadian Contribution to a Comparative Law of Secession (Springer International Publishing, 2019) 218.

92 Reference re Secession of Quebec (n 1) 271. Some suggest this is an ambiguous and possibly untenable position, see Dumberry (n 85) 430.

93 Koskenniemi, From Apology to Utopia (n 6) 345. In the years since its appearance, no state has successfully applied the Canadian formula in a peaceful context. A combination of referendums and negotiations has been used to validate secession but only as part of a peace processes and generally under UN or international oversight that renders it something of a foregone conclusion.

94 Ibid, 346.

95 Ibid, 364–5, 379–86; Martti Koskenniemi, ‘Enchanted by the Tools? An Enlightenment Perspective’ (2020) 35 American University International Law Review 397. On eurocentrism in statehood law see Visoka (n 88).

96 Borrows, ‘Challenging Historical Frameworks’ (n 7).

97 John Borrows, ‘The Trickster: Integral to a Distinctive Culture’ (1997) 8 Forum Constitutionnel 27; John Borrows, ‘(Ab)Originalism and Canada’s Constitution’ (2012) 58 The Supreme Court Law Review 351; Borrows, ‘Challenging Historical Frameworks’ (n 7); John Borrows, ‘Niizho-Miigiwewin: Debewein (Gift Two: Truth)/Truth: Origin Stories, Metaphysics, and Law’, Law’s Indigenous Ethics (University of Toronto Press 2019).

98 ‘Challenging Historical Frameworks: Aboriginal Rights, the Trickster, and Originalism’ (n 7) 120–30.

99 Borrows, ‘Niizho-Miigiwewin: Debewein (Gift Two: Truth)/Truth’ (n 97) 55. For more on tricksterism and its variants see Lewis Hyde, Trickster Makes This World: Mischief, Myth, and Art (Farrar, Strauss & Giroux 1998); Barbara Babcock-Abrahams, ‘“A Tolerated Margin of Mess”: The Trickster and His Tales Reconsidered’ (1975) 11 Journal of the Folklore Institute 147; Gerald Vizenor, ‘Trickster Discourse: Comic Holotropes and Language Games’ in Narrative Chance: Postmodern Discourse on Native American Indian Literatures (University of Oklahoma Press, 1993); Larry Ellis, ‘Trickster: Shaman of the Liminal’ (1993) 5 Studies in American Indian Literatures 55; Leanne Simpson, Dancing on Our Turtle’s Back: Stories of Nishnaabeg Re-Creation, Resurgence and New Emergence (Arbeiter Ring Publishing, 2011).

100 Borrows, ‘Niizho-Miigiwewin: Debewein (Gift Two: Truth)/Truth’ (n 97) 56–66.

101 Borrows, Recovering Canada: The Resurgence of Indigenous Law (n 4) 122–35, 146.

102 Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870 (Cambridge University Press, 2021) 2; Koskenniemi, From Apology to Utopia (n 6) 590–1.

103 Koskenniemi, From Apology to Utopia (n 6) 4, 107–8, 219.

104 Ibid, 12–13, 162, 196.

105 Ibid, 158, 169–71, 188, 341.

106 Martti Koskenniemi, ‘National Self-Determination Today: Problems of Legal Theory and Practice’ (1994) 43 International and Comparative Law Quarterly 241, 249.

107 Koskenniemi, From Apology to Utopia (n 6) 288, 295, 302, 344–5.

108 Borrows, ‘Niizho-Miigiwewin: Debewein (Gift Two: Truth)/Truth’ (n 97) 73–4.

109 Koskenniemi, From Apology to Utopia (n 6) 342.

110 Borrows, ‘Niizho-Miigiwewin: Debewein (Gift Two: Truth)/Truth’ (n 97) 74.

111 Koskenniemi, From Apology to Utopia (n 6) 600.

112 Judith Shklar, ‘Let Us Not Be Hypocritical’ (1979) 108 Daedalus 1, 10, 12, 24.

113 Mathen (n 3) 9.

114 From Apology to Utopia (n 6) 591, 597, 601.

115 Ibid, 614.

116 David Armitage, ‘Home and the World: The Legal Imagination of Martti Koskenniemi’ (2023) 37 International Relations 1, 6.

117 Renata Uitz, ‘Constitutional Activism and Deference through Judicial Reasoning: Confirming an Indeterminacy Thesis’ (2002) 7 Juridica International 65, 74.

118 Gaudreault-Desbiens (n 2) 179.