In the brief accompanying its reference to the Supreme Court of "certain questions relating to the secession of Quebec from Canada," the federal government declares at some length that it does not regard the constitution as an obstacle to secession, as such: only to a unilateral secession. If secession is unlawful, the Attorney General's factum states, it is a mere matter of amending the constitution to make it lawful. "While the Constitution does not expressly provide for secession," it reads, "it is the position of the Attorney General of Canada that the Constitution of Canada is capable of accommodating *any* alteration to the federation or its institutional structures." [Emphasis is in the original.] The government does not suggest, nor does it ask the Court to decide, how the Constitution might be amended to provide for secession. It seeks only to rule out any unilateral amendment, such as would be the practical effect if Quebec were allowed to depart on its own. But it leaves the clear impression that one or other of the formulas listed under Part V of the Constitution Act 1982 should suffice.

Whether secession would be governed by the general rule requiring approval of Parliament and the legislatures of seven provinces representing 50 per cent of the population, or whether it would need the unanimous approval of every province, is indeed something of a cottage industry among legal experts. But the shared assumption until now has been that, whichever rule applied, secession would be treated in law much as any other constitutional amendment, to be negotiated among governments in the usual manner.

All of that is about to change. In a provocative new paper to be published this fall in the Canadian Bar Review, the rising young constitutional scholar Robert Howse of the University of Toronto dares to suggest that not even unanimity would be enough to make secession legal; that, indeed, it is not up to the legislatures to decide. The radical inference the Supreme Court is invited to find, as Howse and his co-author, law student Alissa Malkin, title their paper, is that "Canadians are a sovereign people" -- that is, that secession could not be made legal without the approval of the people of Canada, probably via a national referendum.

The lawful ways by which the Constitution may be amended, the Howse paper argues, are not exhaustively listed in Part V: if they were, the same document would not also say that amendments "shall be made only in accordance with the authority contained in the Constitution of Canada" -- the whole thing, that is, the works. Beyond Part V there is the rest of the written constitution, and beyond what is written, there is the body of common law and conventions that underpin it.

Most fundamental of all is the assumption of an existing political order, a country called Canada, in which the entire system of laws is embedded.

Legitimacy and legality, then, are not so easily separable as some recent rhetoric might imply. Past a certain point, if a thing is illegitimate, it is also illegal. What is that point? Well, how about the destruction of the country?

Secession, in other words, is not like any other amendment. It is qualitatively different. It does not merely change the present constitutional structure. It annihilates it. Canada would not be a different place if Quebec seceded. It would be no place. Whatever remained, if anything at all, it would not be Canada, nor anything resembling what was wrought in 1867. So the usual amending formulas cannot be sufficient. As Howse and Malkin write, "there is a basic difference between nation-building, which Part V was designed to permit, and nation-breaking." It may require the unanimous consent of the provinces to give *effect* to secession, in the sense of reshaping what remained so that it could govern itself. But this is arguing about the furniture. Something else again, some other level of consent would be required to make secession itself legal, if the constitution is interpreted in the larger context that Howse urges.

We are not without precedent to guide us. In 1935, the state of Western Australia attempted to secede from the Australian Commonwealth, a measure which at that time required the approval of the British Parliament.

Their petition was rebuffed by a Joint Select Committee of Lords and Commons, which ruled that the Australian constitution had been enacted to give effect "to the voice of the people of the continent of Australia, and not to the voice of any State or States." Secession, it said, could not be legal without "the clearly expressed wish of the Australian people as a whole." The implications are radical, indeed. The select committee, in effect, ruled that there was such a thing as the Australian people, whose sovereignty superseded that of the states. Is it too much to hope that our Supreme Court may rule the same?