ABSTRACT
Chapter 5, “Canada’s Secession Reference and the Trickiness of Sovereign Speech,” looks at how a country without a declaration of independence becomes a global authority on how one can lawfully appear. Facing Quebec independence efforts in the 1990s, Canada’s highest court issued an advisory opinion on whether the province could unilaterally secede. In the absence of a founding document, the Supreme Court opted to read foundational principles out of constitutional history, beginning with Confederation in 1867. The principles it describes did not emerge from this event, however, but from the often difficult and disorderly conditions of coexistence before and since. Taking a broader view of history suggests a different interpretation of foundations. Instead of the stability and continuity the Court identified, it finds that Canadian constitutionalism is foundationally indebted to the failure of sovereign speech and the refusal of legal and constitutional imperative. Whereas the Court emphasized orderliness and rule of law, Indigenous law frames disorder as a constituent force, an idea captured in the figure of the Trickster. A certain trickiness in sovereign speech can prove both generative and disruptive when it comes to beginnings and may even help explain the Court’s own unusual choices.
