québec's political and constitutional status - an overview · xis de t ocqueville made the...

A N O V E R V I E W

QUÉBEC’S POLITICALAND CONSTITUTIONAL STATUS

Production of this document was coordinated by the Secrétariat aux affairesintergouvernementales canadiennes of the ministère du Conseil exécutif.

Publishing of the document was coordinated by the Service des communicationsof the ministère du Conseil exécutif.

Graphic design: Deschamps Design

Printing: Imprimerie Provinciale inc.

Cover page: Parliament Building — QuébecLouise Leblanc

This document may not be reproduced in wholeor in part unless the source is acknowledged.

Legal deposit — 1999Bibliothèque nationale du QuébecISBN 2-550-34972-5

© Gouvernement du Québec

T his study presents the keyevents pertaining to the

question of Québec's politicaland constitutional status.

These events reflect, in par-ticular, a change in the federalsystem that has graduallyshifted away from the principleof Canadian duality and respectfor the autonomy of the pro-vinces to a system more closely resem-bling a unitary state. After more than 130years, the experience of federalism hashardly been conclusive for Québec. Theunilateral adoption of the 1982 Consti-tution that imposed an amending for-mula and curtailed the powers of theQuébec National Assembly in matters oflanguage and education without Québec'sconsent sounded the death knell of thecompromise established in 1867 betweenthe two founding peoples that led to thebirth of the Canadian federation. Québechas still not adhered to the 1982 Consti-tution. To this day, the constitutionalreform proposals put forward to remedythis situation have all failed.

The shift in the federal system towarda unitary state is wholly incompatiblewith the quest for more autonomy thatQuébec has steadfastly pursued sincethe early 1960s through its demand fora political status more in tune with itsreality as the only predominantly French-speaking people in North America.

After over 35 years ofdemocratic debate, the stale-mate persists over Québec'spolitical and constitutionalfuture. The deadlock has beenexacerbated by two irrecon-cilable viewpoints, that ofEnglish Canada centred on anomnipresent central govern-ment and the equality of theprovinces, and that of Québec,

centred on respect for its autonomy andspecificity.

The current Québec governmentdeems democratic accession to sove-reignty to be the only option likely tobreak the present deadlock by allowingfor a redefinition of the political relationsbetween Québec and Canada in whichthey are equals. The Québec sovereigntyproject is resolutely in favour of freetrade and open to the world. It expressesthe Québec people's determination toassert its identity and to directly promotethe cause of cultural diversity in theinternational realm.

Joseph Facal

Minister responsible forCanadian Intergovernmental Affairs

A N O V E R V I E W

Q U É B E C ’ S P O L I T I C A L A N D C O N S T I T U T I O N A L S T A T U S

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

PRIOR TO THE FEDERATION:FROM THE CONQUEST TO THE

ACT OF UNION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

The Royal Proclamation of 1763 and the Quebec Act of 1774 . . . . . . . . . . . . . . . . . . . . . . . .9

The Constitutional Act, 1791 and the establishment of Lower Canada . . . . . . . . . .10

The Act of Union, 1840 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

QUÉBEC AND THE CANADIAN FEDERAL SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Confederation of 1867 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

The quest for equality and affirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17Calling into question the federal framework:equality through sovereignty-association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

ATTACK ON DUALITY AND INABILITY TO ACCOMMODATE QUÉBEC . . . . . . . . .23

The 1982 rupture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

ATTEMPTS AT REDRESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

Failure of the Meech Lake Accord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

The Commission on the Political and Constitutional Future of Québec . . . . . . . . . .29

The Charlottetown Accord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

1995 REFERENDUM AND SUBSEQUENT EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Distinct society and unique character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33The federal government's reference on Québec'sright to accede to sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Social Union Framework Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43

TABLE OF CONTENTS

5


T he Canadian Constitution does notrecognize the existence of the Québec

people. Yet, a national community thatdeveloped from the settlement of NewFrance participated in the foundationof the Canadian federation and was atthe centre of various pre-Confederation

INTRODUCTION

constitutional arrangements in colonialCanada from the beginning of the Britishregime. The presence of this communityin British North America has affected theevents that have punctuated Canada'spolitical and constitutional history.

6

A N O V E R V I E W


T he territory whose political bounda-ries would eventually be modified to

become modern-day Québec and thehome of the Québec people had a popu-lation of roughly 65 000 at the time ofthe British conquest in 1760. Thesedescendants of the 10 000 French colo-nists who settled in Québec in the 17thand 18th centuries formed “a nationalcommunity and a homogeneous socio-logical entity clearly characterized by itsculture.”1

THE ROYAL PROCLAMATION OF 1763AND THE

QUEBEC ACT OF 1774

Following the conquest of 1760 andthe subsequent ceding of New Franceto Britain at the end of the Seven Years'War, the new British colony was given itsfirst institutional framework. The colonybecame the Province of Quebec as a resultof the Royal Proclamation of 1763, whichreplaced the military regime establishedafter the conquest with a civilian govern-ment. Under the new regime, French lawwas abolished, as the Royal Proclamationcontained no explicit guarantees concern-ing the laws and customs of the new

PRIOR TO THE FEDERATION: FROM THECONQUEST TO THE ACT OF UNION

colony's inhabitants. This situationwas remedied in 1774, in response todemands from the people, with theQuebec Act, which restored French civillaw, guaranteed freedom of religion andreplaced the Test Oath, which excludedCatholics from public office. Politicalscientist Gérard Bergeron describes theimportance of the Quebec Act in theseterms:

Even before the society formed bythe new occupiers had firmly estab-lished itself, the Canadiens saw thesecular foundation of their ownsociety achieve a form of officialstatus under the new regime and, asa result, consolidated for the future.2

The adoption of this first truly con-stitutional document sparked debatein Westminster. Historian JacquesLacoursière has noted that the questionof French civil law and the even limitedrecognition of Catholicism arousedopposition from a number of Britishparliamentarians.3

7

1. Québec, Report of the Royal Commission of Inquiry on Constitutional Problems, Volume II, Part Three, 1956,p. 30.

2. Gérard Bergeron, Pratique de l'État au Québec. Montréal: Québec/Amérique, 1984, p. 32.

3. Jacques Lacoursière, Histoire populaire du Québec — Des origines à 1791, Tome 1. Sillery: Les éditions duSeptentrion, 1995, p. 384.

A N O V E R V I E W


THE CONSTITUTIONAL ACT, 1791AND THE ESTABLISHMENT

OF LOWER CANADA

The Constitution established by theQuebec Act did not address the needsof the Loyalists, who fled the AmericanRevolution and whose arrival in largenumbers modified the situation of theinhabitants of the “Province of Quebec,”a very particular colony within the BritishEmpire in North America. The Loyalistshad trouble adapting to their new envi-ronment among the French-speaking,Catholic inhabitants of their province ofadoption, who still accounted for 85%of the population. Aside from the inhab-itants' language and religion, their insti-tutions, civil law and culture were entirelyforeign to the Loyalists. The new minority'sposition promptly encouraged the Britishgovernment to advocate a new Consti-tution for the Province of Quebec.4

The Constitutional Act, 1791 dividedthe Province of Quebec into UpperCanada, centred around Kingston, wherea majority of colonists of British originand of Loyalists lived, and Lower Canada,centred around the St. Lawrence Valley,

still occupied by a predominantly French-speaking population.

In Lower Canada, French-speakerswere able to assert their political presencethrough their participation in the newelected assembly. However, their politicalinfluence was limited by the absenceof responsible government. The electiveregime and bicameral parliament adoptedin each of the two new provinces wereaccompanied by a concentration of powerin the Executive Council, whose mem-bers were appointed by and acted underthe authority of the Governor, whoin turn was appointed by the Britishgovernment.

Because of their numerous shortcom-ings, especially the absence of genuinecontrol exercised by assembly membersover public spending, the institutions of1791 aroused widespread discontent.The pre-federation regime implementedby this constitutional change nonethelessconfirmed French Canada's distinctivecharacter in the British colonies andfostered the development of Québecparliamentarism.

8

4. Gérard Bergeron, supra note 2, p. 32.

A N O V E R V I E W


In 1831, the great political thinkerAlexis de Tocqueville made the followingobservation about the French-speakingpopulation living in Lower Canada:“[it] has its government and its ownParliament. It truly forms a distinctnation.”5 Not only did Lower Canada haveits own language, religion and customs,Tocqueville noted, but it also alreadyhad its own laws and institutions.

THE ACT OF UNION, 1840

The forced union of Lower and UpperCanada into a single political entity, theProvince of Canada, hardly arousedenthusiasm in French Canada. The unionwas implemented in response to arecommendation by Lord Durham fol-lowing the latter's examination at thebehest of the British government of thepolitical situation in Lower Canada, whichwas shaken by upheavals in 1837 and1838. The union, as contemplated in theDurham Report, was intended to ensurethat the English-speaking population ofLower Canada was not subject to thewill of the French-speaking majority:

A plan by which it is proposed toensure the tranquil government ofLower Canada, must include in itselfthe means of putting an end to theagitation of national disputes in thelegislature, by settling, at once andforever, the national character of theProvince. I entertain no doubts as tothe national character which mustbe given to Lower Canada; it mustbe that of the British Empire; that ofthe majority of the population ofBritish America; that of the greatrace which must, in the lapse of nolong period of time, be predominantover the whole North AmericanContinent. Without effecting thechange so rapidly or so roughly as toshock the feelings and trample on thewelfare of the existing generation, itmust henceforth be the first and steadypurpose of the British Governmentto establish an English population,with English laws and language, inthis Province, and to trust its govern-ment to none but a decidedly EnglishLegislature.

[…]

9

5. Tocqueville au Bas-Canada, texts presented by Jacques Vallée. Montréal: les Éditions du Jour, 1973, p. 104.

A N O V E R V I E W


I believe that tranquillity can onlybe restored by subjecting the Province[of Lower Canada] to the vigorous ruleof an English majority; and that theonly efficacious government wouldbe that formed by a legislative union.6

The new Constitution came into forcein February 1841. Lower Canada lost itsown parliamentary institutions and, whilethey formed a majority of the popula-tion, French Canadians were a minorityin the institutions of United Canada.Moreover, English was made the onlyofficial language of government institu-tions. For the first time in a constitutionaltext, French was banned. However, theseprovisions were abrogated by the BritishParliament in 1848.

Two nations made up United Canada,one French-speaking and mainly Catholic,the other English-speaking and mainlyProtestant. Institutions adapted to thepresence of the two distinct nationalcommunities. The quest for responsiblegovernment gave reformists from thetwo former provinces an opportunityto join forces and contemplate for the

legislative assembly a dual leadershipwhich will become “the instrument of apolitical dualization in United Canadabased on nationalities.”7 Indeed, a doublemajority rule came to prevail under whichany legislative measure had to rallysimultaneous majorities among theparliamentarians from Canada East(formerly Lower Canada) and CanadaWest (formerly Upper Canada) in orderto be adopted.

10

6. U.K., Report on the Affairs of British North America, from the Earl of Durham, 11 February 1839,pp. 288-289, 307.

7. Gérard Bergeron, supra note 2, p. 37-38.

A N O V E R V I E W


CONFEDERATION OF 1867

A round 1860, the two nations thatmade up United Canada were both

eager to change the political system thathad been imposed on them 20 yearsearlier, but one could not act indepen-dently of the other:

Whether we ask for parliamentaryreform for Canada alone or in unionwith the Maritime Provinces, theFrench Canadians must have theirviews consulted as well as us. Thisscheme can be carried, and noscheme can be that has not the sup-port of both sections of the province.8

During parliamentary debate on Confe-deration in United Canada, the keyplayers in the creation of the new fed-eration emphasized the importance forFrench Canadians to adopt a regime thatwould be federal in nature and that wouldallow for the development of their ownidentity. Étienne-Paschal Taché, PrimeMinister of United Canada, stated whenhe presented the proposed Confederationon behalf of the government:

QUÉBEC AND THECANADIAN FEDERAL SYSTEM

[L]ower Canada had constantlyrefused the demand of Upper Canadafor representation according to popu-lation, and for the good reason that,as the union between them waslegislative, a preponderance to oneof the sections would have placedthe other at its mercy. It would notbe so in a Federal Union, for allquestions of a general nature wouldbe reserved for the General Govern-ment, and those of a local characterto the local governments, who wouldhave the power to manage theirdomestic affairs as they deemed best.If a Federal Union were obtained itwould be tantamount to a separationof the provinces, and Lower Canadawould thereby preserve its autonomytogether with all the institutions itheld so dear, and over which theycould exercise the watchfulness andsurveillance necessary to preservethem unimpaired.9

John A. Macdonald, leader andAttorney General of Canada West, alsorecognized that a unitary state, i.e. the“legislative union” in the political parlance

11

8. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces,8th Provincial Parliament of Canada, 3rd Session. Québec: Hunter, Rose & Co., 1865, p. 87 [hereinafterConfederation Debates].

9. Speech of February 3, 1865, Confederation Debates, p. 9.

A N O V E R V I E W


of the time, would be unacceptable toFrench Canadians and unsuited to theirsituation:

[W]e found that such a system [thelegislative union] was impracticable.In the first place, it would not meetthe assent of the people of LowerCanada, because they felt that intheir peculiar position — being in aminority, with a different language,nationality and religion from themajority, — in case of a junction withthe other provinces, their institutionsand their laws might be assailed, andtheir ancestral associations, on whichthey prided themselves, attacked andprejudiced; it was found that anyproposition which involved the absorp-tion of the individuality of LowerCanada […] would not be receivedwith favor by her people.10

George-Étienne Cartier, AttorneyGeneral for Canada East during thenegotiations on Confederation and theprincipal leader of French Canada,believed that the adoption of a federalsystem would recognize the French-Canadian nationality:

Such is […] the significance thatwe must attach to this constitution,which recognizes the French-Canadiannationality. As a distinct, separatenationality, we form a State withinthe State with the full use of ourrights and the formal recognition ofour national independence.11

In 1956, the Royal Commission ofInquiry on Constitutional Problems set upby the Québec government noted thatthe events leading up to the federationrevealed that:

[T]he French Canadians only gavethis necessary support [in favour ofConfederation] on two clear condi-tions — that the union should befederative and that, in this union,they should be recognized as a dis-tinct national group and that theyshould be placed on the same footingas the other ethnic group.12

Confederation was perceived in somepolitical and constitutional thinking inQuébec as a pact between two foundingpeoples:

12

10. Speech of February 6, 1865, Confederation Debates, p. 29.

11. La Minerve, Montréal, July 1, 1867.

12. Report of the Royal Commission of Inquiry on Constitutional Problems, supra note 1 at 140.

A N O V E R V I E W


This interpretation of Confederationas a pact still astonishes English-speaking Canadians, for whom the1867 Act can only be an act of theBritish Parliament, whose exegesismust adhere strictly to legal texts,which make no specific referencewhatsoever to any pact. Be that asit may, what is sociologically sig-nificant and important is that FrenchCanadians, from roughly the endof the 19th century onward, haveattributed this significance to theCanadian Constitution. […] Whetheror not English-Canadian publicistsand jurists find it acceptable, it willpersist as one of the most tenaciouscomponents of the definition thatFrench Canadians give of the historyof their Canada.13

While this dualistic conception of thecountry was contested in the rest ofCanada, it expressed, as a basic politicalidea, a desire by French Canada to beassociated as a full-fledged partner andparticipant in the development of thenew country:

After 1867, French-speaking Canadianslong hoped to impose a dualisticinterpretation of the Constitution,i.e. one based on the principle ofthe equal association of the “twofounding peoples.”14

Confederation was also perceived as apact between the provinces, a perceptionthat conflicted with the conception ofthe Canadian Constitution as, first andforemost, British imperial law. In 1884,Québec Prime Minister Honoré Mercierdenounced the federal government'sfrequent infringements on the provinces'prerogatives by invoking the pact:

The existence of the provinces pre-ceded that of the Dominion and it isfrom the provinces that the latterreceived its powers. The provinceshad responsible government in 1867:they had their own legislatures,laws and the autonomy inherent ina colony. The provinces delegated,in the general interest, a portion oftheir powers. Those powers thatthey did not delegate they kept andstill possess. They are sovereign

13

13. Jean-Charles Falardeau, “Les Canadiens français et leur idéologie” in Mason Wade (ed.), Canadian Dualism /La dualité canadienne. Toronto: University of Toronto Press and Québec: Les Presses de l’Université Laval,1960, 20-38, p. 25.

14. José Woehrling, “La Constitution canadienne et l'évolution des rapports entre le Québec et le Canada anglais,de 1867 à nos jours” in Centre d'études constitutionnelles, Points de vue/Points of View, No. 4, 1993, p. 13.

A N O V E R V I E W


within the limits of their jurisdictionand any attack on this sovereigntyis a violation of the federal pact.15

Maurice Duplessis, another PrimeMinister recognized for his ardent defenceof Québec autonomy against the central-izing designs of the federal government,frequently defended Québec's constitu-tional prerogatives by invoking the 1867pact:

Our system of government is basedon the principle of the completeautonomy of the provinces. Thereare very good reasons for this, themost important one being thatCanadian Confederation, since itsinception, not only constitutes anagreement between the four foundingprovinces but a sacred pact concludedbetween the two great races whosefriendly, fair cooperation is essentialto Canadian unity. […] Confederationshould be what the Fathers ofConfederation wanted, in good faith,it to be, i.e. an association of prov-inces sovereign within the limitsof their jurisdiction and a federal

government sovereign within thelimits of its jurisdiction. […] TheProvince of Québec would never haveagreed to join Confederation had itnot then been perfectly clear that theguarantees on which Confederationwas based were intangible.16

The notion of the pact between theprovinces centres, in particular, on thetheory of the existence and survival of thepolitical entities that reached agreementin 1867, as expressed in an opinion ren-dered in 1892 by the Judicial Committeeof the Privy Council in London, whichthen served as the court of last resort forCanada:

The object of the Act [of 1867] wasneither to weld the provinces intoone, nor to subordinate provincialgovernments to a central authority,but to create a federal government inwhich they should all be represented,entrusted with the exclusive adminis-tration of affairs in which they hada common interest, each provinceretaining its independence andautonomy. […] [T]he Dominion

14

15. Speech given by Québec Prime Minister Honoré Mercier before the Québec Legislative Assembly, April 7, 1884,reproduced in J.O. Pelland, Biographie, discours, conférences, etc. de l'hon. Honoré Mercier, Montréal,1890, 397-437, p. 399.

16. Speech by Québec Prime Minister Maurice Duplessis given at the opening of the Federal-ProvincialConstitutional Conference, Ottawa, January 10-12, 1950. Duplessis repeated these remarks at the federal-provincial conferences held in September and December 1950 and at the November 1957 federal-provincialconference.

A N O V E R V I E W


Government should be vested withsuch of these powers, property, andrevenues as were necessary for thedue performance of its constitutionalfunctions, and that the remaindershould be retained by the provincesfor the purposes of provincial govern-ment. But, in so far as regards thosematters which, by sect. 92, are spe-cially reserved for provincial legisla-tion, the legislation of each provincecontinues to be free from the controlof the Dominion, and as supreme asit was before the passing of the Act.17

This confirmation by the Privy Councildid not prevent the federal governmentfrom intervening in fields under provincialjurisdiction.

THE QUEST FOR EQUALITY

AND AFFIRMATION

Since 1867, Québec's importance asthe fulcrum of the French-Canadiannation has continued to grow. In themid-20th century, over 80% of FrenchCanadians were concentrated in Québec.After 1960, during the Quiet Revolution,

Québec displayed an unflagging willing-ness to assume responsibility for sectorsof decisive importance to its cultural, socialand economic development. Moreover,Québec's determination to assert itselfwas apparent at the international levelwith the development of a network offoreign delegations and a policy of directinternational initiatives promoted byPaul Gérin-Lajoie, Minister of Educationin the Lesage government. When explain-ing this policy, Mr. Gérin-Lajoie noted that:

Québec is not sovereign in all fields:it is a member of a federation.However, from a political standpoint,it forms a State. It possesses all theattributes of a State, i.e. territory,population and autonomous govern-ment. In addition, it is the politicalexpression of a people that is distinctin many ways from the English-speaking communities inhabitingNorth America.

Québec has its own mission on thiscontinent. French Canada is thebiggest French-speaking community

15

17. Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437,pp. 441-442.

A N O V E R V I E W


outside France and it belongs to acultural universe centred in Europe,not in North America. Consequently,Québec is more than a simple fed-erated State among others. It is thepolitical instrument of a distinct,unique cultural group in NorthAmerica.18

During the 1960s, the Royal Commis-sion on Bilingualism and Biculturalismreceived a mandate to examine the ques-tion of the equality of the two foundingpeoples:

From the outset we have believedthis to be the mainspring of our termsof reference. We were not asked toconsider merely the recognition oftwo main languages and cultureswhich might be granted entirelydifferent rights; we were asked toexamine ways in which the CanadianConfederation could develop, inaccordance with the principle ofequal partnership.19

The Confederation of 1867 proved tobe a framework that did not ensure thatequality of the founding peoples. InQuébec, this observation and the desirefor greater political autonomy sparkeddemands for sweeping constitutionalchanges involving a reform of Québec'sconstitutional status:

I have often stated what Québec, asthe focal point of French-speakingCanada, wants. We want the equal-ity of the two ethnic groups thatfounded this country, we want toassert ourselves in a manner suitedto our culture and our aspirations,and we want a status in the Canadaof the future that respects our specifictraits.20

The 1966 election campaign slogan,“Equality or independence,” put forwardby the winning party, came to symbolizeQuébec's quest for equality. DanielJohnson, who became the Prime Ministerof Québec, summarized it in these terms:

16

18. Speech by Education Minister Paul Gérin-Lajoie to members of the consular corps in Montréal, April 12, 1965.19. Canada, Report of the Royal Commission on Bilingualism and Biculturalism, Book 1, 1967, p. xxxix. The

mandate adopted by the federal government requested that the Royal Commission “[…] inquire into andreport upon the existing state of bilingualism and biculturalism in Canada and to recommend what stepsshould be taken to develop the Canadian Confederation on the basis of an equal partnership between the twofounding races, taking into account the contribution made by the other ethnic groups to the cultural enrichmentof Canada and the measures that should be taken to safeguard that contribution […].” [Emphasis added]Idem, p. 173.

20. Speech by Québec Prime Minister Jean Lesage given before the Canadian Club in Calgary, September 22, 1965.

A N O V E R V I E W


[A new] Constitution should […] bedesigned in such a way that Canadais not solely a federation of 10provinces but a federation of twonations that are equal in every respect.

[…]

Whether we opt for a federation,associated States, a confederation,special status or a republic, the newconstitutional regime must give theFrench-Canadian nation all of thepowers it needs to fully assume itsdestiny.

After three centuries of labour, ournation fully deserves to live freely.So much the better if it feels at homefrom coast to coast, which impliesrecognizing its full equality.21

During the Quiet Revolution and insubsequent years, at a time when decol-onization favoured by the right to self-determination spawned a number ofnational emancipation movements, theFrench-Canadian nation, increasinglyconcentrated in Québec, completed itsintegration of the notion of territory into

its reflection on the collective future ofFrench Canadians. While they were aminority in Canada, they were nonethe-less a majority in Québec, where they feltbetter able to achieve their emancipationand build their own society, to the extentthat they began to conceive of themselvesdifferently:

In recent years, [...] more and morehave adopted the name and identityof Québécois, underlining this senseof themselves as a majority, as apeople.22

However, all of the proposals aimedat reflecting Québec's national characterin the Constitution have faltered or failed.This is true, in particular, of the specialstatus sought during the 1960s and theasymmetrical federalism proposed bythe Task Force on Canadian Unity(Pépin-Robarts Report) in the late 1970s.The same was true of the concept of adistinct society sought during the 1980s,until 1992. Historian Jean-Louis Roy,when examining constitutional debatebetween 1960 and 1976, wrote:

17

21. Daniel Johnson, Égalité ou indépendance. Montréal: Éditions Renaissance, 1965, pp. 116 and 123.

22. Canada, The Task Force on Canadian Unity, A Future Together. Observations and Recommendations,January 1979, p. 25.

A N O V E R V I E W


The most decisive event since 1960 inthe relationship between Québec andCanada was the broad acceptanceby a majority of Quebecers of thestatus of a nation for their society.The refusal by English Canada, orat least its federal and provincialspokespersons, to recognize this factprecipitated a psychological rupturein Canada. This refusal undoubtedlyexplains why no new constitutionalproposal likely to rally Quebecershas come from English Canada.

[…]

English Canada's refusal to recognizethat Québec society constitutes anation, after over 10 years of consti-tutional negotiations, is the mainreason for the fragmentation ofCanada.23

CALLING INTO QUESTION THE FEDERAL

FRAMEWORK: EQUALITY THROUGH

SOVEREIGNTY-ASSOCIATION

In 1976, debate took a new turn withthe coming to power in Québec of thegovernment of René Lévesque, which

proposed a referendum on sovereignty-association, a proposal that called for anew Québec-Canada agreement outsidethe federal framework.

As a first step, the Québec NationalAssembly adopted, in 1978, the Refer-endum Act, which established a Québecreferendum process. One of its features isthe establishment of “umbrella commit-tees,” called national committees, whichassemble the proponents of the differentoptions put to referendum. This systemplays a key democratic role, in particularin controlling referendum spending.

All the referendums on Québec'spolitical future have been held underthis legislation. The first one, organizedby the Lévesque government, was heldon May 20, 1980, on the question ofsovereignty-association.

Members of the federal governmentand a number of provincial premiersparticipated actively in the No campaignduring that referendum. In 1992, federalLiberal MP Brian Tobin noted in theHouse of Commons that:

18

23. Jean-Louis Roy, Le choix d'un pays: le débat constitutionnel Québec-Canada 1960-1976. Montréal:Leméac, 1978, pp. 323-324.

A N O V E R V I E W


[I]n 1980 the government of the day,indeed all members of Parliament ofthe day in this Chamber participatedin a referendum process, participatedunder an umbrella organization andparticipated in a referendum in theprovince of Quebec where therewere spending limits. That is thereality and that is the last word onreferendums in Canada.24

Joe Clark, then Leader of the OfficialOpposition in the federal Parliament,stated that his participation in the 1980referendum campaign supposed therecognition of the legitimacy of theexercise.25 Pierre Elliott Trudeau, thenPrime Minister of Canada, solemnlypromised just before the referendumvote to renew Canadian federalism if theNo side won.

In the May 20, 1980 referendum,59.56% of the valid ballots were cast infavour of the No side and 40.44% infavour of the Yes side. Québec Prime

Minister René Lévesque drew the followingconclusions from the first referendumorganized by Québec institutions:

Manifest recognition [of the rightto self-determination] is the mostvaluable outcome of the Québecreferendum. Regardless of the result,it is now undisputed and indisputablethat Québec is a distinct nationalcommunity that may choose of itsown accord, without outside inter-vention, its constitutional status.Quebecers may decide to remain inthe Canadian federation, just as theymay decide democratically to leaveit if they believe that this system nolonger satisfies their aspirations andneeds. This right to directly controlone's national destiny is the mostfundamental right that the Québeccollectivity possesses.26

19

24. Canada, House of Commons Debates (14 May 1992) at 10726.

25. Chantal Hébert, “Une nouvelle démission secoue les conservateurs; les militants confirment le droit à l'auto-détermination”, Le Devoir, August 10, 1991; see also Graham Fraser, “Tories back Quebec's right to choose”,Globe and Mail, August 10, 1991.

26. Notes for a speech by René Lévesque at the first ministers' meeting held in Ottawa on June 9, 1980, reproducedin Québec, Ministère des Affaires intergouvernementales, Commission de la présidence du conseil et de laconsultation, Dossier sur les discussions constitutionnelles, August 14-15, 1980.

A N O V E R V I E W


THE 1982 RUPTURE

N ew constitutional negotiations werelaunched in the weeks following the

referendum on sovereignty-association.Despite the federal Prime Minister'scommitment designed to ensure therejection of the Lévesque government'sproposal, the negotiations culminated inthe imposition on Québec of the mostimportant constitutional changes madesince the inception of the Canadianfederation.

In the 1960s and the 1970s, one ofthe federal government's constitutionalreform priorities was to repatriate theCanadian Constitution, which impliedintroducing into the Constitution anamending formula under Canadiancontrol and the end of mandatoryrecourse to Westminster in this respect.Along with the question of repatriation,constitutional talks focused on severalaspects of reform. Generally speaking,the question of Québec's status and itsconstitutional jurisdiction was a priorityfor Québec during these talks, in whichseveral Québec governments participatedactively.

ATTACK ON DUALITY AND INABILITYTO ACCOMMODATE QUÉBEC

However, the negotiations on consti-tutional reform undertaken after the 1980referendum led to Québec's isolation onNovember 5, 1981, when it was the onlyprovince not to adhere to the constitu-tional amendments proposed by Ottawaand the other provinces. The amend-ments curtailed Québec's powers govern-ing language and education and did notgrant it a right of veto or the right to optout with adequate compensation inrespect of constitutional amendments.Québec expressed in vain its oppositionto the proposed repatriation of theConstitution. In December 1982, theSupreme Court of Canada refused toacknowledge that Canadian constitu-tional conventions contain a right of vetofor Québec, although Québec had infact exercised such a veto on severaloccasions.

On November 5, 1981, Québec PrimeMinister René Lévesque indicatedQuébec's determination to refuse theweakening of its position within theCanadian federation. The QuébecNational Assembly, in response to theamendment without Québec's consentof the agreement reached 114 years

20

A N O V E R V I E W


earlier, adopted on December 1, 1981 aresolution establishing the conditionsunder which Québec would agree toadhere to the repatriation of the Consti-tution. This resolution, an excerpt fromwhich is presented below, expresslydemands that the Constitution recognizethe equality of the two founding peoplesand Québec as a distinct society posses-sing all of the attributes of a distinctnational community:

The National Assembly of Québec,

mindful of the right of the people ofQuébec to self-determination,

and exercising its historical right ofbeing a full party to any change tothe Constitution of Canada whichwould affect the rights and powersof Québec,

declares that it cannot accept the planto patriate the Constitution unless itmeets the following conditions:

1. It must be recognized that the twofounding peoples of Canada are fun-damentally equal and that Québec,by virtue of its language, culture and

institutions, forms a distinct societywithin the Canadian federal systemand has all the attributes of a distinctnational community.27

However, the federal governmentrefused to consider the Québec NationalAssembly resolution and, as a result, fullymaintained the constitutional deadlockbetween Québec and the rest of Canada.

From a constitutional standpoint,Québec was condemned to the statusquo. As political scientist Donald Smileyhas noted:

In general, then, an exercise inconstitutional review and reformwhose alleged objectives were tocreate more harmonious relationsbetween Quebec and the widerCanadian community has involveda betrayal of the Quebec electorate,a breach of fundamental constitu-tional convention, a recrudescenceof Quebec nationalism, and an evenmore serious Quebec challengethan before to the legitimacy of theCanadian constitutional order.28

21

27. Québec, National Assembly, Votes and Proceedings, No. 12 (1 December 1981) at 143.

28. Donald Smiley, “A Dangerous Deed: The Constitution Act, 1982” in Keith Banting and Richard Simeon (ed.),And No One Cheered: Federalism, Democracy and the Constitution Act. Toronto: Methuen, 1983, 74-95, p. 78.

A N O V E R V I E W


The unilateral adoption of the Consti-tution Act, 1982, which confirms therejection by the federal government ofthe notion of two founding peoples andreplaces it with the concept of “one State,one nation”, has figured prominently inthe Canadian constitutional landscape.Far from recognizing the Québec people,the Constitution Act, 1982, presents anew constitutional vision in which dualityand Québec's specific character are notrecognized:

The Constitution Act, 1982, […]constitutionalized the principle ofthe preservation and enhancementof the multicultural heritage ofCanadians, thus imposing on Québeca constitutional viewpoint whichdid not necessarily coincide with itsreality within Canada: the latter wasdefined as a multicultural society,without constitutional recognition ofthe principle of “Canadian duality”and of Québec's distinctiveness. Themulticultural Canadian society, beingpredominantly English speaking,can easily become indifferent to

Québec's distinct identity and itsunique linguistic and cultural positionin Canada.

[…]

[F]rom a Constitution based on apolitical compromise which earnedthe support of representatives of theFrench Canadians in 1867, Canadashifted in 1982 to a Constitutionadopted despite the opposition of aprovince where nearly 90 percent ofFrench-speaking Canadians live andwhich accounts for over one-quarterof Canada's population.29

22

29. Québec, Report of the Commission on the Political and Constitutional Future of Québec, March 1991,pp. 29-30.

A N O V E R V I E W


F ollowing a change of government inOttawa, the Québec government of

René Lévesque made proposals in 1985in order to put an end to the political andconstitutional situation created by theunilateral adoption of the ConstitutionAct, 1982.30 Brian Mulroney, the newfederal Prime Minister, had committedhimself, during the election campaignthat brought him to power in 1984, tothe objective of convincing the QuébecNational Assembly to assent to the newCanadian Constitution “with honour andenthusiasm.”31

One of the key components of theconstitutional proposal made by Québecwas the explicit recognition of the exis-tence of the Québec people. Moreover,this recognition was to be reflected in anumber of other constitutional amend-ments, including a reform of the distri-bution of powers between the two ordersof government. The federal governmentdid not respond to these proposals.

The subsequent election of a Liberalgovernment in Québec under RobertBourassa initiated further constitutionalnegotiations. The government adopted

ATTEMPTS AT REDRESS

as its objective to restore the legitimacyof the Canadian constitutional frameworkby ensuring Québec's adherence to theConstitution Act, 1982. It stipulated fiveminimal conditions:

1. explicit recognition of Québec asa distinct society;

2. a guarantee of broader powers inthe realm of immigration;

3. limitations on federal spendingpower;

4. recognition of Québec's right ofveto over constitutional amend-ments affecting it;

5. Québec's participation in theappointment of Québec justicessitting on the Supreme Court ofCanada.32

FAILURE OF THE

MEECH LAKE ACCORD

The minimum conditions put forwardby the Bourassa government led to the1987 Constitutional Accord, whichreflected the terms of an agreementconcluded at Meech Lake between

23

30. Québec, Projet d'accord constitutionnel. Propositions du Gouvernement du Québec, May 1985.

31. Notes for a speech by the Honourable Brian Mulroney, Sept-Îles, August 6, 1984.

32. See the Allocution prononcée par le ministre délégué aux Affaires intergouvernementales canadiennes,M. Gil Rémillard, à l'occasion du Colloque “Une collaboration renouvelée du Québec et de ses partenairesdans la Confédération”, Mont-Gabriel, May 9, 1986.

A N O V E R V I E W


Québec, the federal government and thenine other Canadian provinces. Despitethe unanimous agreement, ratified threetimes, between the eleven govern-ments, the Accord did not receive withinthe three-year deadline prescribed bythe constitutional amending formula theconsent of the required number of pro-vincial legislatures that would have ledto its implementation.

The rest of Canada was unwilling torecognize in the Constitution the con-cept of a distinct society. The rejectionof what was, for the Québec people,a historic compromise of five minimalconditions was perceived as the margin-alization of its specificity within theCanadian federation. An additional proofwas added of the major difficulty forQuébec to obtain within the federal frame-work the levers deemed essential to themaintenance and development of itsspecificity.

According to Québec Prime MinisterRobert Bourassa, the entire constitutionalprocess was called into question:

If we can draw one conclusion fromthese negotiations, it is that theconstitutional amendment processin Canada has been discredited. TheQuébec government refuses to returnto the constitutional negotiating table.

[…]

Moreover, it is the position of mygovernment to negotiate from nowon with one interlocutor, not 11, tonegotiate with the Canadian govern-ment, which represents the entirepopulation of Canada; bilateral nego-tiations between the Québec govern-ment and the federal government.33

As for the rejection of Québec'sspecificity following the failure of theAccord, Prime Minister Robert Bourassa,speaking in the National Assembly, sentthe rest of Canada this message:

English Canada must clearly under-stand that, when all is said anddone, Québec is now and willalways be a distinct society, freeand capable of assuming its destinyand development.34

24

33. Message from Québec Prime Minister Robert Bourassa to Quebecers in the wake of the failure of the MeechLake Accord, Québec City, June 23, 1990.

34. Québec, National Assembly, Votes and Proceedings (22 June 1990) at 4134.

A N O V E R V I E W


THE COMMISSION ON THE POLITICAL

AND CONSTITUTIONAL FUTURE

OF QUÉBEC

Established on September 4, 1990under the authority of the QuébecNational Assembly, pursuant to legisla-tion adopted unanimously by all partiesrepresented therein, the Commission wasgiven the mandate to study and analyseQuébec's political and constitutionalstatus. The mandate reflected the obser-vation made by Prime Minister RobertBourassa and confirmed by the mem-bers of the National Assembly that therejection of the Meech Lake Accordhad called into question this status andcreated the need to redefine it. Theextraordinary nature of the Commissionwas also reflected in its membership.Among the 36 members appointedby the National Assembly, 18 were notMembers of the National Assemblyand included two elected municipalrepresentatives, three federal Membersof Parliament from Québec and 13 indi-viduals, including its two co-chairmen,coming from Québec civil society.The Commission gave priority to publicparticipation in its deliberations.

Its deliberations led the Commissionto make a number of important observa-tions concerning the relationship betweenQuébec and Canada in the wake of thefailure of the Meech Lake Accord:

The conflict of visions, identitiesand political objectives revealed bythe reactions to the 1987 Agreementis serious and restrictive for thefuture. It is not the prerogative of theCanadian political elite: ordinaryCanadians across the country op-posed the 1987 Agreement, exceptin Québec.

The stalemate touches upon issuesrelating to national identities, whichenable many people to define them-selves and understand their partici-pation as well as that of the othersin Canadian life.35

In conjunction with these observations,the Commission raised a question fraughtwith consequences:

After 25 years of constitutionaldebate, two federal commissions ofinquiry, the major constitutional

25

35. Supra note 29, pp. 38-39.

A N O V E R V I E W


changes adopted in 1982 withoutQuébec's consent and finally thefailure of a constitutional processwhich, for the first time, broachedthe political dimension of the Québecproblem from Québec's standpoint,it is reasonable to ask, at the veryleast, whether the rest of Canada iscapable of making choices whichfully satisfy Québec's own needs,aspirations and visions. Until now,such choices have been perceivedor treated as being irreconcilablewith other needs, aspirations andvisions in Canada, or incompatiblewith the efficient operation of theCanadian federation.36

In its conclusions, the Commissionexamined two possible solutions opento Québec:

Two courses are open to Québecwith respect to the redefinition of itsstatus, i.e. a new, ultimate attemptto redefine its status within thefederal regime, and the attainmentof sovereignty.37

The Commission recommended theadoption of legislation providing for areferendum on sovereignty and theestablishment of two parliamentarycommissions, one responsible for ana-lysing all questions pertaining to Québec'saccession to sovereignty, and the otherone responsible for examining any newoffer of a constitutional partnership madeby the federal government and formallybinding Ottawa and the other provinces.

Following the submission of theCommission's report, the Québec NationalAssembly adopted the Act respecting theprocess for determining the political andconstitutional future of Québec (Bill 150)calling for a referendum on sovereigntyand the two commissions recommendedwere set up. Several months later, consti-tutional talks resumed and QuébecPrime Minister Bourassa finally agreedto participate in them.

THE CHARLOTTETOWN ACCORD

The new talks led, in 1992, to theCharlottetown Accord, which was sub-mitted to two simultaneous public

26

36. Ibid., p. 39.

37. Ibid., p. 73.

A N O V E R V I E W


consultations, one in Québec and theother in the rest of Canada. In Québec,Bill 150 was amended in order to replacethe referendum on sovereignty with areferendum on the new agreement.

The consultation in Québec was con-ducted under the Referendum Act,which was applied for the second time.In 1991, in response to debate in Ottawaon recourse to a Canada-wide referen-dum on constitutional reform, the QuébecNational Assembly adopted a resolutioncalling for respect for Québec's self-determination process:

THAT the National Assembly, whilerecognizing the right of the federalParliament to pass a referendum act,ask the federal government to abideby the process established in Bill 150and, accordingly, not to initiate apan-Canadian referendum that wouldaffect the political and constitutionalfuture of Québec, thus reaffirmingthe right of Quebeckers to assumetheir own destiny freely and todetermine alone their political andconstitutional status.38

The outcome of the two referendumson the Charlottetown Accord preventedthe agreement's implementation as itwas rejected in Québec and in five ofthe other nine provinces.

According to constitutional expertsHenri Brun and Guy Tremblay, rejectionof the Charlottetown Accord was attrib-utable to the collision between twoconflicting visions of what Canada shouldbe and it clearly illustrated the observa-tion that the Commission on the Politicaland Constitutional Future of Québechad made several months earlier:

The causes of the rejection of theCharlottetown Accord certainly arenumerous and vary from one provinceto the next. The complexity of theagreement and the dilution that itachieved of various constitutionaldemands made it highly unpalat-able. But more fundamentally, thenegative vote by the electoratereflected the difficulty of reconcilingdifferent visions of the country:should it be more or less centralized,and must Québec be a province likethe others?39

27

38. Québec, National Assembly, Votes and Proceedings, No. 167 (27 November 1991) at 1621-1622. Two otherresolutions of the Québec National Assembly emphasize the importance of having Québec institutions overseethe referendum process when Québec's political and constitutional future is at stake, i.e. the resolution of May 4,1978 (see Québec, National Assembly, Votes and Proceedings, No. 30 (4 May 1978) at 271); and the reso-lution adopted unanimously on May 21, 1997 (see Québec, National Assembly, Votes and Proceedings andAppendices, No. 104 (21 May 1997) at 1134).

39. Henri Brun and Guy Tremblay, Droit constitutionnel, 3rd edition. Cowansville: Les éditions Yvon Blais, 1997, p. 126.

A N O V E R V I E W


I n 1994, a new government cameto power in Québec with part of its

platform aiming for a referendum onthe question of Québec's accession tosovereignty. The project submitted toreferendum provided that the accessionto sovereignty would come after formallyoffering to Canada to enter into a neweconomic and political partnership withQuébec.

The referendum was held onOctober 30, 1995. The outcome wasclose: 49.42% for the Yes side, and50.58% for the No side. As was thecase in 1980, the federal governmentparticipated actively in the referendumcampaign during this third consultationon Québec's political future to be heldunder the Québec Referendum Act.

In the wake of that referendum, a num-ber of political developments occuredtouching on Québec's status. Mentionshould be made of the adoption by thefederal Parliament of legislation govern-ing regional vetoes on constitutionalamendments. Some experts have stressedthat this legislation could make it evenharder to amend the Constitution through

1995 REFERENDUMAND SUBSEQUENT EVENTS

the multilateral amending process. Thefederal Parliament also adopted a resolu-tion on the concept of distinct society.

DISTINCT SOCIETY

AND UNIQUE CHARACTER

On December 11, 1995, the Houseof Commons adopted a resolution inwhich the House recognizes that “Québecis a distinct society within Canada” andthat this distinct society “includes itsFrench-speaking majority, unique cultureand civil law tradition,”40 but withoutreferring to Québec institutions. Thefederal government thus reiterated thedefinition of Québec as a distinct societyproposed in the Charlottetown Accordthat Quebecers rejected in the 1992referendum and which was stronglycriticized at the time.41

The resolution also invited all com-ponents of the legislative and executivebranches of the federal governmentto take note of the recognition of thedistinct society and to be guided in theirconduct accordingly. This has not pre-vented the federal government fromattempting to impose a millennium

28

40. Canada, House of Commons Debates (29 November 1995) at 16971.

41. See, in particular, Henri Brun, Ghislain Otis, Jacques-Yvan Morin, Daniel Turp, José Woehrling, Daniel Proulx,William Schabas and Pierre Patenaude, “La clause relative à la société distincte du Rapport du consensus surla Constitution: un recul pour le Québec” in Référendum, 26 octobre 1992. Les objections de 20 spécialistesaux offres fédérales. Montréal: Les éditions Saint-Martin, 1992, 53-56, p. 54.

A N O V E R V I E W


scholarship program in the educationsector, which encroaches on Québec'sexclusive jurisdiction and touches uponthe question of financial assistance tostudents, an area where Québec standsout in Canada since, during the 1960s,it opted out with compensation from aCanada-wide program in order to adoptits own measures. Moreover, the federalresolution did not prevent Ottawa fromconcluding in February 1999, withoutQuébec's consent, the Social UnionFramework Agreement (see infra thesection on this agreement).

The federal government has com-mented on the expression “people ofQuébec” found in the preamble of itsresolution on the distinct society:42

The sense in which the expression“people of Quebec” is used in thecontext of the resolution is that ofvox populi — the people directlyor through elected representativeshaving expressed a desire for Quebec'srecognition as a distinct societywithin Canada. The term “people ofQuebec” in this context is not used

in the sense of an identifiable collec-tivity that may assert rights such asthe right to self-determination.43

In the rest of Canada, the resurgenceof the notion of a distinct society hashardly aroused enthusiasm. Recognitionof the distinct society has undoubtedlyproven to be the most controversial facetof failed attempts to bring Québec backinto the constitutional fold. Among otherthings, a conception of the equality ofthe provinces leading to the rejection ofany notion of special status for Québechas played a key role in opposition fromthe rest of Canada to such recognition.

Some have sought to find alternativesto the distinct society. Thus, the provincialpremiers and territorial leaders from therest of Canada adopted on September 14,1997 the Calgary Declaration dealingwith the “unique character” of Québecsociety.

The Calgary Declaration proposes aseven-point framework for discussion.One point focuses on the fundamentalcharacter for the well being of Canadaof the unique character of Québec

29

42. The preamble reads as follows: “Whereas the People of Quebec have expressed the desire for recognition ofQuebec's distinct society […].”

43. Senator B. Alasdair Graham expressing the federal government's position on the matter, Canada, Debates ofthe Senate (5 November 1996) at 1089.

A N O V E R V I E W


society, including its French-speakingmajority, culture, and tradition of civil law.

The Calgary Declaration, which ismerely political and not constitutional innature, has been approved by the pro-vincial legislatures, except the QuébecNational Assembly. However, the latterheld audiences at which experts testifiedwith regard to the Declaration. Duringthe hearings, several experts stated thatthe Declaration did not satisfy Québec'straditional demands or went againstthem. Aside from the new dilution ofrecognition of Québec's status proposedtherein, the experts also noted theemphasis that the Declaration's authorsplaced on the notion of the equalityof the provinces. This principle, whichthe Commission on the Political andConstitutional Future of Québec regardedas one source of the conflicting viewsthat arose in the wake of the failure ofthe Meech Lake Accord, continues to bea major obstacle to the establishment ofa special relationship between Québecand the rest of Canada within the federalsystem.

Several experts felt that this emphasison the equality of the provinces reflecteda desire to circumscribe recognition ofQuébec's unique character and signif-icantly limit its scope. Moreover, theDeclaration, like the CharlottetownAccord rejected by Quebecers, providesa definition of the “unique character”that fails to mention Québec institutions,a key facet of the definitions of theconcept of distinct society formulated inQuébec.44

Québec Prime Minister LucienBouchard made the following state-ment on September 16, 1997 on theCalgary Declaration and the question ofrecognition of the Québec people:

Does the document recognize theexistence of the Québec people?

In my view, here we touch upon oneof the saddest facets of the history ofrelations between Quebecers andCanadians. When observers wondera few years from now why thesetwo peoples were unable to continue

30

44. In 1980, the Québec Liberal Party noted in its constitutional program that “[i]t must be recognized that thetwo founding peoples of Canada are fundamentally equal and that Québec, by virtue of its language, cultureand institutions, forms a distinct society within the Canadian federal system and has all the attributes of adistinct national community.” [Emphasis added]. Commission constitutionnelle du Parti libéral du Québec,Une nouvelle fédération canadienne, 1980, p. 13. The December 1, 1981 resolution of the Québec NationalAssembly (supra note 27) — spelling out the conditions for Québec's consent to the repatriation of theCanadian Constitution — also referred to Québec institutions:

It must be recognized that the two founding peoples of Canada are fundamentally equal and thatQuébec, by virtue of its language, culture and institutions, forms a distinct society within the Canadianfederal system and has all the attributes of a distinct national community. [Emphasis added]

A N O V E R V I E W


to live under the same federal regime,the answer will be, above all, a lackof respect and recognition and therefusal of one of the two peoples torecognize the existence of the other.

Why is it so difficult for our Canadianneighbours to describe us in the sameterms as they use to describe theother peoples of the world?

[…]

There is a deep-seated refusalamong our neighbours to return thecourtesy. This refusal appears toharden with the passing of eachyear and each decade. The strongerthe Québec people becomes, themore dynamic and economicallysolid, the less inclined our neighboursare to recognize us.45

THE FEDERAL GOVERNMENT'SREFERENCE ON QUÉBEC'S RIGHT

TO ACCEDE TO SOVEREIGNTY

In the 1980 referendum, 40.44%of Quebecers supported sovereignty,compared with 49.42% in the 1995referendum. This spectacular leap worried

the federal government, which attemptedto sway the process in its favour byasking the Supreme Court of Canadato give an opinion on Québec's right toaccede unilaterally to sovereignty shouldthe outcome of a third referendumbe positive. The Québec governmentrefused to discuss these questions beforethe Supreme Court since they focus onan essentially political matter over whichthe courts have no jurisdiction. Quebecersalone are entitled to settle the issue in afree, democratic referendum.

In a brief submitted in February 1997to the Supreme Court, the AttorneyGeneral of Canada claimed that Quebecersdo not form a “people” and that theymust be regarded as a linguistic minoritywithin the Canadian people, which alonemay enjoy the rights and privilegesinherent in this status. He went on topolish his argument in an addendum tohis brief by pleading that if Quebecerscan claim to form a people in the socio-logical, historic and political sense, it canonly be for the purpose of exercisingtheir rights within the Canadian federation.

31

45. Notes for a Briefing by Québec Prime Minister Lucien Bouchard Following the Provincial Premiers' Meetingin Calgary, Québec City, September 16, 1997.

A N O V E R V I E W


Claude Ryan, an influential Québecfederalist, former leader of the QuébecLiberal Party and former minister,responded to this claim in the expertreport he filed at the request of theamicus curiæ appointed by the SupremeCourt to provide a counter-argument tothat of the Attorney General of Canada.Mr. Ryan expressed himself in these terms:

The reference compels us to specify,first of all, what is meant by Québec.According to the federal governmentbrief, Québec is a province of Canadaand no more. There is only a fineline between that and saying thatQuébec is a province like the others.This reductionist conception hasnever been accepted in Québec.In the current state of law, Québechas the rank of a province but it formswithin the Canadian federal systema society that is distinct becauseof the language and culture of thevast majority of its inhabitants, itscivil law and institutions. Québec'sdistinct character is at the heart ofconstitutional debate. To defineQuébec, various terms have been

used, such as community, people,nation, and society. […] SuccessiveQuébec governments for half acentury, whether federalist or sover-eignist, have insisted that this charac-ter be more explicitly confirmed andrecognized. In the federal governmentbrief, Québec is likened to minority“ethnic, religious or linguistic” groupswithin constituted States that wouldbe denied the right to independenceunder international law. This line ofreasoning shifts dangerously awayfrom the concept of the equalityof the two founding peoples oncerecognized by the federal government.

[…]

As for the right to self-determination,interpreted as involving, among otheroptions, the choice of sovereignty,there is a broad, profound consensusin Québec among the main politicalparties and most political interveners.All of them agree in recognizing thatQuébec's political future, regardlessof the option chosen, depends, whenall is said and done, on the sovereignwill of the Québec people.46

32

46. Claude Ryan, “Note à l'amicus curiæ sur la première question du Renvoi”, January 31, 1998, pp. 2, 3 and 9(notes omitted), in Supplément à la duplique — Rapports additionnels des experts de l'amicus curiæ,submitted to the Supreme Court of Canada in the Reference re Secession of Quebec.

A N O V E R V I E W


While the Supreme Court of Canada'sopinion contains some of the responsessought by the federal government, italso presents opinions that Ottawa didnot expect, such as the recognition bythe Court of the legitimacy of the processundertaken by Québec and the obligationto take into account the expression of theQuébec people's democratic will:

The clear repudiation by the peopleof Quebec of the existing constitu-tional order would confer legitimacyon demands for secession, and placean obligation on the other provincesand the federal government to ac-knowledge and respect that expres-sion of democratic will by enteringinto negotiations and conducting themin accordance with the underlyingconstitutional principles […].47

SOCIAL UNION FRAMEWORK

AGREEMENT

At the same time as post-referenduminitiatives more directly tied to theQuébec question, such as the CalgaryDeclaration and the Supreme Court

reference, another key issue has signif-icantly affected the Canadian federationfrom the standpoint of Québec's status.This question concerns the roles andresponsibilities of the two orders ofgovernment in the field of social policy.

In constitutional terms, the field ofsocial policy falls, by and large, underprovincial jurisdiction. It is a field inwhich the federal government has,nonetheless, intervened extensively,primarily because of its financial clout.In Canada, the division of tax resourcesbetween the two orders of governmentis not proportional to the expenses eachorder of government incurs as a resultof its responsabilities under the Consti-tution. The provinces assume most ofthe cost of social programs, but it is thefederal government that controls mostof the tax resources needed to fund theprograms. This growing fiscal imbalance,resulting from the centralization of taxa-tion during World War II, has enabledOttawa to interfere in most fields underprovincial jurisdiction.

During the 1990s, Ottawa has signif-icantly reduced transfer payments to

33

47. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, par. 88.

A N O V E R V I E W


the provinces relating to social programs.These unilateral cutbacks led, at therequest of the nine other provinces, tointergovernmental talks on social policy.

In the course of these talks, Québechas advocated its capacity to opt out,with compensation, from Canada-wideinitiatives in the social field. The right toopt out was a means of reconcilingthe viewpoint of the English-speakingprovinces, which favour the federalgovernment's political and prescriptiverole, with a view that calls for the respectof Québec's autonomy in this area,which successive Québec governmentshave defended.

In August 1998, during the annualprovincial premiers' conference held inSaskatoon, the right to opt out withcompensation that the Québec govern-ment deems essential became the focalpoint of a negotiating stance adoptedunanimously by the provinces and terri-tories. This position was reaffirmed atthe federal-provincial meeting held onJanuary 29, 1999 in Victoria. However,a few days later, on February 4, 1999, atthe request of the federal government, the

latter and the provincial and territorialgovernments concluded, in Ottawa, theSocial Union Framework Agreement,without the Québec government'ssupport. While Québec was part of theinterprovincial consensus on the nego-tiating stance with the federal govern-ment, it could not support the finalagreement given the absence of agenuine right to opt out with compen-sation, which would have reflected theinterprovincial consensus achieved theprevious year. Moreover, the agreementopens the door to broader federal govern-ment control in the field of social policy,which nonetheless falls under provincialjurisdiction.

Québec was once again isolated at theconclusion of Canada-wide negotiationswhich, while deemed to be “administra-tive,” presented all the aspects of aconstitutional negotiation. Québec PrimeMinister Lucien Bouchard emphasizedat the conclusion of the negotiations thattwo visions of the country were onceagain apparent. The right to opt out withcompensation, proposed by Québec asa means of reconciling these two visions,

34

A N O V E R V I E W


was rejected. This situation, combinedwith the contents of the agreement, revealsthat Québec has reached a stalemate withthe rest of Canada, which is manifestlypursuing its own agenda. Joseph Facal,Québec Minister responsible for CanadianIntergovernmental Affairs, made thefollowing observation:

What this agreement reveals is theinability of the federal governmentand the other provinces to reformthe federal system while taking intoaccount Québec's specific character.This agreement confirms the percep-tion that sees the rest of Canadaemerging as a State that is becomingless and less federal and more andmore resolutely unitary.

In the wake of the failure of theMeech Lake and Charlottetownaccords, the agreement on the socialunion directly calls into questionQuébec's place and status in Canada.The unprecedented recognition by theother provinces of the federal govern-ment's leadership role runs entirelycontrary to the historic aspirationsand demands of the Québec people.48

The federal government indicatedthat it intends to apply the agreement asmuch as possible in Québec, althoughthe latter has not signed it. It also indi-cated that it does not intend to payQuébec its share of funds invested inCanada-wide social initiatives shouldQuébec refuse to comply with theconditions governing such initiatives.

More than one observer has deploredthe situation created by the Social UnionFramework Agreement. Commentingon it, Claude Ryan noted that:

[I]t represents the third time in thepast twenty years that Quebec hasbeen abandoned by its partners afterhaving decided to make commoncause with them.49

According to Mr. Ryan, Québec wasabandoned for the first time in 1981during negotiations on the repatriationof the Constitution, and the secondtime in 1990 when the Meech LakeAccord failed.

Professor André Tremblay, a consti-tutional expert at the faculty of law,Université de Montréal, and a former

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48. Québec, National Assembly, Journal des débats de la Commission permanente des institutions (28 April 1999),No. 9, p. 3.

49. Claude Ryan, “The agreement on the Canadian social union as seen by a Quebec federalist,” Inroads, June1999, p. 27.

A N O V E R V I E W


constitutional advisor to Québec PrimeMinister Robert Bourassa, believes thatthe Social Union Framework sounds thedeath knell for an asymmetrical Canadaand anything resembling special statusfor Québec:

The federal Constitution of Canadahas been undermined by these inter-governmental manoeuvres and hasshifted clearly toward centralization.The social policy field, which wehave always deemed to be one of ourexclusive areas of jurisdiction, hasbeen reclassified and falls into thecategory of joint or shared responsi-bilities, with the federal governmentclearly predominating.

[…]

There can be no question of sup-porting a permanent, intrusive pres-ence by the federal government inour fields of jurisdiction and renounc-ing our identity. Mr. Bouchard did notsign because the values and concep-tions on which our claims are based

are modern and reflect our funda-mental interests and continue toinspire the construction of modern-day Québec.50

The Social Union Framework is aconcrete illustration of growing, accel-erated centralization in the Canadianfederation, abetted by Ottawa's taxingpowers, of key social and economicpolicies. Successive Québec governmentshave repeatedly denounced this fiscalimbalance in the Canadian federation.Moreover, they have demanded thatQuébec have at its disposal all of the taxresources necessary to fund the programsthat fall under its exclusive jurisdiction.Québec has traditionally preferred tocollect its own taxes instead of receivingsubsidies from the federal governmentto fund its social programs.

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50. André Tremblay, Entente-cadre sur l'union sociale: étude sur le chapitre 5, pp. 41-42.

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T he presence of two distinct nationalcommunities was a key feature of the

development of Canadian institutionsafter the British conquest. For FrenchCanada, Confederation in 1867 shouldhave ensured respect for and the develop-ment of this duality. Over time, demandsfor equality have been formulated byFrench-speaking Canadians in light oftheir experience of the federal system andthe changes in the relationship betweenFrench Canada and English Canada.Québec has sought to ensure respect forthe autonomy promised by Confederation,an autonomy deemed at the time essen-tial for the development of a French-Canadian nation within the new entity.

During the 1960s, the Quiet Revolutionbrought the realization that it was essentialto redefine Québec's constitutional statusto achieve genuine equality between thetwo main political communities in the

CONCLUSION

federation. As the thinking on this demanddeveloped, the notion of a Québec peopleemerged.

The various attempts to renew Canadianfederalism over the past 35 years haveall ended with a rejection of Québec'sdemands and of its claims based on itsspecific situation. In 1982, the 1867Constitution was substantially amendedwithout Québec's consent. Attempts toseek redress have failed and these failuresillustrate the rest of Canada's refusal toacknowledge the most basic expressionof Québec's specificity. Nevertheless, thedefence of the rights of the Québecpeople and its desire to assert itself have,little by little, come to the fore in Québec'sinstitutional and democratic life. Onthe eve of the third millennium, theQuébec people's quest for equality is stillan important issue.

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A N O V E R V I E W

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