sign in sign up
<<
Home , Calgary Declaration, Canadian Confederation, Charlottetown Accord, Constitutional Act 1791, Constitution of Canada, Joseph Facal

QUÉBEC’S POLITICAL AND CONSTITUTIONALATUS ST

AN OVERVIEW

Production of this document was coordinated by the Secrétariat aux affaires intergouvernementales canadiennes of the ministère du Conseil exécutif. Publishing of the document was coordinated by the Service des communications of the ministère du Conseil exécutif. Graphic design: Deschamps Design Printing: Imprimerie Provinciale inc. Cover page: Parliament — Québec Louise Leblanc

This document not be reproduced in whole or in part unless is acknowledged.

Legal deposit — 1999 Bibliothèque nationale du Québec ISBN 2-550-34972-5 © Gouvernement du Québec his study presents the key After over 35 years of Tevents pertaining to the democratic debate, the stale- question of Québec's political mate persists over Québec's and constitutional status. political and constitutional future. The deadlock has been These events reflect, in par- exacerbated by two irrecon- ticular, a change in the federal cilable viewpoints, that of system that has gradually English centred on an shifted away from the principle omnipresent central govern- of Canadian duality and respect ment and the equality of the for the autonomy of the pro- , and that of Québec, vinces to a system more closely resem- centred on respect for its autonomy and bling a unitary state. After more than 130 specificity. years, the experience of has hardly been conclusive for Québec. The The current Québec unilateral adoption of the 1982 Consti- deems democratic accession to sove- tution that imposed an amending for- reignty to be the only option likely to mula and curtailed the powers of the break the present deadlock by allowing Québec in matters of for a redefinition of the political relations language and without Québec's between Québec and Canada in which consent sounded the death knell of the they are equals. The Québec compromise established in 1867 between project is resolutely in favour of the two founding peoples that led to the trade and open to the world. It expresses birth of the Canadian . Québec the Québec people's determination to has still not adhered to the 1982 Consti- assert its identity and to directly promote tution. To this day, the constitutional the cause of cultural diversity in the reform proposals put forward to remedy international realm. this situation have all failed. The shift in the federal system toward a unitary state is wholly incompatible with the quest for more autonomy that Québec has steadfastly pursued since the early through its demand for a political status more in tune with its reality as the only predominantly French- Minister responsible for speaking people in . Canadian Intergovernmental Affairs

QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

TABLE OF CONTENTS

INTRODUCTION ...... 7

PRIOR TO THE FEDERATION: FROM THE CONQUEST TO THE ACT OF UNION ...... 9

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

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

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

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

Confederation of 1867 ...... 13

The quest for equality and affirmation ...... 17 Calling 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 ...... 27

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

The Accord ...... 30

1995 AND SUBSEQUENT EVENTS ...... 33

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

Social Union Framework Agreement ...... 38

CONCLUSION ...... 43

5 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

INTRODUCTION

he Canadian does not constitutional arrangements in colonial Trecognize the existence of the Québec Canada from the beginning of the . Yet, a national community that regime. The presence of this community developed from the settlement of New in has affected the participated in the foundation events that have punctuated Canada's of the Canadian federation and was at political and constitutional history. the centre of various pre-

6

QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

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

he whose political bounda- colony's inhabitants. This situation Tries would eventually be modified to was remedied in 1774, in response to become modern-day Québec and the demands from the people, with the home of the Québec people had a popu- , which restored French civil lation of roughly 65 000 at the time of law, guaranteed of religion and the British conquest in 1760. These replaced the Test Oath, which excluded descendants of the 10 000 French colo- Catholics from public office. Political nists who settled in Québec in the 17th scientist Gérard Bergeron describes the and 18th centuries formed “a national importance of the Quebec Act in these community and a homogeneous socio- terms: logical entity clearly characterized by its culture.”1 Even before the society formed by the new occupiers had firmly estab- THE ROYAL PROCLAMATION OF 1763 lished itself, the Canadiens saw the AND THE QUEBEC ACT OF 1774 secular foundation of their own society achieve a form of official Following the conquest of 1760 and status under the new regime and, as the subsequent ceding of 2 a result, consolidated for the future. to Britain at the end of the Seven Years' War, the new British colony was given its The adoption of this first truly con- first institutional framework. The colony stitutional document sparked debate became the of Quebec as a result in Westminster. Historian Jacques of the Royal Proclamation of 1763, which Lacoursière has noted that the question replaced the military regime established of French and the even limited after the conquest with a civilian govern- recognition of Catholicism aroused ment. Under the new regime, French law opposition from a number of British was abolished, as the Royal Proclamation parliamentarians.3 containedno explicit guarantees concern- ing the laws and customs of the new

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 du Septentrion, 1995, p. 384.

7 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

THE CONSTITUTIONAL ACT, 1791 still occupied by a predominantly French- AND THE ESTABLISHMENT speaking population. OF LOWER CANADA In Lower Canada, French-speakers The Constitution established by the were able to assert their political presence Quebec Act did not the needs through their participation in the new of the Loyalists, who fled the American elected assembly. However, their political Revolution and whose arrival in large influence was limited by the absence numbers modified the situation of the of . The elective inhabitants of the “Province of Quebec,” regime and bicameral parliament adopted a very particular colony within the British in each of the two new provinces were Empire in North America. The Loyalists accompanied by a concentration of power had trouble adapting to their new envi- in the Council, whose mem- ronment among the French-speaking, bers were appointed by and acted under Catholic inhabitants of their province of the authority of the Governor, who adoption, who still accounted for 85% in turn was appointed by the British of the population. Aside from the inhab- government. itants' language and religion, their insti- Because of their numerous shortcom- tutions, civil law and culture were entirely ings, especially the absence of genuine foreign to the Loyalists. The new minority's control exercised by assembly members position promptly encouraged the British over public spending, the institutions of government to advocate a new Consti- 4 1791 aroused widespread discontent. tution for the Province of Quebec. The pre-federation regime implemented The Constitutional Act, 1791 divided by this constitutional change nonetheless the Province of Quebec into Upper confirmed French Canada's distinctive Canada, centred around Kingston, where character in the British colonies and a majority of colonists of British origin fostered the development of Québec and of Loyalists lived, and Lower Canada, parliamentarism. centred around the St. Lawrence Valley,

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

8 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

In 1831, the great political thinker A plan by which it is proposed to made the following ensure the tranquil government of observation about the French-speaking Lower Canada, must include in itself population living in Lower Canada: the means of putting an end to the “[it] has its government and its own agitation of national disputes in the Parliament. It truly forms a distinct legislature, by settling, at once and 5 .” Not only did Lower Canada have forever, the national character of the its own language, religion and customs, Province. I entertain no doubts as to Tocqueville noted, but it also already the national character which must had its own laws and institutions. be given to Lower Canada; it must be that of the ; that of THE ACT OF UNION, 1840 the majority of the population of The forced union of Lower and Upper ; that of the great Canada into a single political entity, the race which must, in the lapse of no , hardly aroused long period of time, be predominant enthusiasm in French Canada. The union over the whole North American was implemented in response to a Continent. Without effecting the recommendation by Durham fol- change so rapidly or so roughly as to lowing the latter's examination at the shock the feelings and trample on the behest of the British government of the welfare of the existing generation, it must henceforth be the first and steady political situation in Lower Canada, which purpose of the British Government was shaken by upheavals in 1837 and to establish an English population, 1838. The union, as contemplated in the with English laws and language, in Durham Report, was intended to ensure this Province, and to trust its govern- that the English-speaking population of ment to none but a decidedly English Lower Canada was not subject to the Legislature. will of the French-speaking majority: […]

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

9 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

I believe that tranquillity can only a dual leadership be restored by subjecting the Province which will become “the instrument of a [of Lower Canada] to the vigorous rule political dualization in United Canada of an English majority; and that the based on nationalities.”7 Indeed, a double only efficacious government would majority rule came to prevail under which 6 be that formed by a legislative union. any legislative measure had to rally simultaneous majorities among the The new Constitution came into force parliamentarians from in February 1841. Lower Canada lost its (formerly Lower Canada) and Canada own parliamentary institutions and, while West (formerly ) in order they formed a majority of the popula- tion, French were a minority to be adopted. in the institutions of United Canada. Moreover, English was made the only of government institu- tions. For the first time in a constitutional text, French was banned. However, these provisions were abrogated by the British Parliament in 1848. Two made up United Canada, one French-speaking and mainly Catholic, the other English-speaking and mainly Protestant. Institutions adapted to the presence of the two distinct national communities. The quest for responsible government gave reformists from the two former provinces an opportunity to join forces and contemplate for the

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.

10 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

QUÉBEC AND THE CANADIAN FEDERAL SYSTEM

CONFEDERATION OF 1867 [L]ower Canada had constantly refused the demand of Upper Canada round 1860, the two nations that for representation according to popu- made up United Canada were both A lation, and for the good reason that, eager to change the political system that as the union between them was had been imposed on them 20 years legislative, a preponderance to one earlier, but one could not act indepen- of the sections would have placed dently of the other: the other at its mercy. It would not be so in a Federal Union, for all Whether we ask for parliamentary questions of a general nature would reform for Canada alone or in union be reserved for the General Govern- with the Maritime Provinces, the ment, and those of a local character must have their to the local , who would views consulted as well as us. This have the power to manage their scheme can be carried, and no domestic affairs as they deemed best. scheme can be that has not the sup- 8 If a Federal Union were obtained it of both sections of the province. would be tantamount to a separation During parliamentary debate on Confe- of the provinces, and Lower Canada would thereby preserve its autonomy deration in United Canada, the key together with all the institutions it players in the creation of the new fed- held so dear, and over which they eration emphasized the importance for could exercise the watchfulness and French Canadians to adopt a regime that surveillance necessary to preserve would be federal in nature and that would 9 them unimpaired. allow for the development of their own identity. Étienne-Paschal Taché, Prime John A. Macdonald, leader and Minister of United Canada, stated when Attorney General of Canada West, also he presented the proposed Confederation recognized that a unitary state, i.e. the on behalf of the government: “legislative union” in the political parlance

8. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 8th Provincial , 3rd Session. Québec: Hunter, Rose & Co., 1865, p. 87 [hereinafter Confederation Debates]. 9. Speech of February 3, 1865, Confederation Debates, p. 9.

11 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

of the time, would be unacceptable to Such is […] the significance that French Canadians and unsuited to their we must attach to this constitution, situation: which recognizes the French-Canadian nationality. As a distinct, separate [W]e found that such a system [the nationality, we form a State within legislative union] was impracticable. the State with the full use of our In the first place, it would not meet and the formal recognition of the assent of the people of Lower our national independence.11 Canada, because they felt that in their peculiar position — being in a In 1956, the Royal Commission of minority, with a different language, Inquiry on Constitutional Problems set up nationality and religion from the by the Québec government noted that majority, — in case of a junction with the events leading up to the federation the other provinces, their institutions revealed that: and their laws might be assailed, and their ancestral associations, on which [T]he French Canadians only gave they prided themselves, attacked and this necessary support [in favour of prejudiced; it was found that any Confederation] on two clear condi- proposition which involved the absorp- tions — that the union should be tion of the individuality of Lower federative and that, in this union, Canada […] would not be received they should be recognized as a dis- with favor by her people.10 tinct national group and that they should be placed on the same footing George-Étienne Cartier, Attorney as the other ethnic group.12 General for Canada East during the negotiations on Confederation and the Confederation was perceived in some principal leader of French Canada, political and constitutional thinking in believed that the adoption of a federal Québec as a pact between two founding system would recognize the French- peoples: Canadian nationality:

10. Speech of February 6, 1865, Confederation Debates, p. 29. 11. , Montréal, , 1867. 12. Report of the Royal Commission of Inquiry on Constitutional Problems, supra note 1 at 140.

12 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

This interpretation of Confederation After 1867, French-speaking Canadians as a pact still astonishes English- long hoped to impose a dualistic speaking Canadians, for whom the interpretation of the Constitution, 1867 Act can only be an act of the i.e. one based on the principle of British Parliament, whose exegesis the equal association of the “two must adhere strictly to legal texts, founding peoples.”14 which make no specific reference whatsoever to any pact. Be that as Confederation was also perceived as a it may, what is sociologically sig- pact between the provinces, a perception nificant and important is that French that conflicted with the conception of Canadians, from roughly the end the Canadian Constitution as, first and of the 19th century onward, have foremost, British imperial law. In 1884, attributed this significance to the Québec Prime Minister Honoré Mercier Canadian Constitution. […] Whether denounced the federal government's or not English-Canadian publicists frequent infringements on the provinces' and jurists find it acceptable, it will prerogatives by invoking the pact: persist as one of the most tenacious The existence of the provinces pre- components of the definition that ceded that of the and it is French Canadians give of the history 13 from the provinces that the latter of their Canada. received its powers. The provinces While this dualistic conception of the had responsible government in 1867: country was contested in the rest of they had their own legislatures, Canada, it expressed, as a basic political laws and the autonomy inherent in idea, a desire by French Canada to be a colony. The provinces delegated, associated as a full-fledged partner and in the general interest, a portion of participant in the development of the their powers. Those powers that new country: they did not delegate they kept and still possess. They are sovereign

13. Jean-Charles Falardeau, “Les Canadiens français et leur idéologie” in Mason Wade (ed.), Canadian Dualism / La dualité canadienne. : 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.

13 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

within the limits of their jurisdiction government sovereign within the and any attack on this sovereignty limits of its jurisdiction. […] The is a violation of the federal pact.15 Province of Québec would never have agreed to join Confederation had it , another Prime not then been perfectly clear that the Minister recognized for his ardent defence guarantees on which Confederation 16 of Québec autonomy against the central- was based were intangible. izing designs of the federal government, frequently defended Québec's constitu- The notion of the pact between the provinces centres, in particular, on the tional prerogatives by invoking the 1867 theory of the existence and survival of the pact: political entities that reached agreement Our system of government is based in 1867, as expressed in an opinion ren- on the principle of the complete dered in 1892 by the Judicial Committee autonomy of the provinces. There of the Privy Council in , which are very good reasons for this, the then served as the court of last resort for most important one being that Canada: , since its inception, not only constitutes an The object of the Act [of 1867] was agreement between the four founding neither to weld the provinces into provinces but a sacred pact concluded one, nor to subordinate provincial between the two great races whose governments to a central authority, friendly, fair cooperation is essential but to create a federal government in to Canadian unity. […] Confederation which they should all be represented, should be what the Fathers of entrusted with the exclusive adminis- Confederation wanted, in good faith, tration of affairs in which they had it to be, i.e. an association of prov- a common interest, each province inces sovereign within the limits retaining its independence and of their jurisdiction and a federal autonomy. […] [T]he Dominion

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-Provincial Constitutional Conference, , 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-provincial conference.

14 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

Government should be vested with Québec displayed an unflagging willing- such of these powers, property, and ness to assume responsibility for sectors revenues as were necessary for the of decisive importance to its cultural, social due performance of its constitutional and economic development. Moreover, functions, and that the remainder Québec's determination to assert itself should be retained by the provinces was apparent at the international level for the purposes of provincial govern- with the development of a network of ment. But, in so far as regards those foreign delegations and a policy of direct matters which, by sect. 92, are spe- international initiatives promoted by cially reserved for provincial legisla- Paul Gérin-Lajoie, Minister of Education tion, the of each province in the Lesage government. When explain- continues to be free from the control of the Dominion, and as supreme as ing this policy, Mr. Gérin-Lajoie noted that: it was before the passing of the Act.17 Québec is not sovereign in all fields: This confirmation by the Privy Council it is a member of a federation. did not prevent the federal government However, from a political standpoint, from intervening in fields under provincial it forms a State. It possesses all the jurisdiction. attributes of a State, i.e. territory, population and autonomous govern- THE QUEST FOR EQUALITY ment. In addition, it is the political AND AFFIRMATION expression of a people that is distinct in many ways from the English- Since 1867, Québec's importance as speaking communities inhabiting the fulcrum of the French- America. nation has continued to grow. In the mid-20th century, over 80% of French Québec has its own mission on this Canadians were concentrated in Québec. continent. French Canada is the After 1960, during the , biggest French-speaking community

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

15 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

outside France and it belongs to a The Confederation of 1867 proved to cultural universe centred in , be a framework that did not ensure that not in North America. Consequently, equality of the founding peoples. In Québec is more than a simple fed- Québec, this observation and the desire erated State among others. It is the for greater political autonomy sparked political instrument of a distinct, demands for sweeping constitutional unique cultural group in North changes involving a reform of Québec's America.18 constitutional status: I have often stated what Québec, as During the 1960s, the Royal Commis- the focal point of French-speaking sion on Bilingualism and Biculturalism Canada, wants. We want the equal- received a mandate to examine the ques- ity of the two ethnic groups that tion of the equality of the two founding founded this country, we want to peoples: assert ourselves in a manner suited From the outset we have believed to our culture and our aspirations, this to be the mainspring of our terms and we want a status in the Canada of reference. We were not asked to of the future that respects our specific traits.20 consider merely the recognition of two main languages and cultures The 1966 election campaign slogan, which might be granted entirely “Equality or independence,” put forward different rights; we were asked to by the winning party, came to symbolize examine ways in which the Canadian Québec's quest for equality. Daniel Confederation could develop, in Johnson, who became the Prime Minister accordance with the principle of of Québec, summarized it in these terms: equal partnership.19

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 and report upon the existing state of bilingualism and biculturalism in Canada and to recommend what steps should be taken to develop the Canadian Confederation on the basis of an equal partnership between the two founding races, taking into account the contribution made by the other ethnic groups to the cultural enrichment of Canada and the measures that should be taken to safeguard that contribution […].” [Emphasis added] Idem, p. 173. 20. Speech by Québec Prime Minister given before the Canadian Club in , September 22, 1965.

16 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

[A new] Constitution should […] be its reflection on the collective future of designed in such a way that Canada French Canadians. While they were a is not solely a federation of 10 minority in Canada, they were nonethe- provinces but a federation of two less a majority in Québec, where they felt nations that are equal in every respect. better able to achieve their emancipation […] and build their own society, to the extent that they began to conceive of themselves Whether we opt for a federation, differently: associated States, a confederation, special status or a republic, the new In recent years, [...] more and more constitutional regime must give the have adopted the name and identity French-Canadian nation all of the of Québécois, underlining this sense powers it needs to fully assume its of themselves as a majority, as a destiny. people.22 After three centuries of labour, our nation fully deserves to live freely. However, all of the proposals aimed So much the better if it feels at home at reflecting Québec's national character from coast to coast, which implies in the Constitution have faltered or failed. recognizing its full equality.21 This is true, in particular, of the special status sought during the 1960s and the During the Quiet Revolution and in asymmetrical federalism proposed by subsequent years, at a time when decol- the Task Force on Canadian Unity onization favoured by the right to self- (Pépin-Robarts Report) in the late . determination spawned a number of The same was true of the concept of a national emancipation movements, the sought during the , French-Canadian nation, increasingly until 1992. Historian Jean-Louis Roy, concentrated in Québec, completed its when examining constitutional debate integration of the notion of territory into between 1960 and 1976, wrote:

21. Daniel Johnson, Égalité ou indépendance. Montréal: Éditions , 1965, pp. 116 and 123. 22. Canada, The Task Force on Canadian Unity, A Future Together. Observations and Recommendations, January 1979, p. 25.

17 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

The most decisive event since 1960 in proposed a referendum on sovereignty- the relationship between Québec and association, a proposal that called for a Canada was the broad acceptance new Québec-Canada agreement outside by a majority of Quebecers of the the federal framework. status of a nation for their society. As a first step, the Québec National The refusal by , or Assembly adopted, in 1978, the Refer- at least its federal and provincial endum Act, which established a Québec spokespersons, to recognize this fact precipitated a psychological rupture referendum process. One of its features is in Canada. This refusal undoubtedly the establishment of “umbrella commit- explains why no new constitutional tees,” called national committees, which proposal likely to rally Quebecers assemble the proponents of the different has come from English Canada. options put to referendum. This system plays a key democratic role, in particular […] in controlling referendum spending. English Canada's refusal to recognize All the on Québec's that Québec society constitutes a political future have been held under nation, after over 10 years of consti- this legislation. The first one, organized tutional negotiations, is the main by the Lévesque government, was held reason for the fragmentation of on May 20, 1980, on the question of 23 Canada. sovereignty-association. Members of the federal government CALLING INTO QUESTION THE FEDERAL and a number of provincial premiers FRAMEWORK: EQUALITY THROUGH participated actively in the No campaign SOVEREIGNTY-ASSOCIATION during that referendum. In 1992, federal In 1976, debate took a new turn with Liberal MP Brian Tobin noted in the the coming to power in Québec of the House of Commons that: government of René Lévesque, which

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

18 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

[I]n 1980 the government of the day, Minister René Lévesque drew the following indeed all members of Parliament of conclusions from the first referendum the day in this Chamber participated organized by Québec institutions: in a referendum process, participated under an umbrella organization and Manifest recognition [of the right participated in a referendum in the to self-determination] is the most province of Quebec where there valuable outcome of the Québec were spending limits. That is the referendum. Regardless of the result, reality and that is the last word on it is now undisputed and indisputable referendums in Canada.24 that Québec is a distinct national community that may choose of its , then Leader of the Official own accord, without outside inter- Opposition in the federal Parliament, vention, its constitutional status. stated that his participation in the 1980 Quebecers may decide to remain in referendum campaign supposed the the Canadian federation, just as they recognition of the of the may decide democratically to leave 25 exercise. Pierre Elliott Trudeau, then it if they believe that this system no , solemnly longer satisfies their aspirations and promised just before the referendum needs. This right to directly control vote to renew if the one's national destiny is the most No side won. fundamental right that the Québec 26 In the May 20, 1980 referendum, collectivity possesses. 59.56% of the valid ballots were cast in favour of the No side and 40.44% in favour of the side. Québec Prime

24. Canada, House of Commons Debates (14 May 1992) at 10726. 25. Chantal Hébert, “Une nouvelle démission secoue les conservateurs; les militants confirment à l'auto- détermination”, , August 10, 1991; see also , “ 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 9, 1980, reproduced in Québec, Ministère des Affaires intergouvernementales, Commission de la présidence du conseil et de la consultation, Dossier sur les discussions constitutionnelles, August 14-15, 1980.

19 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

ATTACK ON DUALITY AND INABILITY TO ACCOMMODATE QUÉBEC

THE 1982 RUPTURE However, the negotiations on consti- tutional reform undertaken after the 1980 ew constitutional negotiations were referendum led to Québec's isolation on launched in the weeks following the N November 5, 1981, when it was the only referendum on sovereignty-association. province not to adhere to the constitu- Despite the federal Prime Minister's tional amendments proposed by Ottawa commitment designed to ensure the and the other provinces. The amend- rejection of the Lévesque government's ments curtailed Québec's powers govern- proposal, the negotiations culminated in ing language and education and did not the imposition on Québec of the most grant it a right of or the right to opt important constitutional changes made out with adequate compensation in since the inception of the Canadian respect of constitutional amendments. federation. Québec expressed in vain its opposition In the 1960s and the 1970s, one of to the proposed repatriation of the the federal government's constitutional Constitution. In December 1982, the reform priorities was to repatriate the of Canada refused to Canadian Constitution, which implied acknowledge that Canadian constitu- introducing into the Constitution an tional conventions contain a right of veto amending formula under Canadian for Québec, although Québec had in control and the end of mandatory fact exercised such a veto on several recourse to Westminster in this respect. occasions. Along with the question of repatriation, On November 5, 1981, Québec Prime constitutional talks focused on several Minister René Lévesque indicated aspects of reform. Generally speaking, Québec's determination to refuse the the question of Québec's status and its weakening of its position within the constitutional jurisdiction was a priority Canadian federation. The Québec for Québec during these talks, in which National Assembly, in response to the several Québec governments participated amendment without Québec's consent actively. of the agreement reached 114 years

20 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

earlier, adopted on December 1, 1981 a institutions, forms a distinct society resolution establishing the conditions within the Canadian federal system under which Québec would agree to and has all the attributes of a distinct adhere to the repatriation of the Consti- national community.27 tution. This resolution, an excerpt from which is presented below, expressly However, the federal government demands that the Constitution recognize refused to consider the Québec National the equality of the two founding peoples Assembly resolution and, as a result, fully and Québec as a distinct society posses- maintained the constitutional deadlock sing all of the attributes of a distinct between Québec and the rest of Canada. national community: From a constitutional standpoint, The National Assembly of Québec, Québec was condemned to the status quo. As political scientist Donald Smiley mindful of the right of the people of has noted: Québec to self-determination, In general, then, an exercise in and exercising its historical right of constitutional review and reform being a full party to any change to whose alleged objectives were to the which create more harmonious relations would affect the rights and powers between Quebec and the wider of Québec, Canadian community has involved declares that it cannot accept the plan a betrayal of the Quebec electorate, to patriate the Constitution unless it a breach of fundamental constitu- meets the following conditions: tional convention, a recrudescence of Quebec , and an even 1. It must be recognized that the two more serious Quebec challenge founding peoples of Canada are fun- than before to the legitimacy of the damentally equal and that Québec, Canadian constitutional order.28 by virtue of its language, culture and

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, and the Constitution Act. Toronto: Methuen, 1983, 74-95, p. 78.

21 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

The unilateral adoption of the Consti- Québec's distinct identity and its tution Act, 1982, which confirms the unique linguistic and cultural position rejection by the federal government of in Canada. the notion of two founding peoples and […] replaces it with the concept of “one State, one nation”, has figured prominently in [F]rom a Constitution based on a the Canadian constitutional landscape. political compromise which earned Far from recognizing the Québec people, the support of representatives of the the Constitution Act, 1982, presents a French Canadians in 1867, Canada new constitutional vision in which duality shifted in 1982 to a Constitution adopted despite the opposition of a and Québec's specific character are not province where nearly 90 percent of recognized: French-speaking Canadians live and The Constitution Act, 1982, […] which accounts for over one- 29 constitutionalized the principle of of Canada's population. the preservation and enhancement of the multicultural heritage of Canadians, thus imposing on Québec a constitutional viewpoint which did not necessarily coincide with its reality within Canada: the latter was defined as a multicultural society, without constitutional recognition of the principle of “Canadian duality” and of Québec's distinctiveness. The multicultural Canadian society, being predominantly English speaking, can easily become indifferent to

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

22 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

ATTEMPTS AT REDRESS

ollowing a change of government in as its objective to restore the legitimacy FOttawa, the Québec government of of the Canadian constitutional framework René Lévesque made proposals in 1985 by ensuring Québec's adherence to the in order to put an end to the political and Constitution Act, 1982. It stipulated five constitutional situation created by the minimal conditions: unilateral adoption of the Constitution Act, 1982.30 , the new 1. explicit recognition of Québec as federal Prime Minister, had committed a distinct society; himself, during the election campaign 2. a guarantee of broader powers in that brought him to power in 1984, to the realm of immigration; the objective of convincing the Québec 3. limitations on federal spending National Assembly to assent to the new power; Canadian Constitution “with honour and enthusiasm.”31 4. recognition of Québec's right of veto over constitutional amend- One of the key components of the ments affecting it; constitutional proposal made by Québec was the explicit recognition of the exis- 5. Québec's participation in the tence of the Québec people. Moreover, appointment of Québec justices sitting on the Supreme Court of this recognition was to be reflected in a 32 number of other constitutional amend- Canada. ments, including a reform of the distri- bution of powers between the two orders FAILURE OF THE of government. The federal government MEECH LAKE ACCORD did not respond to these proposals. The minimum conditions put forward The subsequent election of a Liberal by the Bourassa government led to the government in Québec under Robert 1987 Constitutional Accord, which Bourassa initiated further constitutional reflected the terms of an agreement negotiations. The government adopted concluded at Meech Lake between

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 partenaires dans la Confédération”, Mont-Gabriel, May 9, 1986.

23 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

Québec, the federal government and the If we can draw one conclusion from nine other Canadian provinces. Despite these negotiations, it is that the the unanimous agreement, ratified three process times, between the eleven govern- in Canada has been discredited. The ments, the Accord did not receive within Québec government refuses to return the three-year deadline prescribed by to the constitutional negotiating table. the constitutional amending formula the […] consent of the required number of pro- vincial legislatures that would have led Moreover, it is the position of my to its implementation. government to negotiate from now on with one interlocutor, not 11, to The rest of Canada was unwilling to negotiate with the Canadian govern- recognize in the Constitution the con- ment, which represents the entire cept of a distinct society. The rejection ; bilateral nego- of what was, for the Québec people, tiations between the Québec govern- a historic compromise of five minimal ment and the federal government.33 conditions was perceived as the margin- alization of its specificity within the As for the rejection of Québec's Canadian federation. An additional proof specificity following the failure of the was added of the major difficulty for Accord, Prime Minister , Québec to obtain within the federal frame- speaking in the National Assembly, sent work the levers deemed essential to the the rest of Canada this message: maintenance and development of its English Canada must clearly under- specificity. stand that, when all is said and According to Québec Prime Minister done, Québec is now and will Robert Bourassa, the entire constitutional always be a distinct society, free process was called into question: and capable of assuming its destiny and development.34

33. Message from Québec Prime Minister Robert Bourassa to Quebecers in the wake of the failure of the Meech Lake Accord, Québec City, June 23, 1990. 34. Québec, National Assembly, Votes and Proceedings (22 June 1990) at 4134.

24 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

THE COMMISSION ON THE POLITICAL Its deliberations led the Commission AND CONSTITUTIONAL FUTURE to make a number of important observa- OF QUÉBEC tions concerning the relationship between Québec and Canada in the wake of the Established on September 4, 1990 failure of the Meech Lake Accord: under the authority of the Québec National Assembly, pursuant to legisla- The conflict of visions, identities tion adopted unanimously by all parties and political objectives revealed by represented therein, the Commission was the reactions to the 1987 Agreement given the mandate to study and analyse is serious and restrictive for the Québec's political and constitutional future. It is not the prerogative of the status. The mandate reflected the obser- Canadian political elite: ordinary vation made by Prime Minister Robert Canadians across the country op- Bourassa and confirmed by the mem- posed the 1987 Agreement, except bers of the National Assembly that the rejection of the Meech Lake Accord in Québec. had called into question this status and The stalemate touches upon issues created the need to redefine it. The relating to national identities, which extraordinary nature of the Commission enable many people to define them- was also reflected in its membership. selves and understand their partici- Among the 36 members appointed pation as well as that of the others by the National Assembly, 18 were not in Canadian life.35 Members of the National Assembly and included two elected municipal In conjunction with these observations, representatives, three federal Members the Commission raised a question fraught of Parliament from Québec and 13 indi- with consequences: viduals, including its two co-chairmen, coming from Québec civil society. After 25 years of constitutional The Commission gave priority to public debate, two federal commissions of participation in its deliberations. inquiry, the major constitutional

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

25 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

changes adopted in 1982 without The Commission recommended the Québec's consent and finally the adoption of legislation providing for a failure of a constitutional process referendum on sovereignty and the which, for the first time, broached establishment of two parliamentary the political dimension of the Québec commissions, one responsible for ana- problem from Québec's standpoint, lysing all questions pertaining to Québec's it is reasonable to ask, at the very accession to sovereignty, and the other least, whether the rest of Canada is one responsible for examining any new capable of making choices which offer of a constitutional partnership made fully satisfy Québec's own needs, by the federal government and formally aspirations and visions. Until now, binding Ottawa and the other provinces. such choices have been perceived or treated as being irreconcilable Following the submission of the with other needs, aspirations and Commission's report, the Québec National visions in Canada, or incompatible Assembly adopted the Act respecting the with the efficient operation of the process for determining the political and Canadian federation.36 constitutional future of Québec (Bill 150) calling for a referendum on sovereignty In its conclusions, the Commission and the two commissions recommended examined two possible solutions open were set up. Several months later, consti- to Québec: tutional talks resumed and Québec Two courses are open to Québec Prime Minister Bourassa finally agreed with respect to the redefinition of its to participate in them. status, i.e. a new, ultimate attempt to redefine its status within the THE federal regime, and the attainment The new talks led, in 1992, to the 37 of sovereignty. Charlottetown Accord, which was sub- mitted to two simultaneous public

36. Ibid., p. 39. 37. Ibid., p. 73.

26 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

consultations, one in Québec and the The outcome of the two referendums other in the rest of Canada. In Québec, on the Charlottetown Accord prevented Bill 150 was amended in order to replace the agreement's implementation as it the referendum on sovereignty with a was rejected in Québec and in five of referendum on the new agreement. the other nine provinces. The consultation in Québec was con- According to constitutional experts ducted under the Referendum Act, Henri Brun and Guy Tremblay, rejection which was applied for the second time. of the Charlottetown Accord was attrib- In 1991, in response to debate in Ottawa utable to the collision between two on recourse to a Canada-wide referen- conflicting visions of what Canada should dum on constitutional reform, the Québec be and it clearly illustrated the observa- tion that the Commission on the Political National Assembly adopted a resolution and Constitutional Future of Québec calling for respect for Québec's self- had made several months earlier: determination process: The causes of the rejection of the THAT the National Assembly, while Charlottetown Accord certainly are recognizing the right of the federal numerous and vary from one province Parliament to pass a referendum act, to the next. The complexity of the ask the federal government to abide agreement and the dilution that it by the process established in Bill 150 achieved of various constitutional and, accordingly, not to initiate a demands made it highly unpalat- pan-Canadian referendum that would able. But more fundamentally, the affect the political and constitutional negative vote by the electorate future of Québec, thus reaffirming reflected the difficulty of reconciling the right of Quebeckers to assume different visions of the country: their own destiny freely and to should it be more or less centralized, determine alone their political and and must Québec be a province like constitutional status.38 the others?39

38. Québec, National Assembly, Votes and Proceedings, No. 167 (27 November 1991) at 1621-1622. Two other resolutions of the Québec National Assembly emphasize the importance of having Québec institutions oversee the 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 and Appendices, No. 104 (21 May 1997) at 1134). 39. Henri Brun and Guy Tremblay, Droit constitutionnel, 3rd edition. : Les éditions Yvon Blais, 1997, p. 126.

27 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

1995 REFERENDUM AND SUBSEQUENT EVENTS

n 1994, a new government came the multilateral amending process. The Ito power in Québec with part of its federal Parliament also adopted a resolu- platform aiming for a referendum on tion on the concept of distinct society. the question of Québec's accession to sovereignty. The project submitted to DISTINCT SOCIETY referendum provided that the accession AND UNIQUE CHARACTER to sovereignty would come after formally On December 11, 1995, the House offering to Canada to enter into a new of Commons adopted a resolution in economic and political partnership with which the House recognizes that “Québec Québec. is a distinct society within Canada” and The referendum was held on that this distinct society “includes its , 1995. The outcome was French-speaking majority, unique culture 40 close: 49.42% for the Yes side, and and civil law tradition,” but without 50.58% for the No side. As was the referring to Québec institutions. The case in 1980, the federal government federal government thus reiterated the participated actively in the referendum definition of Québec as a distinct society campaign during this third consultation proposed in the Charlottetown Accord on Québec's political future to be held that Quebecers rejected in the 1992 under the Québec Referendum Act. referendum and which was strongly criticized at the time.41 In the wake of that referendum, a num- ber of political developments occured The resolution also invited all com- touching on Québec's status. Mention ponents of the legislative and executive should be made of the adoption by the branches of the federal government federal Parliament of legislation govern- to take note of the recognition of the ing regional vetoes on constitutional distinct society and to be guided in their amendments. Some experts have stressed conduct accordingly. This has not pre- that this legislation could make it even vented the federal government from harder to amend the Constitution through attempting to impose a millennium

40. Canada, House of Commons Debates (29 November 1995) at 16971. 41. See, in particular, Henri Brun, Ghislain Otis, Jacques-Yvan Morin, , José Woehrling, Daniel Proulx, William Schabas and Pierre Patenaude, “La clause relative à la société distincte du Rapport du consensus sur la Constitution: un recul pour le Québec” in Référendum, 26 octobre 1992. Les objections de 20 spécialistes aux offres fédérales. Montréal: Les éditions -Martin, 1992, 53-56, p. 54.

28 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

scholarship program in the education in the sense of an identifiable collec- sector, which encroaches on Québec's tivity that may assert rights such as exclusive jurisdiction and touches upon the right to self-determination.43 the question of financial assistance to students, an where Québec stands In the rest of Canada, the resurgence out in Canada since, during the 1960s, of the notion of a distinct society has it opted out with compensation from a hardly aroused enthusiasm. Recognition Canada-wide program in order to adopt of the distinct society has undoubtedly its own measures. Moreover, the federal proven to be the most controversial facet resolution did not prevent Ottawa from of failed attempts to bring Québec back concluding in February 1999, without into the constitutional fold. Among other Québec's consent, the Social Union things, a conception of the equality of Framework Agreement (see infra the the provinces leading to the rejection of section on this agreement). any notion of special status for Québec has played a key role in opposition from The federal government has com- the rest of Canada to such recognition. mented on the expression “people of Québec” found in the preamble of its Some have sought to find alternatives resolution on the distinct society:42 to the distinct society. Thus, the provincial premiers and territorial leaders from the The sense in which the expression rest of Canada adopted on September 14, “people of Quebec” is used in the 1997 the dealing context of the resolution is that of with the “unique character” of Québec vox populi — the people directly society. or through elected representatives The Calgary Declaration proposes a having expressed a desire for Quebec's seven-point framework for discussion. recognition as a distinct society One point focuses on the fundamental within Canada. The term “people of character for the well being of Canada Quebec” in this context is not used of the unique character of Québec

42. The preamble reads as follows: “Whereas the People of Quebec have expressed the desire for recognition of Quebec's distinct society […].” 43. Senator B. Alasdair Graham expressing the federal government's position on the matter, Canada, Debates of the (5 November 1996) at 1089.

29 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

society, including its French-speaking Several experts felt that this emphasis majority, culture, and tradition of civil law. on the equality of the provinces reflected a desire to circumscribe recognition of The Calgary Declaration, which is Québec's unique character and signif- merely political and not constitutional in nature, has been approved by the pro- icantly limit its scope. Moreover, the vincial legislatures, except the Québec Declaration, like the Charlottetown National Assembly. However, the latter Accord rejected by Quebecers, provides held audiences at which experts testified a definition of the “unique character” with regard to the Declaration. During that fails to mention Québec institutions, the hearings, several experts stated that a key facet of the definitions of the the Declaration did not satisfy Québec's concept of distinct society formulated in 44 traditional demands or went against Québec. them. Aside from the new dilution of Québec Prime Minister Lucien recognition of Québec's status proposed Bouchard made the following state- therein, the experts also noted the ment on September 16, 1997 on the emphasis that the Declaration's authors Calgary Declaration and the question of placed on the notion of the equality recognition of the Québec people: of the provinces. This principle, which the Commission on the Political and Does the document recognize the Constitutional Future of Québec regarded existence of the Québec people? as one source of the conflicting views that arose in the wake of the failure of In my view, here we touch upon one the Meech Lake Accord, continues to be of the saddest facets of the history of a major obstacle to the establishment of relations between Quebecers and a special relationship between Québec Canadians. When observers wonder and the rest of Canada within the federal a few years from now why these system. two peoples were unable to continue

44. In 1980, the Québec noted in its constitutional program that “[i]t must be recognized that the two founding peoples of Canada are fundamentally equal and that Québec, by virtue of its language, culture and institutions, forms a distinct society within the Canadian federal system and has all the attributes of a distinct 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 National Assembly (supra note 27) — spelling out the conditions for Québec's consent to the repatriation of the Canadian Constitution — also referred to Québec institutions: It must be recognized that the two founding peoples of Canada are fundamentally equal and that Québec, by virtue of its language, culture and institutions, forms a distinct society within the Canadian federal system and has all the attributes of a distinct national community. [Emphasis added]

30 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

to live under the same federal regime, the federal government, which attempted the answer will be, above all, a lack to sway the process in its favour by of respect and recognition and the asking the refusal of one of the two peoples to to give an opinion on Québec's right to recognize the existence of the other. accede unilaterally to sovereignty should Why is it so difficult for our Canadian the outcome of a third referendum neighbours to describe us in the same be positive. The Québec government terms as they use to describe the refused to discuss these questions before other peoples of the world? the Supreme Court since they focus on an essentially political matter over which […] the courts have no jurisdiction. Quebecers There is a deep-seated refusal alone are entitled to settle the issue in a among our neighbours to return the free, democratic referendum. courtesy. This refusal appears to In a brief submitted in February 1997 harden with the passing of each to the Supreme Court, the Attorney year and each decade. The stronger General of Canada claimed that Quebecers the Québec people becomes, the do not form a “people” and that they more dynamic and economically must be regarded as a linguistic minority solid, the less inclined our neighbours within the Canadian people, which alone are to recognize us.45 may enjoy the rights and privileges inherent in this status. He went on to THE FEDERAL GOVERNMENT'S polish his argument in an addendum to REFERENCE ON QUÉBEC'S RIGHT his brief by pleading that if Quebecers TO ACCEDE TO SOVEREIGNTY can claim to form a people in the socio- In the 1980 referendum, 40.44% logical, historic and political sense, it can of Quebecers supported sovereignty, only be for the purpose of exercising compared with 49.42% in the 1995 their rights within the Canadian federation. referendum. This spectacular leap worried

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

31 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

Claude Ryan, an influential Québec used, such as community, people, , former leader of the Québec nation, and society. […] Successive Liberal Party and former minister, Québec governments for half a responded to this claim in the expert century, whether federalist or sover- report he filed at the request of the eignist, have insisted that this charac- amicus curiæ appointed by the Supreme ter be more explicitly confirmed and Court to provide a counter-argument to recognized. In the federal government that of the Attorney General of Canada. brief, Québec is likened to minority Mr. Ryan expressed himself in these terms: “ethnic, religious or linguistic” groups within constituted States that would The reference compels us to specify, be denied the right to independence first of all, what is meant by Québec. under international law. This line of According to the federal government reasoning shifts dangerously away brief, Québec is a province of Canada from the concept of the equality and no more. There is only a fine of the two founding peoples once line between that and saying that recognized by the federal government. Québec is a province like the others. This reductionist conception has […] never been accepted in Québec. As for the right to self-determination, In the current state of law, Québec interpreted as involving, among other has the rank of a province but it forms options, the choice of sovereignty, within the Canadian federal system there is a broad, profound consensus a society that is distinct because in Québec among the main political of the language and culture of the parties and most political interveners. vast majority of its inhabitants, its All of them agree in recognizing that civil law and institutions. Québec's Québec's political future, regardless distinct character is at the heart of of the option chosen, depends, when constitutional debate. To define all is said and done, on the sovereign Québec, various terms have been will of the Québec people.46

46. , “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 of Quebec.

32 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

While the Supreme Court of Canada's reference, another key issue has signif- opinion contains some of the responses icantly affected the Canadian federation sought by the federal government, it from the standpoint of Québec's status. also presents opinions that Ottawa did This question concerns the roles and not expect, such as the recognition by responsibilities of the two orders of the Court of the legitimacy of the process government in the field of social policy. undertaken by Québec and the obligation In constitutional terms, the field of to take into account the expression of the social policy falls, by and large, under Québec people's democratic will: provincial jurisdiction. It is a field in which the federal government has, The clear repudiation by the people nonetheless, intervened extensively, of Quebec of the existing constitu- primarily because of its financial clout. tional order would confer legitimacy In Canada, the division of tax resources on demands for secession, and place between the two orders of government an obligation on the other provinces is not proportional to the expenses each and the federal government to ac- order of government incurs as a result knowledge and respect that expres- of its responsabilities under the Consti- sion of democratic will by entering tution. The provinces assume most of into negotiations and conducting them the cost of social programs, but it is the in accordance with the underlying federal government that controls most 47 constitutional principles […]. of the tax resources needed to fund the programs. This growing fiscal imbalance, SOCIAL UNION FRAMEWORK resulting from the centralization of taxa- AGREEMENT tion during World War II, has enabled Ottawa to interfere in most fields under At the same time as post-referendum provincial jurisdiction. initiatives more directly tied to the Québec question, such as the Calgary During the , Ottawa has signif- Declaration and the Supreme Court icantly reduced transfer payments to

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

33 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

the provinces relating to social programs. latter and the provincial and territorial These unilateral cutbacks led, at the governments concluded, in Ottawa, the request of the nine other provinces, to Social Union Framework Agreement, intergovernmental talks on social policy. without the Québec government's support. While Québec was part of the In the course of these talks, Québec interprovincial consensus on the nego- has advocated its capacity to opt out, tiating stance with the federal govern- with compensation, from Canada-wide ment, it could not support the final initiatives in the social field. The right to agreement given the absence of a opt out was a means of reconciling genuine right to opt out with compen- the viewpoint of the English-speaking sation, which would have reflected the provinces, which favour the federal interprovincial consensus achieved the government's political and prescriptive previous year. Moreover, the agreement role, with a view that calls for the respect opens the door to broader federal govern- of Québec's autonomy in this area, ment control in the field of social policy, which successive Québec governments which nonetheless falls under provincial have defended. jurisdiction. In August 1998, during the annual provincial premiers' conference held in Québec was once again isolated at the , the right to opt out with conclusion of Canada-wide negotiations compensation that the Québec govern- which, while deemed to be “administra- ment deems essential became the focal tive,” presented all the aspects of a point of a negotiating stance adopted constitutional negotiation. Québec Prime unanimously by the provinces and terri- Minister Lucien Bouchard emphasized tories. This position was reaffirmed at at the conclusion of the negotiations that the federal-provincial meeting held on two visions of the country were once January 29, 1999 in Victoria. However, again apparent. The right to opt out with a few days later, on February 4, 1999, at compensation, proposed by Québec as the request of the federal government, the a means of reconciling these two visions,

34 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

was rejected. This situation, combined The federal government indicated with the contents of the agreement, reveals that it intends to apply the agreement as that Québec has reached a stalemate with much as possible in Québec, although the rest of Canada, which is manifestly the latter has not signed it. It also indi- pursuing its own agenda. Joseph Facal, cated that it does not intend to pay Québec Minister responsible for Canadian Québec its share of funds invested in Intergovernmental Affairs, made the Canada-wide social initiatives should Québec refuse to comply with the following observation: conditions governing such initiatives. What this agreement reveals is the More than one observer has deplored inability of the federal government the situation created by the Social Union and the other provinces to reform Framework Agreement. Commenting the federal system while taking into on it, Claude Ryan noted that: account Québec's specific character. This agreement confirms the percep- [I]t represents the third time in the tion that sees the rest of Canada past twenty years that Quebec has emerging as a State that is becoming been abandoned by its partners after less and less federal and more and having decided to make common more resolutely unitary. cause with them.49

In the wake of the failure of the According to Mr. Ryan, Québec was Meech Lake and Charlottetown abandoned for the first time in 1981 accords, the agreement on the social during negotiations on the repatriation union directly calls into question of the Constitution, and the second Québec's place and status in Canada. time in 1990 when the Meech Lake The unprecedented recognition by the Accord failed. other provinces of the federal govern- ment's leadership role runs entirely Professor André Tremblay, a consti- contrary to the historic aspirations tutional expert at the faculty of law, and demands of the Québec people.48 Université de Montréal, and a former

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, June 1999, p. 27.

35 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

constitutional advisor to Québec Prime are modern and reflect our funda- Minister Robert Bourassa, believes that mental interests and continue to the Social Union Framework sounds the inspire the construction of modern- death knell for an asymmetrical Québec.50 and anything resembling special status for Québec: The Social Union Framework is a concrete illustration of growing, accel- The federal Constitution of Canada erated centralization in the Canadian has been undermined by these inter- federation, abetted by Ottawa's taxing governmental manoeuvres and has powers, of key social and economic shifted clearly toward centralization. policies. Successive Québec governments The social policy field, which we have repeatedly denounced this fiscal have always deemed to be one of our imbalance in the Canadian federation. exclusive areas of jurisdiction, has Moreover, they have demanded that been reclassified and falls into the Québec have at its disposal all of the tax category of joint or shared responsi- resources necessary to fund the programs bilities, with the federal government that fall under its exclusive jurisdiction. clearly predominating. Québec has traditionally preferred to collect its own taxes instead of receiving […] subsidies from the federal government There can be no question of sup- to fund its social programs. porting a permanent, intrusive pres- ence by the federal government in our fields of jurisdiction and renounc- ing our identity. Mr. Bouchard did not sign because the values and concep- tions on which our claims are based

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

36 QUÉBEC’S POLITICAL AND CONSTITUTIONAL STA TUS AN OVERVIEW

CONCLUSION

he presence of two distinct national federation. As the thinking on this demand Tcommunities was a key feature of the developed, the notion of a Québec people development of Canadian institutions emerged. after the British conquest. For French The various attempts to renew Canadian Canada, Confederation in 1867 should federalism over the past 35 years have have ensured respect for and the develop- all ended with a rejection of Québec's ment of this duality. Over time, demands demands and of its claims based on its for equality have been formulated by specific situation. In 1982, the 1867 French-speaking Canadians in light of Constitution was substantially amended their experience of the federal system and without Québec's consent. Attempts to the changes in the relationship between seek redress have failed and these failures French Canada and English Canada. illustrate the rest of Canada's refusal to Québec has sought to ensure respect for acknowledge the most basic expression the autonomy promised by Confederation, of Québec's specificity. Nevertheless, the an autonomy deemed at the time essen- defence of the rights of the Québec tial for the development of a French- people and its desire to assert itself have, Canadian nation within the new entity. little by little, come to the fore in Québec's During the 1960s, the Quiet Revolution institutional and democratic life. On brought the realization that it was essential the eve of the third millennium, the to redefine Québec's constitutional status Québec people's quest for equality is still to achieve genuine equality between the an important issue. two main political communities in the

37