THE HISTORICAL AND LEGAL “Asymmetrical federalism” is a horrible ORIGINS OF ASYMMETRICAL expression, typical of the jargon of political FEDERALISM IN CANADA’S science, belonging to the same family as, say, FOUNDING DEBATES: “consociational democracy”. With good reason, A BRIEF INTERPRETIVE NOTE neither expression really sells on the streets. An informed discussion can be made easier by the

use of synonyms: asymmetrical federalism Guy Laforest means lack of uniform treatment for the various Professeur titulaire federated units within the political community. Département de science politique Canada has had various experiences with such Université Laval absence of uniformity since 1867. Asymmetrical federalism is also a way to convey the idea of Foreword distinct or special status for federated units,

particularly for Quebec. This brief interpretive The federal Liberal Party’s 2004 general election platform heavily emphasized issues that are mainly note will be essentially concerned with the latter subject to provincial competence under the layer of meaning. I shall argue that Canada’s constitution (e.g. health care, child care, cities). Since constitutional founders were explicitly the federal government lacks the authority to conscious that the Resolutions which were implement detailed regulatory schemes in these areas, adopted at the Quebec Conference in 1864 and acting on these election commitments frequently substantially reproduced in the British North requires federal-provincial-territorial (FPT) America Act of 1867 ( The Constitution Act, agreements. 1867 , in contemporary parlance) granted the newly re-established Province of Quebec a A controversial question that arises when significant form of distinct or special status. considering all intergovernmental agreements is whether they should treat all provinces and territories They contributed to the establishment of what similarly or whether the agreements should be we, historians and political scientists of the expected to differ from one province/territory to twenty-first century, call an asymmetrical another. This issue of symmetry or asymmetry arises federation, although obviously they did not use at two levels. The first is whether all provinces should the expression. be and should be viewed as “equal” in legal and constitutional terms. The second relates to the Three preliminary remarks will precede my political and administrative level and the main argument. First, Canadian political intergovernmental agreements it generates. When theorists often portray the country abroad as an should expect all provinces/territories to asymmetrical multinational federation. 1 My be treated similarly in these agreements and when should difference be the rule? arguments here will support their contention, with a caveat. They are right about one pillar of Given this political context, it is timely to our fundamental law, the Constitution Act 1867 . reconsider the factors that are relevant to the issue of However they are wrong, at least with regards to symmetry and asymmetry. We are doing this by Quebec, if one only takes into consideration the publishing a series of short commentaries over the Constitution Act 1982 . I shall come back to this first half of 2005. These papers will explore the point in my conclusion. Second, my work here different dimensions of this issue- the historical, the supports a strand of interpretive revisionism in philosophical, the practical, the comparative (how Canadian historiography, attacking the other federations deal with asymmetrical pressures), nationalist ultra-centralist readings of Lower, and the empirical. We do this in the hope that the series will help improve the quality of public Creighton and F.R. Scott. With Stéphane Kelly, deliberation on this issue. I am trying to make the work of these revisionists available in French Canada and Harvey Lazar

Director 1 See for instance Will Kymlicka, Politics in the Vernacular, Oxford : Oxford University Press, 2001, p.108-109.

Asymmetry Series 2005 (8) © IIGR, School of Policy Studies, Queen’s University Guy Laforest, The Historical And Legal Origins Of Asymmetrical Federalism In Canada’s Founding Debates

Quebec. 2 Third and last remark: the thesis Founders: he played the leading role in the developed here could have legal consequences; Quebec Conference, in the drafting of key in the Reference Case on parental leaves resolutions, in the process of parliamentary currently pending at the Supreme Court of ratification; in addition to all this, he became our Canada, the government of Quebec partly based first Prime Minister and, thus, he was the first its written presentation on this thesis. Further political beneficiary of Confederation. However, comments will have to await the decision of the he entered the with Brown and Court. Cartier in 1864 as the minor player and the federal idea was clearly imposed on him. His Revisionist historiography has fostered a own way of recognizing this in the reconsideration of the centrality of George- parliamentary debates of 1865 is the first step of Etienne Cartier, George Brown and Oliver my demonstration with regards to the existence Mowat, alongside John A. Macdonald, in the of a Quebec-based asymmetrical federalism at business of founding Canada as a federal the time of Confederation: Dominion under the British Crown between 1864 and 1867. Led by Brown and later by But, on looking at the subject in the Mowat, the Upper Canadian Reformists were conference… we found that such a the strongest political force in what was then system was impracticable. In the first called Canada West and they wanted substantial place, it would not meet the assent of provincial autonomy for . Maritime the people of Lower Canada because leaders also fought for local autonomy but, as they felt that in their peculiar position Paul Romney has shown, they did not play as –being in a minority, with a different crucial a role as Brown or mostly Mowat in the language, nationality, and religion wording of the key resolutions at the Quebec from the majority- in case of a junction Conference. 3 As the heir to La Fontaine, with the other provinces, their George-Etienne Cartier was the key player in institutions and their laws might be what was then called Canada East, formerly assailed, and their ancestral Lower Canada and the “born-again” Province of associations, on which they prided Quebec after 1867. To fit Cartier’s purposes, the themselves, attacked and prejudiced; it new constitutional arrangement had to be of the was found that any proposition which kind that would allow him to present himself to involved the absorption of the his compatriots in Quebec as a strong defender individuality of Lower Canada… of the motto common to La Fontaine and would not be received with favour by Etienne Parent : “Notre langue, notre nationalité, her people. 4 nos lois”. Insofar as the political landscape of United Canada in 1864 was concerned, the new Whatever else our Founders wanted to order had to be federal because such was the accomplish, they quite clearly were not seeking desire of the two key players in the East and in a constitution that could lead to the absorption the West, Cartier and Brown. In many respects, of the individuality of Lower Canada. From the Macdonald is the pre-eminent person among our perspective of Cartier, the chief political obligation was to secure the protection of this 2 Janet Ajzenstat, Paul Romney, Ian Gentles and individuality. At the time of Confederation, William D. Gairdner, Débats sur la fondation du Cartier was the Attorney-General for Canada Canada, French edition prepared, introduced and East. One of his most important duties in the supplemented by Stéphane Kelly and Guy Laforest, early 1860s was to preside over the deliberations Québec : Presses de l’Université Laval, 2004. In addition to the aforementioned authors, Robert C. Vipond, Sam La Selva and Christopher Moore 4 Janet Ajzenstat, Paul Romney, Ian Gentles and belong to this revisionist school. William D. Gairdner, Canada’s Founding Debates, 3 Paul Romney, Getting it wrong. How Canadians : Stoddart, 1999, p.279. Thus spoke forgot their past and imperiled Confederation, Macdonald in the Parliament of United Canada, Toronto : Press, 1999, p.105 February 6, 1865.

Asymmetry Series 2005 (8) © IIGR, School of Policy Studies, Queen’s University 2 Guy Laforest, The Historical And Legal Origins Of Asymmetrical Federalism In Canada’s Founding Debates of a commission whose task it was to codify the a safeguard for the autonomous legal identity of French-originating civil law of this section of all provinces. It went hand in hand with the the colony. Through the in 1774, federal idea all right, although it did not offer the British Crown had formally granted to its Quebec any distinct, asymmetrical status. In new subjects the continuation of their French order to find a basis for a Quebec-based laws concerning property and civil rights. This asymmetrical federalism in 1864-1867, one aspect of the identity of the colony had been would have to look elsewhere. The strong, maintained at the worst of times, i.e. in the unmistakable historical and legal foundation for aftermath of the 1837-1838 Rebellions. In 1840- such a principle of asymmetry is to be found in 1841 the Act of Union had expelled the French the following passage of the Quebec Resolutions language from the life of political and public (29, subsection 33, slightly reformulated in institutions, but it had not attacked the French section 94 of the Constitution Act 1867 ): civil law heritage. The exercise of codification was completed in 1866 and, more or less at the Rendering uniform all or any of the same time, provinces were given jurisdiction laws relative to property and civil rights over property and civil rights in the Quebec in , , New Resolutions (43, subsection 15) and in the Brunswick, Newfoundland and Prince Constitution Act 1867 section 92(13). McGill Edward Island, and rendering uniform historian Brian Young has this to say about the the procedure of all or any of the courts relationship between codification and in these provinces; but any statute for Confederation: this purpose shall have no force or authority in any province until Confederation and codification were sanctioned by the legislature thereof. 6 bedfellows in the crucial juncture of the 1860s when the form of Canadian At the time of the Rowell-Sirois federalism was being negotiated. In the Commission in the late thirties, F.R. Scott –legal process by which Quebec became one scholar, essayist, poet and strong voice of the province among others and in which emerging centralist and nationalist Left- French Canadians became a minority formulated what would become the hegemonic element in a federal state in which reading of this provision in English-Canadian English would be the dominant historiography. Section 94 came to be seen as a language, codification institutionalized legal avenue towards centralization, allowing and reconfirmed Lower Canada’s the federal government to standardize the field separate legal culture. 5 of property and civil rights in common law provinces. In Scott’s own grand interpretive A key merit of the Confederation settlement scheme, this was a key element in his attacks for Cartier was the restoration of Lower Canada against the decentralizing thrust of the –Quebec as a self-governing political constitutional jurisprudence coming from the community endowed with the institutions of Judiciary Committee of the Privy Council. We . This represented shall leave aside here the related matter of the substantial progress on the axis of political relevance of this section for the issue of freedom. As the job of codification was being constitutional amendment. 7 As Sam La Selva completed, Cartier could also rejoice with the provision that squarely placed property and civil rights within the realm of provincial powers and 6 Ajzenstat, Romney, Gentles and Gairdner, Canada’s local autonomy. This provision had to be seen as Founding Debates, p.468. 7 On this topic, see Sam La Selva, The Moral Foundations of , Montréal and 5 Brian Young, The Politics of Codification. The Kingston : McGill-Queen’s University Press, 1995, Lower Canadian Civil Code of 1866, Montréal and p.56ff. See also Guy Laforest, Pour la liberté d’une Kingston: McGill-Queen’s University Press, 1994, société distincte, Québec : Presses de l’Université p.16. Laval, 2004, p.201ff.

Asymmetry Series 2005 (8) © IIGR, School of Policy Studies, Queen’s University 3 Guy Laforest, The Historical And Legal Origins Of Asymmetrical Federalism In Canada’s Founding Debates has argued, Scott neglected one dimension of the provision: no standardization would ever The other provinces may have their occur without the explicit consent of the laws made uniform, but an exception in provincial legislature involved in the operation. 8 this respect is made for Lower Canada, For my purposes here, it is interesting to point and as if to make it apparent that Lower out what Scott, despite his unimpeachable Canada is never to be like the rest of the centralist credentials, had to say about the Confederation, it is carefully provided relationship of Quebec with regards to this that the general parliament may make provision. On numerous occasions in his famous uniform the laws of the other provinces piece on Section 94, Scott reiterated that it did only –that is to say, provided those not apply to Quebec. 9 In the field of property provinces consent to it, but by inference and civil rights, the province of Quebec could it cannot extend this uniformity to not relinquish its legislative powers. Now this Lower Canada, not even if she should has to be seen as a clear legal manifestation of wish it… They may become uniform asymmetrical federalism. Recent revisionist among themselves, but Lower Canada, historiography such as the work accomplished even though her people were to wish it, by Ajzenstat, Romney, Gentles and Gairdner in must not be uniform with them… Canada’s Founding Debates unmistakably Thus, in one way and another, Lower support this dimension of Scott’s interpretation. Canada is to be placed on a separate On the matter of property and civil rights, our and distinct footing from the other Founders thought that Quebec, with its civil law provinces, so that her interests and tradition, could never be rendered uniform with institutions may not be meddled with.11 the other provinces, not even if it gave its own consent to such standardization! The following There were many aspects to Confederation, excerpts of speeches pronounced by M.C. and many sides to the political career of Cartier; Cameron (Canada West) and Christopher I wish to over-simplify neither of these complex Dunkin (Canada East) in the United Canadian realities here. Obviously, there were many Parliament in 1865 lend support to such a centralizing aspects in the Quebec Resolutions reading of this dimension of our constitutional and in the Constitution Act 1867 ; many of them arrangement : were approved by Cartier. For instance, as the person with the broadest social connections Such being the guarded terms of the among our Founders, Cartier supported the resolution, why is it not made powers of reservation and disallowance as applicable to Lower Canada as well as means to offer safeguards to the English- to the other provinces? I can easily Catholic and Protestant groups in Quebec. 12 understand the feeling of the French This notwithstanding, Cartier’s central people and can admire it –that they do achievements were the restoration of the not want to have anything forced upon political existence and autonomy of Quebec, them whether they will or not. But they with legislative control over local matters and will not allow you to contemplate even affairs related to communitarian identity such as the possibility of any change taking property and civil rights. Through the well- place for the general weal, and with understood meaning of Section 94, at least for their own consent, in their laws… I do our Founders, at the time of Confederation and not understand. 10 of civil law codification, Quebec re-emerged as a self-governing political community with substantial legislative powers and a unique, 8 La Selva, The Moral Foundations of Canadian distinct, asymmetrical constitutional identity in Federalism, p.56-57. Canadian federalism. We should not be 9 F.R. Scott, Essays on the Constitution, Toronto : University of Toronto Press, 1977, p.114-118-122. 10 Ajzenstat, Romney, Gentles and Gairdner, 11 Ibid., p.346 Canada’s Founding Debates, p.305-306. 12 Ibid., p.435.

Asymmetry Series 2005 (8) © IIGR, School of Policy Studies, Queen’s University 4 Guy Laforest, The Historical And Legal Origins Of Asymmetrical Federalism In Canada’s Founding Debates surprised to read that similar arguments were part of our fundamental law, political theorists employed when Cartier, Taché, Belleau and like Kymlicka are thus correct to write that others had to defend the proposed constitution in Canada belongs to the family of asymmetrical Quebec: multinational federations. However, our constitutional law and corresponding political What Confederation did was to break culture have been substantially transformed by up that united province, and to create a the addition of the Constitution Act 1982 . The separate province of Quebec and a main author of this reform, Pierre Elliott separate province of Ontario. The pro- Trudeau, did not regard favorably the principles Confederation editorialists, speech- of asymmetrical federalism or special status for makers, and pamphleteers pushed that Quebec. His vision of liberal democracy aspect of the arrangement- that Quebec propounded symmetrical equality for individuals was going to be separated, that French as well as for provinces. On this issue, there are Canadians were going to have a state of differences between Mr. Trudeau’s personal their own which would have complete vision and the content of the reform’s most control over all matters of provincial important aspect, the Canadian Charter of Rights jurisdiction, and that it was a move and Liberties. The Charter, for instance, towards greater separation. That was recognizes indirectly that Canada is a the selling point in Quebec… It was multinational federation through its provisions justified to nationalist-minded French concerning aboriginal peoples. But the main Canadians as a kind of liberation: at point for me here is the kind of political culture least on provincial issues they would be fostered in the land by Mr. Trudeau’s vision and able to follow their own inclinations by the reform. The 1982 reform has moved us and not to have to seek cooperation into an age of solemn, symbolic constitutional from the English. 13 declarations. I shall call Mr. Trudeau’s vision of clear, solemn, symmetrical equality for all CONCLUSION Canadians and all provinces within Canadian There was indeed a strong, coherent, logical federalism, “symétrie à la française”, or historical and legal basis for asymmetrical “French-inspired symmetry”. federalism in Canada’s Founding Debates, in the Quebec Resolutions as well as in the In our constitution, the 1867 principle of Constitution Act 1867. It was a peculiar kind of English-inspired asymmetry, granting Quebec asymmetry. It was an indirect, oblique, tacit, sort distinct status within the Canadian federation, is of asymmetry; it had to be read through opposed by the 1982 principle of French or “inference”, “induction”, as those who spoke Cartesian or Trudeau-inspired symmetry , about it at the time saw it. I shall call this rejecting any substantial legal distinct status for “asymétrie à l’anglaise”, or “English-inspired Quebec. Canadians have not yet found their way asymmetry”. It was the kind of reasoning to to French-inspired asymmetrical federalism. which a sharp legal mind, trained in the English Although history remains open, the debates or British common law, such as Oliver Mowat, provoked by the signature of the Health was accustomed. Less than twenty years after Agreement in September 2004, including a British extremists had burnt the Canadian parallel Canada-Quebec Accord on Parliament in Montréal, there was possibly asymmetrical federalism, have taught us that politically no other way to write in the new getting there will not be an easy, safe journey constitution a distinct special or asymmetrical for anyone. status for the re-established Province of Quebec. Inasmuch as the Constitution Act 1867 is still

13 Arthur Silver, as quoted in Robert Bothwell, Canada and Quebec. One Country Two Histories, Vancouver : UBC Press, 1995, p.38-39.

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