A New Approach to the Quebec Question

A NEW APPROACH TO THE QUEBEC QUESTION

David R. Cameron and Jacqueline D. Krikorian

With the departure of Mario Dumont and the collapse of the Action démocratique du Québec, Quebec has essentially returned to a two-party electoral system under which the Parti Québécois will inevitably form a government again. In their third consecutive term under Premier Jean Charest, the Liberals are already bucking a modern rule of Quebec politics: two terms and you’re out. A fourth term seems unlikely. The authors suggest that it’s precisely while “the national question” is off the radar that Ottawa and Quebec could negotiate bilateral amendments to the Constitution. This would not require constitutional conferences, or the unanimous consent required for some amendments, or the general amending “7/50” formula requiring the assent of Ottawa and seven provinces representing half the population.

Depuis le départ de Mario Dumont et l’effondrement de l’ADQ, le Québec a pour l’essentiel renoué avec un système électoral bipartite qui rend inévitable le retour au pouvoir du Parti québécois. En ce troisième mandat consécutif sous la direction de Jean Charest, les libéraux ont déjà fait mentir la règle de l’histoire récente du Québec selon laquelle tout parti se voit indiquer la sortie après deux mandats. D’où l’improbabilité d’un quatrième. Et c’est précisément en cette période où la « question nationale » bat de l’aile que Québec et Ottawa pourraient négocier bilatéralement diverses révisions à la Constitution, sans qu’il y ait besoin de conférences constitutionnelles ni du consentement unanime requis pour certaines modifications ou celui de sept provinces comptant 50 p. 100 de la population exigé par la formule générale d’amendement.

ith the stunning collapse of Mario Dumont’s that Quebec would be better off in the current economic Action démocratique du Québec (ADQ), Quebec downturn if it were independent. The PQ has also been pub- W is reverting to its traditional two-party political licly exploring another strategy, which would have a PQ system. The Liberals and the Parti Québécois again confront government making piece-by-piece sovereignty demands on one another across the aisle in the National Assembly, as Ottawa, demanding that it be given full control over critical they have done so often in Quebec’s recent political history. policy fields, such as broadcasting or culture. If Ottawa were The Liberals’ June 22 by-election victory over both the ADQ to reject the given demand, as it almost certainly would, and the PQ candidates in Dumont’s former Rivière-du-Loup this would become a sovereignty grievance for the PQ to use riding confirms the trend line; the Liberals beat the PQ by to stir up Quebec opinion; if, surprisingly, Ottawa acceded 12 points and the ADQ came in a sorry third. to the demand, the PQ government would swallow it whole, Unless you believe that the Liberals can win an unlikely and go back with another demand. On the evidence of the fourth term of office at the next election — and no one since recent by-elections, the PQ argument that it will demand Maurice Duplessis has done that — this means that the sovereignty from Ottawa à la pièce is not touching a respon- chances are very good indeed that we will see the PQ return sive chord with the Quebec electorate. However, it is likely to power in Quebec within the next five years. While the sov- that a future sovereignist government, with all the levers of ereignty issue has been on the back burner for some time, and incumbency at its command, will find a way to disturb the remains so today, you can be sure that the PQ will not loosen country’s tranquility when the time comes. its commitment to the independence of Quebec, and that the Now — while things are quiet on the unity front — may election of that party in, say, four years’ time will put “the be a good time to tackle some of Quebec’s traditional con- national question” front and centre once more. cerns. After all, we have tried to do it in the midst of constitutional crises, and have failed miserably. Maybe it would be he PQ leader, Pauline Marois, has been trying to keep easier to make progress while the province is not in the T the sovereignty embers burning, arguing implausibly throes of a sovereignty debate.

POLICY OPTIONS 73 OCTOBER 2009

David R. Cameron and Jacqueline D. Krikorian

Quebec’s place in Canada has that issues could begin to be addressed National Assembly could introduce a been unresolved since 1982, when by using a little-known provision in bilateral constitutional amendment that Prime Minister Pierre Trudeau patriat- our constitution known as the bilater- gives predominant status to the French ed the Constitution without the con- al amendment process. language in the province of Quebec. sent of Quebec’s government and Section 43 of the Constitution Act, National Assembly. This was a slap in 1982 allows for a province and the fed- bilateral constitutional amend- the face for Québécois who found eral government to address constitu- A ment addressing language issues is themselves governed by a new consti- tional issues particular to one province expressly permitted under section 43 of tution, including the Charter of without involving the rest of the coun- the Constitution Act, 1982. Moreover, Rights, to which they had not agreed try. Ottawa has used this approach to not only is a bilateral constitutional through their legislature. The failures constitutional reform on seven sepa- amendment pertaining to the status of of the Meech Lake and Charlottetown rate occasions. Each time, a constitu- a language legally permissible pursuant constitutional accords made things tional amendment that applied only to section 43, as the New Brunswick even worse and set the stage for the to the province involved was adopted. case demonstrates, but the Supreme near-death experience of the 1995 For example, Prince Edward Island — Court of Canada has already both Quebec referendum. The lesson for when it wanted to build a fixed link to accepted and endorsed the notion that many was that it was probably better the mainland — used the technique French is the predominant language in to let sleeping dogs lie and not engage successfully to remove the ferry Quebec. In the Ford case, it held that in further constitutional discussions. requirements set up under the 1867 the National Assembly could adopt a There was a real sense that continued British North America Act; law that would mandate the French attempts at reform might themselves Newfoundland adopted a bilateral language to have greater public visibil- lead to the dissolution of Canada. constitutional amendment to secular- ity than English. It expressly provided ize its education system; and New that the government of Quebec could ot too long ago, however, there Brunswick used it to grant equality of require the French language to be given N was a successful initiative to offer status to its French and English lin- predominance on signage, as it reflect- a degree of recognition to Quebec. In guistic communities. ed on the “visage linguistique” of the November 2006, Prime Minister province. In the process, the Court Stephen Harper received overwhelm- his mechanism has even been effectively acknowledged and endorsed ing support in the House of Commons T used to adjust the constitutional the notion that the vitality and health (265 MPs to 16) for a resolution recog- status of religion and language in of the French language and culture in nizing that the Québécois form a Quebec. In 1997, a bilateral constitu- Quebec are a valid public policy goal. nation “within a united Canada.” A tional amendment was passed that A bilateral amendment could re- similar resolution was then approved effectively abolished the religious or affirm and constitutionalize Quebec’s by the National Assembly of Quebec. denominational school boards of existing legislative authority and act as This suggests that the country is not Quebec and replaced them with lin- an interpretive provision that informs frozen into constitutional immobility. guistic boards. how the Constitution is to be read and Traditionally, Ottawa has If New Brunswick can employ the understood in Quebec. We are not advo- attempted to address the Quebec bilateral amendment process to cating a measure that allocates new pow- question with constitutional propos- address the standing of the French and ers or redistributes existing heads of als requiring the unanimous support English communities of that province, power; such a proposal would change the of all provincial governments and why can’t Premier Jean Charest and nature and balance of Canadian federal- sometimes a country-wide referen- his federal counterpart use the same ism and require the consent of all of the dum. The 2006 Harper initiative, process to address outstanding issues provinces. Rather, we are suggesting a though, demonstrates there is consid- relating to French language and cul- bilateral constitutional amendment that erable value in dealing with constitu- ture within Quebec? If Quebec can pertains only to Quebec. To this end, we tional issues concerning la belle replace Catholic and Protestant school believe there are at least two options wor- province in a bilateral rather than a boards with French and English ones, thy of consideration. The first is to intro- national context. why can’t the same amending tech- duce an amendment to section 16 of the It might make sense, in this con- nique be used, let us say, to constitu- Charter dealing with official languages, text, for the federal government to dis- tionally entrench French as the official while the second is to introduce a provi- cuss constitutional reform with the language of Quebec (with due protec- sion similar in nature to section 27 of the new Charest government. Don’t get us tions for the English language)? Charter that requires that the Charter be wrong; we are far from suggesting Building on the resolution recogniz- “interpreted in a manner consistent with another Meech or Charlottetown con- ing the Québécois as a nation within the preservation and enhancement of stitutional round. Instead, we believe Canada, the House of Commons and the the multicultural heritage of Canadians.”

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A new approach to the Quebec question

Such a bilateral amendment The proposed amendment, more- society characterized by equal would serve two important public pol- over, would not limit existing lan- provinces, cultural diversity, gender icy objectives. First, the constitutional guage rights for anglophones in equality and the presence of Aborigi- provision would have considerable Quebec. Section 133 of the nal peoples. This is not the case with symbolic importance for Canadians Constitution Act, 1867 ensures that the the suggestions we have put forward. both inside and outside of Quebec. It English and French languages are The bilateral amendment involves two governmental actors: If New Brunswick can employ the bilateral amendment the National Assembly process to address the standing of the French and English and the Government of communities of that province, why can’t Premier Jean Charest Quebec on the one hand, and the Parliament and and his federal counterpart use the same process to address Government of Canada on outstanding issues relating to French language and culture the other — not all the within Quebec? provinces and territories. Furthermore, the amend- would draw some of its symbolic used in both the National Assembly ment makes no attempt to capture a power from the fact that the national and the federal and provincial courts Canadian vision and situate Quebec status of the Québécois has been operating in the province. Similarly, within it. Rather, it offers a degree of affirmed by the legislatures of Canada the education provisions in the constitutional recognition for one and Quebec. It would solidify the Constitution under section 23 of the vital element in Quebec’s existing existing law and policy of Quebec as Constitution Act, 1982 that provide laws and complex reality. well as the jurisprudence of the access to English-language education The insertion of constitutional Supreme Court of Canada. Moreover, for some students would remain in protection for the French language it would provide a sense of security to effect. And to avoid any confusion or in Quebec into the Canadian consti- francophones in the future who may uncertainty among the population on tution would be a powerful declara- be faced with challenges to their lan- this issue, the bilateral constitutional tion that the health and majority guage rights that we cannot today amendment could specifically pro- status of French in its foyer principal anticipate. vide that it does not abrogate existing is a constitutive feature of Quebec, constitutional rights set out in these and a legitimate object of Canadian second rationale for this type of sections. public policy. Despite being an A bilateral amendment is that it The Canadian and Quebec gov- amendment not directly involving would be used as an interpretive aid in ernments would need to satisfy them- the nine other provinces, such a any future constitutional litigation that selves that the criteria utilized in step, because of the necessary assent- challenges measures promoting or pro- previous bilateral amendments have ing role of the Parliament of Canada, tecting the French language in Quebec. been met in this case: namely, that would be regarded as a direct and Like the New Brunswick bilateral con- broad consultation has occurred, that powerful recognition of the enduring stitutional amendment, it would not there is a strong measure of public sup- importance and legitimacy of the provide any new rights or “goods” but port in Quebec for the measure, that French fact in Canada. It could be a rather would ensure that the courts minority opinion has been taken into step toward remedying the country’s would recognize that the French lan- account and that the proposed initia- incapacity to recognize the reality of guage and culture have constitutional tive is consistent with the spirit of the Quebec in an idiom the Québécois value when they render decisions Charter. This initiative would only be themselves understand and accept. involving constitutional challenges to of value if it could be introduced with- Quebec measures. Although Quebec out provoking public contention. David Cameron is professor and chair of legislation entrenching French rights It is worth noting that one of the Department of Political Science at might still be found to violate, for the main reasons why both the the University of Toronto. Jacqueline example, the Charter’s freedom of Meech and Charlottetown accords Krikorian is an associate professor in expression or equality measures, a bilat- were so strongly contested was not the Department of Political Science at eral constitutional amendment of this simply the fact that the amendment York University. This essay is adapted nature would, in effect, mandate the required the consent of other from “Recognizing Quebec in the courts to carefully balance the language provinces, but also that each pur- Constitution of Canada: Using the rights of the Québécois community ported to declare something about Bilateral Amendment Process,” within the province and the rights of the country as a whole. Thus the University of Toronto Law Journal the individual before striking a contest- notion of Quebec as a distinct socie- 58, no. 4 (2008). By permission of ed statute down. ty collided with Canada as a federal University of Toronto Press.

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