Quebec and Interprovincial Discussion and Consultation Claude Ryan*

Constructive and Co-operative Federalism? A Series of Commentaries on the Council of the Federation

Foreword In English Canada, it is generally thought that Canada’s Provincial and Territorial Premiers the 1867 British North America Act created a agreed in July 2003 to create a new Council of the country with two orders of government, a national Federation to better manage their relations and government to administer national affairs and ultimately to build a more constructive and local governments to administer local affairs. This cooperative relationship with the federal vision, which gives a preponderant role to federal government. The Council’s first meeting takes power, never received much support in Quebec. place October 24, 2003 in Quebec hosted by Premier Jean Charest. Indeed, at least until recently, Quebecers have generally seen Confederation as the expression of This initiative holds some significant promise a pact that allowed equal contracting parties to of establishing a renewed basis for more develop in their own way while still being part of extensive collaboration among governments in a larger whole. According to this vision, the Canada, but many details have yet to be worked provinces are the prime movers behind out and several important issues arise that merit Confederation, at least on the historical and wider attention. political fronts, if not the legal one. Instead of merely being provinces responsible for governing The Institute of Intergovernmental Relations local affairs, they form an order of government at Queen’s University and the Institute for Research on Public Policy in Montreal are jointly that is sovereign within its jurisdiction. Quebec in publishing this series of commentaries to particular is the seat of government of a national encourage wider knowledge and discussion of the community. Its legislature and government are proposed Council, and to provoke further thought national institutions, at least in their jurisdictions. about the general state of intergovernmental relations in Canada today. It is therefore not surprising that since 1867, Quebec has steadfastly attributed great importance This series is being edited by Douglas Brown to all things to do with the defence and affirmation at Queen’s University in collaboration with of the province’s powers within the Canadian France St-Hilaire at the IRPP. federation.1 This interest has been expressed in

Harvey Lazar terms of three main issues: the defence and Hugh Segal October 2003 1 The Quebec government’s Secrétariat aux affaires intergouvernementales canadiennes of the Conseil Exécutif has assembled the positions adopted * Claude Ryan is a journalist and independent and recommendations made by successive Quebec analyst. He was leader of the Quebec Liberal Party governments from 1936 to 2001 in a volume entitled from 1978 to 1982 Québec’s Positions on Constitutional and Intergovernmental Issues from 1936 to March 2001.

Constructive and Co-operative Federalism? 2003 (7 English) © IIGR, Queen’s University; IRPP, Montreal. 1 Claude Ryan, Quebec and Interprovincial Discussion and Consultation expansion of powers allocated to the provinces, Manitoba – would “safeguard the autonomy of the participation of the provinces in Canada- every province in the federation by guaranteeing wide decision-making processes, and the need its independence” [translation]. But the absence of for more consultation among the provinces two provinces, British Columbia and Prince themselves. The division of powers and the Edward Island, decreased the effectiveness of the provinces’ participation in decision-making meeting.3 In any event, Mercier’s term as premier processes are crucial issues. However, due to a of Quebec was short-lived and the 1887 meeting lack of space, this article will focus on the third was never followed up. From the early 20th issue, that is, interprovincial co-operation. This century until the Second World War Canadian issue became more immediately relevant since political debates were dominated by trade relations the provincial and territorial premiers decided to with the United States, the First World War, the create a Council of the Federation at their July educational rights of religious and linguistic 2003 annual meeting. In reality, this Council will minorities, immigration, the economic crisis of the be – at least until further notice – a Council of 1930s and the resulting increased responsibility the Provinces and Territories. As these for all levels of government, the emancipation of governments get ready to establish the council, it Canada from British tutelage, the rise of is useful to try to understand the historical totalitarian regimes in Europe and finally the context in which this body is emerging. Second World War itself.

The idea of concerted action among the In Quebec, there was little talk of provinces dates back to the late 19th century. It constitutional issues during this period. From 1900 was first put forward by Honoré Mercier, who to 1936, there were 11 general elections in became leader of the Liberal Party in 1883, Quebec. During this entire period, the electoral leader of the Parti national (made up of liberals, platforms issued by the two main parties, the conservatives and Ultramontagnes with Liberal Party and the Conservative Party, included nationalist leanings) in 1885, and finally, no serious constitutional issues. Nor were any premier of Quebec from 1887 to 1891. Mercier specific commitments made in this regard, other was the “father” of what was commonly referred than to defend the rights of Quebec and to try to to as provincial autonomism. He was an uneasy maintain good relations with the other partners of witness to the increasing number of centralizing the federation. Each party functioned in symbiosis initiatives taken by the federal government with its federal counterpart. After having governed during this period and criticized Prime Minister for 35 years straight, in its 1935 electoral platform John A. Macdonald for having returned, after the the Liberal Party unabashedly declared its close death of Georges-Étienne Cartier, to his old ties with the federal Liberal Party. “Ottawa and dream of a legislative union. As early as 1886, to Quebec,” wrote the authors, “the Liberal Party in ward off this danger he advocated that the Ottawa and in Quebec constitute one party, we “provincial administration…be strong, effective, walk hand in hand, we are Liberals of the same careful with public monies, independent from school, the same colour and the same the central power and buttressed by national stripe.”4[translation] sentiment.”2[translation] He put forward a program focused on vigorously maintaining the While the period preceding the Second World principle of provincial autonomy, War was generally quiet on the constitutional decentralization at all levels and expanding front, in the latter half of the 20th century there municipal authority. were many initiatives. Immediately following the war, the federal government was determined to Among the means Mercier used to promote prevent Canada from being plunged once again his vision of the country was a national into a situation like the Great Depression. It conference of provincial premiers in 1887. undertook to implement policies based on the Mercier had hoped that this meeting – whose report of the Rowell-Sirois Royal Commission, participants (in addition to Quebec) were which had recommended that the federal Ontario, New Brunswick, Nova Scotia and government take a stronger leadership role in

2 Jean-Louis Roy, Les programmes électoraux 3 Ibid., p. 66. du Québec, Volume 1, 1867-1927, p. 53. 4 Ibid., Volume 2, 1930-1966, p. 253.

Constructive and Co-operative Federalism? 2003 (7 English) © IIGR, Queen’s University; IRPP, Montreal. 2 Claude Ryan, Quebec and Interprovincial Discussion and Consultation economic and social affairs. To this end, Ottawa the right to opt out of the federal program of thought that it should hold on to the expanded grants to universities with the transfer of income taxation powers that it had been granted to tax points to Quebec. In 1953 Duplessis had finance Canadian participation in the war. Using appointed the Tremblay Commission to study the substantial resources at its disposal, it put in constitutional issues. Although Duplessis ignored place not only unemployment insurance, which the commission’s recommendations, the broad had been introduced in 1940, but also a variety acceptance they gained in Quebec’s intellectual of income support measures such as more and political circles while he was alive persisted generous old age pensions, family allowance, long after his death. In its report, which appeared financial assistance to post-secondary students, in 1956, the Tremblay Commission recommended, hospital insurance, health insurance, welfare among other things, the creation of a Council of assistance and the Canada Pension Plan. It the Provinces modeled on the American Council created several programs to extend financial of State Governments. support to the education, health and social sectors: assistance for public school Since the 1950s the Liberal Party, which construction, grants to universities, etc. It also formed Quebec’s official opposition, had spoken undertook to build a stronger network of national out against the negative and demagogic nature of cultural institutions: in the wake of the Massey- Duplessis’ nationalism. However, the party had Lévesque Commission of Inquiry, the Canada difficulty shaking off its reputation of being too Council was created and generously endowed; close to Ottawa, a reputation that it acquired and the missions of Radio-Canada, the Film between 1900 and 1940 when the federal and Board, the national museums and art galleries provincial Liberals were indistinguishable and that were confirmed and their funding increased.5 was reinforced after the Liberal government led by Adélard Godbout made significant tax concessions In Quebec, Maurice Duplessis was ardently to Ottawa during the Second World War. Under defending the view that the federal government’s Georges-Émile Lapalme and Jean Lesage, the increasing interventions in the areas of social Liberal Party tried to turn over a new leaf, and, policy, culture and education amounted to an particularly, to inspire confidence in its defence of encroachment upon provincial jurisdictions. He Quebec’s rights and interests. devoted all of his years as premier of Quebec – from 1936 to 1939 and from 1944 to 1959, but In its 1956 electoral platform, the Liberal especially in the latter period – to fighting Party maintained that “in a federation, autonomy against the federal government’s centralizing at the provincial government and local tendencies. Duplessis tirelessly advocated a administrative levels is essential for the effective return to the spirit of the Confederation Pact of management of public affairs.”6 [translation] 1867 and a fairer distribution of tax resources. However, it added, “provincial autonomy goes far However, he seldom advanced constructive beyond saying ‘No’; a positive and constructive proposals to improve the Canadian federal attitude is required in order to find appropriate regime. solutions to the problems that the economic and social transformation of Canada has created in His critics have quite rightly criticized him federal-provincial relations.” 7 [translation] This for his excessive focus on defensive Liberal Party platform endorsed the autonomism. Nevertheless, it was under a recommendations of the Quebec and Montreal Duplessis government that Quebec in 1957 chambers of commerce – also adopted by the established its own personal income tax system Tremblay Commission – for resolving the and in 1954 patriated the inheritance tax. It was disagreements between Quebec and Ottawa over also under his government, in 1957, that Quebec fiscal issues. Also based on a Tremblay and Ottawa reached an agreement giving Quebec Commission recommendation, the Liberal Party committed itself to promoting the creation of a Council of the Provinces. 5 For an excellent synthesis of the history of social security in Canada, see Dennis Guest, The 6 Jean-Louis Roy, Les programmes électoraux du Emergence of Social Security in Canada (UBC Press, Québec, Volume II, 1930-1966, pp. 367-368. 1997). 7 Ibid.

Constructive and Co-operative Federalism? 2003 (7 English) © IIGR, Queen’s University; IRPP, Montreal. 3 Claude Ryan, Quebec and Interprovincial Discussion and Consultation

In its platform for the 1960 election, the spent the next 20 years attempting to regain Liberal Party was even more explicit about control over the constitutional agenda. Except for federal-provincial relations. While the Union a fruitless interprovincial conference convened by nationale was collapsing under the weight of 16 Premier John Robarts of Ontario in 1967, in which years of uninterrupted power, the Liberal Party Ottawa refused to participate, and the initiatives of committed itself to emphasizing Quebec’s the péquiste governments in Quebec aimed at French character, creating a federal-provincial renouncing the federal link, most of the major affairs department, holding an interprovincial initiatives taken between 1966 and 1982 came conference at which it would present a brief from the federal government. These initiatives had based on the Tremblay Report, suggesting to the three main goals: (a) to open the door to other provinces that a permanent Council of the constitutional change and thus thwart the Provinces be created, and proposing that a separatist threat represented by the Parti permanent federal-provincial secretariat be québecois, a party determined to make Quebec established.8 independent; (b) to carry out Prime Minister Pierre Elliott Trudeau’s plan to patriate the Canadian Jean Lesage became premier in 1960 and constitution and give Canada a charter of rights quickly followed up on his commitment to and freedoms; and (c) to ensure that all Canadians convene a national provincial premiers have equal access to economic and social conference. Since this first meeting, held in development, regardless of where they live. Quebec City in 1960, the provincial premiers have met every year in a different province to Thus the federal government launched discuss issues of common interest, each province numerous initiatives between 1967 – the year the in turn presiding over and hosting the meeting. Union nationale came to power in Quebec Various mechanisms have also been campaigning on the theme of “Equality or implemented to foster sectoral co-operation Independence” – and 1982, when the Constitution among the provinces. A good example of this is was patriated and the Charter of Rights and the Council of Ministers of Education, created in Freedoms was entrenched. Several summits were 1967, which regularly brings together the held between 1968 and1970 to discuss ministers of education. There is also the constitutional reform from the perspective of Premiers’ Council on Canadian Health many other issues, and there was the 1971 Victoria Awareness, whose purpose is to increase Conference, whose failure was caused by Canadians’ awareness of health issues. It appears Quebec’s refusal to endorse an agreement that that this recently created body will eventually be ignored its demand for jurisdiction over social integrated into the Council of the Federation. policy matters. Between 1975 and 1977 there was a new plan to patriate the Constitution, which was During the 1960s, Quebec was the main also blocked by Quebec; in 1978 Ottawa released source of Constitutional ideas and initiatives, its document Time for Action and tabled Bill C-60. and it also benefited tremendously from changes In 1980 the Pepin-Robarts Report and the Quebec in this area. In 1966, Jean Lesage could boast Liberal Party’s Beige Paper were released, both of that after six years in power he had increased which supported asymmetric federalism and Quebec’s share of personal income tax revenue replacement of the Senate by a House of the from 13 to 47 percent and its share of inheritance Provinces. Both reports were ignored by Ottawa. taxes from 50 to 75 percent. He had obtained the There was the federal government’s commitment right to opt out of certain shared-cost federal to amend the Constitution in the event of a victory programs with tax compensation by meeting a by federalist forces in the May 1980 Quebec number of conditions. He had also established referendum and the launching of a new round of the province’s pension plan. negotiations immediately after the referendum. In 1981-82, without the agreement and despite the However, the defeat of the Liberal Party in protests of Quebec, the Constitution was patriated 1966 put an end to Quebec’s leadership on the Canadian scene, and the federal government

8 Ibid., p. 385.

Constructive and Co-operative Federalism? 2003 (7 English) © IIGR, Queen’s University; IRPP, Montreal. 4 Claude Ryan, Quebec and Interprovincial Discussion and Consultation and the Charter of Rights and Freedoms of the Constitution. The Meech Lake Accord implemented.9 During this period, successive (1987), conceived to make up for the affront to Quebec governments maintained that in any Quebec in 1982, also came to a sad end following attempt to amend the Constitution the issue of Manitoba and Newfoundland’s failure to ratify it. the division of powers should prevail over the patriation of the Constitution, the adoption of a The Social Union Framework Agreement constitutional amending formula and the (1999) is the most recent example of the fragile implementation of the Charter of Rights. nature of interprovincial common fronts. As Quebec had agreed to participate in a process to This analysis of the events of the period create a Canadian social union, there was a suggests that we should be realistic about the consensus that the provinces should seek an scope and limits of interprovincial co-operation agreement whereby they would retain the explicit and collaboration on fundamental issues. Quebec right to opt out, with fair compensation, from any was not the only province to be apprehensive shared-cost program that the federal government about federal proposals in the 1967-82 period. introduced with the consent of the majority of the On several occasions, the other provinces even provinces. However, the provinces’ consensus on supported Quebec’s positions. Thus, in 1976, this point, deemed crucial by Quebec, quickly Alberta’s Premier Peter Lougheed wrote to the evaporated when they were faced with the lure of prime minister on behalf of his colleagues from increased federal transfers for health care.12 What the other provinces arguing that the Constitution all this demonstrates is that interprovincial should not be patriated without a consensus first common fronts are short-lived. They seem to be being reached on issues of crucial importance to destined to collapse every time the issue involved Quebec (provincial jurisdiction in the areas of reaches a decisive stage where a choice must be culture and communications, the Supreme Court made between what Ottawa perceives to be the of Canada, the spending power, Senate national interest and the position advocated by a representation and regional disparities).10 common front of the provinces. Subsequently, in 1978, the premiers agreed that the division of powers – a priority issue for Since the Charlottetown Accord was rejected Quebec – was “the key issue in constitutional in 1992, there has been a tacit agreement that the reform, and should be addressed in conjunction issue of constitutional reform should not be re- with other matters.”11 On a few occasions opened in the foreseeable future. However, this Quebec sided with the other provinces in has not prevented the Quebec Liberal Party from constitutional reform measures. In April 1981 continuing to focus on this issue. The party has Premier René Lévesque signed, as one of eight published two policy documents dealing with the provincial premiers, a draft proposal for a constitutional question since then, in 1996 and constitutional amendment formula. Quebec also 2001. These documents contain useful elements took part in a judicial process set in motion by relating to the affirmation of provincial power. several provinces to thwart a federal government plan in 1980 to unilaterally patriate the The first, entitled Recognition and Constitution. Nevertheless, in 1981-82 the other Interdependence, describes federal-provincial and provinces did participate actively in the major interprovincial co-operation as two necessary constitutional process that excluded Quebec and conditions for the smooth functioning of Canadian its demands and ultimately led to the patriation federalism. Since the federal and provincial governments serve the same population and their responsibilities and interventions often overlap, 9 For a synthesis of the initiatives taken by the the document says, it is natural that there should federal government between 1967 and 1981, see James Ross Hurley, Amending Canada’s Constitution: History, Processes, Problems and 12 On the 1999 Social Union Framework Prospects (Minister of Supply and Services Canada, Agreement, see The Canadian Social Union without 1996). Quebec, ed. Alain-G. Gagnon and Hugh Segal

(Montreal: Institute for Research on Public Policy, 10 James Ross Hurley, Amending Canada’s 2000). Constitution, pp. 44-45 11 Ibid., p. 48.

Constructive and Co-operative Federalism? 2003 (7 English) © IIGR, Queen’s University; IRPP, Montreal. 5 Claude Ryan, Quebec and Interprovincial Discussion and Consultation be ongoing co-operation among them. For the precedents could be invoked to justify the authors of the document, the need for proposed Council of the Provinces within the interprovincial co-operation is self-evident. They Canadian federation. But it can also be said that suggest that, contrary to what one might think, most of the ideas put forward and initiatives taken the main purpose is not to rally the provinces in Quebec to promote greater co-operation among against the federal government, but rather to deal the provinces have been made either by the with functional considerations such as the need Quebec Liberal Party or by Quebec Liberal for provinces to take into consideration the governments. The other political groupings have impact of their policies on their neighbours and contributed very little on this issue. the common actions that are likely to result from co-operation. However, the report also points out Far from contradicting positions the Liberal that interprovincial co-operation has yielded Party has advocated for the past half century, the modest results, which it attributes to the fact that proposal to create a Council of the Provinces is decisions made within this framework are quite in line with them. As is true of most subject to the unanimity rule. It recommends that measures relating to intergovernmental co- decisional rules be made more flexible, but does operation in the Canadian federation, many not suggest possible changes to existing stumbling blocks will be encountered along the structures of co-operation. Nevertheless, the way to achieving this goal. However, to increase report favours maintaining distinct structures for the chances of its success, certain conditions interprovincial co-operation. It further proposes should be met. Among other things, the council that while the federal government should not should: have the right to vote within these structures, it (a) be an organization of the provinces and should be empowered to submit proposals to the territories made up of representatives of the provinces and request that a vote be taken to provinces and territories, not of the two decide on them. orders of government, and its name should reflect its real mission; The second document, called A Project for (b) pursue objectives that emphasize research, Quebec – Affirmation, Autonomy and Leadership co-operation and joint projects in areas of is also referred to as the Pelletier Report. It was provincial jurisdiction; named after the chairman of the special (c) be an effective instrument for developing the committee that drafted the report, Benoît role that the provinces must play in defining Pelletier, MNA for Chapleau, who became the common good of Canada and not a minister responsible for intergovernmental launching pad for concerted action against the affairs in 2003. This document also emphasizes federal government; the need for the dual co-operation. However, it (d) bring together the various existing does not reach the same conclusions regarding organizations and mechanisms for structures. According to the Pelletier Report, interprovincial co-operation; there should be a Council of the Federation, (e) have operating rules that will empower it to whose aim is to promote federal-provincial co- make decisions on issues of common interest; operation and interprovincial co-operation inside and common structures. However, the report says (f) have sufficient financial and human resources little about the likely composition of such a but avoid becoming a cumbersome structure. council or how conflicts between the federal and provincial partners would be arbitrated. The Finally, it should be openly recognized by the chances of such a proposal materializing appear various parties that the creation of an rather slim. The structure envisaged would in interprovincial council will not in itself solve the fact require a strong secretariat that functions at problem of the provinces’ participation in the an equal distance from the two orders of constitutional decision-making processes within government and with both levels’ continuous the Canadian federation. support. This proposal seems to be somewhat unrealistic.

Summing up the results of this overview, it is fair to conclude that many historical