At the time this article was
written Ramsay Cook was a professor in the History Department at York
University.
This is a slightly edited
version of a brief presented to the Special Joint Committee on the
Constitution. For the complete transcript see Proceedings of Minutes and
Evidence of the Special Joint Committee on the Constitution, No 2, August 11,
1987.
The proposed Constitutional accord
of 1987, if implemented, would alter the Canadian Constitution radically and
fundamentally in at least two respects:
For the first time since 1867
specific constitutional amendments are proposed which reduce the powers of the
federal government. These include provincial participation in appointments to
the Senate the Supreme Court and a significant, if ambiguous, limitation on the
so-called "spending power" of the federal government. The doctrine of
provincial sovereignty, so vigorously rejected in 1867 and since, has gained
increased recognition in this proposal.
For the first time since 1867 one
province is recognised as occupying a different, special status in the Canadian
federal system. Making Québec a "distinct society" though the term is
undefined, clearly implies that it is une province pas comme les autres. This,
too, represents a radical departure from the past understanding of Canadian
federalism, one in which all provinces were equal in constitutional power (i.e.
the same division of powers existed between the federal government and each of
the provinces), even though differences among the provinces were sometimes
recognised in the formulation of certain policies.
That these proposed changes imply a
radical revision of our federal system is an argument neither supporting the
proposals nor against them. It is merely to say that they are not merely
cosmetic and should be examined thoroughly and deliberately before they are
adopted. To change them after their adoption will prove as difficult - or
nearly - as changing the laws of the Medes and the Persians.
It is impotant to establish at the
outset that these proposals should be considered on their constitutional merits
alone, and not on grounds that they may or may not achieve some extra-constitutional
or political objective. By this I mean that the only justification for these
proposals must be that they improve Canada's constitution. It cannot be that
they will "bring Québec into the constitution". As is well enough
understood, Québec has never been outside the constitution though it has been
unhappy about some of its provisions. Québec's acceptance of these proposals
does not make them either good or bad in a constitutional sense; nor does it
demonstrate that these are the only proposals that would remove Québec's
dissatisfaction. To criticize these proposals, then, cannot be represented as
being "anti-Québec" or even less anti-French Canadian. In my
criticisms it is my desire to make suggestions that would improve the constitutional
accord for all Canadians and that certainly includes the people who live in
Québec. That surely is also the goal of a Joint Committee of the Parliament of
Canada, a body which represents the national interest of all Canadians. Though
there are several sections of the 1987 constitutional accord which I believe
could be improved, I wish, respectfully, to draw the Committee's attention to
two sections - namely Section 2, subsections 1-4, and Section 16, which seem
especially in need of attention.
The proposed 1987 constitutional
accord gives "recognition that Québec constitutes within Canada a distinct
society" and then affirms "the role of the Legislature and Government
of Quebec to preserve and promote the distinct identity of Quebec".
The problem with this declaration
is not what is said, but what is left unsaid: what does the term "distinct
society" which is apparently interchangeable with the even vaguer term
"distinct identity", mean? These are not legal or constitutional
terms, but rather sociological and psychological terms. If the courts are to
interpret these sociological and psychological terms, surely the authors of the
terms should supply the courts with definition of what is intended.
In a sense, of course, each
Canadian province is a "distinct society". Otherwise we would have a
unitary rather than a federal system of government. Since 1867 Québec's
distinctiveness has been recognised in a number of specifically defined ways,
most notably in its civil code and its bilingual character. If that distinctiveness
goes beyond what is already provided for, then the nature of that
distinctiveness should be set out as clearly now as it was in 1867. Does
preserving and protecting that "distinct society" include a role in
international affairs denied other provinces, as it will include a role in
immigration policy? Does it imply manpower or child care policies different
from other provinces? Could it imply a special role in making economic policy?
Could the civil liberties that Quebeckers now enjoy as Canadians be modified to
distinguish Quebeckers from other Canadians? (Given the content of Section 16
of the 1987 accord, this is more than an academic question.) Finally, could
successive challenges to federal powers under the claim of preserving and
promoting Quebec's distinctiveness lead, though étapisme, to a very special
status for Quebec? Given the opting out provisions established in Section 106 a
(1), this seems a legitimate concern. I would remind the members of the
Committee that the former premier Québec, M. René Lévesque, whose party was
committed to a form of special status known as sovereignty-association, wrote
in his recently published Memoirs that: "For Québec, which in all
likelihood would have to use it more than others, the exercise of the opting
out provision should be made as easily as possible. This way, I speculated,
might we not, little by little, be able to build the associate state we had
been refused?" (325). It was, of course, his fellow Quebeckers who, in the
1980 referendum, had refused that "associate state."
By failing to define clearly the
terms "distinct society" and "distinct identity", the
proposed constitutional accord, instead of resolving the sensitive issue of
Québec's place in the Canadian federal system, only opens that question to
further claims and counterclaims about the meaning of terms which as they stand
are at best calculated ambiguities, at worst a long, irreversible step into a
quagmire. Quebeckers, and all other Canadians, need a precise definition of
that province's place in our constitution before any sensible judgement of this
constitutional accord can be made.
I, therefore, respectfully urge the
Committee to recommend that this accord not be approved until a definition of
the content and limits of the terms "distinct society" and
"distinct identity" are agreed to by the Conference of First
Ministers.
I would also urge the Committee to
recommend that, if definition proves impossible, these general declaratory
statements about the sociological composition of Canada be placed in the
preamble to the constitution.
While the Legislature and
Government of Québec are given the role "to preserve and promote"
Québec's "distinct identity", the Parliament of Canada and the
provincial legislatures (no mention of any role for governments in this
instance) are called upon to "preserve" what is described as
"the fundamental characteristic of Canada", namely the existence of
French and English-speaking Canadians in Canada. The difference in terminology
is highly regrettable. It suggests that while Québec is expected to encourage
and develop its "distinct identity", nothing is required of the
federal parliament or the provincial legislature other than the preservation of
the status quo so far as their linguistic minorities are concerned. Surely the
historical record demonstrates conclusively that unless the Francophone
minorities outside of Québec are "promoted" , there will be little to
"preserve" . While the condition of the English-speaking minority in
Québec has normally been more secure, it too may need some promotion if
Quebec's "distinct identity" turns out to be a code word for the
Francophone majority.
I would therefore respectfully urge
the Committee to recommend that Section 2 (2) be amended to read "to
preserve and promote".
The proposed constitutional accord,
in my opinion, provides a serious possibility for judicial conflict between the
"fundamental characteristic of Canada" and the "distinct
society" of Québec - though this potentiality would be reduced if the
latter term were defined. Which of these two terms takes precedence? Surely
this should not be left to the courts to decide. I would therefore submit that
the Committee should recommend the addition of a clause to the accord stating
that in cases of conflict "fundamental" takes precedence over
"distinct", thus making clear that the whole is more than the sum of
its parts.
These last two recommendations, I
submit, are necessary to ensure the future of what most Canadians now accept:
the rights of the French and English-speaking minorities to equal treatment
throughout Canada. It is, after all, minority rights that need protection;
majorities take care of themselves. That axiom should be firmly entrenched in
the Constitutional accord of 1987.
Section 16 of the 1987 Constitutional
accord was obviously included to calm the justified fears of aboriginal
Canadians and those whose linguistic heritage is neither English nor French
about the implications of Section 2 of the accord. But the implication now
exists that only Section 25 or 27 of the Canadian Charter of Human Rights and
Freedoms, Section 35 of the Constitution Act, 1982, or class 24 of Section 91
of the Constitution Act, 1867, are free of restrictive interpretation. That
freedom of speech, assembly, press, religion, the right of habeas corpus or
sexual equality should be limited by the fundamental characteristic or the
"distinct society" clause is, it seems to me, unacceptable.
I therefore submit that the
Committee recommend that Section 16 of the 1987 Constitutional Accord be
deleted. Constitutions, though they are rarely made for all eternity - or even
for a 1000 years - are certainly best when designed to la longue duré . Unlike
ordinary legislation constitutions can only, and should only, be changed, after
careful deliberation and by unusual procedures. Haste is the enemy of good
constitution-making. Moreover, it is especially important that in a modern
democracy every opportunity be given to the people themselves to understand,
debate and approve their fundamental law. Since none of the federal political
parties can claim a mandate for such radical constitutional change as is
implied in the Constitutional accord of 1987 I therefore strongly urge that
this Committee recommend to Parliament that this accord not be implemented
until the people of Canada have given it their approval in either a federal
general election or a national referendum.