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The Secession Reference and National Reconciliation: A Critical Note

Published online by Cambridge University Press:  18 July 2014

Gregory Millard
Gregory Millard
Affiliation:
Department of Political Studies, Queen's University
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Abstract

In its judgement on the constitutionality of a unilateral declaration of independence by Quebec, the Supreme Court claimed to be guided by the implicit or explicit constitutional principles of democracy, federalism, rule of law, and respect for minorities. French-English duality, as part of a “multination” conception of Canada, was not among these, despite being crucially implicit in the Court's reasoning. Had the principle of duality been articulated, it would have enhanced the theoretical cohesion of the judgement; more importantly, it would have furthered a necessary dialogue outside Quebec, insofar as national reconciliation requires the recognition of Quebec's distinctiveness by the rest of Canada. The secession reference was therefore a significant opportunity missed.

Résumé

Dans son jugement sur la validité constitutionnelle d'une déclaration d'indépendance unilatérale de la part du Québec, la Cour suprême a déclaré avoir tenu compte des principes constitutionnels, implicites ou explicites, de démocratie de fédéralisme, de primauté du droit et de respect des minorités. Elle a toutefois exclu de son argumentation le principe de la dualité linguistique (une partie intégrante d'un Canada «plurinational»), un principe pourtant implicite dans son raisonnement. S'il avait été énoncé, ce précepte aurait, d'une part, donné plus de cohésion théorique au jugement de la Cour et, d'autre part, nourri un dialogue hors Québec bien nécessaire. Ainsi, la belle occasion qu'offrait le renvoi relatif à la sécession a bel et bien été manquée.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 14 , Issue 2 , Fall/automne 1999 , pp. 1 - 19
Copyright
Copyright © Canadian Law and Society Association 1999

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References

1. For a thorough review of immediate reactions, see The [Montreal] Gazette, (21 August 1998) A1–2, A4, A7–11Google Scholar. The reference has occasioned much interesting expert commentary, e.g. (1998) 10 Constitutional Forum 1Google Scholar; and Canada Watch 7: 1–2 January-February 1999Google Scholar.

2. Dion, S., “Explaining Quebec Nationalism” in Weaver, R. Kent, ed., The Collapse of Canada? (Washington: The Brookings Institution, 1992)Google Scholar.

3. This grammatically dubious adjective is a regrettable alternative to “multinational,” which evokes global corporations. Kymlicka, W., Finding Our Way: Rethinking Ethnocultural Relations in Canada (Toronto: Oxford University Press, 1998)Google Scholar, provides my precedent on this.

4. Ibid. at 30.

5. Ibid. at 139.

6. Ibid. at 136-46.

7. It arguably reaches back to the Constitution Act of 1791. A line has traditionally been drawn between the “pan-Canadian” stream of dualism, whose greatest champions have probably been Henri Bourassa and Pierre Trudeau, and the Quebec-centred variant discussed here. See, for instance, Oliver, M., The Passionate Debate: The Social and Political Ideas of Quebec Nationalism 1920-45 (Montréal: Véhicule Press, 1991), 19–89Google Scholar.

8. The language was later changed to “Canadians,” in part to avoid dualist overtones. Russell, P. H., Constitutional Odyssey: Can Canadians be a Sovereign People? (Toronto: University of Toronto Press, 1992), 138–40Google Scholar.

9. Kymlicka, supra note 3 at 165.

10. The above analysis leans heavily on ibid.

11. McRoberts, K., Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997) 31–54Google Scholar [hereinafter Misconceiving Canada]. The last decade has witnessed a small explosion of academic literature which tries to conceptualize “English Canada.” Examples include McRoberts, K., ed., Beyond Quebec: Taking Stock of Canada (Montreal & Kingston: McGill-Queen's University Press, 1995)Google Scholar, Resnick, P., Thinking English Canada (Toronto: Stoddart, 1991)Google Scholar, Granatstein, J.L. & McNaught, K., eds., “English Canada” Speaks Out (Toronto: Doubleday Canada, 1991)Google Scholar, and the most theoretically extravagant expression of this trend, Angus, I., A Border Within: National Identity, Cultural Plurality, and Wilderness (Montreal & Kingston: McGill-Queen's University Press, 1997)Google Scholar.

12. See, for instance, Taylor, C., Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism (Montreal: McGill-Queen's University Press, 1993) at 155–201Google Scholar; Laforest, G., Trudeau and the End of a Canadian Dream, trans. Browne, P. Leduc & Weinroth, M. (Montreal & Kingston: McGill-Queen's University Press, 1995)Google Scholar; Fournier, P., A Meech Lake Post-Mortem: is Quebec Sovereignty Inevitable? trans. Fischman, S. (Montreal & Kingston: McGill-Queen's University Press, 1991) at 68–83Google Scholar. From a somewhat different angle, M. Smith suggests that ROC's identity, such as it is, rests primarily in its commitment to plurality and rejection of monolithic “national” discourses. Dualism remains a non-starter on this account, because it cannot adequately speak to such pluralism. Smith, M., “Le choc des identités au Canada: du rejet de la dualité à la quête d'une indentité plurielle” in Rocher, F., ed., Bilan québécois du fédéralisme canadien (Montréal: VLB, 1992) at 79–92Google Scholar.

13. Lévesque, R., An Option for Quebec (Toronto: McClelland and Stewart, 1968) 26Google Scholar.

14. See Misconceiving Canada, supra note 11, as well as G. Laforest, supra note 12.

15. See, for instance, Cairns, A. C., Reconfigurations: Canadian Citizenship and Constitutional Change. Williams, D. E., ed. (Toronto: McClelland and Stewart, 1995) 170Google Scholar.

16. There can be no denying that many dualists have failed to realize the importance, and very real moral power, of the multicultural ideal in anglophone Canada. But Kymlicka's distinction between ethnocultural and national minorities helps to show why a “multination” reading of Canada needs not oppose this ideal. We can affirm distinct categories of cultural difference, approaching what Charles Taylor famously called “deep diversity,” thereby eschewing a zero-sum game model of recognition. There is no a priori reason why integrative multiculturalisms cannot thrive within a bi- or multi-nation framework.

17. For the most recent example of this favourite argument of Trudeau's, consult M., and Nemni, M., “A Conversation with Pierre Trudeau” (1998) XXVI Cité libre 94 at 99–100Google Scholar.

18. Smiley, D.V., Canada in Question: Federalism in the Eighties, 3rd ed. (Toronto: McGraw-Hill Ryerson Ltd., 1980) 294Google Scholar.

19. The provisions of Bill 101 which forbade commercial signage in languages other than French have been effectively abandoned. Of course, my assertion that these laws reflected an exclusionary nationalism is not beyond reproach. The old sign laws could be defended as a sort of collective therapy for wounds caused by the economic hegemony of the English in Quebec prior to Bill 101; and also as reassurance for those concerned about the survival of the French language in Quebec. anxieties of a now-dominant majority? Furthermore, don't these anxieties flow more from the invisibility or marginalization of French in the pre-Bill 101 period, than the very existence per se of other languages and cultures in the province? If so, then the present laws mandating French prominence on signs seem adequate to the purpose, and the earlier incarnations of the law may well owe something to an exclusionary impulse. At the very least, we can identify such impulses among some of the laws' advocates. A much clearer manifestation of exclusionary tendencies can be seen in the Lévesque government's aborted Bill 1, with its “clear subtext that non-French-origin residents of Quebec were not included as ‘true’ citizens of the province.” Levine, M. V., The Reconquest of Montreal: Language Policy and Social Change in a Bilingual City (Philadelphia: Temple University Press, 1990) 118Google Scholar.

A second line of defense for these laws, one regrettably advanced by René Lévesque himself, suggested that immigrants require constant reminders that French is the common tongue of the province, including unilingual signs. The patronising nature of this claim no doubt owes much to the strained relations between francophones and immigrant communities in the pre-Bill 101 period. In any case, it overlooks the fact that immigrants are required to educate their children in French—surely a powerful daily reminder of Quebec's linguistic reality, as well as a guarantee that second-generation immigrants will be acculturated to the francophone community. Thus, the old laws were at best overkill, and at worst a deliberate attempt to symbolically exclude non-francophones from the public discourse of Quebec. Lévesque's views on this matter are quoted in ibid., 175.

20. Balthazar, L., “The Faces of Quebec Nationalism,” in Gagnon, A.-G., ed., Québec: State and Society, 2nd ed. (Scarborough: Nelson Canada, 1993)Google Scholar. A more critical take can be found in Whitaker, R., “Sovereign Division: Between Liberalism and Ethnicity” in Littelton, J., ed., Clash of Identities: Media, Manipulation, and Politics of the Self (Canadian Broadcasting Corporation, 1996) 73–87Google Scholar; see also Balthazar, L., “Identity and Nationalism in Quebec” in Gagnon, A.-G., ed. Québec: State and Society, 2nd ed. (Scarborough: Nelson Canada, 1993) at 101–12Google Scholar.

21. ROC's hostility to the “distinct society” provision of the Charlottetown Accord is traced in Johnston, R., Blais, A., Gidengil, E. & Nevitte, N., The Challenge of Direct Democracy: The 1992 Canadian Referendum (Montreal & Kingston: McGill-Queen's University Press, 1996) at 76–81Google Scholar.

22. The Council for Canadian Unity Homepage <http://www.ccucuc.ca/en/polls/poll.html> (date accessed: 20 August, 1999), consistently offers useful data on this.

23. Trudeau's original policy statement on multiculturalism was careful to sever language and culture, in order to reconcile the policy with bilingualism. See Trudeau, P., “Statement on Multiculturalism,” in Forbes, H. D., ed., Canadian Political Thought (Toronto: Oxford University Press, 1985) 349–51Google Scholar.

24. The Council for Canadian Unity Homepage, supra note 22.

25. A revealing account of the 1995 campaign is offered in Greenspon, E. and Wilson-Smith, A., Double Vision: The Inside Story of the Liberals in Power (Toronto: Seal Books, 1996) 305–32Google Scholar.

26. Dufour, C., A Canadian Challenge/Le défi québécois (Lantzville and Halifax: Oolichan Books and The Institute for Research on Public Policy, 1990)Google Scholar; Laforest, supra note 12; and Taylor, supra note 12, esp. 155-201.

27. The nature of this ethic is explored in Taylor, supra note 12 at 172-79. Taylor claims that ROC is preoccupied with “procedural liberalism” which remains blind to collective identities and goals. This is counterpoised to Quebecers' preferred model of liberalism, which seeks to balance such goals with individual rights.

28. Reference re Secession of Quebec, [1998] 2 S.C.R. 240. Note that the principles just enumerated are “by no means exhaustive.” Furthermore, the Court reiterates its right to embrace “written as well as unwritten rules” in its interpretation of such guiding ideals (ibid.). This suggests that the Court had ample legal room to extrapolate a dualist and “multination” interpretation had it been so disposed, especially given the unspoken importance of these precepts in our history, and in its thinking on the secession reference.

29. Understandably, the Court de-emphasizes the extent to which the Fathers of Confederation were preoccupied with constraining popular democracy. In like fashion, it interprets the 1982 Constitution Act as largely compatible with federal principles, despite many Quebecers' protestations to the contrary.

30. Ibid.at 242.

31. Ibid. at 252.

32. The view that the totality of Quebec citizens forms “a people,” in the same organic sense that, say, Native peoples seem to, abuses the notion of the national minority. It seems completely unable to account for ethnocultural diversity within the province and the apparent rejection of Quebec nationalist premises among significant elements of the province's non-francophone populations. Nevertheless, had the Court chosen explicitly to work with the concept of the “national” minority, it could have claimed that an overriding fact of Quebec's collective life is its special symbolic and institutional role vis-à-vis the francophone identity. Thus Quebec can legitimately be considered a “nationality-based unit.” But the optics of denying that Quebecers do not form “a people” (except in the civic sense) would have been politically perilous, as Quebec nationalists have all too often assumed away the theoretical difficulties involved in the reconstitution of their shared identity from “French Canadian” to Québécois.

33. These include bilingualism, linguistic and religious education rights not extended to other groups, special provisions for Quebec judges and senators, and, in the case of Aboriginals, treaty rights. Were we to consider pre-Confederation history, we would find an abundance of further support, most notably the Quebec Act.

34. Ibid. at 262-63 [italics added].

35. Ibid. at 263.

36. Ibid. at 266.

37. Ibid. at 268.

38. This is explicitly developed at 294.

39. Ibid. at 268.

40. Ibid.

41. We should not overlook the likelihood that the text represents a compromise between various members of the Court, and that the dualistic references were necessary to accommodate something approaching a “multination” reading of the constitution on the part of one or more justices.

42. The judgement does specify that the values thus enumerated are “by no means exhaustive” (ibid. at 240). So the door remains open for the seamless insertion of dualist premises on some later date.