Quebec Nationalism and Canadian Federalism

Why is there, within Quebec, a strong nationalist movement seeking independence from Canada? This might seem, at first, surprising since Canada is after all a federal state and Quebec is a province within that state. Therefore, Quebec enjoys some level of self-government and it is, for that reason, in a better situation than Scotland, Wales, Catalonia, Gallicia or the Basque Country. These nations would love to be federated states in a true federation. So how do we explain Quebec nationalism? Does the example of Quebec prove once and for all that nationalists, in general, are never going to be happy with less than full sovereignty, no matter how hard we try to accommodate their needs?  I want to show that the choice of independence can be explained despite the fact that Quebec seems to enjoy a certain amount of self-government as a province within Canada. I shall make observations in order to explain what appears to be a very puzzling situation. How do we account for the fact that Quebec is still unhappy within Canada even if it is a federated state?

I shall first show that Canadians refuse to recognize the existence of a Quebec people and I shall then prove that the federal government is engaged into a process of nation building. It wants to create a Canadian national identity while ignoring the Quebec identity.

IS THERE A QUEBEC NATION?

I must first illustrate Canada’s rejection of the existence of a Quebec nation. In order to achieve this aim, we must first distinguish between territorial federalism and multinational federalism. When Canada was created, it might have looked as a multinational federation because Quebec was one of the four founding provinces, and that province was composed by a majority of francophones. So it might be argued that the frontiers of the province of Quebec were up to a certain point created in order to respect the existence of a national majority of French Canadians and to provide for Quebec some kind of self-government.

Indeed, some Quebecers thought at that time that Canada saw itself as a multinational country, a country with two founding peoples. When the constitution was adopted - without a referendum - by a close majority of deputies in 1867, the newspapers within Quebec described the event as the creation of new agreement between the two founding peoples. But it has been argued since then, and in particular by the historian Ramsay Cook, that this constitutional order had never been interpreted in this way by English Canada. The acknowledgment of a province containing a majority of francophones can thus be seen not as an acknowledgement of Canada’s multinational character, but rather as a realistic proposal that Canada was forced to make in order to deal with the French Canadian problem after the failure of a forced union, in the decades that had preceded the creation of the Canadian federation.

So I would disagree with Will Kymlicka who tries in a recent paper to draw positive consequences from the fact that the Canadian federation initially contained a certain multinational dimension, in contrast with the USA where no state were never allowed to be composed of a majority other than Anglophones. We could thus describe the USA as a territorial federation. But I want to claim that even from an historical point of view, Canada was never meant to be a true multinational federation. There is no mention of two founding peoples in the Canadian constitution, and history was never interpreted in such a way by English Canadians. So I’m afraid that Kymlicka is imagining, ex-post facto, a situation that never quite existed at the time. In any case, in the very same paper, Kymlicka recognizes that Canada is no longer a multinational federation, and he quotes Philip Resnick as a political scientist who has prescribed to turn Canada into such a multinational federation. Unfortunately, however, this point of view is now held only by a very small minority of intellectuals in Canada.

Canadians, for the most part, see themselves as forming a single nation composed of all Canadian citizens. Their nation is Canada as a whole. Canada is seen by them as a single nation-state, and not as a multination state. The idea of a Canadian multination state has not yet entered the minds of most Canadians. There is a Canadian nation, but there is no Quebec nation. This was the view of the late Pierre Elliott Trudeau who saw Canada as composed of one nation, two linguistic communities, five economic regions, ten provinces, two territories and a multicultural mosaic. Nowadays, most Canadians endorse that view, and so most of them reject the existence of a Quebec nation. They even reject the idea of a Quebec nation within the Canadian nation.

The demand for recognition of the binational and bicultural character of Canada has been initially made by the Royal Commission’s report on bilingualism and biculturalism in the 1960s, presided by Laurendeau and Dunton. It has then been made by all successive Quebec governments.

Of course, Canada has adopted a policy of multiculturalism. Isn’t this a way to accommodate the needs of Quebecers? It must be emphasized that the policy of multiculturalism was adopted in 1971 under Pierre Elliott Trudeau’s government as an answer to the prescriptions contained in the Laurendeau/Dunton’s commission. Instead of accepting the binational and bicultural character of Canada, Trudeau responded by adopting a policy of multiculturalism that celebrates the cultural diversity of immigration. So it cannot be interpreted as a recognition of the existence of a Quebec people.

However, according to Kymlicka, the policy should be described as a policy of multiethnicity and not as a policy of multiculturalism. Trudeau in a way made a mistake by describing this policy as a policy of multiculturalism. And Trudeau also apparently made the mistake of describing the welcoming communities not as cultural or national but rather as linguistic communities. But this is according to Kymlicka what he meant. If we follow Kymlicka’s reading, and if we accept, in addition, the purely cultural account of Quebec’s nation according to which it is essentially composed of francophones, and thus as Québécois, to use Kymlicka’s own phrase, then we could be in a position to argue that the policy is after all compatible with the existence of a Quebec nation. According to Kymlicka, the Canadian multicultural policy is in effect a bicultural policy. It respects the Quebec’s national culture.

But I am afraid that this reasoning won’t do. First, the Quebec nation is a political community composed of all Quebec citizens, and it also includes Anglo-Quebecers. Second, the policy of multiculturalism asserts the value of immigrant cultural diversity and not the value of polyethnicity. Third, it does not assert the existence of two welcoming national cultures but rather of two linguistic communities. The policy stipulates that immigrants must integrate into either of the two linguistic communities, and it does not talk about the bicultural or binational character of these two welcoming communities. Kymlicka would have us believe that Trudeau was in effect trying to accommodate the existence of the Quebec people in this policy. But nothing could be further from the truth. I told him about this problem eight years ago in a conference that I organized on nationalism, but Kymlicka keeps on saying that Quebec nationalists were wrong in interpreting the Canadian policy of multiculturalism as a way to ignore the existence of a Quebec people.

In effect, this is exactly what is happening. With this policy, any immigrant arriving in Quebec is free to integrate either into the francophone community or the Anglophone community. But this goes against the recognition of a Quebec as a nation, for if we were to accept the national character of Quebec’s political community, then we should ask immigrants to acquire the common public language of this political community, namely French. Of course, if they want to, immigrants can integrate into the English community. But they must also acquire the language of the political community as a whole. But this is precisely what they can avoid if they follow the Canadian policy of multiculturalism.

The failure to commit oneself toward the existence of a Quebec nation is even reflected in the Supreme Court reference on secession that was published in August 1998. In that document, the judges refuse to commit themselves to saying that there is a Quebec nation. They deal with the issue of Quebec secession as a particular instance of a more general problem, namely the secession of any province within Canada.

Canada is a de facto multinational federation, but it is not a de jure multinational federation. And if Canadians do not want to turn Canada into a de jure multinational federation, it is because they do not perceive themselves as part of a multinational federation.

Indeed, in perfect coherence with the preceding remark, Canadians reject the idea of giving to Quebec a particular status as a province within Canada. The demand for recognition of a particular status has been made since the 1960s, but it has always been ignored.

All Canadians assert the principle of the equality of the ten provinces. This principle has been endorsed explicitly in the July version of the Charlottetown Accord in 1992, namely in the provisions regarding the triple E senate, which had to be efficient, elected and equal. It has once again been reaffirmed in 1997 by the nine other provinces in the Calgary declaration. It was then also endorsed by the nine legislatures. The document states that Quebec is a unique society but this expression has no implication whatsoever, since it has to be made compatible with the principle of equality of status of all ten provinces.

This would be incoherent if we recognized the existence of a Quebec people. The province of Quebec would then be very different from all other provinces, and it would only be natural to give it not only a different treatment, but also a different juridical status. But since Canadians refuse the existence of a Quebec people, it is only natural to refuse also the existence of a special status to the province of Quebec.

Canadians also reject the principle of asymmetric federalism. By asymmetry, I mean the existence of a distribution of powers between the federal government and the provinces that differs from one province to another. There is now, of course, a certain de facto asymmetry in the Canadian federation. Contrary to other provinces, Quebec has its own civil code, its own income tax system, its own pension plan, its own linguistic laws. It has a certain control over some of its immigration and it has also control over its manpower training. But for most Canadians, this tendency must now be stopped, because asymmetric federalism is now unacceptable to them.

Needless to say, it should not be entrenched in the constitution. Canada must not therefore become a de jure asymmetric federation. Any power that is offered to a particular province must now be offered to all provinces in accordance with the principle of equality of the ten provinces. In perfect coherence with the rejection of a particular status, Canadians refuse the formal recognition of an asymmetry present in the distribution of powers. So a fortiori, the asymmetry cannot be increased to meet the other traditional demands of Quebec.

The demand for asymmetric federalism has been repeatedly made in the nineteen seventies. It is one of the main recommendations contained in the report of the Pépin / Robarts commission.

IS THERE JUST A CANADIAN NATION?

As I just mentioned, Canada rejects the existence of a Quebec people, rejects a particular status and rejects an asymmetric federalism. But the federal government does not simply remain passive in its refusal to accommodate Quebec. It is constantly on the move. And it is hard to resist the temptation to describe what is going on as a process of nation-building.

There are a certain number of events that took place in the last twenty years that are of a particular importance in this regard. First, we have witnessed, increasingly, some federal spending in Quebec’s provincial jurisdictions, that is, even within those jurisdictions that were recognized in the constitution of 1867, as exclusively provincial. According to the Constitution of 1967, Quebec like all the other provinces has an exclusive jurisdiction over health care, hospitals, education and natural resources. But the federal government is using its own spending power to intervene in all those provincial jurisdictions. Quebec has contested this abusive use of the federal government’s spending power, but the Supreme Court has ruled that it was constitutional.

Second, Canada has imposed upon Quebec a new constitutional order in 1982, despite the fact that the vast majority of Quebec deputies in Quebec’s national assembly voted against it. To this day, no Quebec government, federalist or sovereignist, has ever accepted to sign this revised constitution. By ignoring Quebec’s rejection, Canada has denied Quebec’s right to internal self-determination within Canada. They treated Quebec as a province, not as a nation. It was, according to them, nine provinces out of ten who had accepted to patriate the constitution.

Third, this new constitutional order denied to Quebec the veto that it had before on any constitutional reform. Before 1982, there was a constitutional convention that gave Quebec a veto on any modification to the constitution. But the Court denied the existence of such a veto when Quebec protested after the patriation and this is why this new constitutional order was declared legal by the court.

Indeed, it must be emphasized, and this is my fourth point, that the judges of the Supreme Court are all appointed by the federal prime minister. So in general, they tend to approve most of the things that are done by the federal government. The Court has, for instance, approved most of the laws that were introduced by the federal government, but it has rejected many laws that were introduced by the provincial legislatures. They approved the patriation of the constitution in 1982 and that they denied the existence of a constitutional convention that gave Quebec a veto. And as I've just said that they approved the federal government’s spending power. I could also mention the fact that in the reference on secession, the court says that the secession process must involve an accommodation between the two majorities, the one in Canada and the one in Quebec. But they apparently did not think that things should be the same when it was time to adopt a new constitutional order in 1982.

So the court is playing an important role in the nation building process that has characterized the policy of the federal government of the last twenty years.

Fifth, the new constitutional order of 1982, the one that was imposed upon Quebec, also included a new amending formula to the Canadian constitution. Any substantial modification to the constitution now requires the unanimous consent of all the Premiers of the ten provinces, and it must be ratified by each provincial legislatures within a period of three years. So in effect, although individuals are able to express themselves in referenda on different political reforms, Quebec as a people cannot choose its own political organization within Canada. It has thus no internal self-determination as a people. It is forced to accept a constitutional order that it did not choose and it is incapable of implementing any substantial reform that it would choose.

Sixth, the Meech Lake Accord, which contained five modest provisions, including the one stating that Quebec was a distinct society, was finally rejected by two provinces in 1990. So even this minor reform was not made possible. It appears that Canadians did not want to accept to recognize Quebec as a distinct society. For 60% of them, in polls that were conducted few months before, the word ‘distinct’ meant ‘superior’. That clause would have enabled Quebec to protect and promote French language within the province.

So there is no formal recognition that the Quebec government can make sure that French is the common public language within Quebec. Because of that, Quebec’s linguistic policies are always contested in the Courts by a federally funded political organization called Alliance Quebec. This group receives each year one million dollars from Heritage Canada, Sheila Copps’ Ministry. They recently went in the Courts trying to defend the principle of the equality of the two languages, French and English, on commercial signs, going against the Supreme Court’s ruling according to which French could have a priority without violating freedom of expression. They also argued in another case that the obligation to send one’s children to French schools was a violation of the freedom of choice of French parents. They fail to see, as the Quebec judge of the Superior court emphasized, that this feature of the Quebec linguistic Charter reflects a reasonable equilibrium between the collective rights of the Quebec people and the individual rights of its citizens. Even if Alliance Quebec lawyers lost those two battles in the courts, they are making an appeal in the supreme court of Canada. And they just won another battle in the courts regarding the accessibility of Canadian children in English schools within Quebec. The Quebec law supposes that in order to have their child in an English school in Quebec, the parents themselves or one of their children must already have been educated most of the time in an English school in Canada. But the Canadian charter of rights prescribes more vaguely that their other children must have frequented an English school, without specifying any duration. The Quebec superior court judge interpreted this provision in a very surprising way, by allowing that a child could attend English schools in Quebec, as long as one of his brothers or sisters would be educated for a couple of weeks in an English school somewhere else in Canada.

MORE RECENT BATTLES

The offensive does not stop here. The recent accord on the Social union reached in 1999 between the federal government and the nine other provinces approves the federal government’s intrusions in exclusively provincial jurisdictions. Quebec was left alone, once again, isolated, in trying to defend the possibility of opting out of any federal program with financial compensation. This demand has been repeatedly made in the last forty years. It was made by successive Quebec governments, federalist or sovereignist. The federal government and all other premiers rejected that principle. The nine provinces had initially accepted the principle, but now they decided to go against the agreement that they had reached with Quebec and that they had signed. They initially had approved the opting out principle defended by Quebec, but they were now going against their own signatures. This reversal is not new. It reminds us that the provinces had done the same in 1981, when eight of them turned their back on Quebec and went against their own signature to approve the patriation of the constitution.

In any case, in the social accord, the federal government and the nine provinces only accept the possibility of opting out of any new shared programs. The federal government is thus allowed, for the first time in Canadian history, by the nine other provinces to spend as much as it wants, after consultation, in exclusive provincial jurisdictions, as long as these programs are financed exclusively by the federal government. And provinces are not allowed to opt out of those programs. For the federal government, this is a perfect deal. With the enormous surpluses that it now has, it is no longer interested in shared programs. So the agreement, in effect, allows the federal government to intervene as much as it wants in education and health care. The Accord on Social Union has been denounced by many federalists, but their voice has not been heard.

There used to be a time when Quebec could perhaps find among some of the other ten provinces allies for an additional devolution of powers. But provinces have now capitulated and are willing to let the federal government interfere within their own provincial affairs. So this argument can no longer be used to counter Quebec sovereignists.

The Canadian government is therefore forcing its way into provincial jurisdictions like never before. The Millenium fund, the Chairs of excellence, the program for parental leave are all recent examples of federal intrusions. All these programs fail to respect a subsidiarity clause.

So is Canada the most decentralized federation? Perhaps on paper, but there is no jurisdiction which has not been invaded by the federal government in the last twenty years. So in effect, the federal government is increasingly becoming centralized. Is it fiscally decentralized ? The growing surpluses of the federal government announces the turn of the tide. In less than twenty years the federal government will be spending more in Quebec than the Quebec government itself. In addition, Quebec must assume all the fastly growing costs of the health care system, while the federal government is accumulating huge surpluses with programs that do not grow as fast as the provincial programs.

In recent years, the nation building process went back at the juridical order. As you probably know, there was in 1995 a referendum on sovereignty and partnership within Quebec. 50,6% voted against this option and 49,4% were favorable to it. After the referendum, the federal government went to the Supreme Court hoping that the judges would declare that secession was illegal if it was done without having to conform to the usual procedures described in the new Constitutional order. They wanted the Supreme Court to rule that the only way for Quebec to leave the federation would be with the unanimous approval of all provinces and the federal government.

So the Supreme Court had to manage a delicate political situation and, perhaps because of that, the document that they produced in 1998, the reference on the secession of Quebec, as an answer to three queries of the federal government, was a fairly well balanced judgment. The Court expressed the opinion that a clear result on a clear question would create a constitutional obligation to negotiate secession, in accordance with four underlying principles. Among those is the principle of the primacy of the constitution. In order to comply with the principle, negotiations with a seceding Quebec must lead to a constitutional amendment. In other words, Quebec cannot leave without an amendment to the Canadian constitution that would adapt Canada to its new situation.

However, the Court also says that in the absence of a clear willingness to negotiate, the international community could be led to recognize an unconstitutional declaration of independence by Quebec. So the Court innovates in an important way, because it formulates in the 1998 reference, a procedural recognition of the right of Quebec to secede, even if Quebec is not a colony or not an oppressed people.

Indeed, the Court argues that if the federal government does not behave in the right manner after a positive vote, the international community could be led to recognize the sovereignty of Quebec, even if the declaration of independence is unconstitutional. The international community could be led to recognize the sovereignty of Quebec by evaluating the legitimacy and the legality of the claims. A unilateral declaration of independence is therefore possible and could even be legitimate according to the Supreme Court.

But the Court’s ruling has been used by the federal government as suggesting that a unilateral declaration of independence would not be acceptable. The Court itself also does not entirely close the door to an abusive use of its own prescriptions, because the question concerning what amending formula would be required for a constitutional amendment, in the event of Quebec’s secession, is left unanswered. In paragraph 103, the Court says that although the issue is not yet justiciable, the federal government could return to the Supreme Court if a referendum on secession were to take place in the near future.

And the Court could, on that occasion, be led to say that the appropriate amending formula should be the one which requires the unanimous consent of all premiers, and the ratification of all the ten legislatures, within a period of three years. In short, in order to be able to secede in accordance with the Canadian constitution, Quebec could be forced to comply with the amending formula that was imposed upon Quebec against its will in 1982. Quebec’s right to self-determination would once again be severely undermined.

I now come to my last claim. It provides additional evidence to the effect that the Supreme Court’s reference on secession is used in a distorted way by the federal government in order to pursue its nation building policy. The so-called “clarity bill”, bill C-20, was adopted by the federal House of Commons in March 2000. It was introduced by the federal government as an implementation of the Supreme Court’s prescriptions on the clarity of the question and the clarity of the results.

Bill C-20 stipulates that an absolute majority of votes on sovereignty, that is 50% +1 vote, no longer holds as an interpretation of the democratic principle. If the YES option wins a referendum on sovereignty in Quebec, the federal government will consider whether the majority of Yes voters is sufficiently high enough. So Yes voters do not have the same importance as No voters. The rules of the game that made the No side win with a small margin in 1995 no longer hold for the next referendum. The rules of the game that were valid for Newfoundland’s inclusion in the federation in 1948 (the vote had been of 52%), are no longer valid if a province wishes to leave.

Furthermore, C-20 also states that any referendum question that would include a reference to a partnership offer with Canada would be an ambiguous question, no matter how it is formulated. According to the federal government, the question has to be on secession and on nothing else. So for the federal government, one cannot consider the possibility of a partnership offer. They cannot make clear sense of an economic union between sovereign countries, or make sense of a confederation between sovereign countries. The referendum question must be on complete independence, even if the sovereignist movement in Quebec was, from its very inception, linked to idea of making a partnership offer to Canada. Nowadays, all sovereign countries entertain close economic and political relations with one another. But the federal government knows that such a proposal would win the approval of a clear majority of Quebec voters, and this is the reason why it is forcing Quebecers to choose between an old fashioned nation-state and the status quo.

Finally, Bill C-20 also stipulates that negotiations will have to include the partition of Quebec. This last provision, of course, is only meant as a way to frighten Quebecers, and to prevent them from exercising their right to self-determination.

CONCLUSION

So let me now conclude. As we have seen, Canada is defending a territorial conception of federalism. The federal government has been engaged in the last forty years in a nation-state building that denies the existence of the people of Quebec. They have asserted repeatedly the principle of equality of all the provinces and thus rejected the idea of a special status to the province of Quebec. They have rejected the asymmetric federalism. They have imposed upon Quebec a new constitutional order in 1982, thereby treating Quebec as a province and not as a nation. This new constitutional order denied the already existing veto that Quebec had, as a matter of constitutional convention. Since then, there has been an increasing use of the federal government’s spending power in Quebec’s exclusive jurisdictions. The Supreme Court has played an important role in supporting this nation building. The recent accord on social union has been a further step in the transformation of the federation into a single nation state, since all the provinces, except Quebec, are favorable to the federal government’s use of its spending power in exclusively provincial jurisdictions. We have also seen that the new amending formula makes it impossible to modify the constitution. We noted that the Meech Lake Accord which involved a recognition of Quebec as a distinct society, was rejected by Canada. We remarked that the linguistic policies of the Quebec government were always contested in the Courts. We mentioned that the Supreme Court’s reference on secession has been used by the federal government to declare unacceptable any unilateral declaration of independence. And finally C-20 has been introduced as a means to frighten the population and as a means to discourage any attempt to secede. Meanwhile, as this nation building process unfolds in Canada, Quebec increasingly becomes economically self confident and self assured. The Quebec culture is flourishing, the economy of Montreal is rapidly growing and Quebecers are increasingly unhappy by the intransigence of the federal government.

Of course, a majority of Quebecers still prefer ignoring the above facts. There are those who do not know what’s going on, and who are indifferent. Others say that they are tired of constitutional debates, and they conveniently invoke their apathy in order to avoid having to confront the provocations of the federal government. A chronic sense of morosity often serves as an alibi that conceals the fear felt by many. There are those who find it more easy to join the ones that they can’t beat, and they engage in the usual and very trendy Quebec bashing. There are also those who find it more useful for their own careers to be above those endless battles. They distribute the blame equally between sovereignists and federalists, and claim that they found a third way. There are idealists who believe that we must envisage a reform of federalism but they fail to realize that any such reform is a complete utopia, much less practical than sovereignty. There are also cynics who are completely apolitical and who think they know better. And finally there are federalists who claim they understand our difficulties but who remain silent and turn their heads whenever they see the federal government exerting a domination upon Quebec.

But in spite of all those centrifugal forces, Quebec is slowly and surely becoming self-confident. So it should not come as a surprise to learn that a growing number of Quebecers are now seeking for independence, and even if Canada is a “federation”. Many Quebecers come to believe that if Quebec cannot be recognized as a nation within Canada, it will assert itself by becoming an independent state.

The criticisms that I have raised against the federal government are not made only by sovereignists. They have also been made by federalists such as Claude Ryan. It is fashionable nowadays to describe critics of the Canadian government as radicals and hard liners. But if I am right, although Canada has a fairly enviable and good reputation at the international level, there is another side to this coin. Most Quebecers would much prefer some arrangement within the Canadian federation, if only Canada was willing to recognize the existence of a Quebec nation and was willing to grant an improvement of its self-government. But as we have seen, Canadians are also as a matter of fact practicing what Claude Ryan himself has described as a “dominating form of federalism”. The official Canadian federation conceals the fact that Canada is exerting a domination upon the Quebec people. So I guess one should not be surprised to find so many sovereignists within Quebec.

By Michel Seymour,  January 2001 at Cambridge University