The problem with Canadian federalism

Survivance versus Ambivalence

The two solitudes in Canadian society have long disagreed on a number of fundamental questions. It thus should not be surprising that Quebecers and Canadians have very different perceptions about the purpose and significance of federalism. Canadians have always had ambivalent feelings about federalism in general and antipathetic sentiments about classical federalism in particular. Canadians have tended to view federalism as a hindrance to national unity, and have thus reluctantly accepted the federal form of government, and only then on the understanding that the federal government would be superior to the provincial governments. Quebecers long promoted classical federalism as the best means to ensure cultural survival in a largely English-speaking country, but their faith in the federal form of government has been seriously undermined by the ambivalence towards federalism in the rest of Canada. Quebecers, historically at least, have always wanted more federalism while English-Canadians have generally wanted less federalism. Asymmetrical federalism has emerged as the two solitudes have pushed federalism in opposite directions. 

Sir John A. Macdonald was a reluctant federalist. In the Confederation Debates of 1865 on the proposed British North America Act, he stated a clear preference for a legislative union, and he accepted federalism only when he was satisfied that the proposed constitution empowered the general government with “all the powers which are incident to sovereignty.” Macdonald assumed that matters of national importance would be the responsibility of the federal government, while the provincial governments would be responsible for all matters of merely local importance. The leader of the opposition from Quebec, Antoine Aimé Dorion, agreed entirely with Macdonald’s characterization of the constitution and consequently rejected it. Dorion argued that “that the Federal Parliament will exercise sovereign power, inasmuch as it can always trespass upon the rights of the local governments without there being any authority to prevent it...We shall be – I speak as a Lower Canadian – we shall be at its mercy.”

While Sir Georges Cartier is largely credited with selling the proposed constitution to skeptical Quebecers, Dorion’s fears were most squarely addressed in the Confederation Debates by Joseph Cauchon, a Conservative backbencher. Cauchon endorsed the draft constitution because, contradicting Macdonald, he claimed, "There will be no absolute sovereign power, each legislature having its distinct and independent attributes, and not proceeding from one or the other by delegation, either from above or from below. The Federal Parliament will have legislative sovereign power in all questions submitted to its control in the Constitution. So also the local legislatures will be sovereign in all matters which are specifically assigned to them." In the end, the draft BNA Act was adopted by the comfortable margin of 91 to 33, but among French Canadian voters in Lower Canada the split was a much narrow 27 to 21.

Dorion and Cauchon sparred vigorously throughout the Confederation Debates in the Canadian legislature. The ferocity of this debate cannot be underestimated. It was far more than partisan politics. At issue was the survival of the French Canadian population in the province of Quebec. Dorion was obviously convinced that the proposed constitution was detrimental to French Canadian interests. On the other hand, Cauchon revealed Quebec’s conditional endorsement of confederation: Quebec could only accept the proposed constitution if it entrenched what we now call “classical” federalism. As far as Macdonald was concerned, classical federalism was the principal cause of the American Civil War, and he was adamant that Canada would have none of it. The character of Canadian federalism has changed since Macdonald’s day, but the government of Canada has never embraced the principles of classical federalism, nor have the citizens of English Canada.

It is frequently argued – at least in English-speaking Canada – that it is impossible to maintain the principles of classical federalism in an age of economic interdependence. Without questioning the merits of that argument, it would seem that the government of Canada has made very little effort to maintain the independence of the two orders of government in its pursuit of the economic and social unions, both of which have their origins in the federal government’s “Green Book Proposals” and the first Conference on Reconstruction in August 1945. Mackenzie King opened the Conference on Reconstruction with reassuring words for the provinces: "The federal government is not seeking to weaken the provinces, to centralize all the functions of government, to subordinate one government to another or to expand one government at the expense of the others....we believe that the sure road of Dominion-Provincial co-operation lies in the achievement in their own spheres of genuine autonomy for the provinces."

Later that day, however, Louis St. Laurent elaborated that the objectives of the federal government’s post-war reconstruction program were “high and stable employment and income” and he stated clearly that the “division of responsibility [in Canada’s federal system] should not be permitted to prevent any government, or governments in cooperation, from taking effective action.” On behalf of the government of Quebec, Maurice Duplessis rejected the federal proposals, saying the “complete autonomy of the Provinces constitutes the best safeguard for the protection of minorities as well as an essential condition of national unity and progress in Canada.” Once again, Quebec’s demand for classical federalism fell on deaf ears.

The conference collapsed after Duplessis’s departure, but most of the shared cost proposals made by the federal government were realized in a more piecemeal fashion in the quarter century that followed. The government of Quebec forcefully resisted most of these initiatives, and in 1953 it established a Royal Commission of Inquiry on Constitutional Problems, chaired by Thomas Tremblay, to investigate the operation of Canadian federalism. The Commission expressed the view that federalism was still the preferred option of a majority of Quebecers, but it endorsed a quintessentially classical definition of federalism as an “association between states in which the exercise of state power is shared between two orders of government, coordinate but not subordinate one to the other, each enjoying supreme power within the sphere of activity assigned to it by the constitution.”

The Tremblay report, however, had no impact on the government of Canada and its relations with Quebec. On the contrary, the battles between the governments of Canada and Quebec over pension plans, medicare, and other social policies severely strained the federation over the next decade. In 1968, Lester Pearson outlined the federal government’s position in Federalism for the Future. While he was genuinely concerned with linguistic rights, he noted that “the division of powers between orders of government should be guided by principles of functionalism and not by ethnic considerations” and he proceeded to outline an extensive list of powers he deemed essential for the federal government. This list of powers was excerpted and included as an appendix by René Lévesque in his 1978 autobiography La passion du Québec under the heading “Federal Evangelism.” He offered no additional commentary but his implication was clear: if this was going to be the future of federalism in Canada, Quebec would have no part in it.

For the past forty years, the principal conflict between the governments of Canada and Quebec has been the federal spending power – which empowers to the federal government to spend money on matters that it cannot legislate, primarily matters that fall constitutionally in areas of provincial jurisdiction. Whatever the constitutionality of the spending power may be, it is not compatible with the classical conception of federalism, a point that has been acknowledged by the federal government. In 1969, Pierre Trudeau argued in Federal Provincial Grants and the Spending Power of Parliament that "It can be argued that the Constitution should be contrived so as to avoid any need for a spending power – that each government ought to have the revenue sources it needs to finance its spending requirements without federal assistance.... The difficulty with this tidy approach to federalism is that it does not accord with the realities of a Twentieth Century state." Trudeau insisted that "[t]he modern industrial state is so interdependent, particularly in technological and economic terms, and its population is so mobile, that it has become quite impossible to think of government policies and programmes as affecting the people within the jurisdiction of the particular government responsible for these policies."

Thirty years later, the federal government’s view of the spending power was embedded in the Social Union Framework Agreement, an agreement endorsed by all the governments of Canada save Quebec. So, once again, the English Canadian conception of federalism prevailed.

From the constitutional debates in 1865 through to SUFA, English and French Canadians have viewed the merits and purposes of federalism very differently. Will Kymlicka has argued that “it is almost inevitable that nationality-based units [in a federation] will seek different and more extensive powers than regional-based units.” For Kymlicka, then, asymmetrical federalism emerges as these nationality-based units acquire additional powers. But, he argues, asymmetrical federalism is resisted by English-Canadians because they understand federalism in territorial terms. The purpose of territorial federalism – following the American example – is to divide power between several governments to avoid tyranny. The territorial model of federalism assumes that there are no relevant cultural distinctions among the units in the federation.

The government of Quebec has sensed the resistance towards federalism in English Canada, and they have indicated a willingness to allow the federal government to assume a dominant role in the life of English Canadians so long as Quebec is exempt from federal initiatives in areas of provincial jurisdiction, hence opting-out provisions, footnote federalism, and various policy asymmetries in Canadian federalism. On this point, however, English-Canadians raise objections on equality grounds, as Kymlicka rightly notes. Quebec has always sought to maintain its cultural distinctiveness through classical federalism. English-Canadians, however, reject classical federalism in principle. Canadians seem to believe that once a matter reaches a certain level of importance the federal government should assume a role in its governance for all Canadians, regardless if the matter is one of provincial jurisdiction. As English-Canadians reject both classical and asymmetrical federalism, it is little wonder then that Quebec nationalists have given up on Canadian federalism.

Why sovereignty?

From the very beginning of the federation, Quebecers have accepted the fact they were a nation within a nation (or a nation within a multination state). They have accepted their multiple identities, as Quebecers and as Canadians. But Canadians have always refused to recognize the existence of a Quebec people or nation within Canada, and after the departure of Lester B. Pearson, they began to make this rejection more and more explicit.

The transformation of a French-Canadian nationalism into a Quebec nationalism took place during the 1960s. One result of this process was a series of platforms adopted by various Quebec governments. A few examples of these are the 1962 Lesage government's request that Quebec be granted special status; the position of the Daniel Johnson Union Nationale government in 1966, based on the principle of "equality or independence"; the 1967 position of the Liberal party, which proposed a framework between "Associated states"; and the position of the 1970 Robert Bourassa Liberal government which requested that Quebec be granted a "distinct society" status. All of these repeated requests for more political autonomy met with failure during constitutional negotiations and commissions of inquiry.

All of these fruitless negotiations led to the election of the (sovereignist) Parti Québécois in 1976, which promised to hold a referendum on Quebec sovereignty. This referendum, which took place in 1980, was to conclude a process of national affirmation that had begun in the 1960's. Its purpose was to give Quebec a mandate to negotiate political sovereignty and an economic association with Canada. A victory for the "yes" side would have given rise to a second referendum in which the Quebec people would be given a chance to ratify the agreement. This referendum resulted in defeat for the sovereignists.

The referendum defeat of 1980 was due in part to the promises for change made by the Canadian Prime Minister, Pierre Elliott Trudeau. Yet these changes did not materialize, quite to the contrary. In 1981, the Federal government went ahead with its plans to patriate the Constitution, which was still at that time in England. This patriation essentially enabled Canada to modify all by itself its own constitution. However, the patriation took place without reaching a preliminary agreement among the provinces concerning a new sharing of powers between the levels of government as Quebec had been requesting for many years.

The new constitutional law took effect in 1982 despite the fact that the people had not been consulted. In addition, the federal government ignored a nearly unanimous resolution put forward by Quebec's National Assembly which rejected this new constitutional order. Indeed, the new constitutional order incorporated a charter of rights that contained several new clauses severely limiting Quebec's power over matters of language and culture. It was also a document that did not reflect Quebec's interests and answered none of Quebec's historical demands. Finally, it incorporated an amending formula which is not applicable in practice. It should be noted that the constitution, which has governed Canada since 1982, was never ratified by the people of Quebec or by the successive Quebec governments (either federalist or sovereignist), and it has never been signed by Quebec.

Following this patriation, Quebec tried in vain to negotiate constitutional amendments that would enable it to sign the Canadian Constitution. It asked Canada to adopt five simple clauses, contained in the Meech Lake Accord that would fulfill the minimal conditions for Quebec's signature. This attempt at reform failed in 1990, since legislatures of two provinces refused to ratify the accord. The inclusion of Quebec in the constitution was refused despite the fact that its five conditions were minimal in nature, and would have partly helped to repair the damage done by the 1982 show of political force. Symbolically speaking, the most important of these was the clause granting Quebec a "distinct society" status, and it was this one in particular that Canada refused to accept in 1990.

At that point in time, opinion polls in Quebec indicated that popular support for sovereignty had risen to nearly 65%. Despite its federalist allegiance, the government of Quebec, in power since 1985, felt obliged to form a commission on the political and constitutional future of Quebec — the Bélanger-Campeau Commission — which heard the testimony of people from all walks of life and representatives from a wide spectrum of opinion. In 1991, the Commission recommended that the Quebec government begin preparation for a second referendum on sovereignty to be held the following year, if no formal offer was made by Canada. At the very last minute a Canada-wide referendum on the Charlottetown Accord was proposed. This accord was based on a new constitutional agreement between all the provinces, including the federalists in power in Quebec. It involved some of the points that were contained in the Meech Lake Accord and some additional considerations concerning decentralization. The referendum took the place of the one that would have occurred the same day on sovereignty, but it was also voted down (NO : 55% YES : 45%).

Between 1980 and 1995, Quebec was thus witness to the illegitimate patriation of the Constitution, the imposition of a new constitutional order, the failure of the Meech Lake Accord and the failure of the Charlottetown Accord. In addition, at the time of the 1993 federal election, the Bloc Québécois, a new federal party working to advance Quebec sovereignty, appeared. The party won 54 out of Quebec's 75 seats in Parliament. In the 1994 provincial election, the Parti Québécois regained power in the Quebec National Assembly by promising to hold a referendum on sovereignty the following year. This referendum finally took place in October 1995. The results were 50.6% for the NO side and 49.4% for the YES side but evidence that the federal government illegally funded the NO side has cast doubt on the legitimacy of this result. What is certain is that the issue is by no means resolved.

What is clear is that Canadians reject the existence of a Quebec people or nation. They have rejected the bicultural aspect of the federation underlined by the Laurendeau-Dunton Commission. They have discarded the asymmetric federalism promoted by the Pepin-Robarts Commission. They patriated the Constitution without the consent of Quebecers and against the will of its National Assembly. They have imposed a new constitutional order which does not recognize the existence of a Quebec people, does not meet the historical demands of Quebec, and does not reflect its interests. They have rejected the distinct society clause that was contained in the Meech Lake Accord. They even tried to deny the moral right of self-determination to Quebec by putting the matter in the hands of the Supreme Court.

Canadians like to portray Quebec as a petulant child, always making irrational demands and never satisfied with what it gets (which usually ends up being whatever Canada decides to impose). But in reality, Quebec's position on constitutional matters and its view of federalism has always been rational and consistent. It is the rationality of Canada's consistent rejection of Quebec's demands that we need to question.

In conclusion: Root causes and necessary effects 

No account of the problems of Canadian federalism would be complete without an explanation of the underlying motives of the protagonists in this little drama. What are the root causes behind this persistent disagreement over classical federalism? To answer this, the importance of Canada’s origins cannot be overstated. Indeed, the modern Canadian state is the end product of a long historical development that begins with conquest. The ensuing relationship between the French-speaking nation and the English-speaking nation in Canada was never a relationship between equals. One nation clearly dominated the other and at times actively sought its disappearance.

It is this unequal relationship that explains all of the acts of legal violence done by Canada against Quebec, such as the imposition of the 1982 Constitution against Quebec’s will. A Constitution that comes with a charter supposedly to protect individual rights but also, by coincidence, reduces the powers of Quebec’s National Assembly. A Constitution that undermines legislation like Bill 101, designed to protect the French language in Quebec. This undermining was upheld by the Supreme Court, whose judges are appointed, also coincidentally, by Ottawa.

The disagreement over federalism therefore comes down to questions of national identity. Quebecers want the classical form of federalism because it will guarantee them a measure of autonomy that cannot be arbitrarily abolished whenever Canada considers it inconvenient. This is the attitude of a people who care about their nation and want to protect its interests. Canadians, on the other hand, want a form of federalism that is ever more centralized, because they know this will strengthen Canadian power and identity. They are also viscerally opposed to any recognition of Quebec as a distinct society, nation or anything else, because they know that such an identity would rival and undermine the Canadian identity in Quebec. On the other hand, a system with a strong central government and the provinces reduced to mere administrative units, a system with no national distinctions, a system under the highly symmetrical but totally unrealistic official languages act, would in the long run lead to the demise of Quebec’s national identity along with the French language.

Quebec as a nation cannot exist within Canadian federalism; this should be abundantly clear by now. However, there are Quebecers who, out of fear or a sense of self-loathing, still blind themselves to this obvious fact and still cling to the idea that a compromise is possible or, as is the case with our current Primer, Phillippe Couillard, don’t seem to have any demands left. This type of complete capitulation is a road to disaster for Quebec. Quebec must declare itself to be sovereign nation in order to break free from this relationship of dominance and exist as a free people. We cannot completely melt into a centralized Canada without losing who we are as a people and assimilating. Canadians have clearly said no to any recognition of a Quebec nation within Canada, so the only logical, realistic alternative to capitulation and assimilation is independence for Quebec.

Based on articles by Hamish Telford, Department of Political Science, University College of the Fraser Valley, and Michel Seymour, Department of Philosophy, University of Montreal