Split Decisions

It was the best of times and the worst of times. For a whole generation, Canada was caught up in existential politics. In 1965, the members of the Royal Commission on Bilingualism and Biculturalism raised the alarm, saying they had “been driven to the conclusion that Canada, without being fully conscious of the fact, is passing through the greatest crisis in its history. . . . If it should persist and gather momentum it could destroy Canada.” For thirty years, the threat of Quebec secession, language policy, Indigenous and other minority rights, and even Senate reform were at the centre of our politics. We had patriation of the Constitution in 1982, numberless meetings of first ministers, multiple commissions and consultations, rifts and rancour. The drawn-out Meech Lake episode destroyed the Progressive Conservatives, caused deep strains within the Liberals, and nurtured the birth of the Reform Party and the Bloc Québécois. Quebecers voted no to sovereignty-association in 1980. They (like the majority of Canadians) voted no to the Charlottetown Accord in 1992. And by a narrow margin — 1.16 percent — they voted no to independence in 1995.

With the 1995 results so close, and with Lucien Bouchard riding so high after he assumed the premiership three months later, many thought that the conditions were ripe for a final independence push. That never happened. Rather, as Andrew McDougall argues in Sleeping Dogs: Quebec and the Stabilization of Canadian Federalism after 1995, a number of issues involving the Constitution and Quebec’s place both inside and outside of Canada were essentially “set aside without actually being resolved.” So thirty years of high drama were followed by thirty years of relative quiescence. How and why did the great debate fizzle?

Certainly, it was not because historic demands for constitutional change had been satisfied. Quebec opposed patriation, and the demise of the Meech Lake Accord reflected the failure to “bring Quebec into the Constitution” by addressing its five basic demands. Specifically, the demand for recognition of Quebec as a distinct society met tremendous opposition elsewhere in Canada, from those who worried it would give Quebec special powers and undermine the equality of provinces. (Indigenous Canadians, incidentally, were among the winners of patriation, though their further constitutional claims failed alongside the Charlottetown Accord.)

McDougall, a lawyer and a political scientist at the University of Toronto, describes the situation over the last three decades as a “constitutional abeyance,” which he defines as “an unsettled, constitutive matter at the heart of a constitution.” Because attempts to resolve an abeyance “will almost always set up an existential clash,” McDougall suggests, “federalist political elites” worked to push the constitutional disagreements aside. Concurrently, other factors eroded support for Quebec sovereignty.

McDougall offers a rich review of commonly offered explanations for this decline, including “constitutional fatigue,” more collaborative problem solving (“non-constitutional renewal”), shifting identity politics, generational change, and economic globalization. He sees some truth in each, though he gives the least weight to constitutional fatigue. He also thinks that federal elites’ handling of Quebec’s five Meech-era demands has helped to ease tensions. After the failed referendum, for example, the House of Commons passed a motion recognizing Quebec’s distinct society. Then in 2006, Stephen Harper, in a fine gesture of apostasy, sponsored another one, recognizing “that the Québécois form a nation within a united Canada.” (McDougall wrongly suggests the resolution recognized “Quebec” as a nation. The different wording was intentional — and objectionable to nationalists.) Quebec’s demand for the right to opt out of shared-cost programs with compensation has had a more mixed treatment, especially with Liberal governments that have promoted new programs while showing some sensitivity to provincial concerns. Another major stipulation was a veto over major constitutional changes. Strangely, McDougall makes no reference to Ottawa’s Bill C‑110 on amending the Constitution, which in 1996 provided that no federal minister would introduce an amendment of general application without the consent of Quebec. While it is a law — not a constitutional provision — the act creates a strong political defence of Quebec’s veto and is more germane than the appointment of Supreme Court justices, which McDougall discusses in detail.

The changing nature of society is perhaps the principal reason for the slide in support for sovereignty. Those who were politically active from the ’60s to the ’80s had deep grievances about Quebec’s society, economy, and place in Canada. The Quiet Revolution transformed the province, and many believed independence was needed to secure the future. Today millennials and Gen Z have nothing like the same resentments as their predecessors. McDougall argues that this shift matters more than technical accommodations of Quebec in the operation of Canadian federalism. He also underlines how political preoccupations have increasingly shifted away from federal issues to focus on those where the province has substantial authority, such as the integration of immigrants, labour market training, and language law. In other words, recent debates about French and “accommodation” have been largely internal. In 2019, the Coalition Avenir Québec brought in Bill 21, which promotes secularism and bans the wearing of religious symbols by certain public servants; three years later, it introduced Bill 96, which affirms French as the common language of Quebec, limits services in English to so‑called historic anglophones, and extends French-language obligations for smaller businesses. These laws apply “notwithstanding” the Canadian Charter of Rights and Freedoms, which means that federal courts and opposition in other provinces have been effectively neutered; Quebec nationalists cannot rail against federal interference. Finally, globalization may be weakening separatism as Quebecers shift their attention to issues such as climate change and social justice.

McDougall is right that federalist elites have been keen to avoid controversies with Quebec and have helped push the constitutional issue into abeyance. The latest example is the all-party support in Ottawa for permitting the application of Quebec’s language law to certain federally regulated industries — something Trudeau père would have abhorred. At the same time, many nationalists have been relatively gun‑shy. As McDougall points out, François Legault, the CAQ premier and former Péquiste minister, avoids any suggestion of constitutional initiatives or of a sovereignty referendum. The approach of Québec solidaire is similar. Only the Parti Québécois talks of a referendum.

Surely one reason that both federalist and nationalist elites have pulled back is that they have become more aware of legal and practical barriers. The constitutional requirement for unanimous agreement for certain amendments means that one or two small provinces can kill a proposal, as happened with Meech. As for secession, McDougall understates the constraints the Supreme Court put on any such act. While the court ruled that our constitutional order could not be indifferent to a clear majority of Quebecers voting to secede, it also indicated that the subsequent negotiations would have to reconcile two legitimate majorities: of Quebec and of Canada as a whole. It suggested no one can predict the course of contentious negotiations on matters such as minorities, boundaries, and debt. Following the court’s judgment, the Clarity Act, passed in 2000, established Ottawa’s role in determining the legitimacy of any question on secession and the threshold needed to engage in negotiations.

While McDougall sees virtue in putting aside constitutional questions, two other scholars, Dave Guénette of the Université de Sherbrooke and Félix Mathieu of the University of Winnipeg, remain very much focused on them in De constitutionnalisme et de diversité: Essai sur la démocratie fédérale (first published in Belgium as Constitutionalism v Diversity). They have structured their book around the principles underlying Canada’s political order that the Supreme Court set out in the Secession Reference of 1998: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.

Guénette and Mathieu argue that patriation without Quebec’s consent violated these principles. An act of “federal unitarian democracy,” it did not reconcile the legitimate majorities of Canada and Quebec and so was illegitimate. It’s worth noting that prior to patriation Quebec voters had delivered conflicting messages: Pierre Trudeau’s Liberals won 68 percent of the province’s vote in the federal election of 1980, and René Lévesque’s PQ won 49 percent in the Quebec election the following year. Clearly, many Canadians were anxious about patriation absent the support of the Assemblée nationale, and this unease led to the Quebec-focused negotiations associated with Meech Lake.

While Guénette and Mathieu insist on the logic of two legitimate majorities for constitutional change, they slip into support for Quebec’s unilateral right of secession and mistakenly suggest that the Supreme Court recognized such a right. They see Quebec’s Bill 99, which responded to the Clarity Act, as confirming just that. But in defending Bill 99, the province’s own lawyers maintained that it referred only to an internal right of self-determination. The Quebec Court of Appeal accepted this interpretation while making it clear the bill does not affirm a right to unilateral secession.

As angry as Guénette and Mathieu are over patriation and the Clarity Act, they are advocates for federalism and admire what the British political scientist Michael Burgess called the “federal spirit,” a rather idealistic concept of mutual understanding among political leaders. For them, Justin Trudeau’s swatting down of Philippe Couillard’s attempt to restart constitutional talks in 2017 showed “a flagrant lack of the federal spirit.” Even so, when using their “societal culture index” to assess how Canada accommodates its “fragile minority nation,” they see Quebec as a sub‑state nation with a strong institutional and legal basis for developing its society and culture within federalism.

Given their focus on the Constitution, Guénette and Mathieu give little weight to the non-constitutional gestures that McDougall considers. More to their taste is Quebec’s Bill 96. Passed in 2022, it purports to insert into section 90 of the Canadian Constitution, which deals with certain provincial matters, new subsections stating that Quebecers form a nation and that French shall be both the official and the common language of the Quebec nation. Experts differ on whether the province can make such an amendment unilaterally, and the courts have not yet ruled. However, such an insertion might provide a backdoor resolution to the fraught issue of recognizing Quebec’s distinctiveness or nationhood in the Constitution, perhaps without becoming an interpretation clause.

Guénette and Mathieu show that, even among Quebec federalists, the issue of Quebec’s place in Canada is not finally settled and the constitutional wound has not fully healed. As much as McDougall’s federalist elites might like to keep the issue in abeyance, he is right that “Quebec’s proper relationship to the rest of Canada remains an open question that must be addressed with care whenever it arises.” In recent months, the CAQ has plummeted in the polls; the provincial Liberals trail three other parties, and the rejuvenated PQ with its articulate leader Paul St‑Pierre Plamondon is on the crest of a wave. He’s brought out a budget for his first year (as fanciful as those of Jacques Parizeau and Legault before him), and he has said he’ll hold a referendum when he takes power. The support for independence remains anemic, but one never knows. Sleeping dogs can wake up.