the Constitution and Special Status
Department of History,
status is a method used historically to deal with Quebecs distinct
culture and a formula proposed since the 1960's by which Quebec would be given
further special considerations and powers so that its distinct culture could be
protected and developed while continuing to be part of the Canadian federal
At various stages
of its history, the authorities governing Canada have explicitly recognised that
Quebec "is not a province like the others" and thus was accorded
special constitutional protection. The first of these recognitions was made in
the Quebec Act when Quebec was given by Britain a constitution quite unlike that
granted to other parts of the Empire: there was no assembly, few taxes, no
anti-Catholic Test Oath, and French civil laws were recognised. The latter
two exceptions were maintained, through subsequent constitutions to this day.
The special character of
Quebec was consecrated in several articles of the Constitution Act of 1867. It was at
Quebec's insistence that federalism was adopted, thus enabling French Canadians
to control fully the government of a province for the first time. The federal
system took care of most of the fears that the francophone and anglophone minorities
might have had; francophones were worried about the minority position which they
were to occupy in the federal government, while the anglophone minority was anxious
about the prospect of living in a province which would be dominated politically
by French Canadians. While it is clear that what predominates in the Constitution Act
is the equality of status granted to all of the provinces, as they would all live
under a similar constitutional regime and would all exercise roughly the same
juridical powers, the equality did not mean that fundamental differences were
not recognised. In this respect, Quebec obviously stood out and several articles
demonstrated its special position:
The Constitution Act granted equality of representation between regions
in the Senate of Canada. Each region was to have 24 Senators who had to own property
or reside in the province for which they were appointed. In the case of
Quebec, each of the 24 Senators had to be appointed for one of the 24 Electoral
Divisions of Lower Canada (s.22-3) and had to own property or be resident not
only of the province but also of the Electoral Division for which they were appointed
(s.23-6). The purpose of this article was to provide for an adequate representation
for both the French-catholic and the Anglo-protestant groups of Quebec in
the Senate. It would be difficult for the government to appoint a senator that
did not share the cultural characteristics of the district for which the appointment
The House of
The method of calculation adopted to implement Representation
by Population in the House of Commons was rather unorthodox. Quebec was to have
a fixed number of 65 seats (s.51-1) and the representation that the other provinces
would receive was to be calculated on the Rep. by Pop. ratio obtained in Quebec
(s.51-2). In this way, even if Quebec's population did not keep pace with that
of the rest of the country, it would always continue to have a block of 65 seats.
Ultimately, if Quebec continued to vote as a block, as was fully expected, it
would always be assured to play a significant role in federal politics. Cartier
apparently insisted that the system of representation be based on Quebec so as
to protect the political weight of the province in Confederation.
In two respects, the provincial constitution
of Quebec was different from that of the other provinces: the Legislative Council
of Quebec (non-existent in Ontario) was to have 24 members who were to represent
each an Electoral Division and generally have the same qualifications as the Senators
coming from Quebec (ss.72-73). There was no fixed number of councillors in provinces
where a Legislative Council existed. The aims of these articles were to assure an
adequate representation for the Anglo-protestant minority on the Counci,l and to make sure that the minority would not be swamped by a rash of appointments in the future (by simply increasing the number of members in the Legislative Council).
well, a restriction was introduced upon the capacity by the province to alter
the electoral boundaries of 12 electoral districts in Quebec. Changes could only
be made in the boundaries of these districts if a majority of their representatives
agreed to the change. All 12 of these districts had an anglophone majority in
Quebec's right to legislate on education was subjected to restrictions in
relation to the denominational school rights that Roman Catholics and Protestants
enjoyed by law at the time of the Union. Similar restrictions existed also for
Ontario (s.93 1-2). The rights that Catholics enjoyed by law in Ontario, at the time of the Union (1867), were extended to the Catholic and Protestant minorities of the school districts of Quebec outside of Montreal and Quebec City.
system and Courts:
Provisions were made in the Constitution Act for the possibility
of unification under federal jurisdiction of property and civil rights laws in
Canada. This provision reflected the centralist vision that prevailed in the common
law provinces at the time of the Union. Quebec was excluded from this system and was thus guaranteed to
control, forever, its French civil law system. This is, by far, the most important
special consideration given to Quebec (s.94). Judges for the courts of Quebec
had to be selected from the Bar of that province (s.98). Judges from the courts
of the other provinces would also be picked from the Bar of their respective provinces
until the unification of laws would be achieved; thereafter, they could be picked
from anywhere in the English provinces.
Quebec was the only province for which provisions for linguistic rights were
written. By virtue of s.133, English or French could be used in the debates of
the Legislature of Quebec [National Assembly] and in the courts of the province.
English and French had to be used in the official records and journals of the
Legislature and in the laws passed by the province.
S.134 stipulates that the Solicitor-General would be a member
of the Cabinet in Quebec (this was not so in the other provinces). Presumably,
a larger cabinet would afford greater opportunity to have minority groups in the
province more easily represented in the cabinet. In any case, a larger cabinet also
met the approval of those who wished to endow the Government of Quebec with as
much dignity and power as possible.
specifically empowered the Lieutenant-Governor of Quebec to create extra townships
in Quebec. This would assure that the anglophone minority would be easily given
the opportunity to settle and develop in the environment most suited to please
them. Note that the Lieutenant-Governors are appointed by the federal government.
Thus, the Fathers of
Confederation did not worry about what Christopher Dunkin called "the special
exceptions made in her (Quebec) favor" (Confederation Debates, p.509). They
recognised the special role and character of Quebec and introduced clauses to
protect and maintain that character. Since 1867, the special position of Quebec
has been enlarged by several pieces of legislation. Provisions in the Supreme
Court Act (1875) make it compulsory for 1/3 of the judges of the Court to come
from Quebec; appeals on civil law cases from Quebec were somewhat restricted while
they were not for the other provinces. In the post-Second World War period, as
the trend for centralisation mounted, Quebec distinguished itself more and more.
By 1952, Quebec was the only province to have refused the tax rental agreements.
In 1954, it became the only province to collect income tax directly from the people
while the other provinces collected theirs through the federal government. It
was also the only province to refuse federal grants to universities.
the 1960's under the opting-out formula, Quebec pulled out of some 30 joint programmes
while the other provinces stayed in. Some of the distinguishing features that
have resulted are:
Pension Plan: Quebec has its own compulsory contributory pension plan while
the other provinces all contribute to the Canada Pension Plan.
Family Allowances: The federal government pays uniform rates to all other
provinces while in Quebec the federal rates are distributed differently and the
province pays directly certain sums to the parents of children.
Quebec Housing Corporation: By virtue of an agreement reached in 1967 the
role of the Central Mortgage and Housing Corporation has been reduced in Quebec
to providing loans and subsidies. The task of implementing programs in housing
(locating and planning of projects, finding personnel and upgrading construction)
is assumed by the Quebec Housing Corporation.
was also very active in International affairs on a scale unparalleled by the other
provinces. In the field of immigration, arrangements have been made between the
governments of Quebec and Ottawa by which Quebec has a great deal to say about
who immigrates to Quebec (agreements of 1975 and 1978).
overall, by the mid-1960's, Quebec had enlarged considerably the special status
that it had been given in 1867. That special status developed as a result of
the centralisation of the post-World War period when English Canadians generally
supported an increase in the scope of activities of the federal government while
French Canadians fought that trend and demanded to be excepted from centralising
measures. Thus, the recent additions in Quebec's special status are not made up
of transfers of fields of jurisdiction from the federal government to the government
of Quebec but rather exceptions to provincial powers being transferred to the
federal government: all other provinces let the federal government occupy the
field while Quebec did not.
had obvious socio-cultural reasons to demand and obtain a freedom of action which
the other provinces, for reasons of their own, did not want. From these piecemeal
and pragmatic beginnings the theory of special status for Quebec came to be formulated
in more concrete terms in the mid-1960's: Quebec needed a special status if its
government was to play fully its role in the development of the province. Both
the governments of Jean Lesage and Daniel Johnson were committed to working toward
a new constitution which would recognise more fully the special position of Quebec.
Jean Lesage declared in December of 1965:
"Pour répondre aux voeux de notre population, nous cherchons à obtenir tous les pouvoirs nécessaires à notre affirmation économique, sociale et politique. C'est là un objectif logique, sain et positif. Dans la mesure où d'autres provinces, pour des raisons tout à fait acceptables, n'ont pas besoin de se fixer le même objectif, et il semble bien que ce sera le cas- le Québec verra, par rapport à elles, son statut se différencier davantage."
most forceful exposition of the necessity and justification of a special status
for Quebec is to be found in an article written on June 30, 1967 by Claude Ryan
then editor of Le Devoir, and later to become leader of the provincial Liberal
Party and head of the no committee in the referendum of 1980 on sovereignty-association.
On that occasion he wrote:
texte actuel (Constitution Act) se prête mal à la réalisation harmonieuse des deux dynamismes
fondamentaux qui sous-tendent tous les espoirs de survie du Canada en tant qu'entité
politique distincte, à savoir le nationalisme anglo-canadien, qui tend à polariser
ses aspirations autour de l'idée d'un gouvernement central fort, et le nationalisme
canadien-français qui, sans être fermé sur le reste du Canada cherchera, du moins
pour l'avenir prévisible, son principal point d'appui dans le gouvernement du
Québec. Sous le régime actuel, les Canadiens français apparaissent aux yeux de
leurs compatriotes anglo-canadiens, comme de dangereux empêcheurs de danser en
rond. Les Canadiens anglais apparaissent, en retour, aux yeux des Candiens français
comme des centralisateurs invétérés. Cette tension donne lieu à des confrontations
incessantes qui s'accompagnent d'interminables querelles de droit et de procédure.
Tout cela nuit à l'action. Bien des projets sont mis de côté, retardés indéfiniment,
ou encore entrepris quand même au mécontentement de l'un ou l'autre des deux groupes."
[Translation of the French quotation: The present text of the constitution is not conducive to the harmonious fulfillment of the two fundamental dynamisms that underlie the hopes of survival of Canada as a distinct political entity, ie. English Canadian nationalism that centers its aspirations around a strong federal government and French Canadian nationalism that – without closing itself to the rest of Canada – and for the foreseeable future, identifies the Government of Quebec as its main point of support. Under the present system, French Canadians appear as a royal pain in the neck to their English-speaking compatriots. In turn, French Canadians view English Canadians as inveterate centralizers. This dichotomy leads to constant confrontations and endless quarrels over law and procedure. All of this stands in the way of action. Projects are set aside, or delayed indefinitely, or else started to the dissatisfaction of one or the other of the two groups.]
the position of many in Quebec during the discussions on the new constitution
from the late sixties on was that:
was the political expression of the French Canadian culture and people
- Its government was to be empowered
with specific responsibilities which the governments of the other provinces might
not wish to exercise and tended, in any case, to devolve to the Federal Government.
concrete proposals were made, over time, to suit these views. Quebec was to have
full jurisdiction or a priority in the following sectors: family allowance, old
age and contributory pension plans, social assistance, housing, bursaries to students,
insurance and trust companies, urban and regional development, scientific research
in universities, marriage and divorce, linguistic policy, organisation of tribunals;
in financial matters, the spending power of the federal government was to be limited
and certain fiscal powers were to be transferred to the provincial governments.
To a large degree, many of these fields of jurisdiction were already in provincial
hands through opting out or other arrangements; what many proposed in Quebec was
that these arrangements be formalised in a new constitution. There were also demands
for greater provincial roles in immigration and international affairs, as well
as proposals for reform of the Senate and Supreme Court along binational lines.
Later proposals would also transfer jurisdiction over cable television to the
provinces. There is no doubt that these propositions would have gone a long way
to meet the new expectations of the people of Quebec and, had they been implemented,
they would have likely resolved the constitutional dilemma from the Quebec point of view.
But, despite some favourable support in some corners, most of English Canada was
not prepared to go as far to resolve the constitutional problems. It was this
failure to fully recognise the special position of Quebec and to shape the constitution
accordingly, which fuelled nationalism in Quebec and ultimately led to the election
of the Parti Québécois in 1976.
new constitution of 1982, and the Charter of Rights, failed to address completely
any of the proposals made by Quebec in the twenty years that preceded them. Only
article 59, dealing with rights to English schools in Quebec, concerned itself
with subject matter that touched on Quebec. If we add the lack of recognition
of a right of veto on constitutional matters to Quebec to the disregard of the
demand for decentralisation and the rejection of a special status, one sees why
the province refused to sign the constitution. There could not have been a clearer
rejection of the distinctiveness of Quebec, and thus of its need of special clauses,
than the rejection of a right of veto to Quebec. While Trudeau blamed the failure
of recognition of a veto on Levesque, who dropped this demand against some other
protection, it is clear that the other provinces were not prepared to recognise
a veto to Quebec and that Trudeau found the idea of a need for special protection for Quebec very distasteful. This view he expressed on many occasions. Even if we consider that the Victoria Charter included, in practice, a veto for Quebec that was solely because the population of the province exceeded 25% of the total Canadian population. Thus, the veto was proposed because the province was large in population, not because it was "special" or "distinct".
last attempts to incorporate elements of special status, albeit in a reduced form,
were made in the Meech Lake Accord (1987) and in the Charlottetown Accord (1992).
In both instances, the clauses aimed at recognizing the distinctiveness of Quebec,
and thus the limited recognition of a special status came sharply under attack
and justified the rejection of both accords in English speaking Canada. Such rejection,
rooted in a wide range of conflicting sentiments and views from outside of Quebec,
including an under current of anti Quebec feelings, was legitimised by the virulent
denunciation of these Accords by Pierre Trudeau. One could hardly claim that the
opposition to the Meech Lake Accord was rooted in intolerance when Pierre Trudeau
and Jean Chrétien were opposed to it! The failure of Meech altered perceptibly
attitudes in Quebec and led to more radical demands, as illustrated by the Allaire
Report. Trudeau, and the centralists that support his vision of Canada, forced
the province into increasing polarization between separatists and status quo federalists.
The province moved away from a position of compromise which the proposals of special
status had always represented. This is why the people of Quebec narrowly rejected
the Charlottetown Accord at the time of the referendum on the document and came very close to supporting sovereignty in the 1995 referendum.
special status federalism now appears dead. It neither receives the support it
would require in the English-speaking provinces, increasingly focused, as they
are, on the principle of equality as a corner stone of Canadian
federalism, nor from large parts of Quebec determined more and more to claim full
sovereignty as the only acceptable solution to the dilemma of cultural survival
and development. It is almost as if the country has a death wish...
© 1998 Claude
Bélanger, Marianopolis College