Quebec, the Constitution and Special Status

Claude Bélanger,
Department of History,
Marianopolis College

Special status is a method used historically  to deal with Quebec’s 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 system.

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 Senate:

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 is made.

The House of Commons:

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.

The Provincial Constitution:

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).

As 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 1867 (s.80).

Education:

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.

Legal 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.

Language:

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.

Miscellaneous provisions:

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.

S.144 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.

In 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:

1) Quebec Pension Plan: Quebec has its own compulsory contributory pension plan while the other provinces all contribute to the Canada Pension Plan.

2) 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.

3) 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.

Quebec 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).

Hence, 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.

Quebec 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."

The 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:

"Le 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.]

Thus, the position of many in Quebec during the discussions on the new constitution from the late sixties on was that:  

• Quebec 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.

Several 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.

The 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".

The 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.

Thus, 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