The Victoria Charter, Constitutional Reform and Quebec (1971)

Claude Bélanger,
Department of History,
Marianopolis College

Following the failure of the Fulton-Favreau formula, constitutional questions remained for a while in abeyance; there was evidently a sense of annoyance and frustration with Quebec. However, in 1966, the election of the government of Daniel Johnson brought the constitutional question to the centre stage once again as that government was committed to negotiating with its partners a new Canadian constitution. However, the rest of Canada was not particularly interested in constitutional reform at this stage; most seemed to have felt that there was nothing fundamentally wrong with the Constitution Act and viewed constitutional discussions as a waste of time and a means of pandering to Quebec. In the face of mounting frustrations in Quebec, the premier of Ontario, John Robarts, took it upon himself to call, in November of 1967, the Confederation of Tomorrow Conference. The conference did not reach any precise conclusions but it did create  greater sympathy for the Quebec view that constitutional reform ought to be discussed further and acted upon.

While these events were taking place, Pierre. E. Trudeau became the federal Justice Minister and in 1968 the Prime Minister of Canada. Trudeau's views had always been that Canada’s constitution needed to be modernised. Consequently, the federal government's attitude became, once again, receptive to constitutional discussions. In the course of the three years between the first Constitutional Conference of February 1968 and the Victoria Conference of June 1971, numerous meetings of civil servants, ministers and first ministers were held to discuss constitutional reform.

However, while there was convergence of desire for constitutional change between the government of Quebec and the federal government, it soon became clear that there was a fundamental disagreement in approach between the federal government and the anglophone province on the one hand and Quebec on the other. Following the lead of Trudeau, the anglophone provinces sought fairly small changes: mostly to entrench a modest charter of human rights, to safeguard linguistic and cultural rights, to modernise the Constitution Act by getting rid of certain articles that had fallen into disuse, to patriate the Constitution and to work out a new amending formula. While some changes would be substantive, for the most part, the object of the exercise was to modernise, to give a new face to the old Constitution Act without altering the fundamental balance which existed between the two levels of government. Expressed simply, Trudeau and the anglophone provinces were more interested in ‘cosmetic federalism’ than in anything else. For its part, Quebec was foremost interested in substantive amendments to the Act that would have clarified and enlarged the legislative and fiscal autonomy of the province.

With such disparity in outlook, it is not surprising that the ultimate product of these conferences, the Victoria Charter, was such a resounding failure. This should have come to no one as a surprise and, yet, it did surprise and anger the rest of the country. The reason rests mostly with Trudeau who had very effectively managed to lead the country to believe that linguistic and cultural guarantees were what Quebec really wanted. With the intellectual ability that he displayed and the massive support Trudeau had received in Quebec, the rest of the country could only assume that he understood the nature of the problems, knew what to do, and could convince the people of Quebec of the acceptability of the proposals. In retrospect, the whole process appear to have been one big exercise in futility. True, Quebec wanted cultural and linguistic equality, supported patriation and wished for the modernisation of the Constitution Act; but the province wished primarily to achieve equality by strengthening what it perceived as its "national" government,  the government of Quebec.

The government of Quebec was also put in a very difficult position. In 1970, Robert Bourassa had come to power on the basis of a campaign in which he promised to achieve a "fédéralisme rentable". Outflanked on the nationalist left by the Parti Québécois which proclaimed federalism to be a waste of energy, and the current constitutional round a waste of time, Bourassa was treading very difficult waters. He could not on the one hand give in to federal. pressures and agree to a cosmetic rearrangement of the constitution without appearing to sell out Quebec's traditional autonomist interest; on the other hand, he could not flatly reject the course that events were taking without giving more fuel to the separatist fire. Under these circumstances, it is no wonder that the rest of the country felt, until the last minute, that Quebec was going to acquiesce to the content of the charter.

In the end, out of desperation, and in view of achieving at least a minimum of success, Quebec dropped most of it’s demands and pinned all of its hope on the introduction into the constitution of a new article (94A) which would have recognised to the provinces  priority in social affairs. What this proposed article contained was the following:

• It recognised to the government of Canada the power to legislate on:
  • family allowances;
  • manpower training allowances;
  • old age guaranteed income supplements;
  • youth and social allowances;
  • unemployment insurance;
  • old age pensions and additional benefits to survivors and invalids irrespective of age.

By no means had the federal government been striped of its social responsibilities and powers!  

• Prior consultation with provincial governments would have to take place before laws relating to the matters covered under points 1-6 above be introduced in the House of Commons.
• Legislative priority would be granted to the provinces on subjects 1-3. A federal law would only apply in the province to the extent that the provincial law would permit it.
• Provinces might also legislate on subjects covered under 4-6.
• Federal social laws or laws in relation to income security not covered under in 1-6 would apply only in a province to the extent that a provincial law would permit it.
• The province would receive full fiscal compensation if a federal law was inapplicable in the province.

The social policy article actually proposed in the Victoria Charter fell quite short of the Quebec proposition; the list of concurrent powers was not as extensive as that of the Quebec proposal and no mention of compensation was included. Consequently, a few days after the Victoria Conference, and after much consultation, the government of Quebec rejected the Victoria Charter, although Bourassa had given to his counterparts in the various provinces the impression that he would accept. The disappointment provoked by the Quebec veto was considerable. In federal circles it was whispered that Bourassa was weak, as he had been during the October crisis. However one may judge this situation, there is no doubt that the proposal did not meet the minimum provincial demand. This error was again to be repeated in other constitutional talks. Yet, the failure of the Victoria Charter was to rob Quebec of the opportunity to obtain a veto over constitutional matters; in retrospect, this appears as a catastrophe in light of what was to happen later. The failure of the Victoria Charter marked the end of constitutional review until the election of the Parti Québécois in 1976.

What the Charter contained:

The Victoria Charter contained 61 articles spread over 10 parts :

Part 1)  Entrenched political rights and basic freedoms.

Part 2) Entrenched language rights; French and English were declared the official languages of Canada; to some extent French and English were extended some legal protection everywhere except in Saskatchewan, Alberta and British Columbia. However , the protection for French was slim in most provinces, except in Quebec, New Brunswick and Newfoundland. Minority educational rights were not mentioned anywhere. Still, despite its defects, the Victoria Charter proposed to protect the French and English languages, as minority languages, in a manner that has never been matched since, including in the Canadian Charter of Rights and Freedoms issued in 1982

Part 3 )  listed the provinces and Territories .

Part 4 ) Re. the Supreme Court. There would be provincial participation in the naming of judges on the Supreme Court but provinces would not have a veto right over nominations. Quebec was guaranteed three judges on the Court. Three of the five judges deciding on Civil law matters would have to come from Quebec.

Part 5 ) The federal government may create courts for the administration of the laws of Canada.

Part 6) Contained the revised s.94A. Provincial priority is recognised on the subjects of old age pensions and supplementary benefits irrespective of age, and in relation to family, youth and occupational training allowances .

Part 7) Dealt with regional disparities. This section was perhaps the most original of the whole Charter. It committed the two levels of government to promote equality for all individuals in Canada, to insure that essential public services of reasonable quality are available to all and to promote economic development to reduce disparities in the social and economic opportunities of all Canadians. However, as R. Simeon (Federal-Provincal Diplomacy, p.119) has written: " it was simply a moral injunction, specifically noting that the provision committed no government to do anything." Note also, that the commitment is to reducing disparities between individuals and that nothing is really said about regional disparities.

Part 8 ) There would be a federal-provincial conference at least once a year unless a majority of governments would decide otherwise.

Part 9) Proposed a new amending formula. The federal and provincial governments could amend their own constitutions; for amendments which concerned some provinces but not all, the federal government and the affected provinces would have to concur. For other changes (ss. 91-95 and 133 for example) the Charter required the agreement of the federal government plus the concurrence of every province that has had, had presently or might have in the future 25% of the Canadian population (hence a veto to Quebec and Ontario), plus two of the Atlantic provinces and two of the western provinces with at least 50% of the region's population. While this amending formula did not grant to Quebec a veto for the reason that it should be granted one, as the centre for the protection of the French language and culture, nevertheless the formula was considerably more flexible than the one written into the constitution in 1982 and which has rendered constitutional reform next to impossible, except perhaps on trivial matters.

Part 10) Contained four articles which modernised some of the language used in the B.N.A. Act.  

© 1998 Claude Bélanger, Marianopolis College