Pierre Karl Péladeau has picked a curious moment to launch a crusade against the Supreme Court of Canada. In his recent call for Quebec’s flag to be flown at half-mast every April 17 – to mark the date in 1982 when Ottawa patriated the Constitution from Britain without Quebec’s consent – the Parti Québécois leader-in-waiting has again demonstrated peculiarly bad timing.
Already, Mr. Péladeau showed a stubborn tin ear in making Quebec independence the hallmark of his political coming-out in March, defying the mood of a winter-weary electorate. Some observers, including yours truly, mused that a superstar like Mr. Péladeau might defy the odds and rehabilitate the sovereigntist cause. The election campaign swiftly laid waste to that idea.
That’s not to say it couldn’t happen in the future. Francophone Quebeckers’ emotional attachment to Canada is on life support. Generations X and Y identify with this country even less than their sovereigntist elders, who, despite their desire to leave Canada, remain obsessed with it. A savvier separatist leader than Pauline Marois might have had more success channelling these sentiments.
Still, a recent string of pro-Quebec Supreme Court decisions have taken the sting out of long-standing sovereigntist gripes about the top court. Two critical rulings in particular – the March decision nullifying the federal government’s appointment of Marc Nadon, and last week’s verdict on Senate reform – go a long way toward validating Quebec’s historical claim that it is not just a province like the others and restoring its veto over certain constitutional changes.
The court ruled 6-1 that Justice Nadon, as a Federal Court judge, was ineligible to sit on the Supreme Court. It cited the “historical compromise” that led to the top court’s creation in 1875, guaranteeing Quebec three of nine spots and judges versed in the province’s civil law. This compromise, the ruling said, was meant to “ensure that Quebec’s distinct legal traditions and social values” were reflected on the court in order to enhance the confidence of Quebeckers in its role as the “final arbiter of their rights.”
Yes, that’s right, the Supreme Court just essentially ruled that Quebec is a distinct society within Canada. Courts and Parliament will now need to take its distinctness into account in future decisions and legislation.
The ruling went on to state that Quebec’s representation on the Supreme Court gained constitutional protection with the 1982 patriation. This was a surprise to many, since this protection was one of the features of the failed 1987 Meech Lake accord. Apparently, this aspect of the accord was unnecessary.
None of this stopped Mr. Péladeau from publishing his April 17 diatribe in Le Devoir, which excoriated Canada’s “Supreme Political Court” for undermining the critical gains of the Quiet Revolution, namely the affirmation of the French fact in Quebec and the province’s long march toward secularism.
“Since patriation, Quebec has lost its status as the national home of one of Canada’s founding peoples,” Mr. Péladeau wrote. “It has been lowered to the rank of a province like the others, where diverse groups cohabit according to diverse values, rules and cultures.”
If the situation Mr. Péladeau describes is at all the case, it is not as a result of Supreme Court rulings, but rather of modernity. Quebec is grappling with the same challenges as most of the Western world, torn between its traditions and its commitment to pluralism. The Supreme Court, as University of Ottawa civil law dean Sébastien Grammond has argued, is simply a scapegoat for sovereigntists in denial.
To be sure, the Supreme Court has had three decades of bad press in Quebec. It culminated with last year’s revelation by historian Frédéric Bastien that then-chief justice Bora Laskin may have violated the separation of powers during the 1981 patriation reference by talking about the case to federalist political officials.
But the court has clearly demonstrated its sensitivity to Quebec of late. With decisions reaffirming Quebec’s authority over securities regulation and assisted human reproduction, the court has strengthened the federation by stopping attempts by Ottawa to unilaterally intervene in provincial jurisdiction.
It has also provided a reality check. Advocates of centralized power may want Ottawa to override the provinces out of some inchoate “national interest.” The Supreme Court has reminded them that the provinces are equal players in this federation, while Quebec is owed special consideration.
Mr. Péladeau’s timing is off again.