Here we go again. As if mounting deficits, resurgent inflation and fights over energy did not provide enough of a 1980s frisson, we seem bent on restarting the constitution wars. Have we learned nothing since then? Or is it merely that we have forgotten everything?
That Bill 96, Quebec’s new language law, would come wrapped in the notwithstanding clause, further depriving the province’s minorities of the protection of the Charter of Rights, was expected. What was not expected was the insertion of two clauses purporting to amend the Constitution of Canada: one declaring that “Quebecers form a nation”; the other, that the “common language” of that nation is French, “the only official language of Quebec.”
We are accustomed to Quebec governments ignoring the Constitution, on everything from language rights to secession. But this is the first time I can recall one attempting to rewrite it – unilaterally, that is, without so much as a heads-up to its constitutional partners. Once, Quebec sought formal constitutional recognition from the rest of Canada. Now it will impose it upon us.
What has not changed, however, is the fatal ambiguity of what is being proposed. As it was with “distinct society,” so it is with “nation” and “common” and “official language”: either the proposed amendments mean something or they do not. Either they will have some impact on how the courts interpret Quebec’s constitutional claims or they will not. Either they will confer new powers on the province, undermine minority rights, or both – or they will not.
Let’s take the more benign assumption first: that this is all just empty symbolism, mere words, shiny baubles to soothe nationalist nerves. What is the nature of that symbolism, that it should be added to our basic law? When we say “Quebecers form a nation,” what do we mean?
For all the weight attached to that word, nation, it is surprisingly elusive of definition. A nation does not necessarily imply a nation-state, of course, but neither does it necessarily mean a body of people with a common history, language, or culture. It can mean any group that has something in common. Leaf Nation. Ford Nation.
Of course, “everybody knows” that Quebeckers are a nation, of the most exalted kind. But if this is so obvious as to be barely worth mentioning, how is it also so urgent that it be given formal constitutional expression? It would not be worth the effort unless it were intended to express something more profound than it appears – something that is not said.
So: “Quebeckers form a nation.” Question: All Quebeckers, or just some? Is the Quebec nation defined, as it is often asserted, in terms of the language and culture of the majority? Or does it extend, as it is also often asserted, to everyone who lives in Quebec? If the former, that would suggest a certain, shall we say, exclusivity – as if a fifth of the province’s population were not “real” Quebeckers. But if the latter – if the Quebec nation embraces at least two languages and multiple cultures – what is to distinguish it from the Canadian nation? If the comparison is not too offensive.
At least we have some clarity this time: “the common language of the Quebec nation,” says the other of the two proposed amendments, is French. Not just “official,” a matter of state policy, but common: a matter of description, indeed definition. If the Quebec nation is defined by the common language of French, what becomes of those who do not fit the definition? Is that really something we want to entrench in the constitution?
But you say, that is a mere statement of sociological fact: Most Quebeckers speak French. What’s wrong with saying so? Is it not the function of a constitution, as Benoît Pelletier, professor of law at University of Ottawa (and former Quebec Liberal cabinet minister), has put it, to “be the mirror of society”?
God, no. A constitution is supposed to provide us with the tools to govern ourselves, together with the principles by which we hope to be governed. To bend it from that purpose, from the prescriptive to the descriptive, from firm commitments to principle to bland assertions of fact – the majority language of Quebec is French, its principal exports are aircraft, aluminum and wood products – is not just beside the point, but hostile to it.
“Statements of sociological fact” take on a particular significance when made in a legal and political context. For example, a sociologist might well have observed without controversy that members of ethnic minorities voted disproportionately No in the 1995 referendum, and as such may be said to have provided the margin of victory for the federalist side. But when Jacques Parizeau said it, on referendum night, it meant something rather different, didn’t it?
Even as symbolism, then, the proposal has unfortunate overtones, to say the least. But then, it is plainly intended as something more than mere symbolism, as its leading proponents have been good enough to tell us.
In which case, we run into all of the usual objections. Quebec has the power under the Canadian constitution – Section 45 of the Constitution Act 1982, to be precise – to amend its own constitution. But it cannot do so in such a way as to override or impinge upon other sections of the Constitution. It can declare itself officially unilingual all it likes, but it is still the case, under Section 133 of the 1867 Constitution, that English and French have equal status in its legislature and courts. Neither can it change that, under yet another section of the constitution, without the approval of the federal Parliament.
As for constitutionalizing Quebec’s “nation” status, it would arguably be subject to the general amending formula – Parliament plus seven provinces with 50 per cent of the population – at least so far as it affected the division of powers. Would it? To quote Prof. Pelletier again, “it all depends on the meaning that you give to the verb ‘affect.’ ” Quite.
At best, then, the proposed amendments are unconstitutional. At worst, they would rewrite the constitution, not only for Quebec, but for all of Canada. It’s not surprising to see the government of Quebec trying this on. What is surprising is to see federal politicians, including the Prime Minister and the leaders of the other two main opposition parties, falling all over themselves to endorse it. Rather than stand up for Canada, minority rights, the constitution and the rule of law, they have sacrificed them all in an instant, on the altar of something far more sacred: winning seats in Quebec.
But no, that’s not surprising, either.
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