ORIGINS, INTERPRETATIONS, IMPLICATIONS
Political and Social Affairs Division
TABLE OF CONTENTS
The Quiet Revolution
APPROACHES TO THE DISTINCT SOCIETY
The Royal Commission on Bilingualism and Biculturalism
The Special Joint Committee of The Senate and House of Commons on
The Task Force on National Unity
The 1980 Quebec Referendum and Patriation of the Constitution
APPROACHES TO THE DISTINCT SOCIETY
The Constitution Amendment, 1987
The Charlottetown Accord
The 1995 Quebec Referendum and Beyond
ORIGINS, INTERPRETATIONS, IMPLICATIONS
On 27 November 1995, Prime
Minister Jean Chrétien announced that his government would be tabling
a motion in the House of Commons that would, if adopted, express the Houses
recognition that Quebec is a distinct society within Canada. This proposal
was part of a set of measures intended to fulfill certain undertakings
made by the Prime Minister during the last phase of the referendum campaign
Of these proposed measures,
the formal recognition of Quebec as a distinct society is among the most
controversial. As recently as October 1992, Canadians were asked to approve
placing such a recognition in the Constitution as part of a larger package
of reforms. The proposed reforms the Charlottetown Accord
were soundly defeated in a national referendum. In the wake of this rejection,
most Canadians turned away from the concept of "mega-constitutional"
reform. They also turned away from many of the individual elements contained
in the Accord, including the suggestion that Quebec receive constitutional
recognition of its distinct character.(2)
Thus many expressed surprise when this proposal resurfaced, albeit in
an extra-constitutional form.
Much of the controversy
surrounding the term "distinct society" arises from confusion
over its meaning and its implications. This paper attempts to provide
the reader with some sense of where the concept of Quebec as a distinct
society originated. Since some have argued that this view pre-dated Confederation,
the paper takes that period of Canadian history as its starting point.
It then will describe the evolution of the concept of a distinct society
and its subsequent emergence in two projects to amend the Constitution
the Meech Lake Accord, and the Charlottetown Accord and
finally, in the proposal presented by Prime Minister Chrétien in November
1995. The debate over the meaning and implications of the term distinct
society was at its most intense during the time of the Meech Lake Accord.
This paper argues, in part, that the limits of this debate and the understandings
it generated have coloured all subsequent debate and understanding of
the issue. Thus the section on Meech Lake will be the only one to dwell
on interpretations and implications.
The idea that Quebec exhibited
certain distinct characteristics that needed to be specified in law first
emerged in the period following the British conquest in 1760. The British
chose to govern the former French colony with as little change to existing
arrangements as possible. The Royal Proclamation of 1763 established English
common law for new settlers but French civil law remained in force for
the French-speaking inhabitants. In 1764, the colony reverted to civil
rule and the first two British governors (James Murray and Sir Guy Carleton)
interpreted the Royal Proclamation in ways that preserved the French character
of the colony. The seigneurial land system was permitted to operate while
British settlers were given land under a freehold arrangement. The Catholic
Church was not interfered with and continued to collect tithes. Thus,
from its earliest days, two societies co-existed in the British colony
of Quebec. One was French-speaking and was governed by civil law, a seigneurial
land system, and the Catholic Church; the other was English-speaking and
Protestant and was governed by a different set of laws.
In 1774, these arrangements
were codified in law by an Act of the British Parliament. The Quebec
Act of 1774 granted the free exercise of the Roman Catholic religion,
including the right of the Church to collect tithes; recognized the seigneurial
system; and established that civil suits would be tried under French civil
law and criminal cases would be tried under British common law. The Act
also provided for an appointed legislative council that would include
both French- and English-speaking members. In an important break with
British practice at the time, a special oath was created in order to allow
French-speaking Catholics to sit on this council.
Over time, however, tensions
built up between the French and the English in the colony, tensions that
the British attempted to solve by dividing Quebec into the provinces of
Upper and Lower Canada through the Constitutional Act of 1791.
Under the terms of the Act, Upper Canada was given freehold land tenure
and common law while in Lower Canada the seigneurial system and French
civil law were retained and the Catholic Church also kept its status.
Collectively, the Royal
Proclamation as enforced by the colonys first British governors,
the Quebec Act, and the Constitutional Act of 1791 can be
said to have provided, in a formal sense, for the legal recognition of
the distinctive nature of Quebec. It has also been suggested that the
pattern established by these Acts inspired the demands presented by francophone
representatives when the terms of the British North America Act
were being formulated.(3)
Many have argued that, rather
than being a recent idea, the proposal to accord Quebecs distinctiveness
some form of constitutional recognition is as old as Confederation itself.
The views of historian Ramsay Cook are representative of this assertion.
Cook wrote that "the idea that the distinctiveness of Quebec should
be recognized constitutionally is far from new." He went to say:
the very act of creating
that province in 1867 was, implicitly, a recognition of distinctiveness.
But the British North America Act also included several explicit recognitions
of that fact. For example, Section 94 recognized the civil law of
Quebec as distinct and, if the intent expressed in that provision
had been fulfilled ("uniformity of all and any laws relative
to Property and Civil Rights" in all provinces except Quebec),
Quebec would have had a "special status" in that area. In
addition the special character of Quebec was recognized in Section
133 which not only made French, for the first time, an official language
of Canada, but also made Quebec alone among the original provinces,
bilingual. In this, and in some other ways, Quebec has never been
a province exactly like the others, for its historic characteristics
made some constitutional variations desirable.(4)
Apart from this reading
of the contents of the BNA Act itself, the concept of Quebec as a distinct
society also has its roots in the very different interpretation given
by many Quebeckers to Confederation itself. This interpretation argues
that the Canadian federation is based on a pact between two peoples, rather
than on just an agreement of the provinces that formed the country in
1867 (the interpretation that predominates outside Quebec). Indeed, the
former view is the one held by Quebecs former Minister of Canadian
Intergovernmental Affairs and one of the first to propose constitutional
recognition of Quebecs distinctiveness, Gil Rémillard. In an early
essay, Rémillard asserted that Lower Canadas delegates (who, he
writes, represented the interests of the French-Canadian people) to the
conferences that laid the foundation for Confederation agreed to a union
with the other provinces on condition that it be a federation and that
Within this federation
they would be recognized as a distinct group with the same
rights as the anglophones in the other provinces. (translation)(5)
Rémillard concluded that
this recognition was granted by the terms of the British North America
Act (in accordance with similar views held by Ramsay Cook, above)
and writes that French Canadians saw the Act as "a constitutional
treaty that would permit them to assert themselves as a distinct people
on an equal footing with the anglophone majority (translation)."(6)
If one holds this view, it is logical to argue that Quebec, as the only
province where one of these two peoples now forms a majority, has always
constituted a distinct society within the federation and is worthy of
constitutional recognition as such.
The Quiet Revolution
The period of Quebecs
history known as the "Quiet Revolution" began in 1960 with the
election of a Liberal government headed by Jean Lesage. It was during
this period that Quebec developed a modern state apparatus and a growing
middle class made up of secular professionals began to assert itself.
These developments involved an intense self-examination on the part of
Quebecs francophone society coupled with a growing demand for greater
control over the provinces internal affairs. This was the period
during which the philosophy of "maîtres chez nous" animated
the province; inevitably this philosophy led Quebeckers to question the
provinces role within Confederation.
It is notable that, as premier,
Jean Lesage, expressed the belief that his province was a distinct society.
Describing the principles that guided his government, for example, he
Our province has particular
traits, its own character, which it is its duty to protect and which
it has the right to develop. (translation)(7)
According to Lesage, he
had spoken of Quebecs distinctiveness on numerous occasions and
even the Canadian prime minister recognized this principle.
APPROACHES TO THE DISTINCT SOCIETY
The Royal Commission on Bilingualism and Biculturalism
The 1960s witnessed growing
unease within Quebec over perceived threats to the French language and
Québécois culture and to Quebecs ability to participate in federal
decision-making. In response to these concerns, the federal government
established, in 1963, the Royal Commission on Bilingualism and Biculturalism,
known as the Laurendeau-Dunton Commission after its co-chairmen.
The very title of the Commission
and its general purpose to find ways of ensuring wider recognition
of Canadas cultural dualism reflected the perception that
Canada was made up of two distinct cultures or societies. In conducting
their inquiry and writing their reports, the Commissioners were guided
by the principle of "equal partnership," the notion that anglophones
and francophones should have equal access to participation in the institutions
whose decisions affected their lives.(8)
Perhaps as a consequence of this fundamental perception, the Commission
determined that the basic conflict in Canada was not between a majority
and a minority, but between two majorities: the English-speaking majority
outside Quebec and the French-speaking majority inside Quebec.(9)
The work of the Royal Commission
marks the time that the concept of a "distinct society" first
entered into Canadas political and constitutional dialogue.(10)
The Commissioners used the term "distinct society" in their
preliminary report, published on 1 February 1965. Although the authors
of the report did not make any specific recommendations in this regard,
they spoke of a population inspired by a "common culture" that
"lives as a homogeneous group according to common standards and rules
of conduct," and "has aspirations which are its alone, and ...institutions
[that] enable it to fulfill them to a greater or lesser degree."
This, the commissioners stated, was "the way the French-speaking
population of Quebec appeared to us."(11)
The report then named the institutions through which the francophone majority
in Quebec expresses its distinctiveness: legal institutions using Quebecs
own Civil Code, political institutions, an educational system "different
from that of the other provinces," communications media that operate
exclusively in the French language, an autonomous network of social institutions
(such as hospitals, trade unions, and voluntary associations), and economic
institutions (such as caisses populaires and Hydro-Québec). Lastly, they
observed that Quebec was "not only distinct, but ... its individual
members ... lead a life quite separate from that of English-speaking Canada,"
a condition which they described as "a separation in fact."(12)
The Special Joint Committee of the Senate and House of Commons on the
Following a federal-provincial
conference in 1968, the federal government agreed to conduct a comprehensive
review of the Constitution. As part of that review, a Special Joint Committee
of the Senate and the House of Commons was established in February 1972
to examine federal government proposals related to constitutional change.
On 16 March 1972, the Joint Committee tabled its final report to the House
of Commons. Two members of the committee, MPs Pierre De Bané (now Senator
De Bané) and Martial Asselin, however, felt they could not endorse the
report, which they believed did not deal directly and honestly with the
constitutional problems facing Quebec and Canada as a whole. Instead,
they chose to release a minority report that addressed the issues of concern
to them. Stating that Quebec forms a distinct society, they were among
the first to argue that this distinctiveness should be given explicit
recognition in Canadas Constitution. De Bané and Asselin wrote
Nevertheless - and we
are deeply convinced of this fact - Quebecs society forms a
distinct entity, and one which is gradually realizing that it cannot
achieve its fullest development without a freedom for action and the
presence of certain psychological conditions which it lacks at the
Discussing the shortcomings
of Canadas Constitution vis-à-vis the aspirations of Quebec, the
two Members of Parliament asserted that the Constitution
... is entirely unsuited
to this role, being antiquated in both form and content. Most serious
of all, nowhere does it recognize the existence of a distinct Quebec
society, a shortcoming which has very real consquences...(14)
Thus their first recommendation,
"that the preamble to the Constitution, in addition to its normal
content, should include explicit recognition of the existence and aspirations
of Quebec society."(15)
Such a preamble, according to De Bané and Asselin, should serve as a guide
to future interpretation of the content of the Constitution. Other provinces
might have legitimate claim to distinctiveness, they noted, but Quebecs
distinctiveness was more pronounced because "in Quebec we find a
nation, in the sociological sense of the word."(16)
This recommendation by De
Bané and Asselin drew no official response (it is clear that their colleagues
on the Joint Committee did not endorse it). After debate, the House refused
consent to table the minority report.(17)
The report remains important, however, in that it included one of the
first of the suggestions that Quebecs distinctiveness be explicitly
spelt out in the Constitution.
The Task Force on National Unity
In 1976, Quebeckers for
the first time elected a pro-sovereignty political party the Parti
Québécois led by René Lévesque to form their provincial government.
In response, the federal government established a task force in 1977 to
study national unity and generate proposals to strengthen it. The task
force was led by the former premier of Ontario, John Robarts, and Jean-Luc
Pepin, a former federal Liberal cabinet minister. The task force was guided
by roughly the same principle of Canadian duality that had served the
Laurendeau-Dunton Commission before it in the judgment of the task
force members, the foremost challenge facing Canada was "to create
an environment in which duality might flourish."(18)
When the task force reported
its conclusions and recommendations in January 1979, it spoke of amending
the Constitution in order to address the desires of the francophone majority
in Quebec. The authors of the report argued that one of three major objectives
of constitutional revision should be:
to provide the majority
of Québécois with an acceptable federalist response to their desire
to maintain their distinctive cultural and social identity and to
their deep-rooted grievance that our political institutions do not
adequately reflect the dualistic character of Canada."(19)
They went on to say that
they believed the government of Quebec to have a special role to play
regarding that provinces special identity and that Quebec should
be accorded special status:
the distinctive role
of the Quebec government as the single province containing a French-speaking
majority must be recognized. ... in the years since 1867 we have learned
to live with the fact that Quebec has a considerable degree of what
we think should be labelled a distinct status: in its civil law, in
the recognition of French as an official language, and in the fact
that three of the nine judges of the Supreme Court must come from
Finally, the authors of
the report spelled out their views in the clearest terms possible. "Let
us put our conviction strongly," they wrote,
Quebec is distinctive
and should, within a viable Canada, have the powers necessary to protect
and develop its distinctive character; any political solution short
of this would lead to the rupture of Canada.(20)
The Task Force conceived
of two ways for Quebec to achieve these powers. The first consisted of
giving Quebec, and Quebec alone, formal law-making powers over culture,
language, immigration, social policy, communications, and some aspects
of foreign affairs. The second approach, the one favoured by task force
members, was to give the powers needed by Quebec to all provinces: the
provinces could then either exercise these powers or reassign them back
The Task Force also argued
that Quebecs distinctiveness should be given formal constitutional
recognition, recommending that
28. The preamble to
the constitution should include a declaration that the people of Canada
ii - recognize the historic partnership between English and French-speaking
Canadians, and the distinctiveness of Quebec.
The report received a mixed
response; the French-language media in Quebec were generally in favour
of its recommendations, while the English-language media were generally
against them. Premier Lévesque indicated that, if implemented, the report
would encourage Quebecs demands for greater powers. "You get
some sort of semi-special status," he told the Globe and Mail,
" watch the appetite grow."(21)
Although the report and
recommendations were the subject of extensive discussion, they were ultimately
to have little influence over the agreement to patriate the Constitution
reached by the federal government and nine other provinces in 1981.
The 1980 Quebec Referendum and Patriation of the Constitution
In February 1980, after
less than a year in opposition, the federal Liberal Party returned to
power with Pierre Trudeau as leader. Shortly afterward, Premier Lévesque
announced that a referendum would be held seeking permission for his government
to negotiate sovereignty-association with the rest of Canada. The negotiations
proposed by Lévesque were to be based on a set of proposals elaborated
by the Parti Québécois in a White Paper issued in November 1979.
In January 1980, the Liberal
Party of Quebec, under the leadership of Claude Ryan, had released its
own set of constitutional proposals in response to the PQs White
Paper. In the document, entitled A New Canadian Federation, the
Liberals repeated a central theme of the Pepin-Robarts Task Force: that
Quebec forms a distinct society within Canada. This premise was stated
in the foreword to the paper, under the heading "Quebec A
distinct society." Party planners stated that:
Quebec forms within
the Canadian federation a society which is distinct in terms of its
languages, its culture, its institutions and its way of life....Within
the Canadian political family, Quebec society has all the characteristics
of a distinct national community.(22)
The first chapter dealt
with the objectives of constitutional reform, and stated that Quebecs
distinctiveness ought to be recognized in an amended Constitution. The
authors wrote that any new constitution must "affirm the fundamental
equality of the two founding peoples." This "basic dualism"
could be realized "by the granting to Quebec of guarantees capable
of facilitating the protection and the affirmation of its distinct personality."
These guarantees, it was added, "should not be narrowly confined
to cultural policy.(23)
On 20 May 1980, the Parti
Québécois referendum proposal was rejected by approximately 60% of those
who cast ballots. By late 1981, the federal government and all provincial
premiers, with the exception of Quebecs, reached agreement on patriating
the Constitution. Quebecs National Assembly had on 1 December 1981
adopted a resolution rejecting the patriation package. In part, the resolution
stated that patriation was not acceptable unless it included a recognition
that Quebec, by virtue
of its language, culture and institutions, forms a distinct society
within the Canadian federal system and has all the attributes of a
distinct national community.(24)
Quebecs Liberal Party
also found that it could not support the Constitution Act, 1982,
a position it maintained when it subsequently held power between 1985
and 1994.(25) The Constitution,
as patriated, did not reflect the changes proposed by the Liberal Party
of Quebec; as one observer noted, the 1982 Constitution Act:
made no serious overtures
in the direction of enhancing the powers of the Quebec government,
and thus of Quebeckers as a political collectivity, or of recognizing
Quebec as a distinct society or as the homeland of the French-speaking
people of Canada.(26)
APPROACHES TO THE DISTINCT SOCIETY
Two major political events,
in 1984 and 1985, created an opportunity to amend the Constitution in
the direction advocated by Quebecs Liberal Party. At the national
level, the federal Liberals who adhered to Pierre Trudeaus vision
of the Constitution, were defeated in the 1984 general election. They
were replaced in office by the Conservative Party led by Brian Mulroney,
an anglophone Quebecker sympathetic to the aspirations of his provinces
moderate nationalists and anxious, in his words, to bring Quebec into
the Constitution "with honour and enthusiasm." The following
year, a provincial election in Quebec produced a result that made this
reconciliation possible, as the Parti Québécois government was replaced
by the Liberals under Robert Bourassa. Bourassas Liberals came to
office with a carefully developed set of proposals to amend the Constitution
so as to render it acceptable to Quebec.
In February 1985, Gil Rémillard,
who was at the time a constitutional adviser to Prime Minister Mulroney
and who was later to become the Liberal governments Minister responsible
for Canadian Intergovernmental Affairs, published a series of articles
in Le Devoir in which he outlined the conditions that needed to
be met to gain Quebecs acceptance of the 1982 Constitution.(27)
Rémillard wrote that the "Quebec peoples specificity"
should be formally recognized in a preamble to an amended Constitution.
"This preamble," he indicated, "[could] serve as a reference
for the interpretation of the 1867 Constitution Act and all its amendments,
including the 1982 Constitution Act."
At the same time, in anticipation
of an upcoming provincial election, the policy committee of the Liberal
Party of Quebec released a paper in which Rémillards points were
expressed as the formal position of the Party. In Mastering Our Future,
the Party spoke of its goal of constitutional reform, which stemmed from
the "need to obtain express recognition of Quebec as a distinct society,"(28)
and committed itself to obtaining a constitutional agreement that would
"restore Quebec to its proper place in the Canadian federation."
Among the three objectives of these negotiations would be the "[e]xplicit
recognition of Quebec as a distinct society." "It is high time,"
the Party argued,
that Quebec be given
explicit constitutional recognition as a distinct society, with its
own language, culture, history, institutions and way of life. Without
this recognition, and the accompanying political rights and responsibilities,
it will always be difficult to agree on the numerous questions involving
Quebecs place in Canada. This recognition should be formally
expressed in a preamble of the new Constitution.(29)
In May 1985, the Parti Québécois,
which was still in power, released proposals of its own for amending the
Constitution and indicating that the Constitution would be accepted by
Quebec only if an agreement was reached with the rest of Canada that,
among other things, recognized "the distinctiveness of our people."(30)
The governments first of a total of 22 proposals stated that:
The Pepin-Robarts Commission
recommended not only that the distinctiveness of Québec be recognized,
but also that Québec be permitted to determine its official language
and that it be granted the necessary powers to assume its particular
responsibility with respect to the French heritage within its own
The paper argued that "an
essential prerequisite" to Quebecs participation in a new constitution
was recognition of "the existence of a people of Quebec."(32)
Thus, while the two main political parties in Quebec may have been far
apart on the steps needed to secure Quebecs adherence to the 1982
Constitution, they agreed that formal recognition of Quebecs distinct
nature was a fundamental prerequisite.
The Liberal Party was victorious
in the December 1985 election. The use of Mastering Our Future
as the basis of the partys electoral platform enabled the Liberal
government to claim that it had received a mandate from Quebecs
electorate to proceed with its constitutional proposals.(33)
In a speech delivered in Mount-Gabriel, Quebec, in May 1986, Gil Rémillard,
now Minister responsible for Canadian Intergovernmental Affairs, spelled
out the five conditions that must be met before Quebec could support the
Constitution. The first condition was the explicit recognition of Quebec
as a distinct society.(34)
Rémillard elaborated this point, telling his audience that
The recognition of the
distinctiveness of Quebec is for us an essential precondition to any
negotiation that might lead to Quebecs endorsement of the Constitution
Act of 1982.
This identity cannot
in any way be challenged. We must be assured that the Canadian Constitution
will recognize the special nature of Quebec society and guarantee
us the means necessary to ensure its full realization within the framework
of Canadian federalism. (translation)(35)
The Constitution Amendment, 1987 (36)
The events leading up to
the drafting of the Meech Lake Accord and its eventual failure have received
extensive coverage and will not be discussed here.(37)
Of interest to the present discussion is the form in which the distinct
society provisions in the Accord emerged from the constitutional demands
Following their meeting
on 30 April 1987 at Meech Lake, the Prime Minister and the ten premiers
issued a communiqué containing an agreement in principle to introduce
amendments to the Constitution intended to "allow Quebec to resume
its place as a full participant in Canadas constitutional development."
The first area of proposed
change dealt with Quebecs distinct society. The Constitution was
to be interpreted in light of a "fundamental characteristic of Canada":
the existence of francophones as a majority in Quebec (but present elsewhere
in the country) and the existence of an anglophone majority in the rest
of the country (but with anglophones also present in Quebec). The Constitution
was also to be interpreted in a manner consistent with "the recognition
that Quebec constitutes within Canada a distinct society." The federal
parliament and provincial legislatures were to be committed to preserving
the fundamental characteristic of Canada, as described, while the roles
of the government and legislature of Quebec to "preserve and promote"
Quebecs distinct identity were to be affirmed.
On 3 June 1987, the first
ministers met again to sign the constitutional accord, now transformed
into a legal text. This text specified that the proposed amendments dealing
with Quebecs distinctiveness were to be placed in the body of the
Constitution in the form of a new section 2. The wording of the text differed
little from that of the April communiqué, except for an additional clause
asserting that nothing in the new section would impair the powers and
privileges of the provincial and federal governments or legislatures.
The proposals in the Accord
differed in two main respects from those of the Liberal Party of Quebec
and Gil Rémillard. In contrast to the Quebec Liberals suggestion
that Quebecs distinctiveness be recognized in a preamble to the
Constitution, the Constitutional Amendment, 1987 called for this recognition
to be placed in the body of the Constitution, after section 1. Secondly,
while the Liberals had generally defined Quebecs distinctiveness
in terms of its language, culture, laws, and institutions, the Accord
left the term undefined. However, the Accord responded to Quebecs
requirements by proposing that the Constitution be amended to affirm that
the role of legislature and government of Quebec was to preserve and promote
the distinct identity of that province. This proposal appears to have
been in response to Rémillards observation that the Constitution
had to guarantee Quebec the means necessary to ensure its full development
within the federation (see above).
In the national debate that
followed the signing of the Accord, opponents of the proposal voiced several
criticisms of what became known as the "distinct society clause."
There were those who feared that a provision of this sort would seriously
weaken the Canadian Charter of Rights and Freedoms. Others argued
that it would threaten the rights and freedoms of francophones living
outside Quebec and of aboriginals, women, and ethnic and cultural minorities
inside the province.(38)
Representatives of francophone minority communities worried about the
absence, in the clause, of any obligation on the federal government to
promote the duality of Canada.(39)
Some womens groups outside Quebec doubted that the Supreme Court
would protect equality rights from the possible impact of the clause.(40)
For their part, ethnic communities criticized the absence of a reference
to multicultural diversity as being characteristic of Quebec (as well
as of Canada).(41) Collectively,
these objections also reflected a recently developed awareness that Canada,
as it is known and understood today, is a nation built by the efforts
of many peoples; the "distinct society" clause failed to accommodate
this awareness. In the words of Peter H. Russell:
[a]s the distinct society
clause was translated into the symbolic terms of constitutional politics,
it encroached on tender feelings of status. By giving constitutional
recognition in the defining features of Canada to Quebec, the English,
and the French, the clause was seen by many who did not fit into any
of its categories as a put-down denying their fundamental importance
More generally, however,
opponents drew attention to the ambiguity surrounding the term itself,
arguing that potentially it gave Quebec a considerable degree of unspecified
power. Some, like former prime minister Pierre Trudeau, worried about
the possible implications of recognizing Quebecs distinctiveness
within the body of the Constitution. Trudeau argued that
particularly after constitutionalists
have been discussing preambles for a long period of time, when you
deliberately do not put "distinct society" into a preamble,
but into an interpretive clause, that can mean only one thing
you are giving to the government of that distinct society powers that
it did not have before.(43)
A more moderate assessment
came from Marjorie Bowker, who analyzed the Meech Lake Accord in order
to make it comprehensible to average Canadians. She concluded that the
distinct society clause restated a recognition that was already contained
in the Constitution:
The distinct society
clause seems to be nothing more than a recognition of an established
and historical fact. Quebec is indeed different in respect to its
laws, its language and its culture.(44)
However, she, too, was disturbed
by the lack of definition of what distinct society meant, especially since
Quebecs government was to be given the power to "preserve and
promote" that distinctiveness. She also worried that some future
government in Quebec might determine that the only way to "preserve
and promote" the provinces distinctiveness would be through
independence. If constitutional recognition of Quebecs distinctiveness
were desirable, she argued that it be placed instead in the Preamble of
Outside Quebec, supporters
of the amendment argued that it provided Quebeckers with "a symbolic
affirmation for the future."(45)
This view coincided with that expressed by a leading constitutionalist,
who wrote that the distinct society clause was "mainly horatory or
denied that the distinct society clause would confer special status on
Quebec, in some instances arguing instead that the clause instructed the
courts that "governments in Quebec are likely to use their existing
powers in ways that are different from other provinces."(47)
In his summary of the Accord, Richard Simeon concluded that to its supporters
it represented a moderate and limited constitutional response to Quebecs
distinct status and that
from a Quebec perspective
it [fell] considerably short of the objectives which have been advanced
by all modern Quebec governments.(48)
According to Simeon, contrary
to the claims made by previous governments in Quebec, its supporters believed
that the clause did not imply specific transfers of jurisdiction.(49)
In a retrospective analysis, Simeon determined that the Accord would have
provided Quebec with "symbolic reassurance," and that "Meech
was more a restatement of the status quo than a radical change."(50)
Other supporters of the Accord denied claims that the clause would undermine
rights enshrined in the Charter, or threaten the rights of Quebecs
Inside Quebec, the debate
on the distinct society provisions took on a different tone. Premier Bourassa
asserted that the clause had more than just symbolic weight, telling the
National Assembly that
With the (recognition
of the) distinct society we achieve a major gain which is not merely
symbolic, because henceforth the whole Constitution of the country
must be interpreted in the light of this recognition. (translation)(51)
Furthermore, he argued that
the lack of definition of Quebecs distinctiveness in the Accord
was deliberate because "we did not wish to define this precisely,
in order to avoid reducing the role of the National Assembly in promoting
this distinctiveness. (translation)."(52)
He also implied, contrary to what the Accords supporters outside
Quebec were saying, that the amendment would eventually give more powers
to the province, stating that:
It must be emphasized
that the Constitution, including the Charter, will be interpreted
and implemented in the light of this provision on distinct society.
The exercise of legislative powers is contemplated and this will allow
us to consolidate what we have achieved and to gain ground. (translation)(53)
Gil Rémillard made a similar
observation when he wrote afterward that "the Accord ... avoids designating
the particular components of Quebecs specificity so that there is
all the leeway required to ensure its protection and development."(54)
During the debate in the National Assembly, he also suggested that Quebecs
powers would be enhanced as a result of the changes to be made to the
Constitution, arguing that
What we have now, with
the recognition of Quebec as a distinct society, is the possibility
of using this element of constitutional interpretation ... to show
that Radio-Québec is an essential tool for the cultural development
of Quebec and ... for arguing that caisses populaires are really within
provincial jurisdiction ... to express ourselves very clearly on the
international scene with respect to our distinctiveness. (translation)(55)
While the Accord and its
distinct society clause did not receive much support from minority groups
in Quebec, it is notable that representatives of womens interests
in the province argued that the rights of Quebec women would not be threatened
as a result of the inclusion of the clause in the Constitution.(56)
Some opponents of the Accord
in Quebec, such as the Parti Québécois and the Conseil de la langue française,
were critical of the absence of any definition of distinct society. In
the National Assembly, the Parti Québécois argued that at best the expression
was an empty one, void of any substantial meaning for the province. At
worst, it claimed, the amendment would be interpreted by the courts on
the basis of the references to linguistic dualism also present in the
clause. Were this to be the case, Quebec would be defined as a bilingual
entity, thus throwing into jeopardy efforts to build a francophone society.
Nevertheless, the partys previous demand that the Constitution recognize
Quebecs distinctiveness made criticism of this aspect of the accord
The Charlottetown Accord
After the collapse of the
Meech Lake Accord, and in the face of an impending referendum in Quebec,
the federal government tried once more to amend the Constitution to obtain
Quebecs adherence. This attempt, known as the "Canada round,"
revived many of the proposals contained in the first effort, but placed
them within the context of other amendments designed to satisfy others
who sought constitutional change.
The distinct society clause
in the new accord differed, however, from that found in the Meech Lake
Accord. It was placed in an interpretive clause that made reference to
a long list of fundamental characteristics of Canada, thereby diminishing,
according to the Quebec critics of the new Accord, Quebecs constitutional
importance. The Accord also departed significantly from its predecessor
in that Quebecs distinctiveness was explicitly defined in terms
of language, unique culture and civil law tradition. The role of Quebecs
legislature and government in preserving and promoting that distinctiveness
was then affirmed.
Critics in Quebec noted
that the Accord did not address the provinces demands for greater
powers and found the distinct society provisions to be insufficient. Daniel
Turp, José Woehrling, Daniel Proulx, and other constitutionalists, argued
that the distinct society clause as written in the proposed "Canada
clause" represented a major setback for Quebec, since the scope of
the clause was too narrow and was diminished by being placed in the context
of the larger clause.(57)
Outside Quebec, criticism focused on all elements of the new accord, but
was muted with respect to its distinct society provisions. The accord
was subsequently rejected in a national referendum held in October 1992.
(Quebec held its own referendum at the same time using the same wording
for the question.) In the aftermath, the consensus among all but a few
enthusiasts, was that constitutional renewal efforts would not be seen
again in the near future.
The 1995 Quebec Referendum and Beyond
Following the demise of
the Meech Lake and Charlottetown Accords, the Liberal Party of Quebec
continued to adhere to the principles these had espoused. In the lead-up
to the September 1994 provincial election, the Quebec Liberal Party indicated
its continued attachment to the goals it had announced prior to the Meech
Lake Accord. In the document setting out its proposed agenda, should it
continue to form the government, the party stated that
these demands [that
formed the basis of the Meech Lake and Charlottetown Accords] have
no way diminished in importance. So it is not the intention of the
QLP to abandon them. What they have in common is a desire to obtain
greater autonomy for Québec ... and the affirmation of the distinct
character of Québec society.(58)
Nevertheless, the party
explicitly ruled out constitutional change as a means of achieving these
goals, although it declared that it would be "guided by the traditional
demands of Québec."(59)
For its part, the Federal Liberal Party, led by Jean Chrétien, avoided
discussion of constitutional change during the 1993 federal general election,
preferring instead to discuss economic issues.
The Quebec election of September
1994 was won by the PQ, which declared its intention to hold a referendum
on sovereignty as soon as possible. In the aftermath of the close results
of the 1995 October referendum in Quebec, political leaders inside and
outside the province began to search for ways to address Quebeckers
dissatisfaction with the status quo. This search resurrected a key proposal
from the Meech Lake and Charlottetown Accords: formal recognition of Quebec
as a distinct society, although in an extra-constitutional form. Certain
voices inside and outside the province warned that this was a dangerous
path that would re-open old wounds. In Quebec, Konrad Yakabuski expressed
this sentiment, writing that
In venturing on to this
minefield, the political leaders of the rest of Canada are already
reawakening the old demons that have caused the failure of all previous
attempts to settle this tormenting question. (translation)(60)
Recent opinion polls have
shown that Canadians outside Quebec are wary of recognizing the provinces
distinctiveness either in the Constitution, or through resolutions in
provincial legislatures or the House of Commons.(61)
Notwithstanding this reluctance, Prime Minister Jean Chrétien tabled a
motion in the House on 28 November 1995 calling for recognition of Quebec
as a distinct society and proposing that:
Whereas the People of
Quebec have expressed their desire for recognition of Quebecs
1) the House recognize
that Quebec is a distinct society within Canada;
2) The House recognize
that Quebecs distinct society includes its French-speaking majority,
unique culture and civil law tradition;
3) the House undertake
to be guided by this reality;
4) the House encourage
all components of the legislative and executive branches of government
to take note of this recognition and be guided in their conduct accordingly.
This motion quite clearly
stands apart from the two previous efforts to grant recognition of Quebecs
distinct nature within Canada. To begin with, no amendment of the Constitution
is called for. Thus, courts, in their interpretation of the Constitution,
will not be called upon to take Quebecs distinctiveness into account.
There is also no reference in the motion to the legislature or government
of Quebec and their role in either preserving or promoting Quebecs
distinct character. Like the Charlottetown Accord, but in contrast to
Meech, the motion defines the features that make Quebec distinct: a French-speaking
majority, its "unique" culture, and the use of the civil law
in the provinces legal system.
Once more, as was the case
with Meech and Charlottetown, observers are divided over the implications
of such recognition. Most commentators in Quebec argue that it will have
little more than symbolic meaning, especially since it does not confer
any additional powers upon the National Assembly or Quebecs government.
Outside Quebec, opinion is divided, with a majority of those polled voicing
their disapproval of any proposal regarding formal recognition of the
One of Marjorie Bowkers
concluding thoughts is worth repeating. "It is understandable,"
she wrote, "that the objections now being voiced by some Canadians
could be interpreted
by Quebeckers as a form of rejection, whereas in truth there is a
genuine desire amongst Canadians to recognize Quebecs distinctiveness.
Our history, dating back to the Quebec Act of 1774, has shown a deference
to Quebecs special needs. Perhaps this recognition can be achieved
in ways less contentious than that attempted in the Meech Lake Accord.(62)
By adopting the motion proposed
by the government, has the House of Commons found a less contentious way
of giving Quebec the recognition it has sought for so long while at the
same time avoiding the objections to such a move put forward by some outside
Public opinion polls notwithstanding,
the cliché that only time will tell is probably the only accurate comment
that can be made. It can be observed, however, that formal recognition
of Quebecs distinctiveness has always been, in one form or another,
a feature of the legal and constitutional arrangements of this country,
even before this was officially established. This recognition has never
been as explicit as the proposals in the Meech Lake and Charlottetown
Accords, but, in a tacit form, it has always been there. Nor is the demand
for recognition of Quebecs distinctiveness and for the government
and legislature of Quebec to have the powers necessary to reinforce that
distinctiveness a recent phenomenon. Though perhaps not generally known,
this demand has been a key element of constitutional and political discussions
over the years. Thus history, recent events, and the positions held by
even moderate nationalists in Quebec lead to the conclusion that this
demand is unlikely to go away. Whether or not those Quebeckers not active
in political circles or in social movements will be satisfied with the
symbolic recognition afforded to the province by the recent House of Commons
motion is a question that only the future can answer. Recent polls, however,
show that most Quebeckers have responded negatively.(63)
Many of the groups, both
inside and outside Quebec, who objected to the distinct society clause
in the Meech Lake Accord have yet to render their verdicts regarding the
latest move to recognize Quebecs distinctiveness. One group, however,
the Grand Council of the Crees of Quebec, has spoken out in opposition
to it. In an appearance before the House of Commons Standing Committee
on Justice and Legal Affairs, Grand Chief Mathew Coon Come, spoke out
against what he saw as the lack of balance in the terms in which the current
resolution is drafted. Furthermore, he expressed misgivings about the
use of the term "people" in the resolution, claiming that it
lacks clarity and seems to suggests that there is one single people of
The attitudes of Canadians
outside Quebec have been largely shaped by the debate over the distinct
society clause that took place at the time of the Meech Lake Accord. Moreover,
many Canadians believe that Charter rights now outweigh provincial rights
and rule out the collectivist implications of the concept of distinct
societies.(65) How will
they view a recognition of Quebecs distinctiveness that is extra-constitutional,
defined, and makes no reference to Quebecs government or legislature
or confers new powers upon them? Having formed their initial opinions
in a different context, they are unlikely to abandon their objections
Other parts of the package include proposed legislation that will require
the federal government not to proceed with any constitutional amendment
against the objections of Quebec, Ontario, the western provinces, the
Atlantic region or British Columbia (an effort to give Quebec a veto over
changes to the Constitution), and a proposal to give the provinces control
over job-training programs (but not the funding associated with them).
Opinion surveys demonstrate that a majority of Canadians outside Quebec
felt that the changes in the Accord would have given the province too
much power while a majority of Quebeckers felt that they would have given
too little. While the distinct society proposal was not specifically referenced
in either of these assessments, the form proposed for constitutional recognition
of Quebecs distinctiveness would have acknowledged the role of the
provinces government and legislature in preserving and promoting
See, for example, André Burelle, Le mal canadien, Fides, Montreal,
1995, p. 67.
Ramsay Cook, "Alice in Meachland [sic] or the Concept of Quebec
as a Distinct Society," in Michael D. Behiels, editor,
The Meech Lake Primer, University of Ottawa Press, Ottawa, 1989,
Gil Rémillard, Le Fédéralisme Canadien, Québec/Amérique, Montréal,
1980, p. 112, (emphasis added).
Ibid., p. 114-115.
Jean Lesage, Un Québec fort dans une nouvelle Confédération, Quebec,
1965, p. 28 - 29.
The Commission also examined the contributions and needs of "other
John Saywell, "Parliament and Politics: La Révolution tranquille,"
in Canadian Annual Review for 1965, University of Toronto Press,
Toronto, 1966, p.44.
This point is acknowledged by most observers. See, for example, José Woehrling,
"A Critique of the Distinct Societys Critics," in Behiels
(1989), p. 174.
Royal Commission on Bilingualism and Biculturalism, Preliminary Report,
Ottawa, 1965, p. 111.
Ibid., p. 113.
Pierre De Bané and Martial Asselin, Special Joint Committee of the Senate
and of the House of Commons on the Constitution, A Minority Report,
Ottawa, 7 March 1972, p. 8.
Ibid., p. 10.
Ibid., p. 13.
Ibid., p. 6.
Although the reasons for this refusal were largely procedural, one analyst
(Jean-Louis Roy, Le choix dun pays, Leméac, Montreal, 1978,
p. 289) implies that the authors support for recognizing Quebecs
distinctiveness within Canada explained, in part, the reluctance of the
Cited in Frederick J. Fletcher and Donald C. Wallace, "Parliament
and Politics," in R.B. Byers (editor), Canadian Annual Review
1979, University of Toronto Press, Toronto, 1981, p. 85.
The Task Force on National Unity, A Future Together: Observations and
Recommendations, January 1979, p. 81.
Ibid., p. 87.
Cited in Fletcher and Wallace (1981), p. 87.
The Constitutional Committee of the Quebec Liberal Party, A New Canadian
Federation, January 1980, p. 13.
Ibid., p. 22.
Quebec, Votes and Procedures of the National Assembly of Québec,
1 December 1981, p. 136.
See, for example, Claude Ryan, "Le parti libéral du Québec et la
loi de 1982," Cité libre, vol. XXII, No. 5 (September-October
1995), p. 7-10. Ryan states that the Partys primary objections were
to changes in the balance of power between federal and provincial governments,
limits imposed by the Charter on the powers of the National Assembly,
and the amending formulas contained in the new Constitution; the absence
of a specific recognition of Quebecs distinct nature is not mentioned.
Alan C. Cairns, "Passing Judgement on Meech Lake," in Douglas
E. Williams, editor, Disruptions: Constitutional Struggles, from the
Charter to Meech Lake, McClelland and Stewart, Toronto, 1991, p. 233.
"Under What Conditions Could Quebec Sign the Constitution Act of
1982?" Le Devoir, 26-28 February, 1985. Source: Michael D.
Behiels, editor, Quebec Since 1945: Selected Readings, Copp Clark
Pittman Ltd, Toronto, 1987, p. 209-220.
The Liberal Party of Quebec, Mastering Our Future, February 1985,
Ibid., p. 47.
Government of Quebec Draft Agreement on the Constitution: Proposals
by the Government of Quebec, May 1985, p. 5 (official translation
of government text).
Ibid., p. 11.
See, for example, Gil Rémillard, Débats de lAssemblé nationale,
19 June 1987, p. 8780.
Gil Rémillard, "Quebecs Quest for Survival and Equality Via
the Meech Lake Accord," in Behiels (1989), p. 29.
Le Québec et le lac Meech, Un dossier du Devoir, Guérin Littérature,
Montreal, 1987, p.57.
For a more detailed discussion from a legal perspective, please see Mollie
Dunsmuir, Constitutional Activity from Patriation to Charlottetown
(1980-1992), Research Branch, Library of Parliament, November 1995,
especially p. 10 - 13.
See, for example, Andrew Cohen, A Deal Undone: The Making and
Breaking of the Meech Lake Accord, Douglas and McIntyre, Vancouver,
1990 and Patrick J. Monahan, Meech Lake: The Inside Story, University
of Toronto Press, 1991, for two different perspectives on the Accord and
the reasons for its demise.
Woehrling (1989), p. 161-207 provides a good summary of these criticisms
and responds to them.
See, for example, Georges Arès, "The Accord Abandons Canadas
Minorities," in Behiels (1989), p. 219-224.
See for example, Mary Eberts, "Why are Women Being Ignored?"
in Behiels (1989) p. 302-320.
See, for example, Canadian Ethnocultural Council, "A Dream Deferred,"
in Behiels (1989) p. 340.
Peter H. Russell, Constitutional Odyssey: Can Canadians Be a Sovereign
People? University of Toronto Press, Toronto, 1992, p. 143.
The Rt. Hon. Pierre Trudeau, "Who Speaks for Canada?" in Behiels
(1989), p. 81.
Marjorie M. Bowker, The Meech Lake Accord: What It Will Mean to You
and to Canada, Voyageur Publishing, Hull, Quebec, 1990, p. 53.
Canadians for a Unifying Constitution/Friends of Meech Lake, Meech
Lake: Setting the Record Sraight, 1990, p. 8.
Peter W. Hogg, Meech Lake Constitutional Accord Annotated, Carswell,
Toronto, 1988, p. 13.
Ibid., p. 9. (emphasis in the original).
Richard Simeon, "Meech Lake and Shifting Conceptions of Canadian
Federalism," Canadian Public Policy/Analyse de politiques,
September 1988, p. 12.
Ibid., p. 13.
Richard Simeon, "The Lessons of Meech Lake and Charlottetown,"
Canada Watch, March/April 1995, p. 66.
Quebec, National Assembly, Debates, 18 June 1987, p. 8708.
Ibid., p. 8708.
Gil Rémillard, "Quebecs Quest for Survival and Equality,"
in Behiels (1989), p. 32. From an article that first appeared in Réal-A.
Forest, ed., LAdhésion du Québec à lAccord du Lac Meech,
Les Éditions Thémis, Montreal, 1988.
Quebec, Débats de lAssemblée nationale, 19 June 1987, p.
Fédération des femmes du Québec, "Are Womens Rights Threatened
by the Distinct Society Clause?" in Behiels (1989), p. 295-301. See
also, Nicole Duplé, "LAccord du Lac Meech: les inquiétudes
féministes sont-elles fondées?", Réal A. Forest, ed., LAdhésion
du Québec à LAccord du Lac Meech, les Éditions Thémis, Montreal,
1988, p. 69-75.
This argument was made in the debates in the National Assembly and by
Henri Brun, in Le Québec et le Lac Meech (1987), p. 153 and by
eleven other Quebec constitutional experts, p. 168; others, such
as Woehrling, (p. 160-161), were less certain.
Liberal Party of Quebec, Taking Action For Québec, March 1994,
Ibid., p. 47. The Parti Québécois, for its part, declined to discuss
the possibility of obtaining recognition of Quebecs distinctiveness
within Canada. Instead, its policy document (Des idées pour mon pays:
Programme du Parti Québécois) noted that previous efforts to amend the
Constitution to accommodate Quebec had failed and proposed sovereignty
as the only remedy.
Konrad Yakabuski, "Société distincte et droit de veto sous perfusion,"
Le Devoir, 8 November 1995.
A poll conducted for the Globe and Mail (Toronto) by the Environics
Research Group between 3 Nov. And 10 Nov. showed that 58% of Canadians
living outside Quebec feel that the Quebec should not be recognized as
a distinct society in the Constitution while 55% were opposed to passage
of a resolution by Parliament recognizing Quebecs distinctiveness.
A bare majority of 51% agreed that Quebec is distinct. The poll questioned
1,208 voters, 902 of whom live outside Quebec. The polls margin
of error was plus or minus 3.3 percentage points, 19 times out of 20.
Bowker (1990), p. 55-56.
The results of a SOM poll published in La Presse (8 December 1995)
revealed that 53% of Quebeckers viewed the governments motion as
unsatisfactory. The poll was conducted between 1-5 December among
1,003 Quebeckers, and had a margin of error of 3.63%.
House of Commons, Standing Committee on Justice and Legal Affairs, Proceedings,
5 December 1995.
Russell (1992), p. 131 and Simeon.