GUY PRATTE
Guy Pratte, an Ottawa lawyer, has acted as counsel for the Liberal Party on matters of constitutional reform, including the Charlottetown accord. He believes that a strong commitment to federalism can be consistent with sensitivity to the legitimate concerns of Quebeckers.
WHAT MAKES A COUNTRY? The British thought they knew the answer to that question. As the American historian Francis Parkman wrote of Britain’s conquest of Canada in 1763:
England imposed by the sword on reluctant Canada the boon of rational and ordered liberty. Through centuries of striving she had advanced from stage to stage of progress, deliberate and calm, never breaking with her past, but making each fresh gain the base of a new success, enlarging popular liberties while bating nothing of that height and force of individual development which is the brain and heart of civilization; and now, through a hard-earned victory, she taught the conquered colony to share the blessings she had won. A happier calamity never befell a people than the conquest of Canada by the British arms.”
(The Old Regime in Canada, 1888)
The inherent superiority of English customs and institutions was not immediately apparent to French Canadians, and British authorities soon concluded that some tolerance of indigenous French institutions was necessary to earn the allegiance of the conquered. So, the Quebec Act of 1774 was passed by the British Parliament allowing the habitants to keep their religious institutions and their civil laws. And in 1791, Lower and Upper Canada were created to afford some greater measure of autonomy to the French-speaking majority. But this policy of accommodation was not working particularly well and, following the recommendation of Lord Durham, the Canadas were reunited in 1841.
Reunification itself turned out to be short-lived as a constitutional solution to the Canadian problem. By the mid 1860s, “confederation” emerged as the magical formula that might rally a majority of disparate views and interests within the bosom of a single state—albeit still constitutionally dependent on Britain. The genius of federalism, which had imposed itself on the founders of the American union a century earlier, had by now conquered the minds, if not the hearts, of Canada’s political leaders. It seemed that federalism held the promise of a long, durable political association between French and English Canadians.
But squaring the constitutional circle turned out to be much more difficult than the Fathers of Confederation apparently realized. By the 1960s a significant minority in Quebec was beginning to think that Quebec should get out of Canada completely. Thereafter, Quebec premiers behaved as if they could gain and keep power only by representing themselves as “nationalists.” It began with Maurice Duplessis, but once Jean Lesage had proclaimed his provocative “Maître chez nous” slogan, nationalism, regardless of party affiliation, became the essential condition for political survival in Quebec politics. The question “What makes a country?” was implicitly being posed by the repeated demands of the political leadership in Quebec, and federalists, including those sympathetic to Quebec, were at a loss for an answer.
At this point Pierre Elliott Trudeau arrived on the scene as the third man of the trio summoned by Prime Minister Lester Pearson, along with Jean Marchand and Gérard Pelletier, to help fashion a solution to the perennial constitutional dilemma facing Canada ever since its conquest by Britain two hundred years earlier. Trudeau certainly thought he knew what was needed to make a country and, for a long while, Canadians must have thought so too, for he led the country as prime minister for nearly sixteen years. During this long tenure, he devoted his considerable energies and ferocious intellectual powers to convincing or forcing Canadians to accept that official bilingualism and a constitutionally protected charter of individual rights afforded the only sure means of effective, durable country building. Indeed, it would only be a slight exaggeration to say that Trudeau and his Liberal government—to paraphrase Parkman—imposed on a reluctant Canada the “boon of rational and ordered liberty” when they forced a majority of the provinces to accept a Charter of Rights and Freedoms as the price for patriating the Canadian Constitution.
As a strategy for keeping this country together, it was a failure. Fifteen years after the Charter of Rights and Freedoms was enshrined in the law, Canada is more divided than ever, as demonstrated by the results of the recent federal election. Moreover, virtually every Canadian is resigned to the inevitability of another Quebec referendum sometime soon. Trudeau’s national unity strategy, as Kenneth McRoberts convincingly argues in his book Misconceiving Canada, “has failed abysmally to change the way Quebec francophones see Canada. Indeed the attachment of Quebec francophones to Quebec as their primary identity is stronger than ever, and they are more determined than ever that Quebec be recognized as a distinct society.”
Faithful Trudeau followers will blame Brian Mulroney and Robert Bourassa for reopening the constitutional debate with the Meech Lake accord of 1987. But if the Charter really was the miracle cure to constitutional woes, why did the malady resurface with increased virulence just a few years after the prescription had been administered? As McRoberts observes:
It is ironic that the national unity strategy, although conceived primarily in relation to Quebec, has had its main impact, not in Quebec, but in the rest of the country and has transformed the way many English Canadians think of Canada. As such elements of the Trudeau strategy as a charter of rights, multiculturalism, or the equality of the provinces have become central to English Canadians’ view of Canada, so they have destroyed any willingness to recognize Quebec as a distinct society. Indeed, within the Trudeau strategy these principles were intended to negate Quebec’s claim to recognition.
Trudeau’s failure was to confuse his personal convictions with the ultimate needs of the country and to refuse to adjust his official views, notwithstanding the mounting evidence that his political beliefs were not producing the desired unifying effects. In this regard, it will be enlightening to compare Trudeau to another leader who fought for rights and equality, Abraham Lincoln.
Trudeau’s Solution
From the outset, Trudeau was viscerally opposed to any modification of the prevailing constitutional arrangements that would sanction nationalistic feelings in Quebec, which he abhorred. For him, nationalism and emotionalism were inextricably linked, and as such they were opposed to federalism and reason:
I would like to see emotionalism channelled into a less sterile direction than nationalism … Within the sufficiently advanced federal countries, the autodestructiveness of nationalism is bound to become more and more apparent, and reason may yet reveal itself even to ambitious politicians as the more assured road to success …
Thus there is some hope that in advanced societies, the glue of nationalism will become as obsolete as the divine right of kings; the title of the state to govern and the extent of its authority will be conditional upon rational justification; a people’s consensus based on reason will supply the cohesive force that societies require.
The rise of reason in politics is an advance of law; for is not law an attempt to regulate the conduct of men in society rationally rather than emotionally? (Against the Current, 1996)
Reason, federalism, and law were related notions essential to the establishment of viable and durable government. But how could French Canadians be made to feel a part of Canada if their nationalist tendencies created centrifugal forces difficult to contain in the existing federal state? How could Canada itself become a nation whose own nationalism was not destructive for being based on emotionalism? Trudeau’s answer to this dilemma was to posit that only the establishment of legally entrenched individual rights could create a collectivity that was not doomed to internecine and perpetual conflict.
Instead of race or religion, the nation would define itself in terms of every citizen possessing certain inalienable rights shared by everyone else. In this scenario, individual rights were not only required as shields against the possible oppression of the majority but were the means by which to transcend a petty and destructive nationalism based on emotion. Rights and freedoms—of speech, religion, and thought—would make everyone equal and free, united by this common denominator.
In February 1964 Trudeau wrote in Maclean’s:
A constitutional entrenched bill of rights seems to be the best tool for breaking the ever-recurring deadlock between Quebec and the rest of Canada. If certain language and educational rights were written into the constitution, along with other basic liberties, in such a way that no government—federal or provincial—could legislate against them, French Canadians would cease to feel confined to their Quebec ghetto, and the Spirit of Separatism would be laid forever.
The express purpose of official bilingualism and of the Charter of Rights and Freedoms that came into force on 1982 was, therefore, to serve as a unifying force that would make Quebec nationalism obsolete.
It is hard to find any evidence that the Charter, or official bilingualism for that matter, has had any effect whatsoever in creating the bonds of rational nationalism which Trudeau so fondly hoped for. Still, he remained absolutely committed to his Charter. He vehemently opposed any dilution of its legal force, particularly in the name of granting any special status to Quebec, as was his perception of the attempts made by Mulroney and Bourassa in the Meech Lake accord of 1987. At that time, Trudeau wrote in a blistering article published in the Toronto Star and other newspapers: “The real question is whether the French Canadians living in Quebec need a provincial government with more powers than the other provinces. I believe that it is insulting to us to claim that we do.”
From a legal point of view, the arguments against the “distinct society” clause are weak, as is obvious from Trudeau’s intervention before the Senate. The vagueness of the clause could hardly be held against its drafters. Indeed, we would never have had a British North America Act in 1867, with its exceedingly vague and elastic “Peace, Order and Good Government” clause as a major source of federal power, if the Fathers of Confederation had insisted on utter limpidity of constitutional drafting. Similarly, the Charter of Rights itself, with such notions as “equality” and “fundamental justice,” would not have passed the standards of precision that Trudeau and his constitutional groupies insisted on when the Meech Lake debate was raging.
Nor can the distinct society clause be objected to on the basis that it is an interpretive clause likely to benefit one particular group, for the Charter already contains several interpretative clauses explicitly designed to yield interpretations favouring distinct groups like aboriginals, women, and cultural minorities. In any event, it is up to the Supreme Court of Canada to apply the distinct society clause and it is hard to see why that Court, federally appointed with a majority of 6—3 of the judges from provinces other than Quebec, could sanction a legal interpretation detrimental to the well-being of the nation as a whole.
The most potent argument against the distinct society clause is not a legal but a sociological one—that it will foster a society within Canada that will tend to define itself in terms of itself, with no reference to Canada. There is some force to that argument, except that, even without this clause, Quebec is inexorably inching towards, if not outright separation, a major redefinition of the country likely to result in a much more asymmetric Canada than that which could possibly emerge from the enactment of the distinct society clause.
This sociological argument also ignores the goodwill that recognition of Quebec as a distinct society would engender among Quebec nationalists who believe in Canada as a rational political construct, but who resent the impression, partly based on experience but increasingly fuelled by historical mythology, that English Canadians consider French Canadians as inferior, as unwitting and ungrateful benefactors of the superior wisdom of British colonialists. This group would easily represent 10 to 15 percent of the 49.6 percent that voted Yes in the last referendum. It is certainly large enough that, once committed to the federalist cause, it would make it virtually impossible for separatists to win a referendum. Polls show that, between 1995 and 1997, 74 to 80 percent of Quebeckers agreed that it was important for the future of Canada that Quebec be recognized as a distinct society in the Constitution. Indeed, it could be argued that many Quebec francophone federalists would strengthen their commitment to this country on the recognition of Quebec as a distinct society. It would also be a mistake to believe that only Quebec nationalists harbour feelings of vague and latent resentment towards English Canada.
The generosity of spirit that would be demonstrated by making this concession—the proof that English Canadians wanted to keep Canada as including Quebec to such an extent that they were willing to acknowledge the special place that Quebec occupies—would generate a new bond with Canada that no legal or rational argument could duplicate. But this concession would also require a compromise to Trudeau’s theory of nation building, a pragmatic recognition of the limits of the acceptability of his political theory which he was utterly unwilling to make.
Trudeau and Lincoln
Trudeau’s determination that only a Charter of Rights would keep the country together was based on logic: If every citizen has the same fundamental rights as every other, then all citizens who enjoy those rights will be bound together in a single nation regardless of their other, less important differences, such as culture and language. This theory was not without precedent: The United States of America was founded on a similar creed. Indeed, when the political axiom that “all men are created equal” was challenged by the southern states, the North, led by President Lincoln, engaged in a massively destructive war, ostensibly to affirm its fundamental primacy. In light of that example, it might seem that Trudeau and his followers’ uncompromising attitude towards Quebec nationalists was justified, even at the risk of separation.
Such an interpretation of Lincoln’s political motives would, however, be simplistic and misleading. First and foremost, Lincoln was fighting to keep the nation whole. Although he, personally, profoundly believed in the tenet of equality of fundamental rights between people, regardless of religion or race, he stated clearly that he would compromise those principles if it was politically necessary to do so:
If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and not either to save or destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would do that. What I do about slavery, and the coloured race, I do because I believe that it helps to save the Union; and what I forbear, I forbear because I do not believe it would help save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more helps the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views. I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men every where could be free.
(Letter to H. Greeley, August 22, 1862)
For Lincoln, there was no dishonour in pragmatism. The supreme objective was to keep the nation together and, to ensure that this goal would be reached, he was willing to compromise substantially on the principle of absolute equality among citizens. He would allow the southern states to keep slavery in the belief that, ultimately, perhaps only after hundreds of years, this peculiar institution would die on its own. If that is what it would take to keep the nation together, he was willing to wait.
Lincoln was routinely vilified by northern strict abolitionists for his position of tolerance of slavery in the states that already had it. But he was convinced that his belief in equality could rally the nation only if this compromise were allowed. He was willing to make this concession because it seemed to him that imposing absolute equality would only further divide the country. But the South, unwilling to compromise with the newly elected president, wished slavery to be extended to the new western territories. Inevitably, war ensued.
Trudeau, like Lincoln, was a staunch believer in individual rights. But for Trudeau there was no compromising on rights. He was ready to sacrifice the nation on the altar of individual rights. Then a grabbag of Trudeau followers, political opportunists, and anti-Quebeckers—from Clyde Wells to Preston Manning—seized on this notion of individual equality and appropriated it for the benefit of the provinces, asserting that the equality of individuals necessarily meant that all provinces had to be equal—to have precisely the same powers. This group is now willing to push the nation to the brink of destruction by insisting on the perfect equality of the provinces. The problem is that neither the equality of individuals nor the equality of provinces has served to convince a sufficient majority of Quebeckers that the current constitutional arrangements are satisfactory.
We should know by now that perfect equality, be it of individuals or of provinces, is not an idea that can overcome a widespread feeling in Quebec that it is somehow different, entitled to some form of different treatment. We may not understand this feeling or even accept it, any more than Lincoln personally understood or accepted the morality of slavery. But should we reject it to keep our principles untainted, at the cost of losing our country?
What the Country Needs
On a rational plane, the case for Canada is unanswerable. That is why sovereignists, except for wide-eyed, frustrated emperors like Jacques Parizeau, sell their nationalist jump into the unknown with a solid, foolproof parachute made in Canada, complete with a Canadian passport, Canadian money, and full partnership in the Canadian market place. Indeed, there is no semblance of proof that economically, politically, or culturally, Quebeckers would be better off in an independent Quebec. Nor is there any evidence that, from the governance point of view, Quebec politicians would better administer their affairs if left to their own devices. The educational system, for example, which is of exclusive provincial jurisdiction, is in a mess in Quebec at least as much as in the other provinces.
Special status, let alone independence, is not required. But sometimes people “want” what they don’t “need.” Indeed, people often want what they know will be economically disadvantageous. From that point of view, the most important decisions in life are irrational. Getting married is not—usually—a profitable venture, particularly if children follow. But how many actually calculate the cost of family? Le coeur a ses raisons que la raison ne connaît pas!
Reason is not sufficient to bind us all together as a nation. Nor is economic prosperity, although this was not apparent to those who designed the federalist strategy in the 1995 referendum on the premise that economic self-interest would dictate that a strong majority of Quebeckers would choose Canada. Our relationships as citizens will require—just like all worthwhile and important relationships—significant compromises. Parents who want to keep their family together will not insist that each one of their children attend university and become a doctor or a lawyer, in the face of one “black sheep” who wants to write poetry or play in a rock band. Sometimes, imposing uniformity will only lead to disunion.
Perhaps what makes a country is the same ingredient that makes relationships between individuals last—compromise, giving something to the other person even when we don’t understand why that is so. Perhaps it requires giving something that we consider important. Trudeau’s failure as a leader is that he could not make any compromise to his theory of equal individual rights for the purposes of satisfying Quebec. It is true, of course, that nothing would have satisfied the true separatists and those who want all power for themselves. But those people are irrelevant. What is relevant is to see what compromise would be sufficient to rally a substantial majority of Quebeckers so as to doom the hard-core separatists to eventual extinction. Entrenching the distinct society clause in our Constitution, with the consent of a strong majority of provinces, is such a compromise.
But Trudeau could not abide this compromise; he could not admit of this weakness. He could not bring himself to give to others—even to his fellow French Canadians—what he did not need himself and what he felt they should not need either. He did not realize that his leadership could have been strengthened by an act of compassion; he revelled instead in his lifelong intransigence, so relished by his disciples. Perhaps there is much pride in standing firm—a justifiable courage in risking the nation for a principle. But, surely, great political leadership consists in advancing a principle as far as the nation will admit, and no farther. That is what Trudeau failed to comprehend: one can’t be a philosopher and nation builder at the same time.
We shall not fight a civil war to keep Quebec in Canada. But we shall lose Quebec without a fight if we insist on our principles as if any principle were worth risking the destruction of such a worthy national ideal as Canada. For we are not asked to sanction Hitlerism or condone slavery in Quebec, nor are we asked to condone any form of human repression. We are merely asked to show our respect by acknowledging a difference, when this recognition is important to those who seek it. Where is the leader who will convince Canadians that there is nothing demeaning in accepting this difference for the sake of this country?