MAX NEMNI
Max Nemni, a professor of political science at Laval University in Quebec City, is particularly interested in the relationship between nationalism and liberalism. His recent essays, in both English and French, analyse the effects of ethnocultural nationalism on the viability of Canada. With his wife, Monique, he is editor-in-chief and publisher of Cité libre, the magazine founded by Pierre Trudeau and other Quebec intellectuals in June 1950.
Trudeau and the Second Coming of Quebec Nationalism
THE MIGHTY WAVE of Quebec nationalism which has thoroughly shaken Canada’s political institutions first through the failed Meech Lake accord from 1987 to 1990, then through the failed Charlottetown accord from 1990 to 1992, and once again through the Quebec referendum of October 1995 on secession has brought with it many harsh criticisms of Trudeau’s ideas and policies. On the face of it, this criticism is quite surprising, since the Trudeau political era came to a close in 1984 and the crowning achievement of his political life, the patriation of the Constitution accompanied by a Charter of Rights and Freedoms, was achieved in 1982. Because his policies were meant to tackle the very complex and still unsettled “unity” question, however, it is fair to judge him for a situation that may have derived from his policies.
Many intellectuals—francophones and anglophones, academics and journalists, politicians and bureaucrats—levy a harsh judgment on Trudeau’s legacy. In Trudeau and the End of the Canadian Dream (1995), for example, Guy Laforest, a prominent representative of the new generation of “soft nationalists,” interprets the 1982 constitutional reform as a mean-spirited attempt by Trudeau “to break the spine of the Québécois community in the interest of an idealized vision of the Canadian nation.” In his most recent book, published in 1997, Kenneth McRoberts presents the same idea from an English-Canadian perspective. He claims that Trudeau’s strategies, widely adopted in English Canada, have “destroyed the basis on which the stability of the Canadian polity had rested.” McRoberts believes that only by abandoning the Trudeau vision can Canadians hope to unite their country. Hence the title of his book, Misconceiving Canada: The Struggle for National Unity.
In 1994, in a book titled Reclaiming the Middle Ground, a similar judgment of Trudeau’s legacy was brought by two of his former collaborators who were then top civil servants, Gordon Robertson and Roger Tassé, and by Donald G. Lenihan, a research associate at the University of Ottawa. The “middle ground” to be reclaimed, in the eyes of the authors, is the one occupied by the so-called soft nationalists. A brutal version of this harsh critique appeared in Maclean’s special report of April 22, 1997, on the ranking of Canada’s prime ministers. There, Desmond Morton, a well-known friend of the soft-nationalists and the director of the McGill Institute for the Study of Canada, declared, “Trudeau was the disappointment of the century.”
The main target of most of Trudeau’s critics is the constitutional reform of 1982. To them, this reform was marked by a spirit of confrontation rather than accommodation with Quebec. Interestingly enough, this critique was mainly expressed at the time of the failed Meech and Charlottetown episodes. For example, the very first sentence of Reclaiming the Middle Ground states that “the clearest lesson of the debate over the 1992 Charlottetown Accord is that Canadians are divided in their vision of the country.” A few lines later, those who still remember that this event happened under the Mulroney régime are surprised to learn that the objective of the authors is to “examine how the political philosophy of liberalism—especially as incorporated into ‘pan-Canadianism’ under former Prime Minister Trudeau—contrasts and conflicts with the more federalist aspirations of moderate Quebec nationalists.” At the very outset of the first chapter one reads that “the intensity of the reaction in Quebec following the collapse of the Meech Lake Accord in 1990 stunned many in English-speaking Canada. The surge in support for sovereignty that followed sent shudders through the political class in the rest of Canada.” Although it is common to attribute the recent rise of nationalism to Trudeau’s policies, concrete proofs are rarely given. To these authors, the fact that nationalism is still present proves that Trudeau’s policies have failed: “The proof is in the pudding.”
Laforest adopts a different slant. He directly accuses a group of persons, labelled Trudeau’s fellow travellers, of having worked hard “to influence a number of politicians in English Canada … against the ratification of [the Meech Lake accord].” Laforest brings two charges against the constitutional reform of 1982. First, he bemoans the fact that “the Quebec government was excluded from the constitutional negotiations of 1981—82.” Second, and more important, he claims that the powers of the National Assembly were drastically reduced without the consent of the people or the government of Quebec. Invoking Locke, for whom the “legislative power is supreme and sacred,” he claims that because the Quebec legislature did not consent, Trudeau committed a grievous mistake that delegitimizes the entire Canadian political system. He writes: “If my reading is correct, the Canadian political system has a fatal weakness at its core.”
A second theme in the latest wave of criticisms rests on the notion that Trudeau’s concepts of liberalism and nationalism were too abstract. A common picture of Trudeau is that of a man with noble but essentially obsolete ideals typical of the Enlightenment. Stubbornly clinging to an abstract vision of liberalism, individualism, and pan-Canadian nationalism, he abandoned reality and neglected federal principles. This abstract idealism, critics say, had dire consequences. First, Trudeau’s purported attempt to apply individual rights across Canada caused him to disregard the legitimate needs of various communities. To Laforest, for example, the 1982 constitutional reforms were “unjust and reprehensible measures,” nothing more than “a continuation of Lord Durham’s policies by other means.” Robertson, Tassé, and Lenihan double the stakes. To them, Trudeau’s uncompromising desire to impose a single approach to the interpretation of rights across Canada was “a kind of imperialism [which] far from uniting the community, only serve[d] to alienate important subgroups within it.” So fixed was he on abstract ideals that he was blind to the value of communities. They attribute his neglect of the values of community to the fact that he did not keep abreast of “communitarianism,” which they depict as an exciting new current in liberal theory. Trudeau’s outdated philosophy was translated, they claim, into already outdated policies premised on the view that “shared culture, language or history [were] of marginal concern, if not irrelevant, to what the Canadian Charter, in section (1), calls the ‘reasonable limits’ that can be placed on rights.”
These mistaken philosophical perspectives, say the critics, had dire political consequences to the extent that they denied the validity of the claims of moderate nationalists: that, as the only province with a French-speaking majority, the Quebec government had a special mission in Confederation. Quite unjustifiably, Trudeau placed all nationalists in the same boat. He failed to see that moderate nationalists, unlike the extreme nationalists who sought separation, were merely seeking means to promote the development of their cultural community. As a result of this absence of nuance in Trudeau’s ideas and of his doctrinaire espousal of classical liberalism, he failed to understand the needs of “cultural communities.” The most damaging of all his failings was his inability to empathize with the struggle of francophone Quebecers to strengthen their culture “through membership in a healthy, developing cultural community.”
Laforest puts this point very bluntly. He claims that by failing to recognize Quebec as a “nation” in its own right, “the reform of 1982, in its very principle, is a veritable war machine unleashed on the spirit of political and national duality.” McRoberts expands on this theme and claims that “the Constitution Act, 1982 … violated the basic view of Canada, including the notion of a ‘double compact,’ held by generations of francophones.”
The case against Trudeau is crushing. He tragically misunderstood the true nature of Quebec nationalism, was blind to the legitimate aspirations of cultural communities, and failed to empathize with the moderate nationalists and others who believed in a more flexible type of federalism. And because the Charter is skewed towards abstract individual rights, the antagonisms that Trudeau’s policies created are now deeply embedded in the very structure of Canada’s basic institutions. “Many Quebecers, Aboriginal peoples and Westerners,” says McRoberts, “have dug in their heels and steadfastly refused to accept that what they regard as essentially community affairs must be subordinated to the new pan-Canadian vision of their common interests.” In essence, then, Trudeau’s policies have weakened rather than strengthened Canada. Thus, he is directly responsible for our present predicament. The proof, they claim, lies in the second coming of Quebec nationalism, which resulted in the slimmest of victories for the forces of Canadian unity after the October 1995 referendum.
Trudeau’s Concepts of Liberalism and Nationalism
To assess Trudeau’s vision in light of such weighty criticism, let us start with his understanding of Quebec nationalism. This concept is at the root of the current intellectual wave, critical both of his philosophy and his policies. Nobody would ever deny that Trudeau was a critic of nationalism. Similarly, few would deny that he is a major architect in constructing a new Canada. Should we conclude that his anti-nationalism was selectively directed against Quebec as a mean-spirited way of building a pan-Canadian nationalism? Did he, in fact, misunderstand the nature of Quebec nationalism? Worst of all, was he “anti-Quebec” rather than “anti-nationalist” in the abstract? We can answer these questions by examining both his writings and his record. But first, we must briefly recall Quebec’s political climate in the early 1960s.
On June 22, 1960, a triumphant Jean Lesage—the father figure of this new era—announced the end of Quebec’s nightmare by shouting, “Ladies and gentlemen, we have crushed the infernal machine, with its hideous face.” The infernal machine was, of course, the corrupt Duplessis régime. Yet, in the election of November 1962, armed with a catchy new slogan—Maîtres chez nous—Lesage and his équipe du tonnerre, in which René Lévesque was a star performer, completely forgot the infernal machine. This time a potent political idea was intertwined with the powerful symbolism of a nation determined to rid itself of the oppressors. In effect, the new élite was arguing that a Quebec state was the only instrument available to the Quebec nation in its historic march towards full emancipation. The élite loudly proclaimed that the frontiers of nation and state should coincide.
The 1962 election marked the beginning of our present political era of relations between Quebec and the rest of Canada—an era characterized by the belief among all Quebec parties that the provincial government is essentially the political instrument of francophone Quebecers. To “federalist” parties, this belief has meant seeking as distinct or special a status for Quebec as possible, using all kinds of “knife at the throat” strategies to achieve their goal. For separatists, it has meant devising various formulae, such as “sovereignty-association” or “sovereignty-partenariat,” to bring a reticent Quebec electorate to accept a secessionist agenda. The preliminary report of the Royal Commission on Bilingualism and Biculturalism, published in 1965, declared that Canada was going through the deepest crisis in its history. And, in July 1967, Charles de Gaulle crowned his visit to Canada with the cry that has echoed long after his departure: “Vive le Québec libre!” When a few weeks later, opinion polls showed that a majority of Quebecers approved de Gaulle’s action, a motion was passed in the National Assembly expressing gratitude to the French president. Lesage, who was then in opposition, declared that “he was very happy with the way the population received the general.” In this atmosphere, between 1961 and 1968, Trudeau expressed some of his most important thoughts on Quebec nationalism and Canadian federalism. Between 1968 and 1984, he attempted to deal concretely with these issues.
A good starting point for Trudeau’s ideas is his famous article, “New Treason of the Intellectuals,” first published in Cité libre. It is rarely mentioned, but worth noting, that this essay was not written during the Duplessis regime but in April 1962, well into the Quiet Revolution. What was this treason?
Nationalism, Trudeau claimed at the time, was an absurd and contradictory idea because “every national minority will find, at the very moment of liberation, a new minority within its bosom which in turn must be allowed the right to demand its freedom.” It was a “retrograde” and “reactionary” idea because it led to “a definition of the common good as a function of an ethnic group, rather than of all the people.” Good government cannot afford to be nationalistic because it must respect its citizens equally, without prejudice to their ethnic or racial origins, their cultural or religious values. Whenever a government deviates from its fundamental responsibility to promote the general interest, civil strife inevitably ensues. “This is why a nationalistic movement is by nature intolerant, discriminatory, and, when all is said and done, totalitarian.” Finally, nationalism is a “barrier to progress” because the trend throughout the world—a very hopeful trend, according to Trudeau—was towards the tearing down of frontiers and barriers between peoples, rather than the erection of new ones. For Trudeau, the most pernicious barriers were the ones meant to protect a specific “cultural community” from contacts with the outside world. So far as Trudeau was concerned, no better recipe could be devised for stifling culture. Hence his resounding cry in his article “Nationalist Alienation” in 1961: “Open up the borders, our people are suffocating to death!”
“The New Treason of the Intellectuals,” unquestionably Trudeau’s sharpest and most eloquent critique of nationalism’s failings, opens with the much quoted but still ambiguous statement seeming to condone certain varieties of nationalism: “It is not the concept of nation that is retrograde, it is the idea that the nation must necessarily be sovereign.” To unravel the ambiguity of this sentence and to understand Trudeau’s critique properly, one should keep in mind the context described above, where, after a brief respite of two years, Quebec’s political and intellectual élites resorted once again to the ideal of nationalism as a means of rallying French Quebecers. This time, however, a new and important twist was added: Nationalism began to assume a territorial and political hue. For the first time in Canadian history, Quebec’s government was openly and systematically seeking to restructure a provincial state so it would fit the contours of a nation. This was precisely what Trudeau regarded as extremely dangerous. It is the theme he developed throughout the essay and on which he concluded with the words of Lord Acton: “Nationalism does not aim either at liberty or prosperity, both of which it sacrifices to the imperative necessity of making the nation the mould and measure of the state.”
The opening and closing statements of the essay capture the kernel of Trudeau’s critique of the newly emerging nationalism in Quebec, as well as his vision of the kind of Canada that would respond to the aspirations, not only of French Quebecers, but of all Canadians. Underlying these statements lies the fundamental distinction Trudeau drew between “nation” and “nationalism.” Unfortunately, while obvious when placed in context, this distinction was sometimes obscured by the inconsistent use of the word “nation,” taken occasionally to mean either “nation-state” “or nationalism.” It was only in 1964, in his other celebrated piece entitled “Federalism, Nationalism and Reason,” that Trudeau clarified his terminology. He noted the inherent ambiguity of the word “nation” and attempted to resolve it by distinguishing between its “juristic” and “sociological” meanings. Aware of the enduring lexical ambiguities, he warned that “lawyers and political scientists cannot remake the language to suit their convenience; they will just have to hope that the context makes it tolerably clear which of the two [definitions] we mean.” The context demonstrated that, as far as he was concerned, the nation “in the sociological sense” was an existing reality. Throughout history, Trudeau argued, human beings have constituted themselves into communities characterized by various cultural traits, common traditions, and shared memories. It was just as absurd to set oneself against the “nation” as against social life. The nation, he asserted, was “the guardian of certain very positive qualities: a cultural heritage, a community awareness, historical continuity, a set of mores; all of which, at this juncture in history, go to make a man what he is.” In today’s vocabulary, one would say that the nation was for him a specific, historically contingent type of cultural community. Tomorrow, the nation could well be replaced by another form of organization of individuals within a collectivity. In any case, the nation was a historical reality and he had nothing against this fact.
As his policy of multiculturalism would later illustrate, Trudeau was clearly in favour of measures that would enhance and enrich the cultural heritage of any group of people. His problem lay with the political use to which the idea of a nation was put—with the ideology of nationalism. More specifically, within Quebec, he was strongly critical of what he referred to as “this self-deluding passion of a large segment of our thinking population for throwing themselves headlong—intellectually and spiritually—into purely escapist pursuits.” Chief among these sterile pursuits was the idea that “only Quebec as a state would appear to belong unquestionably to French Canadians; and the fullest power for that state is therefore highly desirable. Democracy having declared all men equal within the nation, so all nations should enjoy equality one to another, meaning in particular that ours should be sovereign and independent.” This was la nouvelle trahison des clercs, the new treason of the intellectuals, which he was intent on denouncing.
Interestingly enough, in 1962 Trudeau was already critical of the logic of communitarianism, the school of thought that defends the idea that communities, especially national communities, should in some respects be treated as individuals. From this perspective it becomes possible to say that Quebec is or is not “humiliated” or that it seeks “recognition.” The Trudeau critics mentioned above admire the writings of Charles Taylor from McGill University and Will Kymlicka from the University of Ottawa, for they see there a just mixture of communitarianism and liberalism most suitable to the Canadian situation. They express regret that this school of thought has passed Trudeau by.
In fact, Trudeau was at least one step ahead of his critics in terms of theory, and he never engaged in abstract philosophy. His critique was specifically aimed at those nationalist intellectuals who squandered vast amounts of energy in a dead-end pursuit. Thus, while Trudeau’s evaluation of nationalism had a rich theoretical content, it was also a powerfully reasoned reaction against the concrete manifestations of nationalism that choked “his people”—the French Canadians. This “nation,” as well as the English-Canadian one, was a historical reality that simply had to be accepted: “The die is cast in Canada: there are two main ethnic and linguistic groups; each is too strong and too deeply rooted in the past, too firmly bound to a mother-culture, to be able to engulf the other. But if the two will collaborate at the hub of a truly pluralistic state, Canada could become the envied seat of a form of federalism that belongs to tomorrow’s world.” In terms of abstract idealism, this is as far as Trudeau ever went. In terms of pragmatic realism, his entire political life was premised on the conviction that the ideal of a pluralistic Canada was achievable.
However, just as there existed in Canada two linguistic groups with a great potential for mutual enrichment, there were also two nationalisms with a similar potential for mutual destruction. In Trudeau’s words, “if, in the face of Anglo-Canadian nationalism, French-Canadians retreat into their own nationalistic shell … Canada will become a sterile soil for the minds of her people, a barren waste prey to every wandering host and conquering horde.” It was clear to Trudeau that the two linguistic communities, which had shaped Canada and each other, could not just be wished away or absorbed one by the other. He developed this theme more extensively in his “Federalism, Nationalism and Reason,” where he showed a keen awareness of the political usefulness of appeals to ethnic sentiments. But it was the English-Canadian community that took the brunt of his criticism. The repeated attempts by the anglophone community to put francophones in a subordinate position, not to say to dominate them, had simply produced a countervailing and equally ugly French-Canadian nationalism. But reason, Trudeau claimed, had to prevail if we wished to avoid disaster. Jealous and inward-looking nationalisms could destroy what had been achieved and what could yet be achieved. It was time to forget past grievances. The challenge was the promotion of “national values,” the danger was nationalism, and the solution was pluralism and federalism: “We must separate once and for all the concepts of state and of nation, and make Canada a truly pluralistic and polyethnic society.” This reasoning was the basis of Trudeau’s critique of nationalism, his trust in federalism, and his search for a genuinely pluralistic society.
In concrete terms, Trudeau believed that good government required good institutions; good institutions, in turn, required counterweights. Canada’s problems would not be solved by longing for great leaders, but through the improvement of existing institutions. Trudeau felt that Canada was already endowed with the institutional arrangements perfectly suited to the tasks at hand. He greatly appreciated, in particular, the distribution of powers between the two levels of governments. The jurisdiction of the federal government concerned itself with all matters devoid of ethnic or cultural dimension, whereas the provinces had jurisdiction over education, property, civil rights, and the administration of justice. In order to “make Canada truly pluralistic,” what remained to be done was, first and foremost, to ensure that French Canadians occupied their rightful place within Canada’s institutions. The reform of existing institutions was also necessary to fertilize the flowering of cultural and “national values.” To succeed, these reforms required the creation of a sense of Canadian patriotism that could only be achieved by transferring sovereignty to the people.
The Constitutional Reform of 1982: Orthodox Liberalism or Pragmatic Federalism?
Trudeau’s response to these challenges is well known. His political philosophy was founded on a liberal conception of justice, emphasizing the moral and political primacy of the individual as well as the pursuit of tolerance and equality of opportunity. All his political initiatives were informed by these principles, foremost among them were those policies that had a direct impact on the unity question: official bilingualism, multiculturalism, and the Charter of Rights and Freedoms. As we have seen, these policies are now increasingly perceived as part of an abstract pursuit of lofty ideals rather than as pragmatic answers to real problems.
By entrenching official bilingualism, Trudeau hoped to put the two historic language communities on an equal footing, politically and juridically. The policy was never meant, as many of his critics contend, to make every Canadian bilingual. Certainly the objective was ambitious, but it was doable, and history has proved that, to a great extent, Trudeau’s policies have indeed been realized: Government services are now available across Canada in both languages; the ranks of the civil service in Ottawa are fully accessible to all; French immersion has opened bilingual education to countless anglophones; and a political career in Ottawa, especially in the higher echelons, can hardly be envisaged without a sound knowledge of both languages. These very concrete achievements negate the accusations of “abstract idealism” that are so frequently aimed at Trudeau’s policies. Of course, by recognizing both official languages as absolutely equal in juridical and political terms, and by entrenching language rights within the Constitution, a big step was taken towards the creation of a Canadian political nationality.
Multiculturalism was another pragmatic response to the reality of Canada. When Trudeau came to power, in the late 1960s, at least one-third of the Canadian population was already neither English nor French in origin. The constitutional reform of 1982 reacted to this situation by recognizing that the Charter must be interpreted “in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” This right has undoubtedly helped to foster the strong sense of Canadian patriotism that is so prevalent within Canada’s increasingly multiethnic population.
The main target selected by Trudeau’s latest wave of critics is, however, the constitutional reform of 1982, and especially the Charter of Rights. But the critique is accompanied by a new twist. In the first few years after patriation, the reform was criticized essentially on the grounds that it abandoned the British tradition of parliamentary supremacy and unduly increased the powers of the judiciary. The critiques now take a different slant. The reform, and in particular the entrenchment of the Charter through its emphasis on freedom, equality, and individual rights, is seen as a move away from federal accommodation of national diversity, and hence as a flawed instrument in view of the aspirations of Quebec’s soft nationalists. Let us attempt to deal with this accusation by briefly reviewing the effects of the Charter on Quebec’s citizens.
First, the Charter guarantees certain basic rights to all Canadians. Although civil liberties are not as fragile in Canada as they are in many other countries, abuses do occur. Moreover, polls have systematically shown that Canadians, including Quebecers, identify very strongly with, and appreciate the protection of, the Charter. Second, the Charter has provided powerful support for the French language by putting it on an equal footing with English in the eyes of the law, and by protecting the educational rights of official minority languages. These constitutional guarantees clearly strengthen the French presence and its vibrancy across Canada, while the continuing presence of francophone minorities beyond Quebec is an essential condition for the preservation of official bilingualism. It is evident that measures which favour the promotion of French are in the interest of all French Canadians, within Quebec and outside. The Charter is thus an indisputable asset to francophone Quebecers.
But there are two aspects of the Charter that Quebec nationalists bitterly criticize. They claim, first, that it has substantially reduced the power of the Quebec government and, second, that it has created a pan-Canadian nationalism which excludes Quebecers. Certainly, the Charter has changed the role of the judiciary. Some believe this judicial prominence has in turn weakened the powers of the legislature and the power of the people over their governments. But this perspective minimizes an important aspect of the judiciary within a federal system: the arbitration of disputes between the two levels of government. In federal systems, the courts necessarily become part of the political process. The choice is between providing a legal framework for this role or leaving it loosely structured. Canada’s history is replete with examples of the latter approach. One easily recalls, for instance, the series of appeals to the Supreme Court by a number of provinces, including Quebec, intended to prevent the federal government from patriating the Constitution unilaterally. The Supreme Court held that while unilateralism by the federal government was legal, political conventions required that the consent of some unspecified number of provinces be obtained. This extra-legal decision clearly had serious political consequences. Foremost among them was the fact that the federal government sought and obtained the consent of all provincial governments except Quebec. The separatist Parti Québécois government, which had no interest in improving Canada’s political institutions, used this situation to its political advantage: it proclaimed loudly that Quebec had been “excluded.” The extra-legal ruling lent a measure of credibility to this point of view which entered the political imagination of Quebecers in various guises, such as the “night of the long knives” or the “coup de force” of 1982. The same powerful themes were used by the Mulroney government to great advantage between 1987 and 1990, when the Meech Lake agreement was presented as the atonement of “English Canada” for the “humiliation and isolation” of Quebec in 1982.
This is where, in a federal system, a Constitution and a Charter of Rights can create a framework that minimizes encroachments in the political domain. When the rights of citizens and the powers of governments are spelled out, the courts have less leeway in resorting to “political conventions.” Trudeau envisaged the effect of a Charter of Rights on the judiciary and on intergovernmental relations in this way. His position was clearly expressed in April 1963 in a brief but highly laudatory review of Edward McWhinney’s Comparative Federalism, which, he claimed, “should be a requirement for anyone running as a candidate in Canadian elections.” Trudeau seems to have learned a number of important lessons from this book which he later applied to the Canadian context. Foremost among them were the benefits to be derived from a Charter in a federal system and the special role of the courts in dealing with minorities. In his words:
I am increasingly coming to believe that Canadian federalism will reach full maturity only if we entrench in our Constitution a declaration of human rights and freedoms. Among other things, the existence of such a declaration would make it possible to restrict the actions of the Supreme Court to the area of public law. In this way, provinces could exercise their autonomy with all the more freedom, since this freedom would come within certain civilizing and democratic standards guaranteed by the declaration of rights and applied by the Supreme Court.
Trudeau saw in the Charter a powerful instrument to vest sovereignty in the people, thereby strengthening Canadian institutions rather than governments. He was convinced that the power transferred to the people would come principally from the federal government: “An examination of the categories of all fundamental rights, however described, for which we propose protection, reveals that the bulk of them now fall under federal jurisdiction. This means that in this process of surrender of power [to the people] that we are proposing, Parliament will be giving up far more than will the provinces.”
With constitutional reform now well behind us, we know that the only effective reallocation of powers between the two levels of government was accomplished in favour of the provinces, all of which gained greater control over natural resources. It has also become abundantly clear that the reform’s greatest impact, which deeply disturbs Quebec nationalists, lies in the reallocation of sovereignty.
By embedding fundamental rights in the Constitution, the reform in effect placed citizens above their government, both in symbolic and practical terms. For the first time in Canada’s history, the locus of sovereignty moved away from governments towards the people. The era of “executive federalism” was over. But, by the same token, the “compact theory of confederation,” in both its “two founding peoples” and its “founding provinces” varieties, became inoperative. As we shall now see, this changing focus profoundly disturbs Quebec nationalists.
The nationalists repeatedly complain that the Quebec government was excluded from the constitutional negotiations of 1981—82. This phrasing is at best a figure of speech. In fact, the Quebec government was not only a party to these negotiations but the leader of the famous “Gang of Eight” that nearly succeeded in scuttling the entire process. The Quebec government officially refused to endorse the final accord, and it managed to obtain the support of the provincial Liberal Party. It is also true that Quebec’s refusal to endorse the Constitution constitutes a serious political obstacle to Canadian unity systematically exploited by the nationalist élite.
However, as we have seen, patriation was effected in full respect of the law, and with full respect for the “political conventions” referred to by the Supreme Court. In no instance did the Court even vaguely allude to the necessity of Quebec’s specific consent. And this is where the difficulty lies. To Laforest and others of the new generation of soft-nationalists, Quebec is not just another province—it is a “nation” living side by side with another “nation.” Its people constitute a “political community” distinct from the rest of Canada. The only Canada they may be willing to accept is a “bi-national” Canada. In all likelihood, they would not even welcome former prime minister Joe Clark’s “community of communities.” To them, what matters first and foremost is the recognition of a “dualistic” Canada. But, as we noted above, by transferring power to the people, Trudeau has entirely dispensed with this possibility. Hence Laforest’s lament for the loss of a “Canadian Dream.”
But let us stop dreaming and deal with the nationalists’ solitary concrete critique. Loudly and repeatedly, they assert that patriation of the Constitution reduced the powers of the National Assembly without its consent and without the consent of the Quebec people. This argument rests on one central premise: Quebec’s National Assembly is a supreme legislative body similar in all respects to that of a unitary state. This, of course, would only be true if Quebec were indeed an independent country or if Canada were a confederation of autonomous states. But let us delve a little deeper into these critiques, since they contain a degree of empirical substance.
The claim that the Quebec government has lost substantial and important powers is made over and over again. Very rarely, however, are the precise extent and nature of these powers clearly defined. The closest we come to such precision is when Laforest writes that “the legislative powers of the National Assembly of Quebec were reduced, notably with respect to issues of language.” The accusation has been repeated time and again by Quebec’s intellectuals and politicians. It was one of Lucien Bouchard’s most effective weapons during the October 1995 referendum campaign. On October 7, 1995, for example, referring to Prime Minister Jean Chrétien as Trudeau’s underling, Bouchard shouted: “We shouldn’t forget the man of 1982 … He is the one who has imposed on us a Constitution which has forced us to retreat in such crucial areas as our powers on language, on culture and on education.”
But what powers actually were lost? This information is extremely difficult to come by. Politicians, journalists, and even academics rarely, if ever, specify the missing powers that, they claim, have crippled Quebec. Here and there, Laforest is less imprecise and points an accusing finger at Article 23 of the Charter. He claims that the provisions of this article, on the language of education, are so nefarious as to empty the Canadian legal and political system of all legitimacy. They warrant secession and, Laforest hints, possibly civil disobedience and revolution. Let us take a thorough look at this article.
Article 23 of the Charter: Confrontation or Accommodation?
Because Article 23 is the focal point of this section, it is necessary to quote in full subsections (1) and (2), which specify the extent and nature of the rights involved and their intended beneficiaries. These rights apply only “where numbers warrant,” according to subsection (3). This subsection, having no other purpose, will not be quoted here. Here, then, are the sections of the Charter which, according to Laforest, have rendered all Canada’s institutions illegitimate:
Minority Language Educational Rights
(1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province.
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.
The clear purpose of this section of the Charter is to protect the educational rights of “official language minorities” across Canada “wherever numbers warrant.” This protection leads some of Trudeau’s critics to claim that the Charter imposes a homogeneous concept of individual and minority rights and maintains a “national” vision of Canada contrary to the spirit of federalism and to the particular character of Quebec. But this claim is not true. The actual effect of these articles is to protect French minorities outside Quebec, and the French majority inside Quebec. We will see that this protection involves an adaptation of liberal principles to the Canadian context to suit the specific needs of francophones, inside and outside Quebec.
Let us first examine how these rights apply beyond Quebec where French is the minority language. There are two categories of francophone Canadians: Those whose first language learned and still understood is French [section (a)] and those who, although not native francophone, took their primary schooling in French anywhere in Canada [section (b)]. As official minorities, these francophones can avail themselves of the rights spelled out in the Charter to have their children educated in French, where such numbers warrant. In contrast, anglophones outside Quebec obtain no specific educational rights with regard to the language of instruction. They cannot have recourse to the Charter if they are refused admittance to a French school. Indeed, in some recorded cases, francophone school boards turned away anglophone students in order, they claimed, to preserve their language and culture. Since anglophones have not historically fought for the right to an education in French, and since for the last thirty years or so they have enjoyed the benefits of “French immersion” in the English-language schools, the restriction has not created much turmoil. Nevertheless, denial of freedom of choice to anglophones outside Quebec cannot be defended on the basis of liberal principles.
Within Quebec itself, anglophones constitute the minority and are therefore protected by the Charter. There are two types of anglophone Canadians: Those whose first language learned and still understood is English [section (a)] and those who, although not native English speakers, had their primary schooling in English anywhere in Canada [section (b)]. While Article 23 grants the same rights to both groups of francophones in the rest of Canada, the rights of anglophones as defined in Article 23 (1) (a) are restricted in Quebec by Article 59, which states that Article 23 (1) (a) will apply only after it has been “authorized by the legislative assembly or government of Quebec.” Whereas the definition of a francophone is not subject to the approval of any provincial legislature, the Quebec government is given the power to decide whether this subsection will effectively apply or not. Since the National Assembly of Quebec has not approved it yet, this means that immigrants in Quebec whose mother tongue is English cannot avail themselves of the rights spelled out in Article 23 unless they previously resided in another province and received their primary education in English.
Why does the Charter make Article 23 (1) (a) conditional on the approval by the legislative assembly of Quebec? And why not Article (1) (b) as well?
The answer to the second question is obvious. To create two categories of anglophones, those educated in Quebec and those in the rest of Canada, and to grant special rights to only one category, runs counter to the basic liberal principle of equality under the law. If Canada is one country, then its citizens must be able to keep their constitutional rights as they move freely throughout the country. Canadian citizens must be in a position to retain their rights when they become part of the English minority in Quebec.
The answer to the first question, which involves a relatively small departure from liberal principles, can only be attributed to Trudeau’s empathy with the needs of francophones within Quebec. Immigrants whose native language is English who settle in Quebec fall under Article 23 (1) (a). However, they cannot avail themselves of their prescribed rights because Article 59 leaves them in abeyance. This means that even when anglophone immigrants become Canadian citizens, they never acquire the same constitutional rights as those anglophones educated in English in Canada. It is evident that the creation of two categories of anglophone Canadian citizens residing in Quebec, one having fewer rights than the other, constitutes an infringement of individual rights. Moreover, one could argue that it is an unnecessary infringement, since so few people would have gained access to English schools by means of this clause. But that is another question. In the present context, it is one more example of the Charter’s adaptation of liberal principles to suit Quebec’s concept of minority educational rights.
But this is still not the whole story. Let us look again at the Charter to evaluate the rights of individuals who are not members of official minorities. In effect, within Quebec, only one group of people, anglophones as defined in section (1) (b), benefits from complete freedom of choice with respect to the language of education. All other Quebecers, including native-born francophones, have no constitutional right to English schools. Through Bill 101, the government of Quebec has imposed the French school system on these people and, with the minor exceptions noted above, the Charter in effect has provided constitutional support for these measures.
But in order to understand the loud complaints of the nationalists to the effect that the Charter has reduced the powers of the National Assembly, we have to come back to the category of anglophones as defined in Article 23 (1) (b). This is the only empirical basis of Laforest’s rejection of the reform of 1982 as a “veritable war machine unleashed on the spirit of political and national duality.” Beyond the rhetoric, the bone of contention lies in the fact that, according to the Charter, anglophones are Canadian citizens educated in English in Canada; Bill 101 defines the equivalent category as those who were educated in English in Quebec. Thus, “this formidable war machine,” this coup de force against Quebec, is nothing more than the fact that the few anglophone Canadians from other provinces who settle in Quebec have educational rights in their language. This right is hardly a valid reason to claim that “Trudeau has betrayed the trust of Quebecers,” especially when we keep in mind that the Charter has bent liberal principles to accommodate Quebec. On the contrary, one finds here another example of the adaptation of liberal principles to the Canadian context in order to promote French in Quebec.
By protecting the rights of the anglophone minority alone, the Charter, by default, fails to protect the freedom of choice of the language of education for all other Quebecers. Here, however, an important difference is noted between the Charter and Bill 101. Whereas the Charter specifies the rights of minorities, it does not forbid access of the majority to the schools of the minority. To respect the constitutional division of powers, this decision is left to the provinces. In contrast, Quebec’s Bill 101 formally forbids instruction in English. Article 78.1 states: “No one can allow or tolerate that a child be given instruction in English unless he is admissible to it.” The Charter is silent on this infringement of individual rights. This omission can only be explained in terms of respect for federal principles and for Canada’s history. In effect, the Charter recognizes that French, being a minority language in Canada and North America, requires special measures of support. The Charter shares with Bill 101 its most fundamental objective: the protection and promotion of French in Quebec.
The provisions of the Charter with respect to the language of education depart from a strict adherence to the basic liberal principle of freedom of choice. As Trudeau explained in an interview with the directors of Cité libre in 1997, he accepted this departure from basic values because he refused to interfere with provincial prerogatives in education. He also endorsed some aspects of Bill 101 for pragmatic reasons. He simply recognized the lesson of history: The two language communities had an equal right to flourish, and French, being vulnerable, needed special protection. Everyone who desired could learn a language and be personally enriched in the process. However, with regard to culture, what was imperative was tolerance and the acceptance of diversity. Cultures should not be treated as holistic entities or as endangered species that needed political protection to survive. What needed protection was the right of individuals to cultivate themselves in as many ways and directions as they pleased. To this end, the indispensable prerequisite was a political system that favoured tolerance and cultural pluralism.
Let us now summarize the effect of the Charter. Outside Quebec, francophone minorities are fully protected and benefit from full freedom in the choice of their language of instruction. The anglophones outside Quebec receive no special protection, which in effect means that their access to French is left to the discretion of the French educational system. Outside Quebec, therefore, the francophone minorities are the only beneficiaries of the Charter.
Inside Quebec, only a limited group of anglophones—Canadian citizens who were educated in English in Canada—have rights protected by the Charter. Bill 101 restricted this choice to Canadian citizens educated in Quebec. For all other Quebecers—the huge majority—Bill 101 imposes attendance in the French school system, and the Charter does not invalidate this restriction of freedom of choice. The Charter has merely placed moral pressures on Quebec’s legislators to open the English schools to all native English speakers. Fundamentally, therefore, and this point is left unsaid by Trudeau’s critiques, the Charter has provided a constitutional foundation for most educational requirements of Quebec’s language legislation.
Clearly, the Charter is not inspired by an abstract liberal philosophy and a rigid concept of individual rights mechanically applied to all regions of Canada. On the contrary, fully respectful of federal principles and of the specificity of Canada’s bilingual character, the Charter has adapted fundamental liberal values—foremost among them freedom of choice in education—to the Canadian context. In the final analysis, it is the French language that is protected and promoted within Quebec and outside Quebec. By embedding in the Canadian Constitution the means of protecting the specificity of Quebec society, the Charter has, in effect, granted a “distinct status” to the French language.
Conclusion
Trudeau’s policies have not “solved” the problem of Quebec nationalism once and for all. But is there such solution? Nationalism is an extremely powerful ideology, and it has been part and parcel of Canada’s history for many generations. Before Trudeau came to power, the Royal Commission on Bilingualism and Biculturalism had already declared that Canada was facing the most serious crisis of its history. Yet we now forget that from 1981 to 1987, right after the constitutional reform, Quebec nationalism almost disappeared.
Trudeau was not against the “nation,” in the sense of a community of people sharing certain attributes and certain values. He was against appeals to ethnic or cultural traits for political purposes. He knew that nationalism engendered other nationalisms, and that territorial divisions engendered other divisions. The powerful rise of the “partitionist movement” in Quebec, after the October 1995 referendum, is the latest example of Trudeau’s acumen. Nationalism, to him, was a barrier to cultural pluralism and tolerance.
He believed that the simultaneous promotion of French and of cultural pluralism were extremely valuable objectives that need not be antithetical. The embedding of French and English as the two official languages, the protection of the education rights of the English-speaking and French-speaking minorities, and the encouragement of multiculturalism were all concrete means of achieving this goal. These policies strengthened French and thus strengthened “Quebec.”
How can Quebec nationalists claim that the Quebec National Assembly lost huge powers through the constitutional reform of 1982? In fact, it lost no powers at all. It gained powers, since its language legislation, crucial to Quebec francophones, was strengthened through constitutional measures. The grievance of the nationalists lies elsewhere. They bemoan the loss of the myth of the “two founding peoples.” They bemoan the non-recognition of Quebec as a “nation” in its own right. This loss is true. The constitutional reform of 1982 had no room for recognition of any form of “national principle.” It was premised, rather, on the most fundamental of democratic principles—that governments were answerable to the people and not to the “nation.”
Yet so-called soft nationalists still seek a dualistic Canada, by which they mean a bi-national Canada. This is an unreasonable demand for all the reasons Trudeau so clearly identified many decades ago. It is unreasonable because the Canada of today, the Canada moulded by the constitutional reform of 1982, has given Canadian citizens effective means of control over their government. The Meech Lake and Charlottetown sagas are here to remind us that the unanimous agreement of all governments is no longer sufficient to change Canada’s institutions. The people have acquired a keen sense of their political rights and the means to exercise them. Finally, a dualistic Canada is not a reasonable demand because the Canada of today, Trudeau’s Canada, has plenty of room for tolerance, for cultural diversity, and for the promotion of French. Trudeau’s continuing popularity in Quebec and Quebecers’ continuing attachment to the Charter and to Canada are signs that these values are appreciated by the people. It is to be hoped that intellectuals and politicians, be they federalists or nationalists, “soft” or “hard,” will stop catering to the “nation” so they can lend an ear to the people.