Opinion: unilateralism resurfaces in Quebec, bolder than before

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With the federal election over, we moved on to hearings on Bill 96, a bill to strengthen Bill 101, along with a unilateral amendment to the Constitution to include nation status for Quebec with French as a common language. .

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Pierre Trudeau threatened the provinces with a unilateral constitutional change in 1981 when negotiations on the patriation of the BNA Law broke down. But the provinces prevailed and unilateralism failed, and the Supreme Court ruled that in one federal state no level of government could impose a constitutional change on the other without substantial consensus. Ottawa had to go back to the negotiating table with its partners in the Confederacy to bring the Constitution home from Britain.

The question of the 1995 referendum on sovereignty contained the threat of unilateral secession within a year of a favorable vote if negotiations recognizing Quebec’s independence failed during that period. Following the lead of the Supreme Court’s advice that a unilateral declaration of independence (UDI) would be illegal, Stéphane Dion retaliated with the Clarity Act in 2000. Prime Minister Lucien Bouchard immediately rejected Bill 99, legislation that declares that the constitutional status of Quebec is a matter of self-determination, solely for Quebecers to decide. This left the way open for future attempts at unilateral action, and Bill 99 had to be tested in court over the next 20 years to decide whether the legislation was intended to authorize a UDI.

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The 2003 elections returned the Liberals under Jean Charest with a majority. Sovereignty was set aside, and the dawn of the new millennium saw Quebec’s constitutional politics dominated by nationalism in the old style of Mario Dumont’s newly created Action Démocratique du Québec. Isolationism replaced unilateralism, and for the next several years, the conversation in political circles was about a constitution written for Quebec, written only by Quebecers. But the party never formed the government and those discussions faded along with their luck. To this day, British Columbia is the only province with a written constitution.

Bill 96, however, marks the first attempt by a provincial government to unilaterally amend the Canadian Constitution. Legalities aside, the political interpretation of this movement is at stake. The average Quebec Anglophone probably sees the bill as a proposed separation in the quota plan, while its French-speaking federalist counterpart might see it as Quebec’s first attempt since the Meech Lake Accord to incorporate its demands into the Constitution.

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But the Meech Lake Settlement had provisions that benefited all provinces and territories, such as opting out of federal programs with financial compensation and greater participation in the election of Supreme Court justices. And those provisions that referred only to Quebec, such as the distinct society clause, were considered beneficial to the federation as a whole because they would have ended the constitutional dispute, with Quebec signing the patriotic constitution. Bill 96 does not provide such a quid pro quo, and the proposed amendment to the Constitution does not address the needs of any other province or territory.

In a federal state, the right to democratic vote is exercised by the citizen at both the central and regional levels. When one level of government tries to impose changes on the other, the citizen is, civically speaking, in conflict. The ongoing debate about the place of Quebec in Canada has created in Quebecers, collectively and individually, a divided self, to use RD Laing’s psychological epithet. To stay within psychological language, there are times when Quebecers demonstrate a divided personality, as they did during the Trudeau-Lévesque years, voting for a strong federalist government in Ottawa and a separatist government in Quebec at the same time. What in political language is called dual legitimacy, although more often it resembles a duel of legitimacies.

The unilateralism of Bill 96 forces Quebecers to choose their nation. Having voted No to separation in two referendums, we think they have already done so.

Howard Greenfield is a Montreal attorney. Mario Michas is a freshman law student at McGill University School of Law.