THE CANADIAN CONSTITUTION AND THE RECOGNITION OF QUEBEC AS A NATION OR DISTINCT SOCIETY
Language and nation are intimately linked. Speaking is a collective exercise, not just an individual one. The majority language in Quebec is French. Does Quebec constitute a distinct society or nation recognized in Canada, with the power to promote its language?
To answer, we successively look at the confederation of 1867, the repatriation of 1982, the Meech Lake agreement of 1987, resolutions of Parliament of 1995 and 2006, the supreme court decision of 1998 on the secession of Quebec, and a law of the National Assembly of Quebec of 2022.
Warning: the response is less than encouraging.
CONFEDERATION OF 1867
The constitution of 1867 (on the Canadian site in English; unofficial French version), officially the British North-America Act, 1867, does not contain any provision recognizing Quebec as a nation, people or distinct society.
The original Canadian Constitution of 1867 grants Quebec and other provinces powers, but grants no power to Quebec as a separate nation or society to promote French. Rather, it is the opposite. Not only do it not recognize Quebec as a distinct society or a nation, but it imposes limitations on Quebec to protect linguistic or confessional minorities against this phantom society or nation that it refuses to recognize.
Examples:
- Quebec is the only province in 1867 which must publish its laws in English and French. It must publish its laws not only in French, the majority language in Quebec, but it must also publish them in the language of the linguistic minority, English (art. 133). The other provinces are not subject to a similar obligation.;
- the Protestant minority in Quebec (almost exclusively English-speaking) has the right to its own schools (article 93). No similar provision was made for New Brunswick and Nova Scotia (despite the presence of Acadians), and the similar obligation in Ontario was aimed at Catholics, who were almost all English speakers (mostly Irish) and not French speakers.
- Quebec, but not Ontario, was to have a legislative council whose members are appointed by the lieutenant governor, himself appointed by the federal government (article 71)
- electoral counties in Quebec historically having a significant number of English speakers received special protection (articles 72, 80)
- the power to create new townships, a form of settlement historically favored by Protestants, was explicitly authorized, even post-confederation (article 144)
- to prevent any possibility of a veto by Quebec, the federal parliament, together with the provinces other than Quebec, are explicitly granted the power to adopt uniform laws (article 94). No reverse provision is provided.
REPATRIATION AND THE 1982 CHARTER OF RIGHTS
The United Kingdom parliament, at the request of the Canadian parliament, adopted the Canadian Charter of Rights and Freedoms, as part of the 1982 constitution.
The Charter maintained the approach of 1867, that is to say the non-recognition of Quebec (or Quebecers) as a nation, people or distinct society. And again, as in 1867, the Charter imposes limitations on Quebec to protect linguistic or confessional minorities against this phantom society or nation that it refuses to recognize.
Thus, the Charter:
- authorizes a linguistically segregated public school system in Quebec. Thus, the English-speaking minority in Quebec is granted the right to its
own schools (art. 23 of the Charter).
Language of instruction 23 (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.
- but no equivalent rights are provided for French-speaking schools in Quebec. In other words, there is no constitutional right guaranteeing French speakers the right to attend French schools in Quebec. Concretely, if Quebec ceased to have a French-speaking majority, the survival of the French-speaking system is not guaranteed.
In linguistic matters, the Trudeau government at the time of patriation imposed article 23 on Quebec despite the latter's refusal. But Trudeau decided not to impose on the William Davis government of Ontario section 133 of the constitution (in fact, of the British North America Act) which has required Quebec since 1867 to publish its laws in English and French. Why? Because it was unimaginable for Trudeau to carry out patriation without Ontario. The consent of the ghost nation of Quebec did not carry the same weight. Given the importance of this question, we will devote a separate text to this single question of article 133.
CONFEDERATION OF 1867 REVISITED
Finally, 131 years after Confederation, in 1998, after the unilateral patriation (including the non-recognition by the Supreme Court of Canada of a veto by Quebec), the failure of the Meech Lake agreement and the holding of two referendums in Quebec to leave Canada, the Supreme Court of Canada ultimately decided as follows in a constitutional reference:
-1 The English law creating the confederation created one and the same nation, and implicitly the Court denied the status of a nation in Quebec:
The federal-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation, and manifested a concern to accommodate that diversity within a single nation by granting significant powers to provincial governments. (article 43)
-2 The court described Quebecers as just one group among others in Canada, and refused to recognize Quebecers as a people.
125 While much of the Quebec population certainly shares many of the characteristics (such as a common language and culture) that would be considered in determining whether a specific group is a "people", as do other groups within Quebec and/or Canada, it is not necessary to explore this legal characterization to resolve Question 2 appropriately. (art. 125)
- 3 The court at most recognized that Quebec had joined Confederation with a French-speaking majority with the motivation and political power to promote the language and culture of the majority:
59. The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. This is not merely the result of chance. The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867. The experience of both Canada East and Canada West under the Union Act, 1840
(U.K.), 3-4 Vict., c. 35, had not been satisfactory. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867
in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself. (art. 59)
Source: Secession Reference [1998] 2 RCS 217.
It was small concession, but nevertheless significant, because it implicitly confirmed that Quebec enjoyed the mandate and, subject to the other provisions of the constitution, the power to promote the culture and language of the majority in Quebec. This principle was cited by the Quebec Court of Appeal in the case of Entreprises W.F.H. Ltée c. Québec (Procureure Générale du), 2001 CanLII 17598 (QC CA) to justify the predominance of french in public signs.
THE MEECH LAKE ACCORD
The Meech Lake Accord of 1987, which was to compensate for the unilateral patriation of the constitution, recognized Quebec as a distinct society:
"2. (1) The Constitution of Canada shall be interpreted in a manner consistent with
- the recognition that the existence of French-speaking Canadians, centred in Quebec but also present elsewhere in Canada, and English-speaking Canadians, concentrated outside Quebec but also present in Quebec, constitutes a fundamental characteristic of Canada; and
- the recognition that Quebec constitutes within Canada a distinct society.
However, the agreement was never approved by all the other provinces and never took effect. Ironically, the proportion of the Canadian population represented by the provinces (Manitoba and Newfoundland) that refused Meech was much less than the proportion of the Canadian population represented by Quebec that refused patriation. But recourse to the former colonial power made it possible to say no to Quebec and proceed with patriation.
PARLIAMENTARY RESOLUTIONS OF 1995 AND 2006
Following the defeat of the Meech Lake Accord, the House of Commons of the Canadian Parliament, at the initiative of Prime Minister Jean Chrétien, adopted a resolution in 1995 recognizing Quebec as a distinct society:
That
Whereas the People of Quebec have expressed the desire for recognition of Quebec's distinct society;
(1) the House recognize that Quebec is a distinct society within Canada;
(2) the House recognize that Quebec's 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. Source: Resolution recognizing Quebec as a distinct society (see text proposed on 29 11 1995 Hansard Journal of the House of Commons 16971) and adopted on 11 12 1995 Hansard Journal of the House of Commons (17536)
Almost 10 years later, the House of Commons of the Canadian Parliament, at the initiative of Prime Minister Stephen Harper, adopted a new resolution on November 22, 2006 (see Resolution recognizing Quebecers as a nation 27 11 2006 Journal Hansard de la Chambre of communes) recognizing Quebecers as a nation.
That this House recognize that the Québécois form a nation within a united Canada;
However, this does not mean that Quebecers, or Quebec, have legislative powers under the constitution to protect or promote the Quebec nation, and in particular the language that distinguishes it, French. The 1995 and 2006 resolutions are symbolic, without enforceable legal effect.
AN ACT RESPECTING FRENCH, THE OFFICIAL AND COMMON LANGUAGE OF QUEBEC
Quebec attempted to partially correct this non-recognition of Quebec in 2022.
Section 159 of An Act respecting french, the official and common language of Quebec (2022 SQ chp. 14) stipulates that Quebecers form a nation with French as a common language. This law inserts a new article to this effect into the Constitution of Quebec:
166. The Constitution Act, 1867 (30 & 31 Victoria, c. 3 (U.K.); 1982,
c. 11 (U.K.)) is amended by inserting the following after section 90:
“FUNDAMENTAL CHARACTERISTICS OF QUEBEC
“90Q.1. Quebecers form a nation.
“90Q.2. French shall be the only official language of Quebec. It is also
the common language of the Quebec nation.”
This insertion in the constitution of Quebec is done under a provision of the Constitution, 1982:
Amendment by legislatures 45 Subject to section 41, a legislature has exclusive jurisdiction to amend the constitution of its province.
Since it is a provincial law, its scope does not extend beyond Quebec's areas of jurisdiction.
CONCLUSION
Since 1867, the English Parliament, the Federal Parliament and the Supreme Court of Canada have never recognized that Quebec constitutes a people, a distinct society or a nation in Canada, except for parliamentary resolutions without enforceable legal effect. But conversely, this ghost nation has distinct restrictions or obligations imposed on it. The Supreme Court waited 131 years before explicitly recognizing that Quebec had joined Confederation with a French-speaking majority with the motivation and political power to promote the language and culture of the majority, and there is no assurance that the court could not one day change its mind. Each court decision recognizing rights to the English-speaking minority weakens Quebec's power to promote French.
Two conclusions:
1- The legal recognition of Quebec's political power to promote the language and culture of the majority hangs by a thread; and
2- The ghost of the nation of Quebec still haunts Canada, which continues to look for new ways to limit its powers in linguistic matters.
IMAGES ASSOCIATED WITH THIS TEXT
USEFULL DOCUMENTS AND LINKS
adopted in english in en anglais 1867 (See AABN Texte de loi British North America Act 1867 UK parliament https://www.legislation.gov.uk...) and translted in 1868 ( See AABN BNAA 1867 -version française 28 2 2023 Gouvernement du Canada https://www.justice.gc.ca/fra/...)
Résolution reconnaissant les québécois comme une nation 27 11 2006 Journal Hansard de la Chambre des commune https://www.noscommunes.ca/Doc...
AABN Texte de loi British North America Act 1867 UK parliament https://www.legislation.gov.uk...
Accord du Lac Meech 1987 Gouvernements du Canada et des 10 province https://www.canada.ca/fr/affai..
Charte canadienne des droits et libertés https://laws-lois.justice.gc.c...