Quebec’s Need for Cultural and Linguistic Protection, the Notwithstanding Clause, and the Demise of the Meech Lake Accord - LawNow Magazine

Quebec’s Need for Cultural and Linguistic Protection, the Notwithstanding Clause, and the Demise of the Meech Lake Accord

Picture of signposts at Quebec intersection. Title: Quebec's Need for Cultural and Linguistic ProtectionFor careful observers of Canadian culture and politics, there was an obvious irony attached to the House of Commons motion that was approved in November of 2006, recognizing Quebec’s special place in Confederation. The motion garnered 265 yeas and a mere 16 nays and stated:

“Que cette Chambre reconnaisse que les Quebecoises et les Quebecois forment une nation au sein d’un Canada uni.”

“That this House recognize that the Quebecois form a nation within a united Canada.”

Many of us will recall the highly polarized debate surrounding the 1987 Meech Lake Accord, signed by Prime Minister Mulroney and all of Canada’s premiers. It generated a great deal of confident talk about how the province of Quebec, whose government had not signed on to the Constitution Act, 1982, had now been brought into the constitutional fold with “honour and enthusiasm.” Seasoned Canada watchers would have known at that point to cue the scary movie music, and indeed a veritable firestorm occurred over the next few years, leaving the Prime Minister, Premier Bourassa and a great many other political figures to contemplate the ashes and rubble of Meech Lake with despair. This agreement recognizing that Quebec constitutes a distinct society within Canada and that our Constitution should be interpreted with that in mind, attracted vehement denunciation and scathing criticism from a number of quarters.The three years between the signing of the Meech Lake Accord and its demise were a momentous time for Canada, arguably involving the development of fault lines that split Canada and led to a gradual reconfiguration of our land.   A painful odyssey took place over the next three years until the time limits expired with two provinces having failed to enact the required resolutions and constitutional shouting matches becoming the favorite blood sport in Canada.

The House of Commons Resolution of 2006  represents a shift in the willingness of political representatives from English-speaking Canada, or Canada Beyond Quebec, to recognize the distinctiveness of Quebec as a predominantly French-speaking province, with its own unique culture, within our nation-state. This inevitably leads one to ask whether or not the furore over the Meech Lake Accord might have been a lot of sound and fury signifying, perhaps, a failure of imagination and tolerance.

The three years between the signing of the Meech Lake Accord and its demise were a momentous time for Canada, arguably involving the development of fault lines that split Canada and led to a gradual reconfiguration of our land. To better understand its significance in our historical development, we need to focus on the heated topic of language and cultural protection policy engaged in by the Quebec government and how these were perceived by citizens and the courts. In particular, I would maintain that the Ford and Devine decisions of the Supreme Court of Canada in 1988 and the reaction to them by Premier Bourassa and the National Assembly of Quebec continue to reverberate to this day.

The government of Quebec spends more on various cultural initiatives by a considerable margin than does any other province. At the heart of its culture is undeniably the French language itself.

As someone who has been fortunate enough to visit Quebec a number of times, I can say with conviction that I consider the province to be an indispensable part of my Canada. I mean not just the idea of Quebec but its lived reality, with all its messy contradictions. Along with our Aboriginal culture, Quebecois culture may well be what best defines the unique quality of Canada as a nation. Visits to Montreal, Quebec City and the Gatineau are a large part of what makes me enthusiastic to live and act as a Canadian. Engaging with the reality of what makes Quebec unique means coming to some level of acceptance of the need for a language and culture policy that protects French usage and its creative expression in artistic endeavours that place Quebec in a leading position in the world.

One of Canada’s greatest movies, Mon Oncle Antoine (1971), directed by Claude Jutra, contains an unforgettable scene early in its depiction of the tough and impoverished lives of the inhabitants of a Duplessis-era asbestos mining town. The Anglophone mine owner, displaying a grim and angry demeanour, tosses Christmas stockings at the drab homes of his employees, failing to conceal the contempt he feels for these vulnerable French-Canadians. Anyone doubting the need for the Quiet Revolution that began in the 1960s to end the economic domination of the majority francophone population needs to view and reflect on Jutra’s unsparing masterpiece. One way successive Quebec governments have chosen to do this is to enact language laws designed to ensure the predominant role of the French language in workplaces and public institutions.

As a general comment on Quebec’s language laws – the sign laws, the laws mandating that French be the basic language in many workplaces, etc., I would emphasize that they operate in tandem with laws designed to protect Quebecoise culture. Language is more than a mere means of communication; it is part and parcel of the identity and culture of the people speaking it. It is a means by which individuals understand themselves and the world around them.   Therefore, they can be best understood within the framework of the need in vulnerable societies to protect and promote language and culture.  If we stop to consider the culture of Canada Beyond Quebec for a moment, and the huge difficulty we have in creating a space for our own made-in-Canada culture to survive and flourish, then consider the need for Quebec to protect both its majority language and its culture, we might perceive genuine connections between our parallel albeit different situations. Culture, in fact, includes all the ways members of a society live together, to cite UNESCO, including the arts, but also knowledge, belief, law, morals and customs. Culture must surely be agreed to be a public good and only through wise cultural policies in our highly globalized world can we preserve or invigorate our cultural identity.

While Canada Beyond Quebec has a similarly vulnerable culture to that of Quebec’s, we have chosen a dramatically different path with our cultural policy. English-speaking Canada could accordingly be seen to be rather poorly placed to understand the approach taken by Quebec policy makers to matters of language and culture. The government of Quebec spends more on various cultural initiatives by a considerable margin than does any other province. At the heart of its culture is undeniably the French language itself.

One way successive Quebec governments have chosen to do this is to enact language laws designed to ensure the predominant role of the French language in workplaces and public institutions.

The connection between language and culture has been identified by the Supreme Court of Canada on several occasions as it interprets the Constitution.  For instance, in the 1990 decision of Mahe, Justice Dickson described the importance of the need to protect and promote both official languages in the context of a case examining s. 23 of the Charter of Rights. He states at p. 362:

My reference to cultures is significant: it is based on the fact that any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language. Language is more than a mere means of communication; it is part and parcel of the identity and culture of the people speaking it. It is a means by which individuals understand themselves and the world around them.

Let’s look at the Supreme Court’s review of the Quebec language policy in the area of business sign laws, in the 1988 case of Ford v. Quebec, and how this played a dynamic role in the unfolding drama that was the Meech Lake affair, leading to the use of the notwithstanding clause by Premier Bourassa of Quebec.  The curtain comes up on a stage with 11 men announcing to the Canadian populace that they have been meeting for days at a hitherto unknown Meech Lake cottage, which had been converted into a government conference centre in the Gatineau Hills. The Accord had been prepared for in a series of meetings between governments as the federal government of Brian Mulroney endeavoured to address major Quebec demands for an amendment to the Canadian Constitution in order that it might provide its assent and acceptance of the Constitution Act, 1982, which came into force without the province’s agreement.  The Accord  can be briefly summarized as possessing five main modifications to our Constitution, as follows:

  1. An interpretive clause for the Constitution, involving recognition of Quebec as a distinct society;
  2. A veto power for future amendments for all provinces;
  3. The granting of greater powers to the provinces in the field of immigration;
  4. An opt out clause relating to any future federal programs that would extend into provincial areas, allowing any province to opt out and yet retaining the right to reasonable financial compensation; and
  5. Involvement of all of the provinces in the future appointment of Supreme Court justices and of Senators.

Seasoned Canada watchers would have known at that point to cue the scary movie music, and indeed a veritable firestorm occurred over the next few years, leaving the Prime Minister, Premier Bourassa and a great many other political figures to contemplate the ashes and rubble of Meech Lake with despair.

This major constitutional breakthrough was touted as a vital means of addressing legitimate concerns of the province of Quebec and was described by the Prime Minister as the necessary “Quebec round” in our constitutional odyssey. I want to focus on the most prominent aspect of the Accord – the “distinct society” clause. This would be a means of recognizing in our most fundamental law that Quebec existed in our country as a distinctive part of it with unique needs in such matters as language and culture and that courts would need to take the existence of this “distinct society” into account when analyzing provisions under constitutional challenge.

The distinct society clause (and indeed the whole of the agreement) was, however, attacked by former Prime Minister Trudeau in a truly savage critique that extended to attacks on the persons and the motivations of the various political actors. In short he saw the distinct society clause and the rest as amounting to a “total bungle” that would render the Canadian state “totally impotent,” leading us all to be “governed by eunuchs.” Many others weighed in, emboldened no doubt by the firm convictions of the chief orchestrator of our new Constitution and its Charter of Rights and his undoubted knowledge of constitutional politics and law.

In the midst of the growing maelstrom, Premier Bourassa and his advisers huddled together and developed a new sign law that took into account many of the significant aspects of the Supreme Court’s ruling.

With the Meech Lake Accord needing to be ratified in every legislature in the country within three years and with two governments being defeated and replaced by a new leadership, yet another ticking time bomb exploded in December, 1988. This was the Supreme Court’s two rulings on the aforesaid sign laws earlier enacted by the Quebec National Assembly to protect the French language and ensure its primacy.

In Ford v. Quebec, Chief Justice Dickson and a unanimous court ruled that the sign laws contravened s 2(b) of the Charter of Rights, as well as s. 3 of the Quebec Charter of Human Rights and Freedoms and could not be justified as a “reasonable limit” under s. 1 of the Charter and could not likewise be justified as an acceptable restriction on freedom of expression under the Quebec Charter.

In the midst of the growing maelstrom, Premier Bourassa and his advisers huddled together and developed a new sign law that took into account many of the significant aspects of the Supreme Court’s ruling. The Court had examined and relied on studies about the need to provide protection for the French language given the North American context in which the Quebecois operated, saying that the laws at issue met a substantial and pressing need. The aim of the language policy was stated to be a legitimate one. However, the Court said that the requirement that commercial signs must be exclusively French was unnecessary and overly broad, given the need to respect freedom of expression by various participants in the Quebec economy. The Court stated that an alternative which would be acceptable would be to require that French be given a position of dominance and have greater visibility than that accorded other languages.

The new legislative package was drawn with rights under the Canadian and Quebec Charters, as considered by the Supreme Court of Canada, in mind. Premier Bourassa made a controversial decision to invoke the notwithstanding clause to ensure that the new legislation could not be reviewed and possibly struck down, in whole or in part, by the Court. Most observers saw that this draconian decision would be fatal to the prospects for convincing wavering or recalcitrant premiers from moving forward to ratify the Accord in their legislatures. Indeed, in two provinces – Manitoba and Newfoundland, the time limits for ratification came and went without the necessary ratification. Meech was dead in the water.

While the use of the notwithstanding clause is something that I and many other students of the Constitution are opposed to, with the belief that, at most, it should only be used in extraordinary circumstances where a compelling case can be made that some emergency requires its temporary usage, I also recognize that Bourassa was under great pressure to use all means at his disposal to protect his language package. A highly controversial decision was made by Premier Bourassa to invoke the notwithstanding clause to ensure that the new legislation could not be reviewed and possibly struck down, in whole or in part, by the Court.On balance we can look back at Bourassa’s decision to invoke s. 33 – the notwithstanding clause – as constituting a serious blunder on both legal and political grounds. The moderating of the legislation so that English and other minority languages could be displayed, with French being placed in a dominant position, could have been justified under s. 1 of the Charter had a new challenge proceeded. Hence, use of the notwithstanding clause was unnecessary. Further, if indeed the “Quebec round” of constitutional amendments was vital to Quebec as well as to Canada as a whole, weathering the storm of criticism by certain French-language zealots would have been a wiser course than angering and rendering suspicious wide swaths of the citizenry in Canada Beyond Quebec.

Perhaps future governments, sensing a citizenry wishing to create a more unified country than what we are experiencing in the current era, will dust off elements of the Meech Lake Accord and examine whether the distinct society clause, together with other vital imperatives, might not warrant careful consideration. In the meantime, Quebec will assiduously continue with its unique language and culture policies.

 

Comments

  1. …but what nobody addresses, is that living in Quebec, although born here, and in a 3rd-generation bilingual family, is restrictive due to language policies.

    As a Canadian Citizen I should be able to work with my local and provincial government in English.

    I should be able to converse on the street in ANY language without being reprimanded, ever.

    I was born here and I prefer Quebec to anywhere in the ROC; why should I be considered less Quebecois than the next guy?

Authors:

Rob Normey
Rob Normey is a lawyer who has practised in Edmonton for many years and is a long-standing member of several human rights organizations.
 


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