Constitutional debate of Canada

The Constitutional debate of Canada is an ongoing debate covering various political issues regarding the fundamental law of the country. The debate can be traced back to the Royal Proclamation, issued on October 7, 1763 following the signing of the Treaty of Paris (1763) wherein France chose to give the Quebec portion of New France in favour of keeping Guadaloupe. As such, the French who chose to remain became British subjects.

Since the enactment of the British North America Act in 1867, which brought United Canada, New Brunswick, and Nova Scotia together as the Dominion of Canada, the debate has focused on these issues:

The interpretation of the British North America Act
The division of powers between the federal and provincial governments
The type of federalism to be applied withing the union
The relation with the United Kingdom, particularly Canada's level of autonomy
The way the constitution should be amended
The inclusion of specific civil rights in the constitution

Historical overview

Main article: Constitutional history of Canada

The initial policy of Great Britain with regards to its newly acquired colony of Quebec was revealed in a Royal Proclamation on October 7, 1763. The proclamation renamed Canada "The Province of Quebec", redefined its borders, and established a British appointed colonial government. The new governor of the colony was given the power and direction to summon and call general assemblies of the people's representatives.

Documents in constitutional history

Pre-Confederation

Articles of Capitulation of Quebec (September 18, 1759)
Articles of Capitulation of Montreal (September 8, 1760)
Treaty of Paris (1763) (February 10, 1763)
British Royal Proclamation of 1763 (October 7, 1763)
Quebec Act (June 22, 1774)
American Declaration of Independence (July 4, 1776)
French Declaration of the Rights of Man and of the Citizen (August 26, 1789)
Constitutional Act of 1791 (June 10, 1791)
Ninety-Two Resolutions (February 21, 1834)
Lord John Russell's Ten Resolutions (March 6, 1837)
Declaration of Independence of Lower Canada (February 22, 1838)
Report on the Affairs of British North America (1839) (February, 1839)
Act of Union (1840) (February 10, 1841)
British North America Act (July 1, 1867)

Confederation

Manitoba Act (1870)
Francoeur motion (1918)
Statute of Westminster (1931)
Report of the Rowell-Dafoe-Sirois Royal Commission on Dominion-Provincial Relations (1940)
Report of the Tremblay Royal Commission of Inquiry on Constitutional Problems (1953)
Report of the Laurendeau-Dunton Royal Commission on Bilingualism and Biculturalism (1963)
Official Languages Act (1969)
Victoria Charter (1971)
Report of the Gendron Commission of Inquiry on the Situation of the French Language and Linguistic Rights in Quebec (1972)
Charter of the French Language (1977)
Report of The Pépin Robarts Commission - Task Force on Canadian Unity (1978)
Sovereignty-Association Act (1980)
Canada Act 1982 (1982)
Meech Lake Accord (1989)
Beaudoin-Edwards committee report (June 20, 1991)
Report of the Bélanger-Campeau Commission on the Political and Constitutional Future of Québec (March 27, 1991)
Allaire report (January 28, 1991)
Report of the Parliamentary Committee to Examine Matters Relating to the Accession of Québec to Sovereignty (1992)
Charlottetown Accord (1992)
Act Respecting the Future of Quebec (1995)
1997 Calgary Accord
Reference re Secession of Quebec
Clarity Act (1998)
Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the Quebec State (1999)
Report of the Auditor General of Canada (2004)

The status quo

The current constitution of Canada consists of the 1867 British North America Act (BNA) and subsequent amendments. The BNA Act defined the areas of jurisdiction for the provinces and the Federal government. There are 29 exclusive federal jurisdictions and 16 provincial jurisdictions. The provincial jurisdictions are listed under sections 92, 93 and 95 of the constitution.

The BNA Act granted the federal parliament all "residuary" powers not already defined as provincial. It also gave the federal government a veto power over provincial legislation. The members of the Senate of Canada, the Supreme Court of Canada, judges and the judges of all of the provinces' highest courts are appointed by the federal parliament.

The Constitution Act of 1982 did not change the divisions of responsibilities between the provincial and the federal legislatures, except for the provincial jurisdiction over natural resources and energy, which was clarified and slightly expanded.

The 1982 constitutional reform introduced an amendment process (which no longer involved the approval of the Parliament of the United Kingdom) and a Charter of rights and freedoms.

Foundation of the Nation

In Canada West (Ontario), the confederation process was promoted as the act of foundation of a new British nation. The project generally received wide support in the press and in the political class. It is primarily the politicians of Canada West that, with the Great Coalition, orchestrated the process which lead to the legislative union of the British North American colonies.

The anti-Confederation movement was however quite strong in one of the two maritime provinces that were initially federated by the BNAA. The liberal politicians of the maritime provinces did not support the movement of the Great Coalition before or after the fact.

In Nova Scotia, 36 out of 38 seats of the provincial legislature and 18 out of 19 seats of the new federal legislature went to anti-Confederation candidates at the first election. Premier Bill Annand and federal MP Joseph Howe pushed for the removal of Nova Scotia from the new Dominion. Howe eventually accepted a position in the federal government of McDonald, while Bill Annand kept fighting Confederation up until 1869.

The movement died shortly after, when the idea of reversing the process of confederation was abandoned. The point of view that the confederation is the act of foundation of the Canadian nation was and still is today the policy of the federal government.

Pact between two founding peoples

In Canada East (Quebec), the confederation project was promoted by the Parti bleu and opposed by the Parti rouge. George-Étienne Cartier supported and promoted the project as a way to regain the political autonomy that Lower Canada had lost with the forced Union of 1840. Reluctant at first, the Catholic clergy eventually supported confederation when it became known that education and "health" were going to be exclusive provincial jurisdictions.

After 1867 and up until the 1960s, the idea that the BNAA was a legal document containing garantees as to the equality of the two founding peoples was taken for granted by most members of the intellectual elite of French Canada. Nationalist politicians from Quebec (sometimes liberal, sometimes conservative) were elected on programs which stated how they were to defend the constitutional garantees granted by Great Britain to French Canadians in order to protect their nationality. Federal politicians, such as Henri Bourassa, advocated more autonomy for Canada within the British Empire, while provincial politicians such as Honoré Mercier defended the autonomy of the province of Quebec within the Canadian Dominion.

Just another British Act

The Parti rouge of Canada East opposed the confederation process, just as they had opposed the Union process. Some rouges such as Antoine-Aimé Dorion, demanded that the project be submitted to a vote by the people, convinced it would be rejected. The process which lead to the confederation was considered illegitimate because in their opinion it was undemocratic.

Other liberals suggested a highly decentralized confederation that would have given only certain limited powers to the union government. The party lead the anti-confederation campaign and at the first provincial elections, 13 out of 65 anti-confederation candidates were elected, obtaining 45% of the recorded votes.

Much later, in late 1950s, the opinions of the Parti rouge would be supported by the first advocates of the independence of Quebec.

Nature of Canadian federalism

Confederation / federation

Since the creation of the federal state, the role of this new level of government has been the object of a debate. As of 1867, some politicians have seen the federal government as the central, national government of Canada whereas others have seen it as a confederal government, the creation of the provinces, responsible for administering things the later had in common.

Symmetrical and Asymmetrical federalism

Symmetrical federalism refers to a political organization where all federated states have equal status and autonomy within the greater ensemble. Examples of symmetrical federations are the United States and Canada.

Asymmetrical federalism refers to a political organization where the federated states have variable levels of autonomy within the greater ensemble. Examples are Belgium and Switzerland.

Nationalisms

Binationalism / Bilingualism / Biculturalism

Mostly supported by French Canadians, the binational confederation was seen as a way for French Canadians and British Canadians to coexist within the same country and share common institutions. Since French Canadians viewed themselves as a distinct nation and wished for this nation to keep existing, many political leaders from Quebec promoted the official recognition of the French language by the federal government and all provincial governments. This view is today associated with the pre-Quiet Revolution era.

Multicultural Nation State

Promoted by the Liberals after the arrival of Pierre E. Trudeau, this view of Canada is at once readily embraced by a great number of Canadians and seen as totally unacceptable by essentially all Quebec provincial politicians because to them it fails at recognizing the national character of Quebec society and the consequences of this for the Quebec state as a member state of the Canadian federadation.

The concept of a pluralistic society is generally perceived positively in Quebec, which is also a land open to immigration. However, Quebec policies speak of civic "interculturalism" rather than multiculturalism, which is associated with ghettoization. The Canadian multiculturalism policy is often perceived negatively, for it depicts the French-speaking majority of Quebec as one of the many ethnic groups of Canada, therefore denying the national character of Quebec, and undermining the efforts of the Quebec state to integrate immigrants into its mainstream French-speaking society.

Multinational State

Many politicians and public figures think that Canada would move forward in the recognition of its own diversity by declaring itself a de jure multinational state. With regards to Quebec, this view would be more in line with the "nation within the nation" of former Prime Minister Lester B. Pearson in the pre-Trudeau era.

One nation, one country

Many Canadians outside Quebec think of Canada as a monolithic nation with 10 equal provinces. Since they see only one nation in the country, they are opposed to any kind of asymmetrical relation with Quebec or any other province. Believing that Canada needs a strong federal government to defend and promote national unity, they are by principle reluctant to a decentralization of powers to the provinces.

Two nations, two countries

With secession, many Quebec nationalists think they have the answer to Canada's never-ending constitutional debate. Marginalized after the Patriotes rebellion of 1837-38, the secessionist option was resurrected as a credible solution in the wake of the 1960s Quiet Revolution of Quebec. Some politicians see the independence as the normal conclusion of the Quebec struggle for the conservation of its autonomy within the Canadian federal framework. Some see it in a broader perspective of every people's right to self-determination and what they see as the normal evolution of a 400 years-old former French colony that fell victim to the colonial wars between Great Britain and France.

Positions

Maintain status quo

Official position of the federal government of Canada, an overwhelming majority of Canadians outside Quebec and a minority of people (20%) inside Quebec.

Constitutional reforms

Position of many federalists from English Canada and Quebec. Seen as the only way to avoid secession. This option seems to gather a solid 40% of support in Quebec.

Secession of Quebec

Position of the Quebec sovereignists. Seen as the only way to safeguard Quebec's culture in the long term. This option seems to gather a solid 40% of support in Quebec.