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Date: 1981-11-09
By: D.R. Cameron
Citation: Memorandum from D.R. Cameron for Mr. Kirby, Quebec and the Constitutional Agreement (9 November 1981).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

CONFIDENTIAL

November 9, 1981

MEMORANDUM FOR MR. KIRBY

Quebec and the Constitutional Agreement

In the next days and weeks, the government must decide how to apply the constitutional agreement in Quebec, and its decision will have far-reaching consequences. The purpose of this note is to review the options facing the government in the light of these longer-term consequences, and to suggest a course of action for the short-term.

The Context

Although many options are now open to the federal government, they may be divided very roughly into two schools of thought. The first school belongs to the “hardliners”; the second group may be called the “conciliators”.

1. The hardliners believe that the federal government should act firmly, in one way or another, to ensure the application of the constitutional agreement in Quebec, even though the provincial government has not consented. This could be accomplished simply by imposing the constitutional changes on Quebec, or by seeking the direct approval of the people of Quebec to do so, either in a federally-sponsored referendum or in one the PQ may be provoked into holding. This group argues that Quebec cannot be exempted from the agreement or treated differently from other provinces, and that the federal government should not try to avoid a confrontation with the PQ. It is eager to deliver a “knock-out” blow to separatism and welcomes a confrontation with the PQ now, in order to do so. Persons of this view are likely to argue that it will be much harder to fight the PQ in an election or referendum a few years hence when the PM has left the federal stage. They also argue that a second defeat for

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the PQ following upon last year’s referendum would be a very damaging blow from which separatism would not soon recover. And they think that the resolution an the Charter would be very good grounds on which to fight, because the principles they embody are highly popular, even among Quebec francophones.

2. The conciliators argue that it is neither necessary nor prudent to “impose” anything on Quebec, or to pick a fight with the PQ at this time. They are inclined to argue that the constitutional wangles have been too visible for too long and that they should now be played down in Quebec as elsewhere. They argue that continued polarization is not helpful, and that the federal government should not go out of its way to provide the PQ with ammunition or with occasions to incite anti-Canadian sentiment in Quebec. They are concerned that the current constitutional dispute could be used to fabricate a long-lived myth about Ottawa’s high-handed invasion of Quebec’s sovereign powers, a myth that could poison federal politics in Quebec for years to come. They are inclined to attach considerable importance to the position of Mr. Ryan and of the provincial Liberal party, and to think that everything practical should be done to make it possible for the latter to distance themselves from Levesque and to support the constitutional agreement in a manner consistent with the recent resolution of the National Assembly. The conciliators think that it would be possible: to devise a number of acceptable ways to meet the concerns of the people of Quebec; to be seen to be conciliatory rather than aggressive; to nip in the bud any potential myth about the despoliation of Quebec; to undercut any PQ attempts to portray the federal government as intransigent; to rob the PQ of the target it is seeking; and to offer the Quebec Liberal party a way to escape its present entanglements and to support the constitutional package.

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The Course Proposed

This note adopts the view that both approaches may have something to be said for them but that before embarking on the first, the possibilities of the second should be carefully explored. In our view, there is nothing to be gained by precipitous action to “coerce” Quebec at this time, and perhaps something to be lost: harmful and groundless myths could be embedded in the minds of many Quebecers for a long time to come; and the federal government’s potential allies in Quebec might find it more difficult to come to its support, and to the support of the constitutional settlement. We recommend instead that, before taking action of this kind , the federal government take time to assess its long-term consequences. In the meantime, it should explore, and should be seen to explore, all possible means to meet the concerns of the people and of the government of Quebec in the three most sensitive areas.

The Options

1. Language of Education

Of the three areas of concern, language of education is the most sensitive and symbolically the most powerful. In evaluating options for action in this area, the following considerations should be kept in mind:

– Since 1867, no other Canadian province has ever had minority education rights forced on it without its consent (Manitoba came close in 1896) despite many flagrant and well­ remembered abuses, especially in Ontario and the West.

– Even in the current resolution, the federal government has conspicuously declined to “impose” Section 133 on Ontario.

– Quebec has by far the best historical and contemporary record of concern for its linguistic minority.

– The education rights and opportunities of Quebec anglophones are not fragile or threatened and it is un likely that they would be altered or improved by such language of education provisions as are likely to be included in the constitutional resolution. This is not the case for minorities in other provinces.

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– The sociological condition of the minority in Quebec and the francophone minorities elsewhere a e not comparable, and many Quebecois rightfully reset crude attempts to equate them.

– The francophone population in Quebec is the only provincial linguistic majority which has ever bee demographically and institutionally vulnerable (in relation to its minority) and which continues to harbour deep-seated fears of becoming so again at some future time.

– The moral case for minority rights is very strong and can be expected to prevail in Quebec, as it ultimately has elsewhere, because of Quebec’s historic commitment to the fair treatment of minorities (both its own and others’) and because of the contemporary attitudes of francophone Quebecois as revealed in opinion polls.

– The argument in Quebec is not about substance (on which every one is agreed) but on process. The wrong process could provoke unnecessary opposition, even from those who would otherwise support the substance of what is done.

– Ryan and the PLQ are not opposed to the entrenchment of minority rights but they are committed to the view that changes of this magnitude to the powers of the provincial government should require the prior consent of the National Assembly.

The following six options in the area of language of education should be considered in the light of the preceding considerations:

1. Language rights could be treated in the same way that mobility rights have been handled in the constitutional accord. That is to say, they could be made subject to certain social conditions, in this case demographic or linguistic trends in a province or in some part of a province.

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The advantage of this approach is that it would address directly the insecurity felt by franco­ phone Quebecois. The disadvantage is that it would not, of itself, meet the concerns in the area. of process (provincial consent); it would qualify language rights in a way that many might find morally repugnant (there are already objections to the “where numbers warrant” condition on that score); and it would present a very delicate task to the courts. Perhaps its chief disadvantage is that it would seem to confer a very questionable right on a majority language group to limit the growth of a minority.

2. Language rights (in Quebec alone , or in all the provinces) could be made subject to a notwithstanding clause.

The advantage of this option, like the preceding one, is that it would offer reassurance to a linguistic majority which felt itself potentially vulnerable to demographic trends. The disadvantages are also the same: it would not, in itself, address the process question; and it would qualify language rights in a way that would potentially negate their value, especially outside Quebec.

3. The language of education clause could be made subject to an “opting-in” provision, for Quebec alone.

This approach would have the advantage of providing Ryan and the PLQ with a way to distance themselves from the PQ, to support the constitutional package and to urge that Quebec now “opt in”.          That Quebec would opt in at some future date is almost certain, but the country might have to wait for a provincial election or two. The greatest advantage of this option is that it puts paid to any allegations of coercion by the federal government, or unilateral invasion of a provincial jurisdiction without provincial consent.

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Its greatest disadvantage is that it leaves the language of education rights of the anglophone minority in Quebec unprotected for the time being, and it seems to treat provinces unequally. On the other hand, the Quebec minority is not one in urgent need of protection; the other provincial governments have not insisted that Quebec be treated like the others; and they were not coerced even when they ill­ treated their minorities in a way that Quebec never has.

4. The Charter’s provision for minority language rights could include a separate clause applicable to Quebec alone, and the Quebec clause could remain unproclaimed for the time being until the situation in Quebec has been clarified – or perhaps until provincial consent has been obtained.

This option has the advantages of the previous .one, and the added advantage that it would leave the federal government free to act if changing circumstances warranted such action. It would have the corresponding disadvantage that the triggering mechanism would not be left unequivocally in Quebec hands.

Consequently the jurisdictional question would not have been settled, and the overtone of potential coercion would remain, no matter how benign the federal government declared its intentions to be.

5. The federal government could simply delay proclamation of the language of education provision for all provinces for the time being , in order to allow time for the situation in Quebec to resolve or clarify itself.

This option would have the advantage of buying time, but it would have the disadvantage of making minority rights in the other provinces conditional upon Quebec affairs. This would deny rights to some minorities even if for a relatively brief time, and it would be difficult to avoid charges of blackmail in Quebec , even if that were not the intention of the federal government.

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6. The proclamation of the language rights clause for all provinces could be made explicitly conditional upon the consent of Quebec.

While this option would apply pressure to Quebec, the pressure would backfire. It would seem to be a case of bargaining for rights and would undermine the moral position which the federal government has used to justify action on the constitutional resolution. It would be denounced as a form of blackmail in Quebec and has already been rejected by the premiers of the other provinces.

Our conclusion is that, of the preceding options, those most deserving of consideration are opting-in (3), delayed proclamation for Quebec (4), and a notwithstanding clause for Quebec alone (2). It should be noted that the latter could be combined with either of the other two options, and might improve them if it were. In the same way, any of these options could and probably should be combined with a redrafting of the language of education rights to bring them into harmony with the so-called “Canada clause”.

2. Fiscal Compensation

While it is difficult at first glance to see how the concerns of Quebec in the area of fiscal compensation could be met, there may be options deserving of study – and the very fact of studying them might be the kind of conciliatory action which would undermine any attempts by the PQ to portray Ottawa as intransigent.

For example, it might be possible to include a ceiling condition similar in principle to the one that has been employed for mobility rights. Provinces might be entitled to some form of compensation if their contribution to the federal treasury were not above a certain ceiling; or as long as the federal contribution did not exceed a certain portion of the total federal expenditure for the proposed national initiative, or did not exceed a certain portion of any corresponding provincial measure. The point here is not to suggest any particular mechanism but to suggest that time ought to be taken to explore all practical suggestions which do not undermine the federal governments basic principles or its fiscal capacity.

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The very fact of studying such options, and of being seen to study them, would help to take the wind out of the sails of the PQ, if its aim were to portray the federal government as intransigent. At the closing session of the FMC, Premiers Lougheed and McLean both called on the federal government to explore all fair and reasonable ways of compensating governments who might wish to opt out of future constitutional amendments. If the federal government were to respond to this invitation either through an internal study of its own, or a study undertaken in cooperation with the provincial governments, the PQ would find it very difficult to make a case against the federal government, and the PLQ would find it all the easier to climb on board the constitutional settlement.

3. Mobility Rights

In our view, mobility rights do not present a major problem in Quebec. The federal government has already gone a long way to take the sting out of them for provinces facing problems of local unemployment. In this form, mobility rights should be relatively easy to sell in Quebec and the challenge would seem to be primarily a matter of communications: to convey the degree to which Quebec’s margin of manoeuvre is protected, the slight degree to which Quebec is likely to be affected, and the advantages for Quebecers to enjoy ability rights in other provinces.

However, if the federal government wished to undermine the PQ case altogether, it could consider making mobility rights subject to an opt-in provision for Quebec          (or some of the other alternatives, such as delayed proclamation or a non obstante, suggested for language of education above). In our view, this does not appear necessary at this time but could be kept in mind as events unfold or in the context of any discussions which may be held with the PLQ.

Conclusion

The federal government should not commit itself too quickly to a coercive course of action in Quebec, or to “impose” the constitutional accord on that

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province. There are both tactical reasons and reasons of substance to avoid premature commitments. Tactically, it makes sense to keep the PQ off balance by holding our options open. As far as substance is concerned, the Prime Minister has offered to pursue discussions with Quebec to see whether differences can be ironed out and agreement can be rescued. Some time will be required to follow through on this commitment. In the meantime, the federal government should evaluate those options, especially in the area of language, which would help to portray the federal government as flexible, which would preclude the development of premature myths about the supposed coercion of Quebec by “English Canada” or about another conscription crisis, which would allow the people of Quebec some time to make up their own mind on the language issue, that would meet the tactical needs of the provincial as well as the federal Liberal parties, and that might help to smooth passage of the resolution through the House of Commons.

D.R. Cameron

R. Heintzman/djs