New Distinct Society Law

This article was originally published in Maclean’s magazine on December 11, 1995. Partner content is not updated.

As in the best of elaborately choreographed manoeuvres, it was, on the surface, disarmingly simple.
This article was originally published in Maclean’s magazine on December 11, 1995. Partner content is not updated. As in the best of elaborately choreographed manoeuvres, it was, on the surface, disarmingly simple.

New Distinct Society Law

As in the best of elaborately choreographed manoeuvres, it was, on the surface, disarmingly simple. With one swoop last week, Prime Minister Jean Chrétien cleared three decades of clutter off the constitutional table to make room for a federal move to formally recognize Quebec as a distinct society, with its own veto, by Christmas. But like any polite host, Chrétien had to first warn a select list about the impending upset. On Sunday, Nov. 26, Chrétien telephoned nine provincial premiers (all but Quebec's Jacques Parizeau) to tell them of the majority Liberal government's intention to forsake constitutional niceties and introduce federal legislation designed to meet Quebec's key constitutional demands and win moderate nationalists back to the federalist cause. There was no request for advice and certainly no room for debate. "He outlined to me what he was going to be tabling in Parliament," B.C. Premier Mike Harcourt told Maclean's. But, added Harcourt, "it was more of a courtesy call than a dialogue."

Throughout the interminable constitutional debate that has plagued Canadian politics - culminating in the Oct. 30 Quebec referendum vote that very nearly led to the breakup of the country - approval has never been easily reached. In a bold resolution introduced in the House of Commons last Wednesday, the government abruptly switched conventional direction with an administrative framework to unilaterally accomplish what years of bickering had failed to achieve. In addition to legislation that would recognize Quebec as a distinct society within Canada, Ottawa also offered to lend its sole veto on constitutional matters to four regions: Quebec, Ontario, the Atlantic provinces and the West. And the federal government proposed shifting control of labor-market training to the provinces. Chrétien was adamant that the measures were necessary to rebuild the country and promote "change without revolution, progress without rupture."

The federal initiative - and its most unusual vehicle of delivery - provoked a familiar chorus of protest. In Ottawa, Bloc Québécois Leader Lucien Bouchard denounced the gesture as a "totally unacceptable and minimalist" tactic that offers Quebecers substantially less than the failed 1990 Meech Lake accord provision to enshrine distinct society in the Constitution. Speaking from handwritten notes, Bouchard mocked Chrétien's outdated vision of Quebec as "one of many chicks nicely arranged around the federal mother hen." Reform Leader Preston Manning echoed complaints from British Columbia and Alberta - where premiers objected to being lumped into the western region for purposes of a constitutional veto and expressed concerns about the extent of powers to be granted to Quebec as a distinct society. "It's the same old problem," he told Maclean's. "They picked the two things for which there isn't a lot of support outside Quebec and built their package around that. They're trying to address the concerns of one part of the country without taking into account the concerns of the rest." And, Manning added: "They seem to be making this up as they go along. There is no long-term strategy. They may have thought they could get this over with and get on with other things. Clearly that isn't the way it's going to go."

Perhaps conscious of the rancor that accompanies the opening of the constitutional Pandora's box, most premiers were decidedly more circumspect. As New Brunswick's Frank McKenna noted, the refusal of Bouchard, the heir-apparent to retiring Parti Québécois Premier Jacques Parizeau, to participate in constitutional negotiations limited the options open to federalists. "I don't think this will end up resolving all the problems," McKenna told Maclean's. "But it is a very good down payment on it." Manitoba Premier Gary Filmon concurred with that sentiment. "I think it's important for him to show some movement and to attempt to appeal to Quebecers," said Filmon. "At the same time, I think it's important for him to take action on issues that are significant to people right across Canada."

The Liberal majority of 177 MPs virtually guarantees rapid passage of the unity legislation through Parliament. But last week, experts were already challenging the legitimacy and political wisdom of circumventing traditional avenues of constitutional reform. "What Parliament makes today, Parliament can unmake at a later date," warned University of Calgary political scientist Frederick Morton, who further argued that transferring federal veto rights violates the constitutional amending process.

Legal or not, Ottawa's unilateral concessions to Quebec would significantly alter the constitutional playing field. The western provinces, to begin with, will have to abandon, for the time being, the region's long-standing demand for an elected, equal and effective Senate - a proposed reform that has never found much favor in Quebec. Similarly, the entrenchment of the right to self-government that aboriginal people have long sought appears to have been shunted to the sidelines.

In past negotiations, particularly talks leading up to the doomed 1992 Charlottetown accord that provided for provincial vetoes, an elected Senate and aboriginal self-government, many interest groups used the issue of a veto for Quebec as a handy bargaining chip in their fight for their own demands. By giving it away for free, said University of Calgary political scientist Roger Gibbons, "thirty years of Western thinking about constitutional reform has just been thrown in the trash can."

But in politics, timing is half the battle. Federalists in Quebec and Ottawa consider the initiative as continuing pressure on the separatist forces during the transition between Parizeau and his heir-apparent, Bouchard, who is expected to take over as PQ leader and premier of Quebec in late January. In fact, senior Ottawa Liberals told Maclean's that Chrétien timed his announcement of the unity resolution to follow a Quebec Liberal meeting on Nov. 25. Provincial Liberal Leader Daniel Johnson had hastily summoned 600 party members to a conclave in Montreal to reiterate his party's long-standing demand to entrench the concept of Quebec's "special status" as well as restore the province's constitutional veto. "In the weeks and months to come," Johnson told the Liberal gathering, "gestures that will put us on the path of change must be made in the rest of Canada." Said a senior federal Liberal adviser: "They knew what we were doing; we knew what they were going to do. Johnson has to say things, too." Indeed, Westmount Liberal MNA Jacques Chagnon, a member of Johnson's inner circle of advisers, declared, "frankly, we were all a little skeptical that Chrétien would be able, or even willing, to make a deal. It was one of the reasons why we wanted to establish our own position."

In fact, Ottawa was prepared to go with the package as early as a week after the referendum vote on Oct. 30. Instead, Chrétien waited until a nine-member cabinet committee on national unity, headed by Intergovernmental Affairs Minister Marcel Massé, delivered its interim report and a list of options on Nov. 14, a day after the Prime Minister returned from a trip to the Asia-Pacific region. Privately, Liberal strategists worried that public enthusiasm for concessions to keep Quebec in Canada was waning. "One of the reasons that we argued in favor of moving reasonably quickly is that the longer you're gone from that near-death experience, the less the sense of urgency," Massé told Maclean's. "At present, we think that most Canadians remember how close we were."

To remind them, Chrétien last week evoked the generosity of spirit that galvanized Canadians in the 11th hour of the referendum campaign, illustrated by the massive federalist rally in Montreal three days before the referendum vote, attended by thousands of people from outside Quebec. Recalling the promises of change he made to Quebecers - but neglecting to mention the desperation in the federalist camp that prompted them - Chrétien called on Canadians to rally behind his government's proposals. "It is easier to attack than work together. It is easier to shout than to listen. It is easier to destroy than to build. It is easier, yes, but it is wrong," he told the Commons. "For ourselves, for our children, for our country, the shouters and destroyers have had their say." Deputy Prime Minister Sheila Copps spoke in kind, telling the Commons that "the heart of Canada is Quebec." Her voice choked with emotion and apparently on the verge of tears, Copps added that Canada without Quebec would be "only an empty shell." Unmoved, Bloc MP Michel Bellehumeur told Copps that she should have shed her tears when her leader helped kill the Meech Lake constitutional accord in 1990. He added: "Today, her tears are a little too late - and the only ones responsible are herself and her government."

Such emotional displays aside, the cold reality is that Chrétien's unity proposals also sparked dissension within his own Liberal caucus. Told of the proposed federal legislation only hours before it was made public, disgruntled Liberal backbenchers muffled their disappointment over the lack of consultation. Chrétien ignored pleas by advisers and some cabinet members alike to offer a separate veto to British Columbia, the largest western province, with a population of 3.8 million. Instead, he opted for the four-region model that he promoted when he appeared before Quebec's commission on the province's political and constitutional future in December, 1990. During that same hearing, Chrétien, then the federal Opposition leader, pointedly ignored the issue of distinct society for Quebec, a constitutional status he then objected to because he believed it would override the Charter of Rights.

Ironically, despite almost two decades of constitutional experience, Chrétien, unpopular in his own province, is perhaps the Liberal government's weakest link in its efforts to cobble together political and economic reform that appeals to Quebec separatists and federalists alike. In fact, in the midst of his spirited defence of the federal package last week, Chrétien indulged in an almost boastful display of self-congratulation. "I delivered the goods," he repeated on several occasions. It was a claim that is far from realized.

Maclean's December 11, 1995